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Natl Finance Co Inc Vs Derek Leon Hinton

Case Last Refreshed: 2 months ago

Natl Finance Co Inc, filed a(n) Unlawful Detainer - Property case against Hinton, Derek Leon, in the jurisdiction of Alamance County. This case was filed in Alamance County Superior Courts Alamance District Court.

Case Details for Natl Finance Co Inc v. Hinton, Derek Leon

Filing Date

April 09, 2024

Category

Civil Magistrate Small Claim Action (Not Summary Ejectment)

Last Refreshed

May 01, 2024

Practice Area

Property

Filing Location

Alamance County, NC

Matter Type

Unlawful Detainer

Filing Court House

Alamance District Court

Parties for Natl Finance Co Inc v. Hinton, Derek Leon

Plaintiffs

Natl Finance Co Inc

Attorneys for Plaintiffs

Defendants

Hinton, Derek Leon

Case Events for Natl Finance Co Inc v. Hinton, Derek Leon

Type Description
Docket Event Legacy Complete Case Scan
Docket Event Return of Service - Unserved
Docket Event FILING
Docket Event Servicemember Civil Relief Act
Docket Event Complaint
Docket Event Reg Summons
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Ruling

GERSHMAN PROPERTIES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS CH GLENDORA, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Jul 09, 2024 | 24PSCV00472
Case Number: 24PSCV00472 Hearing Date: July 9, 2024 Dept: G Plaintiff Gershman Properties, LLCs Application for Default Judgment Respondent: NO OPPOSITION TENTATIVE RULING Plaintiff Gershman Properties, LLCs Application for Default Judgment is GRANTED in the reduced amount of $43,403.67. BACKGROUND This is an unlawful detainer action. In February 2023, Plaintiff Gershman Properties, LLC (Gershman) entered into a written lease agreement with Defendant CH Glendora, LLC (CH Glendora) in which Gershman agreed to lease commercial property in Glendora to CH Glendora. Subsequently, Gershman alleges CH Glendora breached the lease agreement by failing to pay rent. On January 24, 2024, Gershman served a three day notice to pay rent or quit on CH Glendora. CH Glendora subsequently failed to pay rent or vacate the Glendora property. On February 7, 2024, Gershman filed a complaint against CH Glendora and Does 1-30, alleging a cause of action for unlawful detainer. On March 1, 2024, Gershmans process server served CH Glendora by posting notice at the Glendora property. On March 19, 2024, the Court entered default against CH Glendora after CH Glendora failed to file a timely answer. On March 25, 2024, the Court granted a default judgment for Gershman on the issue of possession only. On May 17, 2024, Gershman submitted the present application for default judgment. A case management conference is set for July 9, 2024. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. 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) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.) ANALYSIS Gershman seeks default judgment against CH Glendora in the total amount of $43,403.68, including $40,476.72 in damages, $1,604.31 in attorney fees, and $1,322.65 in costs. Because the Court finds Gershman has submitted sufficient evidence, the Court GRANTS Gershmans application for default judgment with the following modification. While Gershman requests $1,604.31 in attorney fees, the correct calculation of attorney fees pursuant to Local Rule 3.214 is $1,604.30. Accordingly, the total requested damages will be reduced to $43,403.67. CONCLUSION Based on the foregoing, Gershmans application for default judgment is GRANTED in the reduced amount of $43,403.67.

