Ubs Bank Usa V. Robert Starbuck Et Al

S-CV-0049670 Branson, Rachelle L. vs. Crossman, Kevin J. ** NOTE: telephonic appearances are strongly encouraged Appearance required.

On the Court’ own motion, the Further Case Management Conference set for 7/5/24 at 9:00 AM is CONTINUED TO 7/26/24 at 9:00 AM in Dept. 10C to be heard together with Defendant's Demurrer. No appearance is necessary on 7/5/24 at 9:00 AM

Case Number: 23STCV08125 Hearing Date: July 26, 2024 Dept: 82 Wilmington Trust, N.A., Case No. 23STCV08125 v. Hearing: July 26, 2024 Location: Stanley Mosk Courthouse Maguire Properties Department: 82 350 S. Figueroa, LLC Judge: Stephen I. Goorvitch [Tentative] Order Denying Motion for Leave to Intervene INTRODUCTION Proposed Intervening Defendant Nonghyup Bank, as Trustee of Meritz Private Real Estate Fund 27, c/o Meritz Alternative Investment Management (Meritz or the Proposed Intervenor) seeks leave to intervene in this action as a defendant. Meritz moves for mandatory intervention pursuant to Code of Civil Procedure section 387(d)(1)(B), or, in the alternative, permissive intervention pursuant to section 387(d)(2). Plaintiff Wilmington Trust National Association, as Trustee on behalf of the Holders of GCT Commercial Mortgage Trust 2021-GCT, Commercial Mortgage Passthrough Certificates, Series 2021-GCT (Plaintiff) opposes the motion. This action arises from the $465 million debt financing of properties known as the Gas Company Tower and World Trade Center Parking Garage located at 555 W. Fifth Street and 350 S. Figueroa Street in Los Angeles, CA (the property). The $465 million loan facility for the property was split into three tranches: (1) the $350 million senior mortgage loan; (2) a $65 million Mezzanine A loan; and (3) a $50 million Mezzanine B loan. Only the senior loan is secured by a deed of trust on the property. Plaintiff, as assignee of the senior lender, seeks specific performance of the rents, issues, and profits clause of the deed of trust securing the $350 million senior loan for the Property. A receiver has been appointed to manage the property, collect rents, and market the property for sale. Meritz, an assignee of a mezzanine lender and potential bidder, now contends that it has a direct interest in the property and the outcome of this action. The court concludes that Meritzs asserted interest is, at most, indirect and consequential. Accordingly, the motion is denied. BACKGROUND On or about February 5, 2021, Citi Real Estate Funding Inc. and Morgan Stanley Bank, N.A. (the Original Senior Lenders) originated a $350 million mortgage loan (Senior Loan), which was securitized into a commercial mortgage-backed security (CMBS) facility that is currently administered by Plaintiff. The Senior Loan is secured by a deed of trust that encumbers the Property. (Allegrette Decl. ¶¶ 2-5, Exh. 1.) Simultaneously with origination of the Senior Loan, Citigroup Global Markets Realty Corp. and Morgan Stanley Mortgage Capital Holdings LLC (Original Mezz A Lenders) originated a $65 million Mezzanine A loan, as evidenced by, among other documents, a Mezzanine A Loan Agreement (Mezz A Loan). Meritz submits evidence that it acquired ownership of the Mezz A Loan on or about March 4, 2021, having purchased the loan from the Original Mezz A Lenders. (Id. ¶¶ 3, 9, Exh. 5-1 and 5-2.) According to Meritzs principal and co-founder, Russ Allegrette, the Mezz A Loan is secured by a pledge of 100% membership interests in the owners of the Property, Defendants Maguire Properties 350 S. Figueroa, LLC, and Maguire Properties 555 W. Fifth, LLC. (Id. ¶¶ 3, 9; see also Suppl. Allegrette Decl. ¶ 2.) As stated succinctly by Plaintiff, Meritz holds only a pledge of membership interests in the Defendant property owners. (Amended and Replacement Memorandum in Opposition to Application to Intervene [Oppo.] 10:28.) [1] On April 12, 2023, Plaintiff filed its verified complaint seeking specific performance of the terms and provisions of the deed of trust and appointment of a receiver. On April 19, 2023, the court (Beckloff, J.) appointed Gregg Williams as receiver (the receiver) to manage and market the property, collect rents, and review and evaluate offers from third parties with respect to the sale of the property. On May 24, 2023, the court entered an order confirming the appointment. Meritz has expressed interest in bidding on the property and contacted the receiver directly in March 2024 seeking a tour of the Property. (Receiver Decl. ¶¶ 3-6.) In March 2024, Meritz, as a non-party, filed an opposition to the receivers ex parte application for authorization to enter a lease with the City of Los Angeles for certain premises