First Niagara Bank Vs. D'Andrea, Daina D. Aka Daina Scott I

Case Number: 23BBCV00663 Hearing Date: July 26, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B michael green , et al. , Plaintiffs, v. royal garden apartments inc., Defendant. Case No.: 23BBCV00663 Hearing Date: July 26, 2024 [ TENTATIVE] order RE: motion to compel attendance; and motion seeking a protective order BACKGROUND A. Allegations Plaintiffs Michael Green, Mia Cordes, Delia Reed, Zarinah Reed, and Jimmie Henry (Plaintiffs) allege that they reside at 6705 Riverton Avenue, North Hollywood, CA 91606 in various units. Michael Green and Mia Cordes reside in Apartment 13, Jimmie Henry resides in Apartment C1, and Delia Reed and Zarinah Reed reside in Apartment 21. Defendant Royal Garden Apartments Inc. (Defendant) is alleged to be the owner, agent, and manager of the 6705 Riverton Avenue property. Plaintiffs allege that the premises have an infestation of roaches and rodents, lack adequate gas facilities, and lack smoke detectors. They allege that the premises are uninhabitable. The complaint, filed March 23, 2023, alleges causes of action for: (1) breach of warranty of habitability; (2) breach of covenant of quiet enjoyment; (3) nuisance; (4) negligence (Civ. Code, §§ 1714(a), 3333); (5) premises liability (negligence per se); (6) unfair business practice and unfair competition; and (7) IIED. On August 16, 2023, Plaintiffs named J.K. Residential Services, Inc. as Doe 1. B. Motions on Calendar On June 12, 2024, Defendant filed a motion to compel the attendance, uninterrupted and without coaching testimony and the production of documents, of Plaintiff Michael Green. On June 28, 2024, Plaintiff filed an opposition brief. On July 2, 2024, Defendant filed a reply brief. On June 12, 2024, Defendant filed a motion for protective order preventing Plaintiffs counsel from coaching the deponent and speaking on the cell phone during the deposition or, alternatively, appointing a discovery referee at the expense of Plaintiff. On June 26, 2024, Plaintiff filed an opposition brief. On June 27, 2024, Defendant filed a reply brief. DISCUSSION RE MOTION TO COMPEL DEPOSITION Defendant moves to compel the deposition of Mr. Green, uninterrupted and without coaching testimony, and for the production of documents. Defendant argues that it has attempted to take Mr. Greens deposition on multiple occasions, only to be notified about last-minute changes to time, location, and participation of Mr. Green and Plaintiffs counsel. Defendant argues that Plaintiffs did not object to Defendants deposition notices and that Plaintiffs have not produced documents. The parties met and conferred regarding the deposition of Mr. Green set for May 14, 2024. On May 9, 2024, Plaintiffs counsel confirmed the deposition and stated that the time should be at 12:00 p.m. as Mr. Green no longer lived in California but would be in town that day. (Mot., Ex. C.) On May 13, 2024, Defendant accommodated the request by contacting the court reporter and moving the start time. (Mot., Ex. C.) That same day, Plaintiffs counsel emailed stating that Mr. Green would not be available in person, but could appear remotely as he lived in Las Vegas, Nevada. (Mot., Exs. E-G.) Defense counsel responded that the last-minute changes were unacceptable and that the deposition would be going forward at the noticed time and location. (Mot., Ex. G.) On May 14, 2024 at 10:00 a.m., the deposition went forward, but Plaintiffs counsel and Mr. Green did not appear, such that a notice of nonappearance was taken. (Mot., Ex. I.) Plaintiffs argue that they informed defense counsel that Mr. Green lived in Nevada and would be available to appear for his deposition remotely or in Las Vegas. They argue that despite attempts to set another deposition date or set a remote deposition, Defendant has refused to meet and confer regarding Mr. Greens deposition. Prior to the deposition going forward on May 14, 2024, there appears to have been miscommunication between the parties regarding Mr. Greens whereabouts or his residence. On May 9, 2024, Plaintiffs counsel sought to push back the deposition time, stating that Mr. Green would be in town and available to attend his deposition. On May 13, 2024, Plaintiffs counsel informed defense counsel that Mr. Green did not live in California and would now be made available for a remote deposition. It is not clear when Plaintiffs counsel became aware of Mr. Greens residency and whether this information could have been disclosed earlier. However, based on the papers provided by the parties, it appears that Plaintiffs counsel disclosed Mr. Greens Nevada address on May 13, 2024one day before the noticed deposition. The parties do not dispute that Defendant may take the deposition of Mr. Green. Rather, Plaintiffs counsel has offered to make Mr. Green available remotely or in person in Las Vegas, although notice of Mr. Greens new residency was not provided until only a day prior to the noticed deposition date. Further, Defendant knew that Mr. Green and Plaintiffs counsel were not able to make the deposition on May 14, 2024 at 10:00 a.m., but proceeded to conduct the deposition for that time. (In the opposition brief, Plaintiffs argue that although they gave notice of Mr. Greens non-residency, defense counsel failed to grant the accommodation for a slight change of time to allow Mr. Green to travel to California. [Opp. at p.5.]. However, this argument appears to contradict the emails wherein Plaintiffs counsel stated that Mr. Green would be available remotely for his deposition or that Defendant could conduct the deposition in Las Vegas.) At this time, the Court will grant the motion to compel Mr. Greens deposition as neither party disputes that Mr. Greens deposition should go forward. However, the parties should meet and confer regarding how the deposition will be conductedin person or remotely. Defendant should re-notice Mr. Greens deposition, taking into consideration his non-residency in California. (CCP § 2025.250(a) [ Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.].) Further, as no documents were produced and the request for documents was not objected to nor addressed in the opposition brief, Mr. Green is ordered to produce the documents requested prior to the deposition. Defendant seeks $2,589.46 in sanctions against Mr. Green and his counsel, which accounts for $1,572.50 in attorneys fees and $1,016.85 for the cost of the non-appearance. (Flesch Decl., ¶¶19-23.) Plaintiffs seek $3,200 in sanctions against Defendant for the time spent by counsel to oppose the motion. (Ekpenisi Decl., ¶21.) At this time, the Court declines to award sanctions on this motion. The parties should have engaged in further meet and confer efforts once they realized that the May 14, 2024 deposition would not be going forward as discussed in their emails and based on Mr. Greens updated residency. While the process of scheduling the deposition may have been frustrating for both counsel, both counsel are tasked with acting with civility towards one another in scheduling a deposition. (See LASC Local Rule, Appendix 3.A. Guidelines for Civility in Litigation at (e)(2) [In scheduling depositions, reasonable consideration should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the clients rights.].) If further issues arise regarding the inability