Ruling

CARL BARNEY VS SIENNA CHARLES LLC, A FLORIDA LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 | 23SMCV05304
Case Number: 23SMCV05304 Hearing Date: July 9, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 20 5 CARL BARNEY , Plaintiff, v. SIENNA CHARLES, LLC, et al., Defendant s . Case No.: 2 3 S M CV 0 5 304 Hearing Date: July 9, 2024 [ TENTATIVE] ORDER RE: DEFENDANTS DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT BACKGROUND Th is is a breach of contract and fraud case . Defendants Sienna Charles LLC and Jaclyn Sienna India-Reinert (Ms. India) provide bespoke travel services for high-wealth individuals . (First Amended Complaint (FAC ) ¶8.) In mid-2021, Plaintiff Carl Barney desired to obtain the services of a high level, full service VIP travel agency to arrange all of the details f or his three-week trip to Europe. ( Id. ¶9.) He therefore spoke with Defendants about their services . ( Id. ¶10.) Ms. India assured Plaintiff that she knew how to get her clients access to exclusive experiences that would otherwise be unavailable to them . She claimed, in writing and orally, to be able to provide extraordinary private travel and the ability for Plaintiff to access top experts for his vacations. ( Id. ¶10.) Relying on these oral representations, Plaintiff paid $75,000 for the Europe trip and multiple additional trips he desired to have planned over a one year period (July 1 st Agreement) . H e describes the July 1 st A greement as a partially oral and partially written agreement to provide full service planning and implementation of travel itineraries over the course of one year from July 1, 2021 through June 20, 2022. ( Id. ¶ 22.) Under the July 1 st Agreement, Defendants were to provide Plaintiff access to the most exclusive luxury travel and lifestyle services available in the world and to comb[ ] the globe consistently procuring only the best in ultra-luxury living. ( Id. ¶20.) Plaintiff claims Defendants breached the July 1 st Agreement by their poor planning and lack of communication, an d Plaintiffs staff was forced to clean up their messes . ( Id. ¶13.) Specif i cally, Plaintiffs staff was forced to book VIP suites, arrange last minute flights that could have been scheduled weeks in advance and book other appointments for things such as required Covid-19 testing . ( Id. ) Pursuant to the July 1 st Agreement, Plaintiff then sought to use Defendants services for a three - week trip to the Middle East . ( Id. ¶14.) Plaintiff asked Defendants to prepare a proposed itinerary by September 7, 2021 . ( Id. ¶ 16.) Defendants ignored the re quest , instead providing a proposed agenda on September 14, 2021 which failed to include any specific dates (or even number of days) for visiting any of the countries and no details of available a ctivities that Defendants could curate . ( Id. ) This action ensued . The operative first amended complaint (FAC) alleges claims for (1) breach of contract, (2) fraud, (3) unjust enrichment and imposition of constructive trust and (4) unfair business practices . This hearing is on Defendants demurrer to and motion to strike the complaint . Defendant s demurrer is based on the grounds that (1) the FAC does not allege any actual contract or contractual terms; (2) Defendants alleged breach of contract doesnt equal fraud , and Plaintiff has not plead fraud with specificity ; (3) unjust enrichment is a mere remedy, not a valid cause of action; (4) the FAC doesnt identify any specific funds on which to impose a constructive trust, and (5) Plaintiff has no valid claim for unfair business practices . Defendants also move to strike (1) Plaintiffs punitive damages allegations because Plaintiffs fraud claim fails, and (2) any claim for money damages in connection with Plaintiffs claim for unfair business practices because under the unfair competition law, a plaintiff is entitled only to restitution and injunctive relief . LEGAL STANDARD [A] demurrer tests the legal sufficiency of the allegations in a complaint. ( Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable . (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. ( Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading . (Code Civ. Proc. § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. ( See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.).) The burden is on the complainant to show the Court that a pleading can be amended successfully. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) MEET AND CONFER Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (C ode C iv. P roc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C ode C iv. P roc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (C ode C iv. P roc. §§ 430.41(a)(3) , 435.5(a)(3) .) Defendant s submit the Declaration of Kenneth Ruttenberg which attests the parties met and conferred by telephone on May 2 2 , 2024 , more than five days before the demurrer and motion to strike was filed (on May 28, 2024 ) . This satisfies the meet and confer requirements of Code Civ. Proc. §§430.41 and 435.5. Plaintiff argues that Defendants have not complied with the meet and confer requirements . Plaintiff, however, fails to explain why that is so . In any event, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer . ( Code Civ. Proc. §§430.41 (a)(4) and 435.5 (a)(4) . ) DISCUSSION Breach of Contract Defendant s demur to the breach of contract claim on the ground that the contract terms are so vague that no one could judge whether Defendants supposedly breach those terms . The Court agrees . The Complaint alleges that i n exchange for $75,000, Defendants were to provide full service planning and implementation of travel itineraries over the course of one year from July 1, 2021 through June 20, 2022. ( FAC ¶ 22.) Defendants promised to provide access to the most exclusive luxury travel and lifestyle services available in the world and to comb the globe consistently, procuring only the best in ultra-luxury living for Plaintiff for one year . ( Id. ¶ 22.) These terms are too vague to determine whether a breach has occurred . It is not clear what full service planning entails . And t here is no basis to judge whether the luxury travel Defendants provided were the most exclusive or constituted the best in ultra luxury living. These promises are not definite enough to determine the scope of Defendants obligations or the limits of their performance . Accordingly , the Court sustains the demurrer to the breach of contract claim with leave to amend . Fraud Defendant s demur to Plaintiffs fraud claim as duplicative of the contract claim, as insufficiently plead and as failing to allege an intent not to perform . The Court agrees on the last ground . To allege promissory fraud, Plaintiff must plead Defendants made promises that they had no intention of performing . ( Lazar v. Super. Court (1996) 12 Cal.4 th 631, 638.) The fact that a promise was made and not fulfilled is insufficient to establish fraud by false promise . ( Tenzer v. Superscope (1985) 39 Cal.3d 18, 31.) Rather, something more than nonperformance is required to prove the defendants intent not to perform his promise. ( Id. ) Making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. ( Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4 th 153, 159.) Here, Plaintiff has not alleged facts to support a showing that Defendants did not intend to perform on their promises at the time they made them . In fact, the FAC alleges partial performance by Defendants . (FAC ¶¶ 16, 18.) The fact that Defendants partially performed undercut s any claim they did not intend to perform at the time they made their promises . ( Castaic Vil lage Ctr . LLC v. Gymcheer USA, Inc. , 2021 Cal. Super. LEXIS 6377 at *5 (partial performance negate s an intent not to perform). ) Accordingly , the Court sustains the demurrer to Plaintiffs fraud claim withoug leave to amend . Unjust Enrichment Defendant demurs to the unjust enrichment claim on the ground it is a remedy and not a cause of action . Plaintiff argues it has not asserted an unjust enrichment claim . The caption to its complaint, however, characterizes its third cause of action as an unjust enrichment claim and imposition of constructive trust . This may have been a clerical error and a holdover from the prior complaint . A s Plaintiff maintains he is not asserting an unjust enrichment claim, the demurrer to the unjust enrichment claim is moot . Constructive Trust Defendant demurs to the constructive trust claim on the ground Plaintiff does not allege a specific identifiable property interest because money is fungible . The Court agrees . A prerequisite to the imposition of a constructive trust is the identification of a specific property belonging to the claimant . ( Korea Supply Co. V. Lockheed Martin Corp. (2003) 29 Cal.4 th 1134, 1150.) A constructive trust requires money or property identified as belonging in good conscience to the plaintiff [which can] clearly be traced to particular funds or property in the defendant s possession. ( Id. ) A constructive trust is available where the specific res or funds can be identified and attached, but not where the plaintiff seeks to impose general personal liability as a remedy for the defendant s monetary obligations. ( Honolulu Joint Apprenticeship and Training Committee of United Ass'n Local Union No. 675 v. Foster (9 th Cir. 2003) 332 F.3d 1234, 1238 . ) In other words, a constructive trust is not an appropriate remedy for a claim that is essentially one for money damages , as is the case here . Further, constructive trust is not a cause of action per se, but an equitable remedy . ( Batt v. City and County of San Francisco (2007) 155 Cal. App. 4th 65, 82; see also Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332 (constructive trust is an equitable remedy); PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 