Premier Bank Vs. Vandervlucht, Bradley K Et Al Jmk

FCS057009 Motion by Plaintiff DMP MANAGEMENT, LLC to Compel Compliance with Deposition Subpoena for Production of Business Records and for Sanctions TENTATIVE RULING Evidence Code §1563(b)(1) authorizes a nonparty witness to charge the subpoenaing party “reasonable costs” with respect to the production of business records pursuant to a records subpoena, with those costs generally limited to $24/hour per person for the reasonable clerical costs to locate and produce the records responsive to the subpoena. All reasonable costs incurred in a civil proceeding by a witness who is not a party with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum. (1) “Reasonable costs,” as used in this section, includes, but is not limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8½ by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person. After the original enactment of this statute, the Legislature amended it, to add the “including but not limited to” language. Nevertheless, a nonparty receiving a records subpoena should produce responsive documents subject to the clerical hourly rate limitation, absent the providing of sufficient evidence to establish that the document search cannot reasonably be performed by a clerical, non-professional person. The only evidence AMS has presented is the declaration of its founder/chief engineer. All he claims in his declaration is that nearly all work and communications are in electronic form, stored on computers, and not stored yet in separate folders per project. While his declaration reported directing “an associate in my office, Marie Thompson”, to contact AMS’s attorney, he also claimed that “AMS does not employ any clerical persons or secretaries or persons who are compensated at the rate of $24/hour”. That latter statement does not rule out that AMS employs or could employ any clerks or secretaries (only that if AMS does so employ, none are paid at the hourly rate of $24). And it does not seem likely that an engineering firm of even small size lacks any support staff (secretary, clerk, receptionist or even bookkeeper) who at relatively low hourly rates could not be tasked with the job of sorting through computer records. The court therefore grants DMP’s motion, and orders AMS to produce documents (electronic or otherwise) responsive to the business records deposition subpoena. The court also imposes sanctions against AMS, in the amount of $1,460.00, payable to DMP by 5:00 p.m. within 30 days from issuance of this Order. Compliance with all terms of this order is due within 20 days of service of the signed order. Join ZoomGov Meeting https://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09 Meeting ID: 160 221 0102 Passcode: 650928 One tap mobile +16692545252,,1602210102#,,,,*650928# US (San Jose) +16692161590,,1602210102#,,,,*650928# US (San Jose)

Re: Fadi Abboud v. Gary Yep Superior Court Case No. 22CECG03765 Hearing Date: July 17, 2024 (Dept. 502) Motion: Plaintiffs’ Motion for Attorney’s Fees and Costs Oral Argument, if timely requested, will be heard on Thursday, July 18, 2024 at 3:30 PM in Department 502. Tentative Ruling: To grant plaintiffs’ motion for attorney’s fees in the amount of $14,815.00, and costs in the amount of $1,258.00. Explanation: First, plaintiffs have met their burden of showing that they are the prevailing party on the action on the contract, and therefore they are entitled to an award of attorney’s fees under the language of the easement agreement and the court’s judgment. Under Civil Code section 1717, subdivision (a), “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” Here, the easement contract contains a clause that provides for an award of reasonable attorney’s fees to the prevailing party in the event that a legal action or arbitration is filed to enforce the agreement. (Tipton decl., Exhibit A, § 6.) “The prevailing party shall be the party that obtains any of the remedies sought in the action.” (Ibid.) The court entered a judgment in favor of plaintiffs after a court trial. (Plaintiffs’ Request for Judicial Notice, Exhibit 1. The court intends to take judicial notice of the judgment under Evidence Code section 452(d).) The judgment also states that plaintiffs are the prevailing parties for the purpose of awarding attorney’s fees and costs, and that defendants shall pay plaintiffs their reasonable attorney’s fees and costs according to proof. (Ibid.) Therefore, plaintiffs have shown that they are the prevailing parties and that they are entitled to an award of their reasonable attorney’s fees and costs. Defendants do not dispute that plaintiffs are the prevailing parties in the action or that they are entitled to an award of their reasonable attorney’s fees and costs. However, they contend that plaintiffs’ counsel has not submitted sufficient evidence to support the requested amount of fees and show that the amount is reasonable. They point out that, in its order denying the last motion for fees without prejudice, the court found that plaintiffs’ counsel had not submitted evidence showing the amount of hours that counsel worked on the case, which tasks were performed, and who performed them, so it could not determine whether the requested amount of fees was reasonable. (Defendants’ Request for Judicial Notice, Exhibit A. The court intends to take judicial notice of its order under Evidence Code section 452(d).) Defendants contend that plaintiffs’ new motion does not cure the defects of the last motion, and therefore plaintiffs have still failed to show that the requested fees are reasonable. Also, defendants object that the requested $225 per hour rate for plaintiffs’ counsel’s law clerk is excessive and should not be approved. However, plaintiffs’ counsel has now provided the court with enough information to make a determination of whether the requested fees are reasonable. In Serrano v. Priest (1977) 20 Cal.3d 25, the California Supreme Court stated: “‘The starting point of every fee award, once it is recognized that the court's role in equity is to provide just compensation for the attorney, must be a calculation of the attorney's services in terms of the time he has expended on the case. Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.’” (Serrano, supra, at p. 48, fn. 23, citation omitted.) “In Serrano IV, applying the same principles to the statutory fee award under Code of Civil Procedure section 1021.5, we reiterated that fee awards should be fully compensatory. We approved the calculation of attorney fees beginning with a lodestar figure based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting no contingent litigation of the same type. We remarked that the reasonable value of attorney services is variously defined as the ‘“hourly amount to which attorneys of like skill in the area would typically be entitled.”’ We noted that the lodestar figure was subject to augmentation based on factors including the contingent nature of the litigation. We held in Serrano IV that, absent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133, citations and paragraph break omitted, italics in original.) “[I]n PLCM Group, Inc. v. Drexler, we instructed: ‘[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.... 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. Such an approach anchors the trial court's analysis to an objective determination of the value of the attorney's services, ensuring that the amount awarded is not arbitrary.’” (Id. at p. 1134, citations omitted.) “'The matter of reasonableness of attorney's fees is within the sound discretion of the trial judge. Determining the weight and credibility of the evidence, especially credibility of witnesses, is the special province of the trier of fact.' 'In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider ”the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, his learning, his age, and his experience in the particular type of work demanded ... ; the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.”’” (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 656-657, citations omitted, italics in original; see also Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) While the party moving for a fee award does not have to submit detailed billing records, they do have to provide a declaration from counsel attesting to the time spent by the attorney on the case, the tasks performed, and his or her billing rate in order to support the court’s lodestar calculation. (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651.) “For determining attorney fees, ‘[a]ny rational calculation method is permissible.’ ‘The law is clear ... that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.’ Billing documentation is not required. (People v. Kelly (2020) 59 Cal.App.5th 1172, 1183, citations omitted, italics in original.) Here, plaintiffs seek an award of $16,135 in attorney’s fees and $1,258.16 in costs. Plaintiffs’ counsel states that her hourly rate is $300, and that her law clerk’s rate is $225 per hour. Counsel’s rate appears to be reasonable and consistent with the rates charged by other attorneys of similar skill, education, and experience in the Fresno area. Therefore, the court will approve counsel’s hourly rate of $300. On the other hand, plaintiffs’ counsel has provided very little information about the education, background, skill and experience of her law clerk. She states that her clerk has worked with her for almost 15 years, and that he is particularly adept at real property matters, which made him well-suited to work on this case. (Id. at ¶¶ 7, 8.) He did a great deal of work in the case, and he was instrumental in getting a judgment for plaintiffs. (Id. at ¶ 8.) He drafted the trial brief, reply brief, did research, and wrote legal arguments for plaintiffs’ counsel. (Ibid.) Counsel performed only nominal revisions on his work. (Ibid.) However, counsel says nothing about the clerk’s education, background, or experience, aside from the fact that he has worked for counsel for about 15 years and that he has skill in real property matters. Given the rather high requested rate of $225 per hour for a law clerk, counsel needs to provide more information about her clerk’s background, education and experience to justify the requested rate. Also, it is notable that Judge Simpson approved a rate of $150 per hour for the same clerk about four years ago. (See Tipton April 24, 2024 reply decl., ¶ 9.) However, plaintiffs’ counsel now requests a rate of $225 per hour, which is considerably higher than the rate