in the property. The receiver later withdrew that motion. On May 3, 2024, the receiver filed an ex parte application for approval of an exclusive listing agreement in order to sell the property. Meritz filed an opposition. The court granted the ex parte application. (See courts minute order, dated May 13, 2024.) LEGAL STANDARD A. Mandatory Intervention Under Code of Civil Procedure section 387(d)(1)(B), a non-party may intervene as a matter of right if that non-party claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. The moving party must make a timely application and submit a proposed pleading. (See Code Civ. Proc. § 387(c) and (d)(1).) Section 387 should be liberally construed in favor of intervention. ( Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1200.) B. Permissive Intervention Under Code of Civil Procedure section 387, the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. ( Siena Court Homeowners Ass'n, supra, 164 Cal.App.4th at 1428.) DISCUSSION A. Mandatory Intervention 1. Meritz does not demonstrate a sufficient interest in the transaction For mandatory intervention, Meritz must show that the interest relating to the property or transaction which is the subject of the action & is a significantly protectable interest. ( Siena Court Homeowners Assn v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1423-1424.) To demonstrate a significant protectable interest, an applicant must establish that the interest is protectable under some law and that there is a relationship between the legally protected interest and the claims at issue. ( Citizens for Balanced Use v. Mont. Wilderness Assn (9th Cir. 2011) 647 F.3d 893, 897.) Meritz argues that it should be granted mandatory intervention given [its] position as the mezzanine lender, its interests in the Property, the subject matter of this action, and the outcome of this action. (Application to Intervene (Appl.) 13:7-9.) The court disagrees. Meritz does not claim an interest in the property that is the subject of this action. The complaint includes a single cause of action for specific performance of the deed of trust that secures the Property. (Compl. ¶¶ 16-24.) Only the Senior Loan is secured by the deed of trust on the Property. The Mezz A Loan, which was assigned to Meritz, does not hold a security interest in the Property. (See Allegrette Decl. ¶¶ 2-11, Exh. 1-5.) This is clear from the Intercreditor Agreement (ICA), in which Meritzs predecessor acknowledged that the Mezz A Loan does not constitute or impose & a lien or encumbrance upon, or security interest in any portion of the Premises or any other collateral securing the Senior Loan or any assets of Borrower&. ( Id . Exh. 6 at p. 27, ¶ 2(a).) Nor does Meritz claim an interest in the transaction that is the subject of this action. In the complaint, Plaintiff alleges that the borrower has defaulted on the Senior Loan by failing to make payments due and that Plaintiff is entitled to specific performance of terms and conditions of the deed of trust, which encumbers the Property. (Compl. ¶¶ 16-24.) The claim does not involve any default on the Mezz A Loan or any contractual dispute related to the Mezz A Loan, the ICA, or the interrelationship between the senior and mezzanine lenders. (See generally California Physicians Service v. Superior Court (1980) 102 Cal.App.3d 91, 96 [health insurers contract claim was not the transaction at issue in the subscribers tort action].) Meritz suggests that it has an interest in the property or transaction at issue in the complaint because Mezz A Borrower pledged one hundred percent (100%) of its membership interests in the Defendants to Original Mezz A Lenders to secure the Mezz A Loan. (Appl. 5:19-20.) As phrased in the reply, Meritz contends that if it were to exercise remedies as contemplated under the Pledge Agreement, Meritz would own and control the Receivership Defendants . (Reply 3:19-21.) This argument is not persuasive. If Meritz exercised its purported remedies, it would own and control the receivership defendants and therefore would not need to intervene. Rather, Meritz seeks to intervene on its own behalf as a mezzanine lender. Further, Meritz concedes that there is an event of default under the Senior Loan and that Defendants would not have access to such sums to make payments to Mezz A Lender. (Appl. 4:21-23.) Meritz does not present any evidence suggesting that, if it exercised rights to assume membership interests in the Defendants, it would have any greater interest in the Property than it does now as a mezzanine lender. Under such circumstances, Meritz does not show that a lien on membership interests of the Defendants