Cf Kl Assets 2019-2 Llc, Vs. Tony C. Tubbs, Lisa Tubbs And All Other Occupants Of 1501 South Alabama Street, Amarillo, Tx 79102

2022-10735 Lakeview Loan Servicing, LLC MSJ 7/16/2024 Plaintiff Lakeview Loan Servicing, LLC brings this Motion for Summary Judgment. Having reviewed the moving documents, and no opposition having been filed, the Court issues the following tentative ruling: No opposition filed. As more fully set forth below, Plaintiff’s Motion for Summary Judgment is Granted. SUMMARY JUDGMENT LEGAL STANDARD A motion for summary judgment will be granted when there is no triable issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The party moving for summary judgment bears an initial burden of production to establish the nonexistence of any triable issue of material fact; if this burden is met the opposing party must then establish the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.) “To be ‘material’ for summary judgment purposes, the fact must relate to some claim or defense in issue under the pleadings. Also, it must be in some way essential to the judgment - i.e., if proved, it could change the outcome of the motion.” (Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470.) FIRST CAUSE OF ACTION: DECLARATORY RELIEF LEGAL STANDARDS Pursuant to Code of Civil Procedure sections 1060 et seq., a party interested in a deed or deed of trust may file an action requesting declaratory relief. The action is for a declaration of rights or duties with respect to another person or the property covered by the written instrument. “To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909 [citing Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582] [quotation marks omitted].) ANALYSIS AND DISPOSITION Here, Plaintiff brings the motion regarding an alleged error in the legal description included in a deed of trust perfected against real property commonly known as 13668 Autumnwood Ave., Lathrop, CA 95330 (“Property”). The dispute regarding the parties’ rights or obligations on the validity of the deed of trust, which includes the incorrect tract name “STRONGBRIDGE” rather than the correct description “STONEBRIDGE,” is an actual controversy that the court may resolve. (P’s MPA p. 7 lns. 12-14.) The undisputed facts and documentary evidence show that in November 2018, Defendant executed a grant deed, along with a promissory note secured by a deed of trust, to purchase the Property. (P’s SSUMF # 2-4; RJN # 1-3.) The grant deed and deed of trust both contain the same error in the legal description as “STRONGBRIDGE” rather than “STONEBRIDGE.” (P’s RJN # 1, 2.) The correct legal description of the tract name as “STONEBRIDGE” is reflected in Tract Map # 2758, dated June 1997. (P’s RJN # 4.) On these grounds, Plaintiff met its burden that no triable issues of material fact exist, and Plaintiff is entitled to summary judgment. SECOND CAUSE OF ACTION: REFORMATION OF DEED OF TRUST LEGAL STANDARDS A written instrument regarding real property may be reformed when, through fraud or mistake, it does not truly express the intent of the parties. The grounds for the reformation can be fraud, mutual mistake, or the mistake of one party which the other party knew or suspected at the time the deed was executed. (Civ. Code, §§ 3399-3402.) The mistake may not be one resulting from the inexcusable negligence or neglect of a legal duty on the part of the party seeking reformation. (Civ. Code, § 1577.) Reformation is not available unless there was an understanding between the parties on all essential terms. The party seeking reformation must prove the true intent of the agreement by clear and convincing evidence. (Shupe v. Nelson (1967) 254 Cal App 2d 693 (allowing reformation of deed).) A complaint for reformation must allege the real agreement, the agreement reduced to writing, and the mistake; that is, the defect in the writing and generally how it came about. (Landis v. Superior Court of Los Angeles County (1965) 232 Cal App 2d 548.) Courts may reform the written instrument when sufficient evidence is presented of a scrivener’s error in the legal description of the deed or deed of trust. (Civ. Code § 3399; Cal. Pacific Title Co., Sacramento Div. v. Moore (1964) 229 Cal.App.2d 114, 116; Merkle v. Merkle (1927) 85 Cal.App. 87, 105.) ANALYSIS AND DISPOSITION Here, Plaintiff brings the motion regarding an alleged error in the legal description attached to a deed of trust perfected against the Property. The undisputed facts and documentary evidence show that in November 2018, Defendant executed a grant deed, along with a promissory note secured by a deed of trust, to purchase the Property. (P’s SSUMF # 2-4; RJN # 1-3.) The grant deed and deed of trust both contain the same error in the legal description, calling the tract “STRONGBRIDGE” rather than “STONEBRIDGE.” (P’s RJN # 1, 2.) The correct legal description of the tract is “STONEBRIDGE” as reflected in Tract Map # 2758, dated June 1997. (P’s RJN # 4.) Further, the undisputed documentary evidence shows that Defendant and the original lender intended to encumber the Property by including the property address and Assessor’s Parcel Number in the grant deed and deed of trust, and through mutual mistake the legal description contains an error. (P’s RJN # 2-3.) On these grounds, Plaintiff met its burden that no triable issues of material fact exist, and Plaintiff is entitled to summary judgment. CONCLUSION Since Plaintiff has met its burden as to all causes of action, and Defendant failed to oppose the motion, the motion for summary judgment is granted. Pursuant to California Rule of Court 3.1312(a) and Code of Civil Procedure section 1019.5(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. WATERS 7/15/2024 Directions for Contesting or Arguing the Tentative Ruling: Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To conduct a remote appearance, follow the instructions below. There is a dedicated conference bridge lines for Dept. 11B. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept. 11B: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6941 and Pin # 5564. The courtroom clerk will make announcements and the Judge will call the calendar. Please mute your phones when you are not speaking, and remember to unmute your phone when you are speaking. At this time, we are not able to provide information over the phone. To communicate with the Courtroom Clerk of Dept. 11B, please email questions to civilcourtclerks@sjcourts.org, indicating in the title of the email the Department, Case number, Case Name, and party’s name. A Courtroom Clerk will return your email. To ensure the Court has your most recent contact information, if you have not already done so, please register your email address and mobile number on the Court’s website under Online Services, Attorney Registration. (You do not have to be an attorney to register.) We thank you for your cooperation, assistance, patience and flexibility

24CV066873: LOCHRIDGE vs RUSHMORE SERVICING, LLC, A LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Preliminary Injunction filed by LAUREN LOCHRIDGE (Plaintiff) in Department 24 Tentative Ruling - 07/17/2024 Rebekah Evenson The Motion for Preliminary Injunction filed by LAUREN LOCHRIDGE on 03/21/2024 is Denied. Plaintiff’s Motion for Preliminary Injunction is DENIED. In determining whether to issue a preliminary injunction, the Court considers (1) the likelihood the moving party will prevail on the merits of her claims, and (2) the interim harm to the parties if an injunction is granted or denied. The moving party must prevail on both factors to obtain an injunction. (Sahlolbei v. Providence Healthcare Inc. (2003) 112 Cal.App.4th 1137, 1145.) Plaintiff has failed to demonstrate a likelihood of prevailing on her claims for (1) Violation of Civil Code § 2923.6, (2) Violation of Civil Code § 2923.7, and (3) Unfair Business Practices in Violation of Business & Professions Code § 17200 et seq. To prevail on a claim for violation of Civil Code § 2923.6, Plaintiff must demonstrate that she submitted a complete application for loan modification prior to the recording of the Notice of Trustee’s Sale. (See Civil Code § 2923.6(c).) Plaintiff alleges she did so in paragraph 34 of her unverified Complaint, but her declaration dated March 20, 2024 does not expressly address whether the application she submitted on February 12, 2024 was complete. (See Plaintiff’s declaration, paragraph 17.) Plaintiff’s declaration dated June 12, 2024 (at paragraph 23) states that she was never informed prior to April 4, 2024 that Defendant needed any additional information to review her application. Defendant submitted evidence showing that in February 2024 Plaintiff was informed in writing that her application is incomplete, and that additional information was required to process the application. Specifically, on February 15 and 17, 2024, Defendant requested that Plaintiff provide further information to verify her income and to verify that Plaintiff is divorced from the co-borrower on the loan. (See the Supplemental Declaration of Edward Hyne dated June 12, 2024, Exhibits 8 and 10; see also Exhibit 3, a noticed dated April 9, 2024 explaining that Plaintiff’s application for loan modification could not be considered because she failed to provide the previously requested documents.) Plaintiff provides no evidence that, to this date, she provided the requested information to Defendant. To prevail on a claim for violation of Civil Code § 2923.7, Plaintiff must demonstrate that she was not provided with a single point of contact to communicate about foreclosure prevention alternatives. (See Civil Code § 2923.7(a).) Again, Plaintiff alleges that Defendant failed to provide her with a single point of contact (see Complaint, paragraph 41), but her declarations dated March 20, 2024 and June 12, 2024 do not expressly address that issue. Defendant’s evidence establishes that Plaintiff’s bankruptcy attorney was twice provided with a single point of contact for Plaintiff to avoid foreclosure. (See Hyne’s declaration dated June 12, 2024 at SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV066873: LOCHRIDGE vs RUSHMORE SERVICING, LLC, A LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Preliminary Injunction filed by LAUREN LOCHRIDGE (Plaintiff) in Department 24 paragraph 16 and Exhibit 5 thereto.) Plaintiff’s declaration does not address whether she ever attempted to contact either of the two individuals designated as the single point of contact (one in the letter dated September 19, 2023, the other in the letter dated January 5, 2024) about her application for loan modification. Plaintiff has not demonstrated a likelihood of prevailing on her claim for Unfair Business Practices, which is contingent on the violations of Civil Code §§ 2923.6 and 2923.7, for the reasons set forth above. Defendant’s Request for Judicial Notice is GRANTED.

