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in Kent County
Ruling
Creditors Adjustment Bureau, Inc., vs. Castro
Jul 10, 2024 |
23CVG-00362
CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO
Case Number: 23CVG-00362
Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves
for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the
amount of $1,572.75 for each motion.
Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and
set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before
the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service
by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by
counting backwards from the hearing date but excluding the hearing date. CCP § 12c.
Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday
of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no
later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served
on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is
denied.
Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted.
Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract
Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be
imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification
has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or
issue sanctions. Without additional evidence, terminating sanctions would be premature.
The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the
denial.
Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this
matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is
necessary on today’s calendar to discuss available trial dates.
Ruling
201700491367CUOR Sherwood Valley HOA vs New Mission
Jul 09, 2024 |
Jeffrey G. Bennett
|
Motion to Quash Specially Appearing Non-Party Amy Levan's Notice of Motion and Motion to Quash Service of Motion to Amend Judgment to Add Judgment Debtor |
201700491367CUOR
SUPERIOR COURT OF CALIFORNIA
COUNTY OF VENTURA
Tentative Ruling
201700491367CUOR: Sherwood Valley HOA vs New Mission
07/09/2024 in Department 21
Motion to Quash Specially Appearing Non-Party Amy Levan's Notice of Motion and
Motion to Quash Service of Motion to Amend Judgment to Add Judgment Debtor
The morning calendar in courtroom 21 will normally begin between 8:30 and 8:45 a.m. Please
arrive at the courtroom no later than 8:30 a.m. The door will be opened before the calendar is
called.
The Court allows appearances by CourtCall but is not equipped for Zoom. If appearing by
CourtCall, call in no later than 8:15 a.m. If you intend to appear by CourtCall, you must make
arrangements with CourtCall by 4:00 p.m. the day before your scheduled hearing. Requests for
approval of a CourtCall appearance made on the morning of the hearing will not be granted. No
exceptions will be made.
With respect to the tentative ruling below, no notice of intent to appear is required. If you wish to
submit on the tentative ruling you can fax notice to Judge Riley's secretary, Ms. Sedillos at
805-289-8705, stating that you submit on the tentative. You may also email the Court at:
Courtroom21@ventura.courts.ca.gov with all counsel copied on the email. Do not call in lieu of
sending a fax or email. If you submit on the tentative without appearing and the opposing party
appears, the hearing will be conducted in your absence. If you are the moving party and do not
communicate to the Court that you submit on the tentative or you do not appear at the hearing,
the Court may deny your motion irrespective of the tentative.
Unless stated otherwise at the hearing, if a formal order is not signed at the hearing, the
prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a),
(b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with
the court. A "notice of ruling" in lieu of this procedure is not authorized.
Tentative Ruling
GRANTS nonparty Amy LeVan’s motion to quash Plaintiff Sherwood Valley Homeowners
Association’s service of its motion to amend judgment to add judgment debtors.
Although the law regarding what type of service is required for Plaintiff’s motion to amend the
judgment is not entirely clear (compare Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 947,
fn. 10, with Reliant Life Shares, LLC v. Cooper (2023) 90 Cal.App.5th 14, 58), the Court
concludes that for the purposes of Plaintiff’s motion to amend the more “suitable process…most
conformable to the spirit of [the Code of Civil Procedure]” (see Code of Civil Procedure §187) is
that Plaintiff be required to serve LeVan with its moving papers in the same manner as required
for service of summons. As a result, the Court finds Plaintiff’s service of its motion to amend
the judgment by mail on LeVan insufficient and quashes such service.
201700491367CUOR: Sherwood Valley HOA vs New Mission
Based on the above, the Court continues the hearing on Plaintiff’s motion to amend the
judgment, presently set for July 11, 2024, to August 15, 2024, to give Plaintiff sufficient time to
effect service of its moving papers on LeVan in the manner required for service of process at
least 16 court days prior to the August 15, 2024 hearing, and to file and serve proof of such
service with the Court.
The motion to amend the judgment is already fully briefed, and no additional briefing is
authorized at this time.
Analysis
The Association’s motion to amend the judgment to add additional judgment debtors is brought
pursuant to Code of Civil Procedure §187. Section 187 provides that:
“When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred
on a Court or judicial officer, all the means necessary to carry it into effect are also given;
and in the exercise of this jurisdiction, if the course of proceeding be not specifically
pointed out by this Code or the statute, any suitable process or mode of proceeding may
be adopted which may appear most conformable to the spirit of this Code.”
Because a motion to amend a judgment to add alter egos is not a “proceeding …specifically
pointed out by this Code or the statute,” the Court may employ “any suitable process or mode of
proceeding may be adopted which may appear most conformable to the spirit of this Code.”
Stated differently, the procedural rules governing the Association’s motion to amend the
judgment are not specified by statute, and therefore the Court must determine what procedural
rules are appropriate (“most conformable to the spirit of this Code”) for such a proceeding.