to conduct Mr. Greens deposition or Mr. Greens deposition was unnecessarily delayed, the Court will consider imposing sanctions at that time. DISCUSSION RE MOTION FOR PROTECTIVE ORDER Defendant moves for a protective order so that it can depose Plaintiffs, uninterrupted and without coaching by Mr. Ekpenisi. CCP § 2025.420 states in relevant part: (a) Before, during, or after a deposition , any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This pr otective order may include, but is not limited to, one or more of the following directions: & (5) That the deposition be taken only on certain specified terms and conditions. (CCP § 2025.420.) Defendant argues that Plaintiffs counsel Macauley Ekpenisi has a history of disruptive conduct during depositions and last-minute requests prior to depositions going forward. With respect to Plaintiff Mia Cordes deposition scheduled for May 22, 2024 at 10:00 a.m., Mr. Ekpenisi requested on May 20, 2024 that the deposition start at 11:30 a.m. and be conducted remotely. On May 21, 2024, Mr. Ekpenisi asked that Ms. Cordes deposition be conducted at 2:00 p.m., as he had 3 different unlawful detainer actions in Pasadena courthouse on May 22, 2024. Defendant denied these requests and Plaintiffs counsel confirmed that the deposition would go forward. Defendant states that Ms. Cordes deposition began on May 22, 2024 at around 10:00 a.m., but during the deposition, Mr. Ekpenisi got on his cell phone, began talking about an unrelated matter with a federal court judge, and left the deposition. (Mot., Ex. J.) Upon his return, Defendant argues that Mr. Ekpenisi began coaching Ms. Cordes before she had an opportunity to answer a question (or began answering deposition questions himself), and when instructed not to coach Ms. Cordes, Mr. Ekpenisi began pointing to documents to inform Ms. Cordes how to respond. (Mot., Ex. K, Ex. L.) Defendant argues that similar conduct occurred in Plaintiffs Zarinah and Delia Reeds depositions as Plaintiffs counsel showed up 45 minutes late to the depositions, made phone calls during the depositions, and coached the witnesses. (Mot., Ex. M [Zarinah Reed Depo. re start time of deposition]; Exs. N and O [Mr. Ekpenisi answering questions on Zarinah Reeds behalf]; Ex. P [Mr. Ekpenisi answering questions on Delia Reeds behalf during her deposition].) Defendant also refers to the motion to compel Mr. Greens deposition to argue that Mr. Ekpenisi has a history of making last-minute requests for depositions. In opposition, Plaintiffs argue that they requested accommodations for their counsels scheduling conflicts, but Defendant refused to make such accommodations before the depositions or during the depositions (when Mr. Ekpenisi asked for a short break). However, Plaintiffs have not shown why they did not object to deposition notices based on scheduling conflicts or seek accommodations earlier. Based on the ordinary business of the courts, advance notice of hearings is given to litigants and their counsel regarding hearing dates and times. Further, the deposition transcript shows that Mr. Ekpenisi disrupted his own clients answer by seeking a short break for himself to handle a federal matter. (See Mot., Ex. J at pp.12-13.) Plaintiffs argue that the motion is not accompanied by a meet and confer declaration, such that this motion is improper. However, based on counsels interactions over email and at the deposition, it appears that further meet and confer efforts on this particular topic would have been ineffective. For example, during Ms. Cordes deposition, when defense counsel asked Mr. Ekpenisi whether he understood that when defense counsel was asking Ms. Cordes a question, he was expecting an answer from her, Mr. Ekpenisi stated: No, its not. (Mot., Ex. K at p.20.) Based on the deposition record, Mr. Ekpenisi responded to questions on behalf of his clients/the deponents despite being asked repeatedly not to answer or coach the witness. There appears to be a course of conduct regarding Mr. Ekpenisi making last-minute requests for accommodations of depositions (to move the times or to make them remote), appearing to the depositions late, interrupting defense counsel or the witness, and answer on behalf of his clients or coaching them on how to respond to deposition questions. For these reasons, the motion for a protective order is granted such that the Court will order Mr. Ekpenisi to attend depositions in a timely matter and allow the depositions of his clients to go forward without phone call interruptions (i.e., other court hearings and unrelated matters) and without coaching by Mr. Ekpenisi. Mr. Ekpenisi may still make objections on the record during a deposition, but may not instruct his clients on how to answer or answer deposition questions on their behalf except on grounds of privilege. In the notice of motion, Defendant seeks $3,211 against Plaintiffs counsel, while the conclusion in the memorandum of points and authorities seeks $3,630 against Plaintiffs. Defense counsel Daniel G. Fleschs declaration seeks $3,211 in sanctions (= 10.5 hours x $185/hour, plus $1,268.60 in costs for the deposition of Ms. Cordes). (Flesch Decl., ¶¶27-31.) In opposition, Plaintiffs seek $3,600 in sanctions. The Court will award sanctions to Defendant in the reasonable sum of $2,500 for counsels time spent on this matter, plus $1,268.60 for Ms. Cordes suspended deposition. CONCLUSION AND ORDER Defendant Royal Garden Apartments, Inc.s motion to compel the deposition of Plaintiff Michael Green is granted. The parties are ordered to meet and confer regarding a mutually agreeable date and time to conduct the deposition and whether the deposition will be proceeding remotely or in person. Following meet and confer efforts, Defendant is ordered to re-notice Plaintiff Michael Greens deposition on the mutually agreeable date and time or, if the parties were unable to agree upon a date, within 60 days of this order. Plaintiff is ordered to produce documents responsive to the request for documents prior to the deposition date. No sanctions will be awarded on this motion. Defendant Royal Garden Apartments, Inc.s motion for a protective order is granted such that the Court will order Macauley Ekpenisi to attend depositions in a timely matter and allow the depositions of his clients to go forward without phone call interruptions (i.e., other court hearings and unrelated matters) and without coaching by Mr. Ekpenisi. Mr. Ekpenisi may still make objections on the record during a deposition, but may not instruct his clients on how to answer or answer deposition questions on their behalf except on grounds of privilege. Plaintiffs counsel is ordered to pay monetary sanctions in the amount of $3,768.60 to Defendant, by and through counsel, within 20 days of notice of this order. Defendant shall provide notice of this order. DATED: July 26, 2024 ___________________________ John Kralik Judge of the Superior Court

Real Property/Housing Court Law and Motion Calendar for July 26, 2024 line 4. DEFENDANT KEJERA ROBERTS, SANDERA LEWIS DEMURRER TO AMENDED COMPLAINT SUSTAINED with leave to amend. Plaintiff's late-filed (July 16, 2024) opposition is stricken, but considered. (In which Plaintiff admits there is a scrivener's error and requests leave to amend.) =(501/CFH) 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.