Case Number: 21SMCV00756 Hearing Date: July 19, 2024 Dept: M CASE NAM E: Sunrise Projects LLC v. Allstar Financial Services, et al. CASE NO.: 21SMCV00756 MOTION: Motion to be Relieved as Counsel HEARING DATE: 7/19/2024 LEGAL STANDARD The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (CCP § 284(2).) The attorney seeking to withdraw must take reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel. (Cal. Rules of Prof. Conduct, 3-700(A)(2). See, e.g., Vann v. Shilleh (1975) [holding withdrawal prejudicial where attorney withdraw from the representation of defendant on the Friday before trial began the following Monday].) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. ( Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC 3.1362(a), (c), (e).) The requisite forms must be served on the client and on all parties that have appeared in the case. (CRC, 3.1362(d).) When a client is served by mail, the attorneys declaration must indicate that the clients address was confirmed within the last 30 days and how it was confirmed. ( Id. ) If the attorney is unable to confirm the clients current address, the declaration must state the reasonable efforts made within the last 30 days to obtain the clients current address. (Id . ) Additionally, the declaration must state in general terms and without compromising the confidentiality of the attorney client relationship why a motion is brought instead of filing a substitution of attorney. (CRC, 3.1362(c).) ANALYSIS Brianna Milligan and the Geraci Law Firm move to be relieved as counsel for defendant Gerald Vaccerello, as Trustee of the G&B Vaccerello Trust. Counsel submits all the mandatory forms. Counsel states that an irreparable breakdown of the attorney-client relationship has occurred. Counsel served his client by mail at his last known address, which was confirmed within the past 30 days by email correspondence via the address through which attorneys/client regularly communicated. The declaration notes the hearings that are on calendar, including the trial date. Given that trial is not until October 14, 2024, the Court does not find that the client will be prejudiced by the withdrawal. Accordingly, the motion is GRANTED.

22CV020739: JENNINGS vs BAYSIDE COURT OWNERS ASSOCIATION, et al. 07/16/2024 Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) in Department 16 Tentative Ruling - 07/16/2024 Somnath Raj Chatterjee Parties to appear. PLEASE TAKE NOTICE THAT THE HEARING/CONFERENCE WILL BE IN-PERSON WITH THE OPTION TO APPEAR REMOTELY. COUNSEL AND PARTIES MAY APPEAR EITHER IN-PERSON IN DEPARTMENT 16 AT THE ADMINISTRATION BUILDING OR BY REMOTELY THROUGH THE ZOOM PLATFORM. ZOOM LOG-IN INFORMATION FOR DEPARTMENT 16 IS BELOW. Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16024053017 Meeting ID: 160 2405 3017 One tap mobile +16692545252,,16024053017# US (San Jose) +16692161590,,16024053017# US (San Jose) --- Dial by your location • +1 669 254 5252 US (San Jose) • +1 669 216 1590 US (San Jose) • +1 415 449 4000 US (US Spanish Line) • +1 646 828 7666 US (New York) • +1 646 964 1167 US (US Spanish Line) • +1 551 285 1373 US (New Jersey) • 833 568 8864 US Toll-free Meeting ID: 160 2405 3017 Find your local number: https://alameda-courts-ca-gov.zoomgov.com/u/afHtSjITt --- Join by SIP • 16024053017@sip.zoomgov.com --- Join by H.323 • 161.199.138.10 (US West) • 161.199.136.10 (US East) Meeting ID: 160 2405 3017

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

Case Number: 23STCV18514 Hearing Date: July 17, 2024 Dept: 55 I. Tentative Ruling Defendants Motion for Monetary Sanctions is GRANTED in the amount of $ 3,600. II. Background THE PEOPLE OF THE STATE OF CALIFORNIA (Plaintiff) filed suit against RISH INVESTMENTS, INC., as motel owner, and GAZI MONIRUL ISLAM (Defendants) due to Defendants alleged failure to abate nuisances at the motel including prostitution, assaults, and other violent crimes. On 1/26/24, the Court issued an order that (1) Defendant RISH INVESTMENTS, INC. (Defendant) pay $2,880.00 in monetary sanctions to Plaintiff on or before 2/23/2024, pursuant to Code of Civil Procedure § 2033.280(c), and (2) on or before 2/23/2024, Defendant serve initial responses, and produce documents, without objections, and in full compliance with the California Discovery Act, CCP §2016.010 et seq. , as to the form interrogatories, special interrogatories and requests for documents