398 (constructive trust is a remedy); Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023 (constructive trust is a remedy). Accordingly , the Court sustains the demurrer to the constructive trust claim without leave to amend . Unfair Business Practices Defendants argue that Plaintiffs claim under Cal. Bus. & Prof. Code §17200 (UCL) fails because Plaintiff has not alleged the violation of any law . The Court agrees . UCL prohibits unfair competition, which is defined as any unlawful, unfair or fraudulent business act or practice. Here, t he FAC alleges that Defendants violated the UCL prohibition against engaging in an unlawful act or practice by the conduct described above. (FAC ¶ 41.) To state a cause of action based on an unlawful business act or practice under the UCL, a plaintiff must allege facts sufficient to show a violation of some underlying law . ( People v. McKale (1979) 25 Cal.3d 626, 635; Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.) Plaintiff has not identified any underlying law that was violated . In opposition, Plaintiff argues that Defendants conduct also constituted unfair and fraudulent business practices . While Plaintiff did not allege this theory in his Complaint, the C ourt is not¿limited to plaintiff s theory of recovery in testing the sufficiency of their¿complain t against a¿demurrer, but instead must determine if the¿ factual ¿allegations of the complaint are¿adequate to state a cause of action under any legal theory. (¿ Barquis¿ v. ¿Merchants Collection Assn . (1972) 7 Cal.3d 94, 103 .)¿ Mistaken labels and confusion of legal theory are not fatal; if appellant s complaint states a cause of action on any theory, he is entitled to introduce evidence thereon. ( Porten¿ v. ¿University of San Francisco ¿(1976) 64 Cal.App.3d 825, 833 .) California courts have not uniformly settled on a single approach to defining 'unfair' business practices in a consumer action under the UCL . Prior to 1999, California courts applied what is known as the balancing test. Courts defined unfair business practices as those offend[ ing ] an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers, or where the utility of the defendant s conduct does not outweigh the gravity of the harm to the victim . ( Cel-Tech Commc ns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 18 4 .) Under the balancing test, a determination of unfairness involves an examination of [the practice s] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. ( McKell v. Washington Mut., Inc. (2006) 142 Cal. App. 4th 1457, 1473¿(internal citations omitted) .) In 1999, the California Supreme Court rejected that test and held that a finding of unfairness must instead be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition. ¿ ( Cel-Tech , 20 Cal. 4th at 186-87 . ) The¿ Cel-Tech ¿court, however, expressly declined to extend this¿standard to consumer actions.¿ ( Id. ¿at 187 n.12 .) Here, Plaintiff has not alleged a threatened impact on competition and has not alleged facts that would meet the balancing test . For example, Plaintiff does not allege that D efendants conduct was not motivated by legitimate business or economic need or that the harm and adverse impact of Defendants conduct outweighed these needs . Accordingly , P laintiff has not stated a UCL claim based on either test for unfairness . To state a claim under the fraudulent prong of the¿UCL, a plaintiff must show that members of the public are likely to be¿deceived.¿( Bank of the W. v. Superior Ct. (1992) 2 Cal. 4th 1254, 1267.) The determination as to whether a business practice is deceptive is based on the likely effect such [a] practice would have on a reasonable¿consumer. ( McKell, 142 Cal.App.4th at 1471 .) Here, Plaintiff has not alleged that members of the public were likely to be deceived by Defendants conduct . Accordingly , Plaintiff has not met the fraudulent prong of the UCL. Accordingly , the Court sustains the demurrer to Plaintiffs UCL claim with leave to amend . Punitive Damages Defendant argues that Plaintiff has not alleged fraud and therefore cannot seek punitive damages . As the Court concludes Plaintiff has not sufficiently alleged a fraud claim, punitive damages are unavailable . Money Damages for UCL Claim Defendant argues Plaintiff cannot recover damages for his UCL claim . The Court agrees. Under the UCL, a plaintiff is entitled only to restitution and injunctive relief; he may not recover damages . ( Korea Supply Co., 29 Cal.4 th at 1144.) Plaintiff seeks money damages for his UCL claim . ( FAC at p.10 lines 16-19.) Accordingly , the Court will strike the prayer for money damages as to the UCL claim . CONCLUSION Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant s demurrer with 20 days leave to amend and DENIES IN PART and GRANTS IN PART their motion to strike with out leave to amend . IT IS SO ORDERED. DATED: July 9 , 202 4 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Ruling