CV-22-005039 – COUNTY OF STANISLAUS vs SHAIBI, YEHIA AHMED QASSEM – Plaintiff’s Motion for Terminating Sanctions and Monetary Sanctions Against Defendants Yehia Ahmed Qassem Shaibi, Trustee, and Fatima Kassim, Trustee, and/or their Counsel for Failure to Comply with Court Orders – MOOT, as settled by the parties. THE COURT’S PHONE SYSTEM MAY BE DOWN. If you desire a hearing, you must email your request to civil.tentatives@stanct.org before 4:00 p.m. today. In addition, your email must list the email addresses of all counsel who will appear at the hearing. Please refer to the Stanislaus Superior Court website for call-in instructions for the hearing. If VCourt is unavailable the website will post Zoom Meeting credentials for Dept. 24. The hearing will proceed via Zoom if VCourt is still unavailable.

Case Number: 21STCV37556 Hearing Date: July 26, 2024 Dept: F43 Dept. F43 Date: 7-26-24 Case #21STCV37556, Hamid Reza Mirshojae, et al. vs. 5975-5999 Topanga Canyon Blvd LLC, et al. Trial Date: N/A MOTION FOR ATTORNEY FEES MOVING PARTY: Plaintiffs Hamid Reza Mirshojae and Woodland Hills Medical Clinic II, Inc. RESPONDING PARTY: Defendants 5975-5999 Topanga Canyon Blvd, LLC and Ahang Mirshojae RELIEF REQUESTED Plaintiffs are requesting attorney fees in the amount of $ 619,675 , plus $17,036.01 in costs, from Defendants. RULING : Motion for attorney fees is granted at a reduced amount. No costs will be awarded at this time. SUMMARY OF ACTION Plaintiff Hamid Reza Mirshojae (Hamid) and Defendant Ahang Zarin Mirshojae (Ahang) were formerly married and were engaged in extensive litigation against each other prior to 2017. The assets in dispute were in excess of $20 million. At mediation, Hamid and Ahang entered a complex settlement agreement. Immediately after, Hamid alleges that Ahang breached the settlement agreement, and he was forced to incur attorney fees to enforce various terms of the agreement. Eventually, Hamid filed the current suit to enforce the settlement agreement on October 12, 2021. Ahang accused Hamid and his counsel of inducing her to sign the settlement agreement and sued him for $7 million in damages. This Court eventually struck Ahangs complaint based on Plaintiffs anti-SLAPP motion and determined that Ahang was a vexatious litigant. After this ruling, Ahang attempted to disqualify Hamids lead counsel, though that motion was rejected. Hamid alleges that he has incurred significant legal fees over the course of this litigation. Finally, after two years of litigation, the parties settled via a 998 Offer on November 17, 2023. The 998 Offer required Defendants to pay Plaintiffs $270,000 and reasonable fees and costs as determined by the Court. Plaintiffs are requesting attorney fees pursuant to the part of the 998 Offer that allows for reasonable fees to be paid. Plaintiffs are requesting $619,675 in attorney fees from Defendants. Plaintiffs argue in their motion that the attorney fees and hourly rates are reasonable. Plaintiffs evidence in support of their request for attorney fees included a declaration from their attorney, Christopher Beatty, and billing statements (with some redactions) that show which attorney worked on a task, what the task was, and how much time was spent on the task. (Beatty Decl., Ex. H.) The Beatty Declaration also includes a table which shows the hourly rates of the attorneys who worked on the case and their hourly rates at different times. (Beatty Decl., ¶ 35.) Christopher Beattys hourly rates were $950 (for 2.5 hours in 2021), $975 (for 19.2 hours in 2022), and $1,300 (for 1.5 hours in 2022 and 71.6 hours in 2023). Tami K. Sims hourly rate was $1,115 (for 83.4 hours in 2023). Trevor T. Garneys hourly rate was $955 (for 87.8 hours in 2023). Arron J. Paks hourly rate was $705 (for 277.3 hours in 2023). Minh-Van Dos hourly rates were $795 (for 0.5 hours in 2021) and $840 (for 76.1 hours in 2022). Benjamin Mandels hourly rate was $595 (for 89.6 hours in 2022). Finally, Scarlet Speakmores hourly rate was $350 (for 38.8 hours in 2022). The total lodestar was calculated by multiplying each of these attorneys hourly rate by their hours worked then adding them all together. The total hours worked for the attorneys totaled 748.3. The total lodestar amount, as previously noted, is $619,675. Plaintiffs have also requested costs in the amount $17,036.01. However, costs are awarded pursuant to California Rules of Court, Rule 3.1700. If Plaintiffs wish to request costs, Plaintiffs should file a memorandum of costs at the appropriate time. Defendants Evidentiary Objections to the Declaration of Keith M. Maziarek: Sustained: Entire Declaration (irrelevant), Paragraph 11 Overruled: None Plaintiffs Evidentiary Objections to the Declaration of June D. Coleman and the Declaration of Raffi Kassabian: The individual evidentiary objections presented by Plaintiffs to these two declarations are not consecutively numbered. Typically, when written objections to evidence are filed, the written objection must be number consecutively. (See Cal. Rules of Court Rule 3.1354 (applies to written objections to evidence for summary judgment motions).) While Plaintiffs listed them by paragraph number from the declarations, this is not necessarily effective, because in some instances Plaintiffs objected to different sentences from the same paragraph and listed them separately with the same paragraph number. The Court will not rule on the individual evidentiary objections based on this procedural deficiency. Plaintiffs have objected to the entire Coleman Declaration on the basis that it is improper expert testimony because Coleman has not shown any special knowledge, skill, etc., related to billing for these types of cases pursuant to Evidence Code § 720. The Court has determined that Coleman has sufficiently demonstrated her special knowledge as a fee expert with this declaration and her recently submitted supplemental declaration. Plaintiffs objection to the entire Coleman Declaration is overruled. On April 9, 2024, a hearing was held on Plaintiffs motion for attorney fees. That same day, the Court issued a ruling on the submitted matter requesting that the parties submit additional briefing and that Plaintiffs submit invoices that do not redact the lawyers hourly rates or the amounts billed, along with supplemental points and authorities supporting their fee requests in light of that information. On May 24, 2024, Plaintiffs submitted their supplemental brief. In their brief, Plaintiffs argue that the Court should award standard hourly rates and that the fees sought for all tasks are reasonable. Plaintiffs submitted new billing records that still contain some redactions, but they do not redact the lawyers hourly rates or the amounts billed. On June 25, 2024, Defendants submitted their supplemental opposition brief. Defendants argue that the Court should significantly reduce the fees requested by Plaintiffs. Defendants also argue that the Court should consider Defendants expert declaration. Defendants also acknowledge that Plaintiffs conceded that the actual hourly rates and amounts billed are not privileged. ANALYSIS A prevailing party is entitled to recover its attorneys fees when authorized by contract, statute, or law. (See CCP § 1033.5(a)(10); Cal. Civ. Code § 1717(a).) A successful party means a prevailing party, and [a party] may be considered prevailing parties for attorneys fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. ( Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178.) Plaintiffs are the prevailing party by virtue of the fact that the parties settled in Plaintiffs favor via the 998 Offer. Plaintiffs have requested a total of $619,675 in attorney fees. Defendants previously opposed Plaintiffs motion on the basis that Plaintiffs agreed only to recover fees actually incurred and according to proof in the 998 Offer, and Defendants argued that Plaintiffs have not provided this proof. However, this argument was resolved with Plaintiffs supplemental brief, as Plaintiffs have now provided unredacted hourly rates and amounts billed. Plaintiffs attorney Christopher D. Beatty acknowledges in his supplemental declaration that the actual amount charged to the client was $543,156. (Beatty Supp. Decl., ¶ 5.) Defendants argue in their supplemental opposition that this should be the baseline from which any reductions in the requested amount should be made. Defendants argue that Plaintiffs should only be able to recover fees actually incurred because that is what the 998 Offer between the parties allowed. (See San Dieguito Pship, L.P. v. San Dieguito River Valley Regl Open Spake Park Joint Powers Auth. (1998) 61 Cal.App.4th 910, disapproved on other grounds by PLCM Group v. Drexler (2000) 22 Cal.4th 1084.) The Court agrees. Plaintiffs should only recover the fees actually incurred, which in this case is, at a maximum, $543,156. Next, Defendants contest the reasonableness of the fees incurred by Plaintiffs. In determining the reasonableness of fees, courts look to the factors from Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, disapproved on other grounds by Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68 n.5. The factors from Wollersheim are (1) the amount of money involved in the litigation; (2) the nature of the litigation and its difficulty and the intricacies and importance of the litigation; (3) the skill required and employed in handling the litigation, the necessity for skilled legal training and ability in trying the case, and counsels education and experience in the particular type of work involved; (4) the attention given to the case; (5) the success of the attorneys efforts; and (6) the time consumed by the litigation. ( Id. ) Plaintiffs argued in the initial motion that they met all of these factors. First, Plaintiffs argue that large amounts of money were involved in this litigation because of Ahangs cross-complaint for $7 million and the fact that the original settlement agreement divided the parties assets that were valued in excess of $20 million. Next, for the second factor, Plaintiffs argue that the nature of this case was an emotional case between two ex-spouses and business partners with significant assets at issue, and Ahang had been determined by the Court to have engaged in fraud. For the third factor, Plaintiffs argued that this was a complex case that required an experienced legal team to handle it, and Beattys team were the logical ones to handle it because Beatty had handled the cases that led to the settlement agreement. For the fourth factor, Plaintiffs argued that their counsel had to devote significant attention to this case. For the fifth factor, Plaintiffs argued that their counsel had success throughout the case in prevailing on the anti-SLAPP motion and defeating the attempt to disqualify Beatty, as well as being the prevailing party for the 998 Offer. Finally, for the sixth factor, Plaintiffs argued that this case consumed considerable time and went on for two years and would have gone on much longer if Hamid had not accepted the 998 Offer. Defendants argue that the attorney fee award should be reduced as the hours billed are excessively unreasonable. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. ( Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990-991(citing Serrano v. Unruh (1982) 32 Cal.3d 621, 635).) This Court previously acknowledged in its tentative ruling the apparent excessive billing for several of Plaintiffs motions: the Anti-SLAPP Motion (160.5 hours), Opposition to Motion to Disqualify (96.5 hours), Demurrer (90.2 hours), Motion for Attorney fees re Anti-SLAPP Motion (49 hours), and Motion to Quash Summons (38.6 hours). This Court also suggested reducing the time spent on those motions by 25%. Defendants argue that they should be reduced by at least 60% because they are beyond excessive. Other specific tasks that Defendants argue were excessively billed were the 4.0 hours for a half-page notice of continuance; 12.1 hours for a subpoena with 8 document requests; 14.7 hours spent on two identical subpoenas with 6 document requests; 22.3 hours spent on 3 page ex parte application and 2 page declaration to advance a hearing date; 18.3 hours preparing for and drafting a mediation brief; and 10.3 hours on generic case analysis over 48 entries. Defendants argue that the Court should also take into account all of these minor issues in awarding the attorney fees. Defendants also argue that the at least 209.5 hours spent in relation to the Anti-SLAPP motion was beyond excessive and should be reduced by more than 25%. Defendants cite a case where the Court of Appeal affirmed a reduction in attorney fees and costs related to an Anti-SLAPP motion from $112,288.63 to just $23,000, with the Court of Appeal stating that claiming 200 hours of work & seems excessive and that such a motion should not have been such a monumental undertaking. ( Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1248-1252.) Defendant Finally, Defendants argue that the Court should consider Defendants expert declaration because it would be admissible because the experts declaration included descriptions of her experience as a fee expert. (See Coleman Decl., ¶¶ 3-10, 14, and 15.) The Court previously sustained Plaintiffs objections to the Coleman Declaration, but in light of Defendants arguments and Colemans supplemental declaration, the Court will consider Colemans declaration. In light of all of the foregoing, the Court believes that some reduction of the requested fees is necessary. Both the previously indicated major issues and the minor issues that Defendants have brought to the attention of the Court should be reduced. The amount that the Court will start with is $543,156 in fees actually incurred. The Court previously considered reducing certain fees by 25%. Defendants request an across the board reduction of 60%, which would be $217,262 in fees awarded. Alternatively, Defendants request that the Court do an across the board reduction of 25%, since that percentage is what the Court previously found was appropriate. Based on both the major and minor issues with the billing records, the Court agrees that an across the board reduction is appropriate. The Court also finds that an across the board reduction of 25% is reasonable. That would make the fee award $407,367. The Court will award this amount. Plaintiffs have demonstrated that their attorneys hourly rates are rates are reasonable. Furthermore, this was a complex class requiring a lot of motion practice, particularly where the Anti-SLAPP motion is concerned. Plaintiffs have provided proof of the amount of time spent on the case through the now-unredacted billing statements. CONCLUSION Plaintiffs motion for attorney fees is granted in the amount of $407,367.00. Costs should be requested in a memorandum of costs. Moving party to give notice.