served by Plaintiff. Plaintiff brings a motion for monetary and issue sanctions on the ground that Defendant disobeyed the Courts 1/26/2024 order. Defendant opposes the motion. Defendant also filed an unauthorized sur-reply, which the Court strikes. III. Analysis a. Applicable Law The Court may, after notice to any affected party, person, or attorney and after opportunity for hearing, impose monetary, issue, evidence, or terminating sanctions against anyone engaging in misuse of the discovery process. (Code Civ. Proc., § 2023.030, subds. (a)-(d).) Conduct subject to sanctions includes, but is not limited to, failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) The purpose of discovery sanctions is not to punish. ( Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193.) Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. ( Young v. Rosenthal¿ (1989) 212 Cal.App.3d 96, 118-119 citing¿ Deyo¿v.¿Kilbourne ¿(1978) 84 Cal.App.3d 771, 793; ¿Newland v. Superior Court¿ (1995) 40 Cal.App.4th 608, 613.) Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. ( New Albertsons, Inc. v. Sup. Ct.¿ (2008) 168 Cal.App.4th 1403, 1428.) The discovery statutes thus evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Citation.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. ( Cornwall v. Santa Monica Dairy Co .¿(1977) 66 Cal.App.3d 250, 252- 253.) b. Monetary Sanctions Plaintiff seeks $,3,600 in monetary sanctions in addition to issue sanctions against Defendant. The Court already sanctioned Defendant $2,880.00 for failing to respond to the requests for admission in a timely manner. The Court also previously ordered Defendant to serve verified responses to the discovery propounded by Plaintiff. Given defense counsels statements that he failed to provide timely responses due to illness, the Court gave Defendant extra time, to 2/23/2024, to pay the sanctions and serve the discovery. But as Defendant acknowledges in the opposition, to date no sanctions have been paid and no verified discovery responses have been served. Despite not complying with the Court Order, defense counsel has found time to file 14 federal lawsuits since January. (Plaintiffs Notice and Request for Judicial Notice.) Plaintiff seeks $3,600.00, which consists of a $360 hourly rate with 10 hours of work it believes are reasonable attorneys fees for the work performed on the instant motion. The Court agrees that this amount of monetary sanctions is appropriate and reasonable, given the longstanding and repeated failure on the part of Defendant to comply with its discovery obligations. Defendants opposition consists of a long explanation of various family medical issues suffered by defense counsels family. While defense counsels personal issues are unfortunate, they simply do not excuse his utter failure to comply with his clients discovery obligations. And defense counsels claims that he has been unable to focus on this case rings hollow given the numerous cases he has filed since this Court issued its 1/26/2024 order. Indeed, just in this case, defense counsel managed to litigate the notice of removal in federal court this spring yet could not get around to serving any discovery responses or pay the sanctions for the late RFA responses. c. Issue Sanctions Plaintiff requests that the Court impose various issue sanctions related to the issues in this case. Given that four months have passed since the initial discovery was due, monetary sanctions have not gained compliance, and Defendant has refused to respond to emails regarding the court order, Plaintiff contends that issue sanctions are appropriate and just. As discussed above, the Court finds that Plaintiff is entitled to monetary sanctions due to Defendants noncompliance with the 1/26/2024 Court order, which constitutes discovery abuse. The Court favors an incremental approach to sanctions, especially given defense counsels claims of various family issues. The Court therefore denies the request for issue sanctions without prejudice. Defendant and Defendants counsel need to understand that continued disregard of this Courts orderi.e., not paying the sanctions and not serving the discoverywill result in the Court inviting Plaintiff to seek further, more severe sanctions. IV. Conclusion Plaintiffs Motion for Monetary Sanctions is GRANTED in the amount of $3,600. The Request for issue sanctions is denied without prejudice.