approved by Judge Simpson in 2020. Counsel has not shown why her clerk’s rate has increased $75 per hour in only four years, nor has she provided any evidence that law clerks in the Fresno area are now billing at rates of $225. As a result, there is insufficient evidence to support the plaintiffs’ request to approve the law clerk’s rate of $225 per hour. Rather than denying the motion, however, the court intends to find that a reasonable rate for the law clerk based on his skill and experience is $175 per hour, which is slightly higher than the $150 per hour rate approved by Judge Simpson in 2020. Next, plaintiffs’ counsel has now provided sufficient evidence of the number of hours she and her clerk spent on the case and the specific tasks that they performed to support the requested fees. Counsel has provided information about the various tasks performed throughout the case, and how many hours she and her law clerk worked at each stage of the case. (Tipton decl., ¶¶ 13-17.) Counsel incurred 4.2 hours of time and her clerk incurred 2.2 hours of time on the first stage of the case, up through the filing of the complaint, for a total of $1,755 in fees. (Id. at ¶ 13.) Counsel incurred another 4.8 hours of time and her clerk incurred 5.3 hours of time from the filing of the complaint to the review of defendants’ answer, for a total of $2,632.50 in fees. (Id. at ¶ 14.) In the next eight months between the filing of the answer and the trial, plaintiffs’ counsel incurred another 4.6 hours of work and her clerk incurred 4.9 hours of work, plus .1 hours of legal assistant work, for a total of $2,495 in fees. (Id. at ¶ 15.) From November 1, 2023 to November 12, 2023, counsel incurred another 6.8 hours and her clerk worked 7.2 hours to prepare for the trial, for a total of $3,660 in fees. (Id. at ¶ 16.) Once the trial commenced, counsel incurred another 9.5 hours and her clerk worked 6.8 hours, for total fees of $4,392.50. (Id. at ¶ 17.) She also provides a breakdown of the specific tasks performed at each stage of the litigation. (Id. at ¶¶ 13-17.) As a result, plaintiff has now provided enough information for the court to assess whether the requested fees are reasonable. While defendants argue that plaintiffs’ counsel needs to provide billing records to allow a determination of the reasonableness of the fees request, counsel is not required to provide billing records to support her fees motion. She only needs to provide her declaration containing information regarding the hours worked and the tasks performed. (People v. Kelly, supra, 59 Cal.App.5th at p. 1183.) Here, she has provided her declaration that gives the court sufficient evidence to allow it to assess the reasonableness of the requested fees. Next, it appears that the requested number of hours is reasonable. Counsel has claimed only 29.9 hours of billable time for herself for about one year of work on the case, including drafting and filing the complaint, conducting discovery, preparing for trial, and actually trying the case. Also, she seeks another 26.4 hours for her law clerk, who bills at a lower rate than she does. The amount of hours requested for the tasks performed appears to be reasonable, especially in light of the excellent results for her clients, who obtained a judgment entirely in their favor. Defendants have failed to point to any specific hours or tasks that were unreasonable, excessive, or duplicative. Thus, the court intends to approve the requested amount of hours as reasonable, and use the number of hours to calculate the lodestar fees. Based on counsel’s hourly rate of $300 and her hours of 29.9, the court intends to grant fees of $8,970 for her work. The court will also award fees of $4,620 for the law clerk’s work based on a billing rate of $175 per hour and 26.4 hours of work billed. Finally, the court will award fees of $25 for the legal assistant’s 0.2 hours of work billed at $125 per hour. Thus, total fees will be $13,615.00 for the work done on the case up to the present fees motion. The court also intends to grant counsel’s request for fees to bring the fees motion, in the amount of $1,200 based on four hours of time to draft the motion, draft the reply, and appear at the hearing. As a result, the grand total fees will be $14,815.00 The court will also grant the requested costs of $1,258.16 based on the memo of costs. Notably, defendants have not objected to any of the requested costs or made any showing that the costs were not reasonably incurred to litigate the case. Therefore, the court intends to grant the requested costs in full. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: KCK on 07/15/24 . (Judge’s initials) (Date)

ECKELMAN, ET AL. VS. OLCO, INC Case Number: 23CV-0202690 This matter is on calendar for review regarding status of the case and trial setting. The Court designates this matter as a Plan II case and intends to set the matter for trial no later than January 22, 2025. The parties are ordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessary on today’s calendar.

Motion for Interlocutory Judgment for CVPS2304994 BODINE vs LIEM Partition and Appointment of Referee by WILLIAM P. BODINE Tentative Ruling: No tentative ruling. Hearing will be conducted on Monday July 15, 2024 8:30 a.m. Department PS2.