Case Number: 21BBCV00739 Hearing Date: July 30, 2024 Dept: P [TENTATIVE] ORDER GRANTING DEFENDANT AND CROSS-COMPLAINANT NOHO PROPCO, LLCS MOTION FOR LEAVE TO FILE A THIRD AMENDED CROSS-COMPLAINT I. INTRODUCTION This is an action arising from the alleged breach of a contract concerning construction of two apartment buildings, retail space, and subterranean parking. On August 19, 2021, Plaintiff Snyder Langston Residential, LLC (Plaintiff) filed a Complaint against Defendants Noho Propco LLC (NPL) and Does 1 through 100, inclusive, alleging causes of action for: (1) Breach of Contract; (2) Labor and Materials Furnished; (3) Foreclose Mechanics Lien; and (4) Statutory Violation of Civil Code sections 8810 et seq . On September 30, 2021, NPL filed an Answer to the Complaint. Also, on such date, NPL filed a Cross-Complaint against Plaintiff for, among other causes of action, breach of contract, misrepresentation, and negligence. On October 26, 2021, this action was deemed related to One Silver Serve, Inc. v. Synder Langston Residential, LLC , LASC Case No. 20BBCV00846, which was filed on November 19, 2020. (10/26/21 Minute Order.) Case No. 20BBCV00846 was deemed the lead case. (10/26/21 Minute Order.) On January 18, 2022, NPL filed a First Amended Cross-Complaint (FAXC) against Plaintiff alleging causes of action for: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; and (3) Negligence. On March 2, 2022, Plaintiff filed the operative First Amended Complaint (FAC) against NPL alleging causes of action for: (1) Breach of Contract; (2) Labor and Materials Furnished; (3) Foreclose Mechanics Lien; and (4) Statutory Violation of Civil Code sections 8810 et seq . On May 26, 2022, NPL filed the operative Second Amended Cross Complaint (SAXC) against Plaintiff; J.S. Egan Design, Inc.; Don E. Empakeris Architects; Jayco-Cal Engineering, Inc.; Kaplan Gehring McCarroll Architectural Lighting, Inc.; PE&C Civil Engineering, LLC; SQLA, Inc.; Sacharias Vorgias Consulting Electrical Engineering, Inc.; Burnett & Young Shoring Engineers, Inc.; John Labib & Associates, Structural Engineers; Vivian C. Tanamachi; Salamoff Design Studio, LLC; 6th Generation, Inc.; and Roes 1 through 100, inclusive (collectively, Cross-Defendants) alleging causes of action for: (1) Breach of Contract; (2) Breach of Covenant of Good Faith and Fair Dealing; (3) Negligence; (4) Breach of Contract; (5) Negligence/Professional Negligence; (6) Express Indemnity; and (7) Equitable Indemnity/Apportionment. On November 9, 2022, Cross-Defendant Don E. Empakeris Architects filed a Cross-Complaint against Plaintiff and Moes 1 through 50 alleging causes of action for: (1) Equitable/Implied Indemnity; (2) Contribution; (3) Apportionment of Fault; and (4) Declaratory Relief. On December 28, 2023, pursuant to requests for dismissal filed by NPL, the following Cross-Defendants were dismissed from the SAXC: John Labib & Associates, Structural Engineers; Salamoff Design Studio, LLC; Kaplan Gehring McCarroll Architectural Lighting, Inc.; Burnett & Young Shoring Engineers, Inc.; 6th Generation, Inc.; SQLA, Inc.; PE&C Civil Engineering, LLC; and J.S. Egan Design, Inc. On March 27, 2024, this action was reassigned to the Honorable Jared D. Moses sitting in Department P at Pasadena Courthouse effective April 2, 2024. On June 3, 2024, NPL filed and served the instant Motion to File a Third Amended Cross-Complaint. The motion is made on the grounds that NPL has claims for damages against the remaining Cross-Defendants that said Cross-Defendants dispute remain [sic] and have sought to file this Third Amended Cross-Complaint to be clear on the remaining damages sought in this action. (Not. of Mot. at p. 2:3-6.) As of July 25, 2024, the motion for leave to amend is unopposed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) II. LEGAL STANDARD Civ. Proc. Code §473, subd. (a), allows courts to permit amendment of pleadings in furtherance of justice and on any terms as may be proper. Motions for leave to amend are directed to the sound discretion of the judge: The court may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading.... (Code Civ. Proc., § 473, subd. (a)(1).) However, the courts discretion will usually be exercised liberally to permit amendment of the pleadings. (Citations.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Citation.) Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would change the result. (Citation.) ( Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Courts will ordinarily not consider the validity of a proposed pleading; the preferred practice is to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings. ( Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) But a court does not abuse its discretion in denying leave to amend where the proposed pleading fails to state a cause of action and further amendment would be futile. ( Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231.) Courts have discretion to deny leave to amend where delay in seeking amendment has prejudiced the other party. ( Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Cal. Rules of Court, Rule 3.1324, subd. (b), requires that a motion for leave to amend be accompanied by a declaration stating why the amendment is necessary and proper, the effect of the amendment, when the facts giving rise to the amended declaration were discovered, and the reason why the request for amendment was not made earlier. III. ANALYSIS In support of the motion, E. Scott Holbrook, Jr. (Holbrook) declares the following: this action was resolved with most parties in December 2023. (Holbrook Decl., ¶ 2.) Subsequently mediation has been held with one of the remaining cross-defendants with further mediation scheduled. (Holbrook Decl., ¶ 2.) NPL seeks to amend the [cross-complaint] to be clear that the claims [NPL] abandoned of $21,000,000 against Plaintiff . . . were abandoned because of, arose of, resulted from, occurred in connection with, and/or were related to the services provided by the Third Party Design Cross Defendants remaining in this action. (Holbrook Decl., ¶ 2.) Counsel states that it is now necessary to file a Third Amended Cross-Complaint to assure the remaining cross-defendants do not object to the damages claims as not being plead in an effort to exclude some of NPLs claims for damages claiming they were not alleged against the remaining cross-defendants. Mr. Holbrook then generally describes the proposed modifications from the SAXC to the Third Amended Cross-Complaint. (Holbrook Decl., ¶ 3(a)-(i).) The Court finds that the motion is procedurally improper and not compliant with California Rules of Court , Rule 3.1324. NPL has failed to state by page, paragraph, and line number, where the deleted or additional allegations are located. (Cal. Rules of Court, Rule 3.1324(a).) Additionally, the declaration of Mr. Holbrook in support of the motion does not state the effect of the amendment, why the amendment is proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made sooner. (Cal. Rules of Court, Rule 3.1324(b).) Nevertheless, notwithstanding these procedural infirmities, the Court will permit the filing of the third amended cross-complaint. The motion is unopposed and there are rare occasions when principles of efficiency lead one to conclude that it is best not to exalt form over substance. IV. CONCLUSION AND ORDER Based on the foregoing, Defendant and Cross-Complainant Noho Propco LLC s Motion for Leave to File a Third Amended Cross-Complaint is GRANTED. Defendant and Cross-Complainant Noho Propco LLC to give notice of this order. Dated: July 30, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT

23CV-02254 Eric Cover v. Douglas Blincow, et al. Order to Show Cause re: Sanctions Appearance required. Parties who wish to appear remotely must contact the clerk of the court at (209) 725-4111 to seek permission and arrange for a remote appearance. Appear to address Plaintiff’s failure to appear at the December 11, 2023, and June 24, 2024, Case Management Conferences, why there is no service of the complaint and summons on the defendants, and whether Plaintiff should be ordered to pay a monetary sanction of $100 for his failures to appear. Failure to appear will result in the Court setting the case for an OSC re: Dismissal as the record indicates a failure to prosecute and diligently prosecute the case.