CU23-05492 Motion to Confirm Sale of Rehabilitated Property TENTATIVE RULING Receiver Gerard F. Keena II moves for confirmation of the sale of 158 Baxter Street, Vallejo, California 94590 (the “Property”) following this court’s orders for abatement of the nuisance conditions at the Property, appointment of Receiver, and approval of Receiver’s rehabilitation plan. This court’s order required that any purchaser of the Property demonstrate ability and commitment to correct the deficiencies at the Property and abide by all laws in owning and/or managing the Property, show a management plan and background of successful property management if the Property is intended to be an investment and not owner-occupied, and not own any property in California that is subject to a pending notice of violation or abatement or other notice of violation of law. (Order Approving Rehabilitation Plan and Authorizing Listing and Sale dated 4/18/24.) Receiver declares that the proposed buyer Rolando Pineda was the only one of four offerors to meet the court’s requirements but does not provide supporting evidence. Page 1 of 2 (Declaration of Gerard F. Keena II in Support of Motion at ¶ 11.) Receiver states that other offers were for higher amounts, though the buyers were not qualified. (Ibid.) Receiver is to appear and demonstrate Mr. Pineda’s qualifications to purchase and rehabilitate the Property per the court’s order. The court is inclined to grant Receiver’s motion if satisfied that no qualified higher bidder can be found. SUSAN MAGLIANO v. JOHN CRAWFORD, et al. FCS053303 MOTION TO BE RELIEVED AS COUNSEL TENTATIVE RULING The motion is granted with withdrawal effective only upon prompt service on the client’s successor-in-interest or representative of the signed order. Page 2 of 2

Case Number: 23LBCV00238 Hearing Date: July 16, 2024 Dept: S25 Background On February 8, 2023, Plaintiffs filed a complaint against Defendants Fred Di Bernardo (erroneously sued as Fred Di Bernardo), Kathryn Vance (erroneously sued as Kathryn Vance) (collectively Defendants) and Does 1 through 20, alleging four causes of action: (1) breach of governing documents, (2) nuisance, (3) negligence and (4) declaratory relief. Plaintiffs allege that they, at all relevant times, owned and resided at a condominium at 162nd Place Unit 303, Long Beach, CA 90803 and that Defendant Bernardo has, at all relevant times, owned Unit 403, located directly above Plaintiffs condominium. (Compl., ¶¶ 1-3.) Plaintiffs assert Defendant Vance resides at Unit 403 as a Tenant. (Compl., ¶ 4.) The two condominiums are part of the Peninsula Pacifica Homeowners Association (the HOA); Plaintiffs allege the HOA and each of its members, including Plaintiffs and Defendant Dibernardo, are bound by the Declaration of Establishment of Basis Protective Restrictions, Limitations, Conditions, Covenants and Reservations (the CC&Rs) recorded in the Official Records of Los Angeles County on August 23, 1973 as well as the Bylaws of Peninsula Pacifica Homeowners Association (the Bylaws). (Compl., ¶¶ 10-14, Exhs. A-B.) Plaintiffs allege that on or about July 1, 2022, they discovered black mold along the baseboards of their master bathroom. (Compl., ¶ 19, Exh. C.) Plaintiffs contacted All-American Mold Remediation & Consulting LLC (AMR) to investigate, and AMR found extensive water damage in the master bedroom and vanity area, detected high moisture throughout the ceiling and walls, and discovered mold and moisture in other parts of the master bathroom. (Compl., ¶¶ 20-22, Exh. D.) After AMRs first property inspection, Plaintiffs emailed the HOA and Defendant Vance, notifying them of the mold issue; Defendant Vance agreed to have a leak detection service conduct an inspection. (Compl., ¶¶ 23-24, Exh. E.) On July 22, 2022, American Leak Detection (ALD) inspected Unit 403 and determined water was leaking from Unit 403 to Unit 303 through a bathtubs improperly sealed spout and cover plates. (Compl., ¶¶ 26, 27, Exh. F.) Plaintiff also asserts that on July 25, 2022, AMR returned to Unit 303 and confirmed the source of the water damage as a leak from Unit 403s bathtub. (Compl., ¶ 28.) Plaintiffs further allege that while the ceiling in the Unit 303s master bathroom was open, Plaintiffs and ALD observed and recorded water entering Unit 303 from Unit 403 when the Defendant Vance ran water upstairs in Unit 403s bathroom. (Compl., ¶ 29.) On July 28, 2022, Plaintiffs allegedly spoke with Defendant Dibernardo, who disputed the leak in Unit 403 and refused to further communicate with Plaintiffs. Additionally, Plaintiffs claims Defendant Dibernardo will not provide Defendant Vance or the HOA with his insurance information. (Compl., ¶¶ 30-33.) Plaintiffs state Defendant Dibernardo allegedly hired a plumber to fix the leak in Unit 403, but no proof of work completion was provided to the HOA until around December 22, 2022. (Compl., ¶ 36.) Plaintiffs claim they were unable to live in Unit 303 as no assurances were made that the leak would not reoccur. (Ibid.) Legal Standard The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalfv. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc., § 437c(p)(1). When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi, supra, 159 Cal.App.4th at 467; CCP § 437c(c).) Evidentiary Objections The Court rules as follows on Defendant Dibernardos evidentiary objections to the Declaration of Michele Travis: Nos. 1, 3 and 4 (Overruled) and Nos. 2 and 5 (Sustained). The Court rules as follows on Defendant Dibernardos evidentiary objections to the Declaration of William Idleman. Nos. 1 and 2 (Overruled). Judicial Notice Plaintiffs Request for Judicial Notice of Exhibit 1 (Declaration of Establishment of Basis Protective Restrictions, Limitations, Conditions, Covenants and Reservations recorded on August 23, 1973, as Instrument No. 3059 in the Official Records of Los Angeles County) is granted pursuant to Evidence Code, §§ 451, 452, subds. (c) and (g). Parties Arguments Plaintiffs move for summary adjudication on the following: (1) 1st Cause of Action (Breach of the Governing Documents); (2) whether Defendants owed a duty to maintain Unit 403 in accordance with the CC&Rs; (3) whether Defendants owed a duty not to commit a nuisance; and (4) whether Defendants owed a duty of care under the negligence cause of action not to damage Plaintiffs property. Defendant Dibernardo opposes arguing that: (1) Plaintiffs First Cause of Action for Breach of the HOA Governing Documents is essentially a breach of contract claim and (2) triable issues of material facts exist. Analysis The existence of an issue of duty may be a proper subject for a motion for summary adjudication. Courts may summarily adjudicate that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (CCP § 437c(f)(1); Linden Partners v. Wilshire Linden Assocs. (1998) 62 Cal.App.4th 508, 518. Thus, theoretically, a motion for summary adjudication as to whether Defendant owed a duty under the CC & Rs would be appropriate. Plaintiffs characterize their motion as seeking adjudication as to whether Defendants owed a duty under the CC&Rs. However, the instant motion, as well as Plaintiffs separate statement of facts, it appears that Plaintiffs not only seek the Court to determine whether such a duty exists as a matter of law, but consequently, find that the Defendants breached their alleged duty and are liable for damages as a matter of law. (Plaintiffs Motion for Summary Adjudication, p. 5:7-14, 9:28 10:1-5, 13:22-23.) The instant motion for summary adjudication as the 1st cause of action; Issue of Duty No. 1 - whether Defendants owed a duty to maintain Unit 403 in accordance with the CC&Rs; Issue of Duty No. 2 - whether Defendants owed a duty not to commit a nuisance; and Issue of Duty No. 3 -whether Defendants owed a duty of care under the negligence cause of action not to damage Plaintiffs property are denied to the extent that the motion seeks adjudication of the elements of breach and causation. These are not proper matters for a motion for summary adjudication. (See Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243 [where damages are an element of a cause of action, such as here in the cause of action for negligence, and the damages amount remains disputed, Plaintiff cannot obtain summary adjudication on the elements pertaining to liability]). Assuming arguendo that the Defendants are bound under the terms of the CR&Rs, which Defendants may not dispute (See DSSUF Nos. 7-9), the Court finds there are triable issues of material facts as to whether Defendants Dibernardo and Vance breach their duty of care under the CC&Rs, whether that breach resulted in the alleged water damage of Unit 303, and/or whether alternative sources within Unit 303s bathroom contributed to the claimed damage. (See DSSUF 2-7, 10; Daly Decl., ¶¶ 4, 6-11; Carpenter Decl., ¶¶ 6-12, 14, 15.)