confers a protectable interest in the Property or in the transaction at issue in the complaint. (See Corp. Code § 17701.04(a) [A limited liability company is an entity distinct from its members.]; § 17703.04(a) [debts, obligations, and liabilities of an LLC do not become the debts, obligations, or other liabilities of a member or manager solely by reason of the member acting as a member or manager].) Citing various provisions of the loan documents, Meritz contends that the action could indirectly impact its interests as a mezzanine lender. (See Appl. 4-10.) As an example, Meritz states that the Senior Loan Agreement also makes extensive reference to the existence of the Mezzanine A Loan and Mezzanine B Loan, including: (i) stating in Section 1.1 that the lien and security interests created by each Mezzanine Loan Agreement, the Other Mezzanine Loan Documents and any loan documents entered into with respect to a Replacement Mezzanine Loan are Permitted Encumbrances on the Property. (Appl. 4:3-7.) Meritz cites section 8.5 of the Senior Loan Agreement, which pertains to the remittance of debt service payments under the Mezz A Loan from Property cash flow. (Appl. 4:12-16.) As Meritz concedes, these provisions are conditioned so long as no Event of Default had occurred. (Appl. 4:10.) Later, Meritz cites to provisions of the ICA that, according to Meritz, authorize payments to mezzanine lenders following repayment of the Senior Loan. (Appl. 7:23.) Since it is undisputed that an event of default has occurred and the Senior Loan has not been repaid, Meritzs interest in excess proceeds is indirect and consequential. (See Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 550 [a n unsecured creditor of a defendant who will be rendered unable to pay the debt if he loses a lawsuit is held to have only a consequential interest not justifying intervention in the litigation]; see also Id. at 553 [a shareholder has a consequential but not direct interest in the outcome of litigation involving the corporation].) Meritz also asserts that the ICA reflects additional agreements between the Original Senior Lender and the Mezzanine Lenders in respect of matters such as removal and replacement of the property manager for the Properties, budget approval and requests for disbursement of sums held in reserve. (Appl. 7:25-28, citing Allegrette Decl. ¶ 14.) Relatedly, Meritz asserts that section 15(a) of the ICA requires written consent of the mezzanine lenders in certain circumstances. (Appl. 8.) Meritzs briefs and the Allegrette declarations do not analyze the specific contract terms upon which Meritz relies or explain how they are relevant to this action, including the courts appointment of a receiver. Accordingly, the arguments are forfeited for purposes of this application. ( Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived].) Moreover, in its proposed answer, Meritz does not allege any defense based on breach of the ICA or other loan document. This action concerns Defendants default and the specific performance of the deed of trust, and Meritz does not show that any contract dispute related to the ICA is directly at issue in this action. The court has considered Meritzs remaining contentions, including about the complexity of the capital stack utilized in this transaction by the Original Senior Lenders. (See Appl. 2:7-8.) None convinces the court that Meritz claims an interest relating to the property or transaction that is the subject of the action. (Code Civ. Proc. § 387(d)(1)(B).) Accordingly, Meritz is not entitled to mandatory intervention. 2. Meritzs interests are adequately represented The court also concludes that Meritzs interests as a mezzanine lender, including its interests in any excess proceeds from the Property, are adequately represented by the courts appointment of a receiver and the courts review and approval of any offer to purchase the property. A receiver is an agent and officer of the court, and is under the control and supervision of the court&. The receiver is also a fiduciary who must act for the benefit of all parties interested in the property. ( City of Chula Vista v. Gutierrez (2012) 207 Cal.App.4th 681, 685.) Meritz does not argue or present evidence that the Receiver has acted in bad faith or has taken any actions inconsistent with an intention to maximize the value of the Property. Nor does Meritz develop any argument that Plaintiff, acting for the Senior Lender, has acted in bad faith or taken actions inconsistent with maximizing the value of the Property. (See Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 553 [denying major shareholders request to intervene because there