The Court notes that a motion to amend the judgment to add an alter ego as a judgment debtor is
viewed by the courts as an equitable procedure pursuant to which the Court is not adding a new
defendant, but merely inserting the correct name of the real defendant. (See Leek v. Cooper
(2011) 194 Cal.App.4th 399, 419.) However, LeVan persuasively argues that unless and until
the Court adjudicates that LeVan is an alter ego of the judgment debtor, New Mission, LLC
(“New Mission”), LeVan is legally a separate person from New Mission and therefore the Court
needs to acquire jurisdiction over LeVan in an appropriate manner to rule on the merits of the
alter ego allegations.
There is appellate authority standing for the procedure that a motion to amend the judgment
pursuant to §187 must be a noticed motion. (See, e.g., Wells Fargo Bank, N.A. v. Weinberg
(2014) 227 Cal.App.4th 1, 9 [Stating that: “Code of Civil Procedure section 187 contemplates a
noticed motion.”].) However, there appears to be a dearth of authority directly addressing the
issue of how a nonparty alleged alter ego should be served with notice of such a motion and the
moving papers.
There is authority suggesting – without explicitly holding –that the Association’s moving papers
in support of the motion should have been personally served on LeVan, because such service is
in the spirit of the provisions in the Code of Civil Procedure regarding initiating a lawsuit against
201700491367CUOR: Sherwood Valley HOA vs New Mission
a party. For example, the 2nd District Court of Appeal stated the following with respect to
service of a motion to amend a judgment on the person allegedly the alter ego of the judgment
debtor:
“As discussed, the Estate personally served the motion to amend on Pasquarella, at the
time no longer a party in the Get Flipped litigation, and not her counsel of record in the
Moofly Productions litigation—a procedure that was entirely proper, although perhaps
not a model of professional courtesy. (Cf. §§ 415.10 [requiring personal service of papers
initiating a lawsuit], 684.020, subd. (a) [requiring postjudgment papers be served on
postjudgment debtor, not debtor's counsel, absent a request on file with the court].)
(Pasquarella was also served as the registered agent for judgment debtor Moofly
Productions.)”
(Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 947, fn. 10.)
There is 2nd District Court of Appeal authority suggesting that service of a motion to amend
judgment is affected by the presence or lack thereof of evidence regarding alter ego status.
“As Ms. Cainong necessarily concedes, the service at issue here is not the service of a
summons and complaint, and she offers no authority for her contention that the motion to
amend the judgment was ‘akin’ to service of a summons and complaint. In the absence of
any such authority, we see no reason to treat Cooper's motion to amend the judgment as
subject to different procedural requirements than any other motion. Particularly is this
so given the court's findings in phase one of the trial that the evidence established
Michaels used the three trusts as extensions of himself.” (emphasis added)
(Reliant Life Shares, LLC v. Cooper (2023) 90 Cal.App.5th 14, 58 [“Reliant”].)
Here, unlike in Reliant, the Association fails to submit any evidence that this Court made any
findings at or prior to trial that any of the third parties the Association seeks to add to the
judgment “used [New Mission] as extensions of [themselves].”
The very limited case law on the issue does not provide a clear answer as to what kind of service
of the present motion to amend the judgment is required with respect to LeVan. The Court
adopts the more conservative approach approved of in Favila v. Pasquarella, and requires the
Association to serve LeVan personally with the moving papers, as this is more likely to avoid
potential jurisdictional issues with any amended judgment against LeVan. The Court will require
the Association to serve LeVan with its moving papers in the same manner as required for
service of process.
In her Reply Brief, LeVan argues that Court lacks the discretion to continue the hearing because
it does not presently have jurisdiction over the controversy between the parties. The Court
rejects LeVan’s argument because, inter alia, in her May 16, 2024 ex parte application LeVan
previously requested an order continuing the hearing on the Association’s motion to amend the
judgment, which request was granted in part, and therefore she will not be heard to argue that the
Court lacks either the jurisdiction or power to continue the hearing.
201700491367CUOR: Sherwood Valley HOA vs New Mission
The hearing on the Association’s motion to amend the judgment is presently set for July 11,
2024. The Court will continue the hearing on the motion for approximately five weeks to
August 15, 2024, to give the Association sufficient time to effect service of its moving papers on
LeVan in the manner required for service of process at least 16 court days prior to the August 15,
2024 hearing, and to file and serve proof of such service.
The Court does not authorize any additional briefing on the motion for leave to amend, as the
matter has already been fully briefed.
Ruling
LVNV Funding LLC vs Michelle Reed
Jul 10, 2024 |
22CV-02837
22CV-02837 LVNV Funding, LLC v. Michelle Reed
Order to Show Cause re: Dismissal-Notice of Settlement
Appearance required to address whether case can be dismissed. A Notice of Settlement
of Entire Action was filed on December 7, 2022, stating that a dismissal would be filed by
April 14, 2024. No request for dismissal has been filed. (See Cal. Rules of Ct., rule
3.1385(c).)