S-CV-0050801 State Farm General Ins. Company vs. Gofort Power Inc. ** NOTE: telephonic appearances are strongly encouraged Appearance required. First amended complaint [filed 12/06/23] is not at issue - Need responsive pleading, default or dismissal as to Defendant(s): Gofort Power Inc.

MSC22-00125 CASE NAME: AGAPITO VS. NACELLI *HEARING ON MOTION IN RE: NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS FILED BY: *TENTATIVE RULING:* Before the Court is Defendant Tina Paclebar’s Motion to Expunge Lis Pendens. Factual Background Plaintiffs allege that they met with Defendant Joseph Nacelli in July 2009 to discuss their desire to purchase real property located at 761 Mariposa Ave. in Rodeo, California (“Property”). As Plaintiffs did not qualify for a mortgage, they wanted to have Defendant Nacelli hold title to the Property in trust for them. At that time, Mr. Nacelli was living rent-free with Plaintiffs. In return, Plaintiffs agreed they would make the down payment for the Property and pay all costs related to the Property, including property taxes, insurance, and maintenance and repair costs. Defendant Nacelli agreed to these terms. On July 1, 2009, title to the Property was transferred to Mr. Nacelli, per the terms of the above agreement. Plaintiffs used Josephine Agapito’s sister, Elizabeth Monsanto, as their real estate agent. Plaintiffs, not Mr. Nacelli, paid into escrow the down payment for the Property. Since that time, SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 Plaintiffs have paid the mortgage, paid for all upkeep of the Property, and have rented the Property to family members of Plaintiff Arnel Agapito. Mr. Nacelli never moved into the Property, but instead continued to live rent-free with Plaintiffs until 2017 when he voluntarily moved out. Mr. Nacelli admits he never paid any expenses related to the Property, nor had anything to do with maintaining the Property. However, in December 2021, Mr. Nacelli sold the Property to Defendant Tina Paclebar – without consulting with or informing Plaintiffs. Defendant Paclebar is the long-term domestic partner of Defendant Jane Nacelli – who is Plaintiff Josephine Agapito’s (and Defendant Joseph Nacelli’s) sister. Ms. Paclebar has been considered ‘part of the family’ to the Agapito’s for over 15 years. She has been invited to family holidays and events. The Property was never put up for sale to the general public. Instead, the Property was sold to Ms. Paclebar for $365,000. The closing statement for the sale, however, indicates that Mr. Nacelli ‘gifted’ $154,163.43 of that amount to Ms. Paclebar. Plaintiffs filed the instant lawsuit on January 24, 2022. They allege a number of causes of action against Mr. Nacelli, including fraud and breach of fiduciary duty. They also allege causes of action aimed at nullifying the sale of the Property, including quiet title, constructive trust, and fraudulent conveyance. Plaintiffs allege that Ms. Paclebar knew, or should have known, that Mr. Nacelli was not the rightful owner of the Property, and was not authorized to sell it. Ms. Paclebar contends she is a bona fide purchaser of value for the Property, and had no knowledge of the alleged agreement between Plaintiffs and Mr. Nacelli. Legal Standard “[A] lis pendens is recorded by someone asserting a real property claim, to give notice that a lawsuit has been filed which may, if that person prevails, affect title to or possession of the real property described in the notice.” (Federal Deposit Ins. Corp. v. Charlton (1993) 17 Cal.App.4th 1066, 1069, citing CCP §§ 405.2, 405.4, 405.20.) Under Code Civ. Proc. § 405.30, at any time after a notice of pendency of action has been recorded, any party with an interest in the real property may apply to the Court to expunge the notice. “The expungement statutes provide that a lis pendens may be expunged on three grounds: (1) ‘the pleading on which the notice is based does not contain a real property claim’ (Code Civ. Proc., § 405.31); (2) ‘the claimant has not established by a preponderance of the evidence the probable validity of the real property claim’ (Code Civ. Proc., § 405.32); or (3) ‘adequate relief can be secured to the claimant by the giving of an undertaking’ (Code Civ. Proc., § 405.33).” (Carr v. Rosien (2015) 238 Cal.App.4th 845, 857.) Probable validity is met when the Plaintiff establishes her claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.) The party prevailing on an expungement motion must be awarded reasonable attorney fees and costs incurred in making or opposing the motion unless the court finds the other party acted with “substantial justification” or that other circumstances make the imposition of attorney fees and costs “unjust.” (Code Civ. Proc., § 405.38.) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 Overview of Issues and Arguments Real Property Claim Initially, it is uncontested that Plaintiff’s complaint involves a real property claim. Those claims include the claims for quiet title, constructive trust, and fraudulent conveyance. Probable Validity of Plaintiff’s Claims Next, the Court considers the merits of the claim. “‘ “If the claimant does plead a real property claim, but the claim pleaded has no evidentiary merit, the lis pendens must be expunged upon motion under [Code of Civil Procedure §] 405.32.” ’ [Citation.]” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 475; see also Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1011-1012.) Under section 405.32, “the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” “Probable validity” means “it is more likely than not that the [plaintiff] will obtain a judgment against the defendant on the claim.” (Code of Civil Procedure §405.3.) Plaintiff again has the burden on this issue and must present evidence showing it is likely to prevail on the real property claim. Defendant’s Position Defendant argues that she is a bona fide purchaser for value of the Property. “A bona fide purchaser for value “is one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings.” (Melendrez v. D & I Investments, Inc. (2005) 127 Cal.App.4th 1238, 1250 quoting Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 442.) “The elements of bona fide purchase are payment of value, in good faith, and without actual or constructive notice of another’s rights.” (Id. at 1251 citations omitted.) “Thus, the two elements of being a BFP are that the buyer (1) purchase the property in good faith for value, and (2) have no knowledge or notice of asserted rights of another.” (Ibid.) “The first element does not require that the buyer’s consideration be the fair market value of the property (or anything approaching it.) [citation] Instead, the buyer need only part with something of value in exchange for the property.” (Ibid.) “The second element required to establish BFP status is that the buyer have neither knowledge nor notice of the competing claim.” (Ibid.) Defendant presents evidence that the recorded grant deeds for the Property showing title transferred to Joseph Nacelli