Case Number: 23VECV05137 Hearing Date: July 17, 2024 Dept: W ALLAN MARTIA, et al. vs S.B.S. TRUST DEED NETWORK (SBS), et al. demurrer to the cross-complaint of bryan russolesi and motion to strike Date of Hearing: July 17, 2024 Trial Date: None Set Department: W Case No.: 23VECV05137 BACKGROUND On November 16, 2023, Plaintiff Allan Martia and Knolton, Inc. filed a complaint against Defendants S.B.S. Trust Deed Network (SBS), Bryan Russolesi, Daymon Harris, Barbara Chiling, and Timothy Glasserand for (1) Violation of CC 2924.11 (d); (2) Breach of Contract; (3) Unfair Business Practices in Violation of Business and Professions Code §§ 17200 et seq.; (4) Tortuous Interference with Prospective Economic Advantage; (5) Interference with Contract; (6) Quiet Title. (7) Declaratory Relief; (8) Temporary and Permanent Injunction; (9) Fraud; (10) Wrongful foreclosure (threatening to wrongfully foreclose); and (11) Cancellation of Instrument. On January 22, 2024, Bryan Russolesi filed aCross-Complaint against Allan Martia, Knolton, Inc., and Reel West, Inc. for (1) Fraud; (2) Judicial Foreclosure; (3) Breach of Contract; and (4) Declaratory Relief. [Tentative] Ruling I. Defendant Knolton, Inc.s Demurrer to Cross-Complaint of Bryan Russolesi and Motion to Strike is OVERRULED II. Cross-Defendant Reel West, Inc.s Demurrer to the Cross-Complaint of Bryan Russolesi is OVERRULED. ANALYSIS I. DEFENDANT KNOLTON, INC.S DEMURRER TO CROSS-COMPLAINT OF BRYAN RUSSOLESI AND MOTION TO STRIKE Defendant Knolton, Inc. demurs to the cross-complaint of Bryan Russolesi on the grounds Russolesis complaint fails to state facts sufficient to constitute a cause of action for fraud against Knolton, Inc. Defendant also moves to strike the cross-complaint on the grounds it was filed without leave of court. [1] Fraud Defendant Knolton, Inc. demurs to the fraud cause of action on the grounds Cross-Complainant has failed to allege specific facts as to the elements of fraud. The elements of fraud are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. ( Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. ( Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered. ( Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Knolton, Inc. argues the fraud cause of action is a mashup of general conclusory allegations with no reference to any representation. For example, Paragraph 12 alleges Martia on behalf of himself and other cross defendants misrepresented that he intends to comply with his obligation under the amended note and deed of trust that Martia executed &, and Cross Complainant contends that Martia had breached the terms the terms of the note. There are no allegations that Knolton had anything to do with the alleged misrepresentation by Martia. Similarly, Martia conspired with other persons unknown at this time &, of their intent not to pay the principal sum and other payment required by the note and amendment. (XC ¶13.) Knolton contends there is no allegation it was a party to or responsible for the Secured Note nor are there allegations all the Cross-Defendants are deemed agents of each other or conspirators is not specific enough. The court finds the fraud cause of action in the cross-complaint is sufficiently alleged for the purposes of a demurrer. Russolesi alleges on April 2021, Martia, on behalf of himself and the Cross-Defendants, including Knolton, misrepresented to Russolesi that Martia would repay the principal sum that he borrowed from Russolesi and the other lenders that are named in the Secured Promissory Note dated April 22, 2021. (XC ¶6.) Russolesi also alleges in May 2023, Martia, again on behalf of Cross-Defendants, misrepresented that he intended to comply with his obligations under the Amendment to Secured Promissory Note dated April 1, 2023 (XC ¶12.) The complaint alleges Martia and all the Cross-Defendants, including Knolton, were agents of one another. (XC ¶5.) The complaint goes on to allege the Note, 2021 Deed of Trust, Amendment, and the misrepresentations of Martia regarding them were used and intended by Cross-Defendants to fraudulently induce Russolesi and the Beneficiaries into agreeing to loan Martia the Principal Sum, and to agree to the Note, 2021 Deed of Trust, and Amendment, and cause them to delay enforcing their remedies thereunder. (XC ¶13.) Russolesi claims these Cross-Defendants conspired among themselves to deceive and conceal the true facts regarding their intention not to pay. (XC ¶13.) This sufficiently alleges Knolton along with Martia and the other Cross-Defendants were agents and/or co-conspirators of one another for the purposes of a demurrer. Accordingly, the demurrer to the fraud cause of action is OVERRULED. Motion to Strike Knolton argues the cross-complaint should be stricken in its entirety because he filed his answer on December 29, 2023 and his Cross-Complaint on January 22, 2023. However, the court agrees with Plaintiff that Code of Civil Procedure section 428.10 is applicable as to Knolton and therefore, Russolesi did not need to file his cross-complaint against Knolton at the same time he filed his answer to Martias complaint. If Martia wanted to strike the cross-complaint, then they could. i. CROSS-DEFENDANT REEL WEST, INC.S DEMURRER TO THE CROSS-COMPLAINT OF BRYAN RUSSOLESI Cross-Defendant Reel West, Inc. demurs to the cross-complaint of Cross-Complainant Bryan Russolesi on the grounds Russolesi failed to allege facts sufficient to support a claim of fraud. For the reasons stated above, the court finds Russolesis fraud allegations sufficient for the purposes of a demurrer.