was no allegation of bad faith on the part of the trustee or implication that he intends to abandon prosecution of the litigation to the fullest extent possible].) Finally, the receiver has given Meritz notice of the ex parte applications he has filed in this action; Meritz does not claim a lack of notice of any proceeding; and the court has considered Meritzs oppositions to applications filed by the Receiver. (See Receivers Statement 2; see also Cal. Rules of Court, Rule 3.1184(c) [notice for receivers final report].) Therefore, Meritzs motion for mandatory intervention is denied. B. Permissive Intervention The court denies permissive intervention for several reasons. As discussed, Meritz does not have a direct and immediate interest in this action. Moreover, intervention will greatly enlarge the issues in the litigation. Finally, the purported reasons for intervention do not outweigh the opposing parties concerns. Indeed, the court has genuine concerns that Meritz is pursuing intervention merely to obtain a strategic advantage in purchasing the building. Previously, Meritz opposed the receivers efforts to retain a broker to market and sell the property. Some of Meritzs arguments were factually incorrect. For example: Counsel for the Bank argued that the listing agreement favors a sale to the City of Los Angeles. To the contrary, the listing agreement caps the commission for a sale to the City of Los Angeles and provides the same or higher commissions for a sale to purchasers other than the City or County of Los Angeles. Regardless, the court will review and approve any sale, which will include a review of all credible offers, so the listing agent cannot sell the property to the City of Los Angeles if there is a better offer. (Courts Minute Order, dated May 13, 2024, at 2.) More important, Meritz had no valid reason to oppose retention of a real estate broker to list the property for sale. (See ibid .) Meritzs opposition appears to have been nothing more than an attempt to delay the real estate listing to a time when there would be fewer prospective buyers and more comparable buildings, which would benefit Meritzs efforts to purchase the building: At the hearing, counsel for Nonghyup expressed concern that the Receiver is seeking appointment of a receiver on an ex parte basis and seeks to list the property in mid-June. The court finds no basis to delay appointment of a listing agent, as counsel for Nonghyup raises no valid objections to the listing agreement. Nor did counsel raise any concerns that suggest the court would benefit from further briefing. To the contrary, the court finds good cause to handle this matter on an expedited basis: (1) There are identified potential buyers for the Property that may not be available three months from now, including both the City and County of Los Angeles; (2) Any delay works against the markets perceived value of the Property; (3) Spring is the ideal time to list a commercial real estate investment property in Southern California; and (4) It is prudent to sell the property before the uncertainty of the election. (See Declaration of Jeffrey Bramson, ¶¶ 16-21.) The court also relies on the representation of Gregg Williams that he is aware of four comparable properties in receivership that will be marketed later this year, which may make it difficult to sell the property, i.e ., based upon the competition, especially given the declining market for office real estate. ( Ibid .) The receiverwho is a neutral party in this disputeraises a legitimate concern that Meritz will use intervention to obstruct any actions by the receiver that are inconsistent with Meritzs interests as a bidder on the property. Meritz previously did so in attempting to delay the receivers efforts to list the building for sale. Simply, Meritz has a conflict of interest. Meritz cannot seek intervention to protect its alleged security interest while seeking to purchase the building. Such an outcome would permit Meritz to attempt to sabotage any effort to sell the property to a purchaser other than Meritz. Therefore, the motion for permissive intervention is denied. CONCLUSION AND ORDER Based upon the foregoing, the Proposed Intervenors motion is denied. Counsel for the receiver shall provide notice and file proof of service with the court. IT IS SO ORDERED. Dated: July 26, 2024 ______________________ Stephen I. Goorvitch Superior Court Judge [1] A $50 million Mezzanine B loan (Mezz B Loan) was also originated as part of the debt facility related to the Property. In its motion, Meritz has not claimed an interest in the Mezz B Loan. (See Allegrette Decl. and Suppl. Allegrette Decl. generally.)