on July 1, 2009, and then from Mr. Nacelli to Defendant Tina Paclebar on December 17, 2021. (Brink Decl. Exs. A-B.) There are no other recorded documents showing any other ownership interest in the Property by any other person, including Plaintiffs. In addition, when Defendant Paclebar purchased the Property Mr. Nacelli executed the purchase agreement as well as a Homeowner’s Policy of Title Insurance Affidavit. (Paclebar Decl. Exs. A-B.) By executing these documents, Mr. Nacelli warranted that he was the owner of the Property and was unaware of any SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 liens or encumbrances on the Property. Defendant Paclebar also submits a declaration which states that, prior to the close of escrow, she “was never informed either verbally or in writing, that Joseph Nacelli did not have authority to sell me the Property, or that there was a verbal agreement between Joseph Nacelli and Plaintiffs concerning ownership of the Property.” (Paclebar Decl. ¶ 10.) Thus, Defendant argues, that as the recorded documents only showed the Mr. Nacelli owned the Property, Mr. Nacelli indicated in multiple documents that he was the owner, and Mrs. Paclebar claims that she was never informed of any claims of ownership of the Property by Plaintiffs, she is a bona fide purchaser for value. Plaintiffs’ Position Plaintiffs dispute the claim that Ms. Paclebar had no knowledge of the arrangement they had with Mr. Nacelli regarding their true ownership of the Property and the fact that Mr. Nacelli was merely holding title on their behalf. They present evidence that Mr. Nacelli confirms that he was merely holding title in their name, and that he never paid any money for the Property and had no real connection to the Property. Mr. Nacelli testified as much: Q. So you never paid a cent for the Mariposa property; is that accurate? A. Yes. Q. And you never lived there; is that correct? A. Yes, that’s correct. Q. And you never received any income from the property; is that correct? A. Yes, that’s correct. Q. You merely put your name on the title for the plaintiffs; is that correct? A. Yes, that’s correct. … (Nacelli Depo. at 42:13-23.) Thus, Mr. Nacelli was aware that when he put the Property into his name, he was not doing so as the ‘real’ or equitable owner, but was only the named or ‘paper’ title owner holding the Property on behalf of Plaintiffs. Plaintiffs acknowledge that Mr. Nacelli asserts that Plaintiffs breached the above agreement – apparently by allowing the Property to go into foreclosure on two occasions. (Nacelli Depo. 42:21-48:4.) There were discussions between the parties during this time, and Plaintiffs eventually fixed the foreclosure issues. (Ibid.) Since Plaintiffs addressed the issues, and ultimately started making all necessary payments on the Property again, Mr. Nacelli confirmed he was continuing to hold title to the Property on behalf of Plaintiffs: Q. And then because they fixed [the foreclosure issues], you continued to hold title in your name but for [Plaintiffs] Josephine and Arnel; is that correct? A. Yes. (Nacelli Depo at 48:5-8.) Plaintiffs also dispute the claim that Ms. Paclebar had no knowledge of the above agreement, or the SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 fact that Plaintiffs were the owners-in-fact of the Property. While not technically a part of the family, Plaintiffs explain that Ms. Paclebar has been treated as such for over 15 years. She has been the long- term partner of Jane Nacelli – the sister of Joseph Nacelli and Plaintiff Josephine Agapito. (Arnel Agapito Decl. ¶ 2.) She has visited Plaintiffs’ house on numerous holidays over the years. (Id. ¶ 14.) Plaintiffs make clear that during these get togethers, both Plaintiffs specifically told Ms. Paclebar that they owned the Property. (Ibid.) Specifically, Arnel Agapito’s declaration states: “During these family get-togethers, on more than one occasion, my wife and I told Defendant Tina Nacelli that we owned the Mariposa Property.” (Agapito Decl. ¶ 14.) Defendant’s Reply On Reply, Defendant refutes a number of the key statements in Mr. Agapito’s declaration – by citing to Mr. Agapito’s own deposition testimony. First, Defendant disputes the claim that Mr. Agapito had an agreement (or personally knew about and agreement) with Mr. Nacelli wherein he would be named the owner of the Property but would hold title for the benefit of Plaintiffs. Second, Defendant challenges the claim that Mr. Agapito told Defendant Paclebar about this alleged agreement. Specifically, with regard to supposed agreement between Plaintiffs and Mr. Nacelli, Mr. Agapito testified at his deposition as follows: Q. We touched on this earlier, but you personally never had a verbal agreement with Joseph [Nacelli] regarding him being on title to the Mariposa property to be held in trust for you or your wife; true? A. True. Q. If there was such a conversation, it was between your wife and Joseph; right? A. If -- if there was, it would be between Joseph and my wife. Yeah. (Agapito Depo. at 36:25-37:8.) Defendant contends the above testimony undermines the statements in the Agapito Declaration which state that Mr. and Mrs. Agapito had conversations with Mr. Nacelli regarding the arrangement and that Mr. Agapito has direct knowledge of the agreement. (See Agapito Decl. ¶¶ 4-7.) Defendant also takes issue with the declaration’s statement that “my wife and I told Defendant Tina Nacelli (sic) that we owned the Mariposa Property.” (Agapito Decl. ¶ 14.) Defendant points out that Mr. Agapito’s deposition testimony is just the opposite: Q. Did you ever personally ever tell Tina that your wife and Joseph had reached a verbal agreement concerning the Mariposa property? A. No. … Q. Right. My question is a little more to the point. How do you know what Tina knows regarding any agreement between Joseph and your wife regarding any agreement between Joseph and your wife regarding the Mariposa property? How do you know SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 that? A. I don’t know. Q. You don’t know; right? A. I don’t know. I’m just speculating. (Agapito Depo. at 39:24-40:2; 68:1-7.) More specifically, Mr. Agapito testified at deposition that he “never had any conversation to -- to Tina regarding the property.” (Id. at 79:13-21.) Thus, Mr. Agapito testified at deposition that (1) he never had an agreement with Mr. Nacelli, (2) he can only speculate that Mrs. Agapito had an agreement with Mr. Nacelli, and (3) he never spoke to Mrs. Paclebar regarding that alleged agreement. Defendant also submits deposition testimony from Mr. Nacelli confirming that he never told Defendant Paclebar that he was not the true owner of the Property. (Nacelli Depo. at 31:22-32:15.) Essentially, on reply Defendant refutes any argument that she had any actual notice of the allege agreement between Plaintiffs and Mr. Nacelli regarding title to the Property. Analysis As noted above, there is no dispute that Plaintiffs’ complaint alleges real property claims. Thus, the focus