Case Number: 23TRCV02800 Hearing Date: July 16, 2024 Dept: 8 Tentative Ruling HEARING DATE: July 16 , 2024 CASE NUMBER: 23TRCV02800 CASE NAME: Susanne Rose, et al. v. Ocean Ten, LLC, et al. MOVING PARTY: Defendants, Ocean Ten, LLC, BD Management Company, LLC, Bryan Bohlinger, and Patricia Padilla RESPONDING PARTY: Plaintiffs, Susanne Rose, Nick Saba, Sr., Jeanette Rowland, Nick Saba Jr., Shameka Fleming, Marquan Pikes, Malaya Pikes, Mashaila Pikes TRIAL DATE: Not Set. MOTION: ( 1) Demurrer Tentative Rulings: ( 1) Defendants demurrer is tentatively SUSTAINED pending oral argument , and without lea v e to amend as tot eh 12 alleged cause of action under the ADA I. BACKGROUND A. Factual On August 24, 2023, Plaintiffs, Susanne Rose, Nick Saba, Sr., Jeanette Rowland, Nick Saba Jr., Shameka Fleming, Marquan Pikes, Malaya Pikes, Mashaila Pikes (collectively, Plaintiffs) filed a Complaint against Defendants, Ocean Ten, LLC, BD Management Company, LLC, Beach Front Property Management, Bryan Bohlinger, and Patricia Padilla , and DOES 1 through 50. On November 15, 2023, Plaintiffs filed a First Amended Complaint (FAC). On February 1, 2024, this Court sustained the Defendants previous demurrer with leave to amend. As noted in this Courts previous tentative ruling, the causes of action here are based on numerous allegations, and three categories of alleged discrimination based on disability and medical condition: (1) Constant Elevator Outages at the Subject Property (alleged by Susanne Rose and Nick Saba, Sr. who claim to rely on the elevator to access their homes and community and receive emergency medical services. Despite this, they allege that Defendants refuse to maintain the elevators and service interruptions have increased with Ocean Ten LLCs new ownership and management, specifying, the elevators are out of service more than 50% of the time); (2) Inoperable Pool (Plaintiffs allege they have all been inconvenienced by the closing down of the pool beginning in March 2022, but this has especially inconvenienced Plaintiff, Marquan Pikes is diagnosed with schizophrenia and alleges that he requires access to a pool to improve positive and manage negative symptoms, as well as increase quality of life and cognition); and (3) Taking Away of Accessible Parking (Nick Saba Sr. notes he was given a parking spot near the elevator because of his disability and medical situation, but in June of 2022, Defendant Padilla took this spot aware, forcing Nick Saba Sr. to walk a greater distance to get to and from the elevator from his car.) ( 4) Retaliatory Notices to Terminate Tenancy and Refusal to Grant Plaintiffs Reasonable Accommodation Request for Additional Time to Move (Plaintiffs claim they have been served with notices to quit in retaliation for their complaints about the uninhabitable conditions despite pleading with Defendants to give them additional time to move because of their disabilities and medical conditions.) On February 1, 2024, this Court SUSTAINED Demurring Defendants demurrer to the FAC with leave to amend. On February 22, 2024, Plaintiffs filed a Second Amended Complaint (SAC) alleging causes of action for: (1) Breach of the Warranty of Habitability (common law); (2) Breach of the Warranty of Habitability (statutory); (3) Breach of the Covenant of Quiet Enjoyment; (4) Breach of Contract; (5) Private Nuisance; (6) Discriminatory Practices on Account of Disability and Medical Condition (FEHA § 12955); (7) Violation of the Unruh Civil Rights Act; (8) Negligence; (9) Intentional Infliction of Emotional Distress; (10) Retaliation; (11) Unfair Business Practices (Cal. Bus. & Prof. Code § 17200); and (12) Violation of the Americans with Disabilities Act. Defendants, Ocean Ten, LLC, BD Management Company, LLC, Bryan Bohlinger, and Patricia Padilla (collectively, Demurring Defendants) have once again file s a demurrer and motion to strike , this time directed at portions of Plaintiffs SAC. B. Procedural On March 29, 2024, Demurring Defendants filed this demurrer. On May 2, 2024, this Court continued the June 21, 2024 date to July 16, 2024. On May 9, 2024, Demurring Defendants filed an Amended Notice of the Demurrer to the Second Amended Complaint. On July 2, 2024, Plaintiff filed an opposition brief. On July 9, 2024, Demurring Defendants filed a reply brief. II. ANALYSIS Legal Standard 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. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged. ( C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer does not admit contentions, deductions or conclusions of fact or law. ( Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ ( Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, [a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. ( Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Discussion Preliminarily, this Court notes that because it previously analy zed the last demurrer in great detail , in the interest of brevity, the Court will be ab breviating the analysis of this demurrer. Moreover, as the amended pleading was served on Defendants on February 21, 2024, Defendants responsive pleadings were due by March 26, 2024. However, the demurrer was not filed until March 29, 2024. This alone can be grounds for this Court to sustain the demurrer , but the Court will analy ze the issues on their merits below. Discriminatory Practices on Account of Disability and Medical Condition Elevator Previously, in this Courts February 1, 2024 tentative ruling, it noted that it was not persuaded by Demurring Defendants argument that the failure to maintain working elevators in an alleged multi-story apartment building failed to allege actual discrimination . However, this Court also held that the FAC failed to specifically allege that either Saba Sr. or Rose were unable to ascend or descend stairs because of their alleged disabilities. Other than paragraph 82, which vaguely alleged that being forced to walk up the stairs ha[d] been a danger of [Rose and Saba Jr.s] health and welfare, nothing in the FAC spoke to the inability to use the stairs. Further, this Court noted that amended paragraph 86 of the FAC and its sub-paragraphs alleged impacts the Plaintiffs had suffered during elevator outages , and paragraph 90 of the FAC vaguely alleged that plaintiffs and their counsel gave notices to Defendants of the effect that a non-functional elevator had on their medical conditions, that Defendants had notice that being forced to wa l k upstairs was dangerous to their health or welfare, but not that any of them sought an accommodation regarding the elevator outages. The Court questioned whether plaintiffs contended that the accommodation request was notice to take steps to provide a functional elevator system , and t he Court further questioned how that would be an accommodation. Here, in Plaintiffs SAC, the Court is faced with a similar issue. Plaintiffs have certainly alleged that Defendants [were] aware of the repeated danger to which they subject[ed] their disabled tenants. Plaintiffs [argue that they] and their counsel have repeatedly notified Defendants and their agents about the frequent elevator malfunctions and their hazardous impact upon Saba Sr . , Rose, and other tenants with disabilities. (SAC, ¶ 90.) Further, Plaintiffs also contend that Defendants have refused for years to take the necessary steps to provide functional elevator system and/or have intentionally shut off the elevator to cause hardship to Saba Sr. and Rose. (SAC, ¶ 91.) Plaintiffs also allege that [a]t all relevant times to this action, all of the Defendants were well aware of the above-noted Plaintiffs disabilities because they repeatedly informed Defendants about their disabilities both in writing and orally. (SAC, ¶ 114.) Moreover, the Plaintiffs allege that the notices were included in the five (5) same writings alleged in the FAC . (SAC, ¶¶ 115-119.) Despite these allegations, it appears that none of them have substantially changed, and that the SAC, like the FAC, does not contain allegations that either Saba Sr. or Rose were unable to ascend or descend stairs because of their alleged disabilities or that any of the Plaintiffs sought a FEHA-like request for accommodations , distinct from notice of a problem that needed a correction, or what Plaintiffs SAC also refers to as an inconvenience . (SAC, ¶ 82.) As this Court previously noted, such allegations are insufficient to maintain the sixth cause of action. In this Courts previous February 1, 2024 tentative ruling, it noted that it would entertain oral argument as to whether Plaintiffs believed a legitiamte accommodation cause of action could be alleged. As the SAC did not remedy the deficiencies identified by this Court previously, the Court SUSTAINS demurrer as to the elevator issue in the sixth cause of action. Plaintiffs will be required to present oral argument on whether or not they can allege facts that this Court has noted would cure the shortcomings of the pleadings. If not, this cause of action as it pertains to the alleged inoperable elevators will be sustained without leave to amend. Pool Access Similar to the Courts February 1, 2024 analysis of the elevator issue , this Court also found that the FAC failed to actually allege any request for a FEHA-like accommodation as opposed to a demand to re-open access to the pool. The Court noted that the FAC also failed to allege a pre-litigation request for a reasonable accommodation as distinct from a request to remedy a facility or utility in need of repair. While the SAC continues to contain allegations that Defendants were, at all times , aware that Marquan Pikes needed access to the pool as a result of his disability and medical condition because Marquans mother repeatedly informed Defendant Padilla of this fact (SAC, ¶ 108) , the SAC does include new allegations. While the FAC alleged that the pool was closed to all residents, the SAC contends that although other tenants were given a code to access the pool, Defendants refused to provide Plaintiffs, including Marquan, with the pool code. (SAC, ¶ 