Case Number: 22GDCV00379 Hearing Date: July 26, 2024 Dept: D TENTATIVE RULING Calendar: 1 Date: 7/26/2024 Case No: 22 GDCV00379 Trial Date: September 9, 2024 Case Name: Kechichian v. Lee DISCOVERY MOTIONS (4 Motions) Moving Party: Defendant Linda K. Lee Responding Party: Plaintiff Jean Kechichian RELIEF REQUESTED: Responses to Form Interrogatories, Set Three Responses to Special Interrogatories, Set Three Responses to Request for Production of Documents, Set Three Order Deeming Requests for Admissions, Set Three, Admitted CHRONOLOGY Date Discovery served : April 12, 2024, email Date Responses served: NO RESPONSES SERVED Date Motion served: May 23, 2024 Timely ANALYSIS: Procedural Untimely Opposition The opposition was not timely filed with the court. Under CCP §1005(b): All papers opposing a motion&shall be filed with the court and a copy served on each party at least nine court days& before the hearing. Under CRC Rule 3.1300(d), If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate. Here, the opposition was filed on July 16, 2024, for a July 26, 2024 hearing date, only eight court days prior to the hearing, so was one court day late. However, it appears from the proof of service filed that the opposition was served on July 15, 2024, timely, permitting moving party sufficient time to respond and file a timely reply. The court will consider the opposition, but plaintiff is cautioned that in the future the court may refuse to consider papers not filed in conformity with the statutes, rules and procedures governing this litigation. Substantive Interrogatories and Documents Under CCP § 2030.290, If a party to whom interrogatories are directed fails to serve a timely response, that party waives any legal right to exercise the option to produce writings...as well as any objection to the interrogatories, including one based on privilege or on the protection for work product... Under subdivision (b), The party propounding the interrogatories may move for an order compelling response to the interrogatories. CCP §2031.300 contains similar provisions with respect to requests to produce documents. In this case, interrogatories and document production demands have been directed to responding party, and responding party has failed to serve timely responses. Propounding party appropriately has moved for orders to compel. Accordingly, responding party has waived the option to produce writings, as well as all objections, and propounding party is entitled to orders compelling plaintiff to respond. Plaintiff in opposition argues that defendant is improperly attempting to raise the costs of this litigation by serving duplicative and improper discovery which does not apply to the remaining issues in this case. Specifically, plaintiff argues that in this property dispute action, the court in its October 27, 2023 ruling on plaintiffs motion for summary judgment/adjudication granted the motion in part and declared that the proper designation of the property line is that set forth in the Corner Record from the Deputy County Surveyor, and declared that the current fence, located on plaintiffs property pursuant to the survey and the acknowledgment of the parties, is subject to removal. [Minute Order, 10/27/2023, p. 17]. Plaintiff argues that despite the courts ruling, defendant propounded four separate sets each of Form Interrogatories, Special Interrogatories, Requests for Admissions, and Requests for Production of Documents. Plaintiff indicates that plaintiff has responded to Set One and Set Two, and produced documents. Plaintiff has also served supplemental responses to Form Interrogatories, Set One, Special Interrogatories, Sets One and Two, Requests for Production of Documents, Set One, and Requests for Admissions, Sets One and Two. [Exs. 6-12]. Plaintiff also indicates that in a show of good faith, plaintiff has served responses to Form Interrogatories, Set Four, Special Interrogatories, Set Four, Requests for Production, Set Four, and Requests for Admissions, Set Four, [Exs. 14-17]. Plaintiff does not indicate anywhere in the opposition or in the declaration of counsel that plaintiff has timely served responses to any of the discovery propounded as Set Three, the discovery at issue in these motions. Plaintiff accordingly has apparently conceded and does not dispute that plaintiff has failed to serve timely responses. There is no legal authority cited by plaintiff pursuant to which a responding party may simply fail to timely respond to discovery on the ground the responding party deems the discovery excessive, that the discovery seeks information which has been deemed irrelevant or moot by a courts ruling on summary adjudication, or that the discovery is propounded solely to harass the responding party, forcing responding party to incur expense and into an unfavorable settlement position. If plaintiff had valid objections that the discovery was burdensome or oppressive, or fell outside the scope of permissible discovery in this action, plaintiff should have responded timely to the discovery asserting such objections to preserve those objections, which, as discussed above, have now been waived. The burden is now on plaintiff to file a separate motion for relief from the waiver of objections which occurred when plaintiff, evidently intentionally, permitted the time within which responses were due to pass without responding or requesting an extension of time to respond. CCP section 2030.290 provides: If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Section 2030.210, 2030.220, 2030.230, and 2030.240. (2) The partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. A similar provision applies to document demands under CCP § 2031.300 (a). Plaintiff has evidently not filed or served a motion for relief from waiver