- MRAZEK, NICOLE vs BURKE, DONALD M -
Jul 10, 2024 | CV-22-005018
CV-22-005018 - MRAZEK, NICOLE vs BURKE, DONALD M - Plaintiff's Motion Court Order Appointing Real Estate Appraiser - GRANTED, and unopposed. The Court GRANTS the unopposed motion to appoint Barton J. Vogel as real estate appraiser but also imposes the following additional conditions so that it can ensure compliance with Code of Civil Procedure § 874.316(e): (1) On filing, Plaintiffs are required to email a courtesy copy of the appraisal to the Court; and (2) Within 10 days from the date of this Order, Plaintiffs are required to file a verified supplement setting forth the names and current mailing addresses of all known parties. Plaintiffs’ request for judicial notice is deemed unnecessary, as the documents at issue are already part of the Court’s file. The Court will make revisions to the proposed order that was submitted to the Court and then will sign it.

Ruling

Parkash Pabla et al. vs Gursharn Pabla et al.
Jul 11, 2024 | 20CV-03476
20CV-03476 Parkash Pabla, et al. v. Gursharn Pabla, et al. Motion by Defendant Dual Arch International. Inc. for Prevailing Party Attorneys Fees of $136,421.03 pursuant to CCP § 1717 on a breach of contract claim brought by Plaintiffs Parkash Oabla and Jaswinder Kaur against Dual Arch International, Inc. On June 6, 2024, this matter was Continued on the Court’s own motion to Thursday, July 11, 2024, at 8:15 A.M. in Courtroom 8. However, remittitur has not yet issued as of July 8, 2024, the last action occurring being the Denial of a Request for Publication issued May 16, 2024. Accordingly, this motion is further continued to July 25, 2024, at 8:15 A.M. in Courtroom 8. Defendant Dual Arch International, Inc. bases its CCP § 1717 claim for attorneys’ fees on (1) Plaintiff’s Oppositiion to Defendant Dual Arch International, Inc.’s Motion to Tax filed April 12, 2023; and (2) Plaintiffs’/Appellants’ Opening Brief in Appeal No. F086273 filed December 19, 2023. (See Request for Judicial Notice filed May 3, 2024, [containing non- file endorsed copies of above documents].) While this Motion was pending, the Court of Appeal, Fifth Appellat District issued, May 14, 2024, an Opinion inc case F086273 affirming the cost order of the trial court. Remittitur has not yet issued in that matter, but, absent an appeal to the California Supreme Court, would be expected to issue June 13, 2024. Since the May 14, 2024 Appellate Opinion will not be final until a date on or after June 13, 2024, this motion was previously continued to July 11, 2024 and is now further continued to July 25, 2024, at 8:15 A.M. in Courtroom 8. While the above motion was pending, Plaintiffs and Cross-Defendants Jaswinder Kaur and Parkash Pabla filed Cross-Defendants’ Request for Entry of Judgment after Appeal on Cross Complainant ECP, LP’s Special Motion to Strike seeking entry of judgment against Cross-Complainant ECP, LP in the amount of $6,500 attorneys’ fees and $1,040.40 costs, total judgment $7,540.40. All parties are ordered to appear on Thursday, July 11, 2024, at 8:15 A.M. in Courtroom 8 and show cause why this Court should not enter judgment in favor of Cross-Defendants Jaswinder Kaur and Parkash Pabla and against Cross Complainant ECP, LP in the amount of of $6,500 attorneys’ fees and $1,040.40 costs, total judgment $7,540.40. The Order to Show Cause if also continued from July 11, 2024, to July 25, 2024, at 8:14 A.M. in Courtroom 8.

Ruling

William Shaw vs Ruth Shaw
Jul 11, 2024 | 23CV02548
23CV02548 SHAW v. SHAW (UNOPPOSED) PLAINTIFF’S MOTION TO APPOINT PARTITION REFEREE The unopposed motion is granted. Mr. Singer will be appointed as the partition referee. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed. Case No. 19CV02702 RHOADS v. BECKLEY APPLICATION FOR ORDER FOR SALE OF DWELLING/OSC FOR SALE OF DWELLING This application is continued as discussed below. The original application, brought pursuant to Code of Civil Procedure sections 704.740 through 704.850, was filed on January 26, 2023. For a variety of reasons, the application was continued and not ruled upon. When the application was filed, Mr. Beckley was without counsel and the court noted procedural as well as notice issues with the application, resulting in continuances. Mr. Beckley then retained counsel, Thornton Davidson, on June 29, 2023. Mr. Davidson sought to be relieved as counsel on May 8, 2024. The declaration in support of Mr. Davidson’s motion to be relieved noted the next court date as June 11, 2024. The court issued a tentative ruling the day before the June 11 hearing, tentatively granting the motion to be relieved and specifically continuing the application for sale of dwelling to allow defendant to either retain new counsel or participate in a pro per capacity. The parties were ordered to appear. At the June 11 hearing, attended by Mr. Davidson and plaintiff’s counsel, Mr. Eschen, Page 1 of 2 the court granted Mr. Davidson’s motion to be relieved and set July 11, 2024 as the next hearing date. Mr. Beckley did not attend the June 11, 2024 hearing, nor is there evidence before the court that he was notified of the July 11, 2024 date. The order prepared by Mr. Davidson after the hearing and served on Mr. Beckley stated that the tentative ruling became the order of the court. While the order attached the tentative ruling, there is no mention in either the order or the tentative ruling of the July 11, 2024 hearing date for the application. The tentative ruling specified that the application hearing would be set at the next court date. The court will issue an order to show cause pursuant to Code of Civil Procedure section 704.770, subdivision (a). “After the judgment creditor has filed an application for an order for sale, the court sets a time and place for hearing and must order the judgment debtor to show cause why an order for sale should not be made in accordance with the application. The hearing must be set no later than 45 days after the application is filed, or such later time as the court orders on a showing of good cause.” (2 MB Practice Guide: CA Debt Collection 17.36 (2024).) After the OSC is set, Mr. Rhoads must serve on the judgment debtor, Mr. Beckley, a copy of the OSC, a copy of the application, and a copy of the notice of hearing in the form required by the Judicial Council. (See Code of Civ. Proc. § 704.770, subd. (b).) Page 2 of 2