110.) This Court notes that if Plaintiffs, including Marquan, were denied access to the pool, as opposed to other residents, this may qualify as direct discrimination versus accommodation. However, the Court is unclear, as these are new allegations, as to whether the pool was closed to all tenants, or whether Defendants denied Plaintiffs access only . Although not argued by Demurring Defendants, these new allegations may also result in uncertain ones as paragraph 55(o) asserts that the [s] wimming pool was closed for months on end, even during the hot summer months (SAC, ¶ 55(o)), and that Defendants closed down the pool beginning in March 2022 & (SAC, ¶ 107.) These two allegations stand for the same proposition the FAC did that the pool was closed down to all tenants, but that specifically, the clos ur e affected Plaintiff Marquan more so than it may have other tenants. The Court requires oral argument as to the uncertainty the new allegations have created, and clarification from Plaintiffs as to whether they are alleging just Plaintiffs named in this lawsuit were denied access to the pool or all tenants . Accessible Parking Demurring Defendants do not demur as to this issue regarding taking away Saba Sr.s accessible parking (near the elevator) . Extended Move-Out Time In this Courts February 1, 2024, tentative ruling as to the extended move-out time, the Court found that Plaintiffs allegations were alleged in a conclusory way. This Court noted that the previous demurrers argument that Plaintiffs have not yet moved out was beyond the four corners of the FAC, but nonetheless, appeared in the opposition as a concession. As such, this Court noted that it did not seem as though the accommodation was denied (a required element on a FEHA cause of action. ) This Court found that paragraph 111 of the FAC alleged a concession by Saba Sr. that Bryan engaged in an interactive process and asked Plaintiff to suggest a move-out date. Further, this Court also noted that paragraph 112 of the FAC alleged that Plaintiffs counsel requested a 12-month extension , which this Court posited may stretch the limits of what might be considered a reasonable accommodation request beyond a 60-day notice period. This Court found that the only allegation that might have supported this issue was paragraph 131 of the FAC, which stated that Defendants initiated a retaliatory eviction action against the Fleming/Pikes and Saba/Rowland households. However, ultimately, this Court held that the allegations, as pled in the FAC, were insufficient to maintain this cause of action as to the extended move-out time. In Plaintiffs SAC, Plaintiffs allege that Defendants refused to provide the accommodation (SAC, ¶¶ 112-119), and instead initiated an eviction action against the Saba and Fleming/Pikes families. (SAC, ¶ 140.) It appears that the allegations pled in the SAC, and specifically relied on in Plaintiffs opposition brief, do not lend themselves to more specificity than the FAC, and remain virtually the same. The Courts identified deficiencies in the FAC appear to continue to remain in the SAC. The parties are again to argue how the FAC and SAC allegations equate to denying of an accommodation. Violation of the Unruh Civil Rights Act Previously, at the February 1, 2024 hearing, this Court noted that it was not enough to merely allege facts in a conclusory manner and tack on citations to ADA code sections. The Court further noted that Plaintiffs were not barred from moving on a cause of action for violation of the Unruh Civil Rights Act for intentional discrimination over failure to accommodate. However, this Court did find that based on the FAC allegations, Plaintiffs conclusory allegations of intentional discrimination did not suffice when the complained - of actions apply to tenants generally . The FAC alleged that Defendants residential housing provided approximately 170 apartment-style units , and that the elevators and pool were inoperable or closed to the tenants who occupy the other apartment-style units as well as Plaintiffs. This Court reasoned that without allegations that Defendants closed the pool or failed to maintain the elevators because of Plaintiffs disabilities, Plaintiffs could not maintain a cause of action for Violation of the Unruh Civil Rights Act based on access to the elevators and pool. Here, as noted above, Plaintiffs SAC has added allegations as to intentionally closing the pool and failing to maintain the elevators because of Plaintiffs disabilities. For example, Plaintiffs have amended their pleading to allege that other tenants were given a code to access the pool while Plaintiffs, specifically, Marquan, were refused code access to the pool. (SAC, ¶ 110.) Plaintiffs also allege that based on their experiences and observations, they believe that Defendant, Patricia Padilla, regularly and maliciously switched off the elevator with full knowledge of the effect an inoperable elevator would have on Saba Sr. and Rose. (SAC, ¶ 85.) Plaintiffs further allege that Defendants have