Ruling
COACHELLA VALLEY COLLECTION VS HART
Jul 10, 2024 |
PSC1902678
MOTION FOR ASSIGNMENT ORDER by
COACHELLA VALLEY
PSC1902678 COACHELLA VALLEY COLLECTION
COLLECTION VS HART
SERVICE
Tentative Ruling: The Motion of Plaintiff Coachella Valley Collection Service for an Assignment Order
pursuant to C.C.P. §708.510 is GRANTED. Judgment debtor, Sara Lynn Hart, shall forthwith assign to
judgment creditor, Coachella Valley Collection Service, judgment debtor’s rights to twenty-five percent
of any monies due from any insurance broker, production agency or insurance company licensed to do
business in the State of California. Judgment debtor is restrained from assigning or otherwise disposing
of the right to payment sought.
Ruling
Creditors Adjustment Bureau, Inc., vs. Castro
Jul 11, 2024 |
23CVG-00362
CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO
Case Number: 23CVG-00362
Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves
for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the
amount of $1,572.75 for each motion.
Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and
set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before
the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service
by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by
counting backwards from the hearing date but excluding the hearing date. CCP § 12c.
Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday
of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no
later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served
on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is
denied.
Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted.
Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract
Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be
imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification
has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or
issue sanctions. Without additional evidence, terminating sanctions would be premature.
The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the
denial.
Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this
matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is
necessary on today’s calendar to discuss available trial dates.
Ruling
Discover Bank vs William Arteaga
Jul 10, 2024 |
23CV-03426
23CV-03426 Discover Bank v. William Arteaga
Court Trial
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.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Ex Parte Matters
Hon. Brian L. McCabe
Courtroom 8
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:15 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no Ex Parte Matters Scheduled
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Ex Parte Matters
Judge Pro Tem Peter MacLaren
Courtroom 9
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:15 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no Ex Parte matters scheduled.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Ex Parte Matters
Hon. Jennifer O. Trimble
Courtroom 12
1159 G Street, Los Banos
Wednesday, July 10, 2024
1:15 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no Ex Parte matters scheduled.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Limited Civil Long Cause Court Trials
Judge Pro Tem Peter MacLaren
Courtroom 9
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:30 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
There are no cases set for hearing.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF MERCED
Mandatory Settlement Conference
Hon. Brian L. McCabe
Courtroom 8
627 W. 21st Street, Merced
Wednesday, July 10, 2024
1:30 p.m.
The following tentative rulings shall become the ruling of the court unless a party gives
notice of intention to appear as follows:
1. You must call (209) 725-4111 to notify the court of your intent to appear.
2. You must give notice to all other parties before 4:00 p.m. of your intent to appear.
Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will
result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance
provider) of your intent to appear does not satisfy the requirement of notifying the court.
IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing
transcript must make their own arrangements.
Case No. Title / Description
Ruling
TD Bank, N.A. vs. Gurpreet Singh
Jul 10, 2024 |
21CECG01521
Re: TD Bank, N.A. v. Singh
Superior Court Case No. 21CECG01521
Hearing Date: July 10, 2024 (Dept. 503)
Motion: by plaintiff for Judgment on the Pleadings
Tentative Ruling:
To continue the motion to Thursday, August 15, 2024, at 3:30 p.m., in Department
503, in order to allow the parties to meet and confer in person, by telephone, or by video
conference, as required. If this resolves the issues, plaintiff’s counsel shall call the court to
take the motions off calendar. If it does not resolve the issues, plaintiff’s counsel shall file
a declaration, on or before Thursday, August 8, 2024, at 5:00 p.m., stating the efforts
made.
Explanation:
Plaintiff did not satisfy the requirement to meet and confer prior to filing the motion
for judgment on the pleadings. Code of Civil Procedure section 439 makes it very clear
that meet and confer must be conducted in person, by telephone, or by video
conference prior to filing the motion. While the parties may utilize written correspondence
to help supplement the meet and confer process, the moving party is not excused from
the requirement to do so in person, by telephone, or by video conference, unless it shows
that the defendant failed to respond to the meet and confer request or otherwise failed
to meet and confer in good faith. (Code Civ. Proc., § 439, subd. (a)(3)(B).) The evidence
did not show a bad faith refusal to meet and confer on defendant’s part that would
excuse plaintiff from complying with the statute.
The parties must engage in good faith meet and confer, in person, by telephone,
or by video conference, as set forth in the statute. The court’s normal practice in such
instances is to take the motion off calendar, subject to being re-calendared once the
parties have met and conferred. However, given the extreme congestion in the court’s
calendar currently, the court will instead continue the hearing to allow the parties to
meet and confer, and only if efforts are unsuccessful will it rule on the merits.
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: jyh on 7/8/24 .
(Judge’s initials) (Date)
Ruling
VANESA O'HANLON VS. TONY GARNICKI ET AL
Jul 10, 2024 |
CGC23610527
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 15. PLAINTIFF VANESA O'HANLON's Application And Hearing For Right To Attach Order And Writ Of Attachment. Continued to July 11, 2024, on the court's motion. =(302/RBU)