Ruling

FRANCISCA RIVERA, ET AL. VS ALMA AGUILAR, ET AL.
Jul 10, 2024 | 23STCV02147
Case Number: 23STCV02147 Hearing Date: July 10, 2024 Dept: 55 NATURE OF PROCEEDINGS : Demurrer of DOE 1 Defendant Petite Chateau, Inc. to First Amended Complaint. BACKGROUND FRANCISA RIVERA and DONALD PAZ (Plaintiffs) filed a First Amended Complaint (FAC) against ALMA AGUILAR, an individual and trustee and DOEs (Defendants), alleging that, as owner and lessor, and unknown DOEs, Defendants failed to remediate uninhabitable conditions involving roof leaks, mold, and cockroach infestation. Plaintiffs causes of action are (1) Breach of Implied Warranty of Habitability, (2) Negligence, (3) Breach of Implied Covenant of Quiet Use and Enjoyment, (4) Nuisance, (5) Intentional Infliction of Emotional Distress, and (6) Violation of Business & Professions Code, Section 17200. On 1/26/24, Plaintiffs filed an amendment substituting PETITE CHATEAU, INC. for Doe 1 (Defendant). Defendant has filed a demurrer to the FAC. Plaintiffs oppose the demurrer. LEGAL STANDARD Demurrers are to be sustained where a pleading fails to plead adequately any essential element of the cause of action. Cantu v. Resolution Trust Corp . (1992) 4 Cal.App.4th 857, 879-880. Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice. Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc . (2010) 181 Cal.App.4th 471, 556. Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp . (2007) 152 Cal.App.4th 86, 92. JUDICIAL NOTICE The Court grants Defendants Request for Judicial Notice of its Articles of Incorporation and recorded Covenants, Conditions and Restrictions (CC&Rs). ANALYSIS Defendant, a homeowner association, contends that the FAC fails to state facts to constitute a cause of action against it because it is not a landlord or lessor of Plaintiffs unit. The Court agrees. Homeowner associations activities only relate to matters of damage to common areas or to separate interests that arise out of damage to the common area. E.g., Glen Oaks Ests. Homeowners Assn. v. Re/Max Premier Properties, Inc . (2012) 203 Cal.App.4th 913, 919920. Further, there must be privity of contract with the lessor in order for a tenant to sue a defendant for breach of the implied covenant of quiet enjoyment. Marchese v. Standard Realty & Dev. Co . (1977) 74 Cal. App. 3d 142, 147148. Here, the FAC contains no allegation that Defendant maintained any common area, but instead it repeatedly references the Rental Unit (e.g., FAC, ¶ 10). Also, Plaintiffs unsupportively allege that the nature of DOE 1s responsibility is unknown (FAC, ¶ 5). These allegations are not sufficient to attach liability against Defendant for any of the causes of action in the FAC. Plaintiffs opposition indicates a desire to assert allegations that Defendant maintained common areas causing damages. The Court therefore will allow leave to amend. CONCLUSION The Court sustains the demurrer with 20 days leave to amend.

Ruling

RHN, INC,, ET AL. VS THE REYNOLDS AND REYNOLDS COMPANY
Jul 09, 2024 | 11/28/2022 | 19SMCV00221
Case Number: 19SMCV00221 Hearing Date: July 9, 2024 Dept: N Duncan J. McCreary and Reeder McCreary, LLPs Motions to Withdraw as Counsel for Plaintiffs NBA Automotive Inc., R&H Automotive Inc., RHC Automotive Inc., and RHH Automotive Inc. is GRANTED. Counsel has asserted a valid reason for withdrawal, i.e., there is a likely conflict of interest which may result in a violation of the California Rules of Professional Conduct. (Rules Prof. Conduct, rule 1.16(b)(0).) Counsel has provided the required forms under rule 3.1362 of the California Rules of Court and served the opposing parties and client with the same. There being good cause to grant counsels request to withdraw, Duncan J. McCreary and Reeder McCreary, LLPs Motions to Withdraw as Counsel for Plaintiffs NBA Automotive Inc., R&H Automotive Inc., RHC Automotive Inc., and RHH Automotive Inc. is GRANTED. This ruling granting counsels motion to withdraw shall become effective upon filing of proof service of this ruling upon Plaintiffs NBA Automotive Inc., R&H Automotive Inc., RHC Automotive Inc., and RHH Automotive Inc. Plaintiffs NBA Automotive Inc., R&H Automotive Inc., RHC Automotive Inc., and RHH Automotive Inc. are reminded that a corporation cannot represent itself in litigation and must be represented by licensed counsel. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)