intentionally shut off the elevator to cause hardship to Saba Sr. and Rose. (SAC, ¶ 91.) Again, although not argued by Demurring Defendants, the Court seeks oral argument on the uncertainty of these new additional allegations , b ecause, as noted above, the SAC also states that the pool was closed to all tenants. Further, the SAC also alleges that Defendants refused to maintain the elevators and service interruptions increased when Ocean Ten LLC took over ownership and management of the subject property in or about late 2021. Since then, Defendants have failed and refused to maintain the elevator which has been out of service more that 50% of the time. (SAC, ¶ 80.) An allegation that suggests that 50% of the time since new ownership, the elevators have been inoperable suggests historical inoperability, not inoperability based on retaliation for Plaintiffs accommodation notices. This is even more apparent when Plaintiffs allege that Saba Sr. and Rose observed the elevators would often be inoperable during weekends and mysteriously became operable on Mondays. (SAC, ¶ 84.) Did Plaintiffs communications with Defendants occur over the weekend? Are Plaintiffs appointments on the weekend versus the weekdays ? As such, this Court requires oral argument as to the above issues. Accessible Parking & Extended Move Out Time Again, a s with the Demurrer to the Sixth Cause of Action, Demurring Defendants do not appear to raise any arguments on demur rer as to this issue regarding taking away Saba Sr.s accessible parking (near the elevator) . Demurring Defendants also do not bring up argument with respect to the seventh cause of action as it pertains to extended move out time. Violation of the American Disabilities Act Since filing their FAC, Plaintiffs have added a twelfth cause of action to their SAC of Violation of the Americans with Disabilities Act (ADA). Demurring Defendants demur to this cause of action on the grounds they argue it fails to state facts sufficient to constitute a cause of action against them. Specifically, Demurring Defendants argue correctly, that the ADA does not interpret places of public accommodation to mean residential buildings . Per the moving papers, California Courts have clarified this point. Specifically, in Coronado v. Cobblestone Village Community Rentals, L.P. (2008) 163 Cal.App.4th 831 ( Coronado ) , the plaintiff in Coronado also argued that a residential apartment complex should fit into one of the twelve (12) categories of public accommodations specified in section 12181 of the ADA , specifically, the category of inn, hotel, motel, or other place of lodging . ( Coronado, supra, 163 Cal.App.4th at 8 49.) T he Coronado Court disagreed: [e] ven when liberally construed, the wording cannot reasonably stretch that far. ( Ibid. ) The Court reasoned that the congressional legislative history confirms this point because it explicitly states only nonresidential facilities were intended to be covered by the ADA. ( Ibid, citing H.R.Rep. 101-485(II), 2d Sess., p. 303 (1990), reprinted in 1990 U.S.Code Cong. & Admin. News, p. 383.) The Coronado Court also noted that federal courts addressing the issue have consistently held that the ADA does not apply to residential facilities such as apartments or condominiums. ( Regents of Mercers. College v. Rep. Franklin Ins. (3d Cir. 2006) 458 F.3d 159, 165-166, fn. 8 [residential facilities such as apartments and condominiums are not transient lodging and, therefore, not subject to ADA compliance ]; ¿ Lancaster v. Phillips Investments, LLC ¿(M.D.Ala.2007) 482 F.Supp.2d 1362, 1367;¿ Indep . Housing Services v. Fillmore Ctr. ¿(N.D.Cal.1993) 840 F.Supp . 1328, 1344, fn. 14;¿ Mabson v. Assn. of Apt. Owners ¿( D.Hawaii August 13, 2007, Civ. No. 0600235DAELEK) 2007 WL 2363349, *10, 2007 U.S. Dist. LEXIS 59260 at *30;¿ Phibbs v. Am. Prop. Mgmt. ¿( D.Utah March 19, 2008, No. 2:02CV00260DB), 2008 WL 746977, *3, 2008 U.S. Dist. LEXIS 21879 at **68.)¿ Plaintiffs O pposition fails to cite to any precedent suggesting otherwise. In fact, the only case relied upon by Plaintiffs does involve an elevator, but the elevator issue was present in a courthouse (a place of public accommodation.) ( Barrilleaux v. Mendocino County (2014) 61 F.Supp.3d 906.) A ccordingly , the demurrer is SUSTAINED as to the twelfth cause of action, without leave to amend. I V. CONCLUSION For the foregoing reasons, Demurring Defendants Demurrer is tentatively SUSTAINED pending oral argument . Demurring Defendants are ordered to give notice.

WAGNER VS. LLOYD Case Number: CVCV21-0198602 This matter is on calendar for review regarding status of counsel. At the last hearing on May 20, 2024, both parties represented that they were trying to obtain counsel. There was also a question of whether Plaintiff was acting in her capacity as a Trustee. An appearance by both parties is required on today’s calendar. Plaintiff should be prepared to address whether the property is held by a trust or as individuals.

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