of the Court’s inquiry relates to whether Plaintiffs has established by a preponderance of the evidence the probable validity of the real property claim. (Cal. Code Civ. Proc. § 405.32.) It is undisputed that the recorded chain of title for the Property indicates that Mr. Nacelli was the owner of the Property from July 1, 2009 until December 17, 2021, when title was transferred to Defendant Paclebar. Plaintiffs’ general theory of their case is that Mr. Nacelli was holding the Property in trust for them, and that Defendant Paclebar knew this to be the case. They allege a number of different causes of action which all rely upon this general theory. Plaintiffs have presented evidence that Mr. Nacelli did not actually own the Property, but was merely holding title in his name for the benefit of Plaintiffs. In fact, Mr. Nacelli admitted as much during his deposition. While Mr. Nacelli testified that he ‘believed’ that Plaintiffs’ breached their agreement – he also testified that they fixed any breach by remedying the foreclosure proceedings and continuing to make payments on the mortgage. (Nacelli Depo at 48:5-8, quoted above.) Even if there were some time limit discussed as to when Plaintiffs would transfer title into their name, there is no explanation as to why any breach of that term would result in actual title of the Property being conveyed to Mr. Nacelli. While Defendant cites to the representations made by Mr. Nacelli in, for example, the Homeowner’s Policy of Title Insurance Affidavit that he was the true ‘owner’ of the Property, Plaintiffs allege fraud and breach of fiduciary duty causes of action against Mr. Nacelli that address these representations. Mr. Nacelli’s own testimony appears to undermine his representations made in these documents. While this evidence supports their claims against Mr. Nacelli, the main focus of the instant motion SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 relates to what Defendant Paclebar was aware of – or should have been aware of. Plaintiffs evidence regarding Defendant Paclebar’s knowledge of the agreement between Plaintiffs and Mr. Nacelli appeared convincing on first blush. Plaintiffs show that Defendant Paclebar is not a distant third-party to parties to this litigation. While she is not legally a member of the family, she has been the long-term partner of the sister of the two main parties to the agreement – i.e. Plaintiff Mrs. Agapito and Defendant Nacelli. She has attended numerous family holidays over the years. Mr. Agapito, in his declaration in support of the opposition, affirmatively states that “my wife and I told Defendant Tina Nacelli (sic) that we owned the Mariposa Property,” during these family events. That statement, however, turns out to be false. As outlined above, Mr. Agapito testified in his deposition that (1) he personally did not have an agreement with Mr. Nacelli regarding taking title to the Property for the benefit of Plaintiffs, (2) he had no personal knowledge about any such agreement between his wife and Mr. Nacelli, and (3) he never personally told Defendant Paclebar that such an agreement existed. The statements in Mr. Agapito’s declaration were the sole basis for evidencing that Ms. Paclebar had knowledge of the alleged agreement between Plaintiffs and Mr. Nacelli. “But a declaration may not contradict factual admissions made in a deposition.” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 419 fn. 4 citations omitted.) As courts have made clear, in the context of summary judgment motions, a “party cannot evade summary judgment by submitted a declaration contradicting his own prior deposition testimony.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120 citations omitted; see also Best Rest Motel, Inc. v. Sequoia Ins. Co. (2023) 88 Cal.App.5th 969, 708-09, citing Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12 [“A party cannot create a triable issue of fact by providing a declaration that contradicts its prior deposition testimony.”]) The rationale behind this rule applies in the current situation. It is notable that Plaintiffs failed to submit a declaration by Mrs. Agapito – who Mr. Agapito indicates was the party that allegedly had conversations with Mr. Nacelli and Mrs. Paclebar regarding the Property. Instead, they attempt to have Mr. Agapito’s declaration evidence Mrs. Agapito’s knowledge. It is clear from Mr. Agapito’s deposition testimony, however, that he does not have personal knowledge of any agreement with Mr. Nacelli, nor of any discussions with Ms. Paclebar regarding this alleged agreement. “A bona fide purchaser for value “is one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings.” (Melendrez, supra, 127 Cal.App.4th at 1250.) Plaintiffs have failed to provide any admissible and credible evidence showing that Mrs. Paclebar had any knowledge of the alleged agreement between Mr. Nacelli and Mrs. Agapito regarding the Property. As for paying value, Plaintiffs concede that the Property was sold for $365,000, and that Ms. Paclebar paid approximately $211,000 after the gift from Mr. Nacelli of roughly $154,000. They contend, without evidence, that this is ‘below market.’ Even if that is the case, a bone fide purchaser “need SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 only part with something of value in exchange for the property,” and that amount need not “be the fair market value of the property (or anything approaching it.)” (Melendrez, supra, 127 Cal.App.4th at 1251.) Under section 405.32, “the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” “Probable validity” means “it is more likely than not that the [plaintiff] will obtain a judgment against the defendant on the claim.” (Code of Civil Procedure §405.3.) Based on the above, the Court finds that Plaintiffs have failed to meet their burden. As such, Defendant Paclebar’s motion to expunge the lis pendens is granted. Attorney Fees California Code of Civil Procedure section 405.38 provides: The court shall direct that the party prevailing on [a motion to expunge a lis pendens] be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust. Plaintiff contends that their recording of the lis pendens was not frivolous and as such attorney’s fees and costs should be denied, citing a couple of unpublished federal district opinions. (Opp. at 12:25- 13:4.) Such decisions are “neither binding nor controlling on matters of state law.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 175.) Plaintiffs have made no showing that they ‘acted with substantial justification.’ Instead, it appears to be quite the opposite. Plaintiffs’ opposition relies upon statements in Mr. Agapito’s supporting declaration, made under penalty of perjury, which are directly contradicted by his earlier deposition testimony. They fail to provide any admissible evidence showing that Ms. Paclebar had knowledge of the alleged agreement between Mrs. Agapito and Mr. Nacelli. Based on the above, the Court finds that attorney fees are properly awarded to Defendant in the amount of $4,675.