Ruling

WENDY KLENK VS BEHRINGER HARVARD REDWOOD, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 10, 2024 | 20SMCV01023
Case Number: 20SMCV01023 Hearing Date: July 10, 2024 Dept: M CASE NAME: Klenk v. Behringer Harvard Redwood LLC, et al. CASE NO.: 20SMCV01023 MOTION: Motion for Attorneys Fees Motion to Tax Costs HEARING DATE: 7/10/2024 Legal Standard Attorneys Fees With respect to attorney fees and costs, unless they are specifically provided for by statute (e.g., CCP §§ 1032, et seq.), the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.¿(CCP § 1021.) The prevailing party on a contract, which specifically provides for attorney fees and costs incurred to enforce the agreement, is entitled to reasonable attorney fees in addition to other costs.¿(Civ. Code § 1717(a); CCP §§ 1032, 1033.5(a)(10)(A).)¿The court, upon notice and motion by a party, shall determine the prevailing party and shall fix, as an element of the costs of suit, the reasonable attorney fees.¿(Civ. Code § 1717(a), (b).)¿Any notice of motion to claim attorney fees as an element of costs under shall be served and filed before or at the same time the memorandum of costs is served and filed; if only attorney fees are claimed as costs, the notice of motion shall be served and filed within the time specified in CRC 3.1700 for filing a memorandum of costs.¿(CRC 3.1702; Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1303, fn. 1.) It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. [Citation.] ( Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623 624.) The fee setting inquiry in California ordinarily begins with the lodestar [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ( Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) [A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. ( Margolin v. Regl Planning Commn (1982) 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys fees award].) Such an approach anchors the trial courts analysis to an objective determination of the value of the attorneys services, ensuring that the amount awarded is not arbitrary. ( Id . at 48, fn. 23.) The factors considered in determining the modification of the lodestar include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. ( Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.¿( Premier Medical Management Systems, Inc. v. California Ins. Guaranty Assoc. (2008) 163 Cal.App.4th 550, 564.)¿General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. ( Ibid .) Costs The prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP § 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Prevailing party includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (CCP § 1033.5(c)(2).) If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. ( Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Analysis Defendants GS Redwood Property LLC and Greystar California Inc. (Defendants) move for an award of attorneys fees pursuant to Civil Code section 1942.4 and Rule of Court, rule 3.1702. Defendants seek attorneys fees in the amount of at least $169,139.20, and an award of costs in the amount of $63,749.55. Defendants also move to tax Plaintiff Wendy Klenks verified memorandum of costs, filed January 31, 2024. Defendants Costs Defendants claim $63,749.55 in costs. However, Defendants failed to file a memorandum of costs as required by California Rules of Court (CRC), rule 3.1700. A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment[.] (CRC Rule 3.1700(a).) Judgment was entered on December 20, 2023. Notice was filed on January 11, 2024. Plaintiff timely filed a memorandum of costs as the prevailing party at trial on January 31, 2024. Defendants did not file or serve any memorandum of costs. The instant motion for fees and costs was not filed until February 20, 2024. Thus, the request for costs is untimely. Defendants contend that a memorandum of costs is not required for attorneys fees pursuant to CRC Rule 3.1702. Indeed, no memorandum of costs is required for attorneys fees unless such fees are fixed without the necessity of a court determination. (CRC Rule. 3.1702(e).) However, the instant request concerns costs outside of attorneys fees. Notably, Rule 3.1702 does not refer to such costs at all. Thus, Defendants were not excused from CRC Rule 3.1700s requirement that a memorandum of costs be filed within 15 days of service of notice of judgment to recover costs as a prevailing party. Since Defendants failed to comply with this mandatory provision, costs cannot be awarded. Furthermore, the Court would disallow the costs claimed for inspection and testing. (Ward Decl., Ex. E.) Such costs are not expressly allowed by statute. (CCP § 1033.5(b)(1)-(2), (c)(2).) If considered on the merits, the Court would strike the request for $23,916.40 and for $8,635.00 related to testing/inspection of the property. Accordingly, the motion is DENIED as to the cost request. Attorneys Fees Section 194 2.4(b)(2) provides for recovery of reasonable attorneys fees to the prevailing party in a suit between landlord and tenant regarding untenable conditions. The trial court has discretion to determine which party, if any, is the prevailing party on a practical level. ( Galan v. Wolfriver Holding Corp. , (2000) 80 Cal. App. 4th 1124, 1128.) A prevailing defendant may recover only reasonable attorney fees incurred in [its] defense of the action by [the plaintiff]. ( Hill v. Affirmed Housing Group (2014) 226 Cal.App.4th 1192, 1197.) To the extent [a prevailing defendants] shared counsel engaged in litigation activity on behalf of [a codefendant] for which fees are not recoverable, the [trial] court has broad discretion to apportion fees. ( Id .) A court may apportion fees even where the issues are connected, related or intertwined. ( Id .) And although time-keeping and billing procedures may make a requested segregation difficult, they do not, without more, make it impossible. ( Id .) Attorneys fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed. ( Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 771.) Thus, [a]pportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorneys time into compensable and noncompensable units. ( Id . at 771-72.) Defendants prevailed on the section 194 2.4 claim and other related habitability issues. On November 28, 2023, the Court granted Defendants motion for judgment of nonsuit on the section 1942.4 claim. The Court found that Plaintiff failed to submit any evidence on the elements related to an inspection, notice of abatement, and delay without good cause. (See Civ. Code §1942.4(a)(2), (3).) Later, on November 30, 2023, the jury returned its verdict in favor of Defendants on the habitability claim, the quiet enjoyment claim, and the nuisance claim, and in favor of Plaintiff on the negligence claim. While the statutory claim was not presented to the jury, the jury considered and rejected the related common law habitability claims. Plaintiff decidedly lost on the habitability issues, including the statutory claim which would have entitled her to attorneys fees. Despite losing on the majority of her claims, and recovering only a small percentage of damages actually requested, Plaintiff did prevail at trial with a recovery of $58,000.00 on her negligence claim. However, on a practical level, Defendants are the prevailing party as to the habitability claims, and Defendants may recover their attorneys fees. In their opposition, Plaintiff argued that all the claims are intertwined and that all of counsels work related to all of the claims. As such, Plaintiff argues that apportionment of fees between the claims is appropriate. Plaintiff requests that the Court reduce the fee award by 50%. Here, Defendants submitted detailed time records for the legal work performed. Defendants attorneys billed 810.4 hours at $237 per hour for a total of $169,139.20. (Ward Decl., Ex. D, G.) The Court finds the reduced hourly rate reasonable in light of counsels experience, education and expertise. The Court will apportion the fees to reflect the mixed success of the Defendants and the interrelated nature of the causes of action. In light of the entirety of the record, and using the lodestar method, the Court finds that a reasonable fee in this instance would be $111,631.87, which represents 534.86 hours of attorney time at the approved rate. Accordingly, the motion is GRANTED in the amount of $111,631.87. Motion to Tax Plaintiffs Costs Defendants move to tax Plaintiff Wendy Klenks verified memorandum of costs, filed on January 31, 2024. While Defendants prevailed on the habitability claim, Plaintiff should still be considered the prevailing party at trial. On December 20, 2023, the Court entered judgment against Defendants Greystar California, Inc. and GS Redwood Properties, LLC, jointly and severally, in the sum of $58,000, in favor of Plaintiff. Thus, Plaintiff is entitled to allowable costs under Code of Civil Procedure section 1033.5. Defendants request the Court tax from Plaintiffs Memorandum of Costs the following items: Item 1 - Filing and motions fees of $696.54 Item 4 - Deposition costs $3,567.45 Item 5 - Service of process $142 Item 11 - Court reporter fees $3,387.50 As to each item, Defendants argue that the verified costs are unreasonable because Plaintiff does not provide any detail for the Court to determine if Plaintiff is seeking proper costs. However, the cited costs are expressly allowed by statute. (CCP § 1033.5(a)(1), (3), (4), (11).) Plaintiff provided a verified memorandum of costs, confirming that the sought costs are correct and were necessarily incurred in the case. Therefore, th e burden is on Defendants to demonstrate that such costs were not reasonable or necessary. Defendants do not meet this burden by merely suggesting that Plaintiff must present further details beyond the verified memorandum. Accordingly, the motion is DENIED.

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