of objections. In the alternative, plaintiff should have promptly sought a protective order if plaintiff desired to avoid responding to these sets of discovery altogether, and affirmatively met plaintiffs burden of establishing good cause for not being required to respond. In connection with interrogatories, CCP §§ 2030.090(a) provides: When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. CCP § 2030.090(b) provides, in pertinent part: The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That the set of interrogatories, or particular interrogatories in the set, need not be answered&. With respect to written demands for inspection of documents, CCP §2031.060 subdivisions (a) and (b) provide similar procedures for moving for a protective order to avoid responding to such a demand. Plaintiff has not filed with the court any such motions. Plaintiff has not cited any legal authority under which plaintiffs conduct in not timely responding to the discovery does not give rise to defendants entitlement to orders compelling plaintiff to respond, without objections. The motions accordingly are granted, and plaintiff is ordered to serve responses to the subject discovery, without objections. Requests for Admissions Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions waives any objection to the requests&. In addition, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.... CCP § 2033.280(b). The Code specifies that The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Section 2033.220. CCP § 2033.280(c). In this case, requests for admissions were served on responding party on April 12, 2024, by email. Responding party evidently did not request or obtain an extension of time within which to respond. Responses were accordingly due by May 14, 2024. As of the filing of the motion on May 23, 2024, no responses had been served. Plaintiff has failed to serve timely responses and therefore has waived all objections. Defendant has filed a noticed motion requesting an order that the requests be deemed admitted as truth. The opposition does not indicate that plaintiff intends to serve responses but argues that plaintiff should not have to respond at all. Again, plaintiff has not filed a separate motion for relief from waiver of objections or sought a protective order. See CCP §§ 2033.280 (a) and 2033.080, subdivisions (a) and (b). Unless verified responses that are in substantial compliance with CCP § 2033.220 are served before the hearing, the court must grant the motion. Sanctions With respect to Requests for Admissions, CCP § 2033.280(c) provides: It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion. With respect to interrogatories, under CCP § 2030.290(c), The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. A similar provision applies to document demands. See CCP § 2031.300(c). CCP § 2023.010 provides that misuse of the discovery process includes, (d) Failing to respond or to submit to an authorized method of discovery. Where there has been such conduct, under CCP § 2023.030(a), The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized by the statute, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust. CCP § 2023.030(a). The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436. In this case, the motion to deem requests for admissions is granted. Hence, under the statute, the imposition of monetary sanctions in mandatory. With respect to interrogatories and the document demand, responding party unsuccessfully has opposed the motions to compel, responding party has failed to respond to authorized methods of discovery and propounding and moving party has submitted evidence that it has incurred expenses as a result of the conduct. Plaintiff in opposition argues that plaintiff properly should be awarded sanctions for having to oppose these frivolous motions. The opposition argues that the motions are without merit and should be denied, so that defendant is not entitled to monetary sanctions. The motions in fact have merit, and are granted, so plaintiff unsuccessfully has opposed them. The plaintiff has not justified any failure to timely respond without filing a motion for protective order or has shown that the imposition of sanctions would be unjust. As noted above, the sanctions in connection with the motion concerning the Requests for Admissions are in any case mandatory. Sanctions are awarded to defendant. No sanctions are awarded to plaintiff. Defendant requests $1,844.20 for each of the four motions brought. (The declaration supports that $1,844.40 has been incurred, but the court will consider only the sum requested in the notices of motion). This amount seems a bit high for motions of this nature, which are largely cut and pasted from each other, and some adjustment will be made. The opposition argues that the motion to compel responses to form interrogatories concerns only one interrogatory, Form Interrogatory No. 17.1, but seeks the same sum as requested in the other motions. It is not clear why the number of discovery requests impact the time to prepare a motion to compel responses, as opposed to further responses. The sanctions sought include one hour at $395 per hour to attend the hearing, when all four motions will be heard together. The sanctions are reduced accordingly as follows: 2.5 attorney hours for each motion at $395.00 per hour with a one time add on charge of 1 hour at $395.00 per hour to attend the hearing remotely. RULING: The Court notes that plaintiff has filed one set of opposition papers to all four of the motions set for hearing this date. That opposition was filed only eight court days prior to the hearing, so one court day late, in violation of CCP §1005(b). The Court in its discretion has considered the untimely opposition, only because the opposition was evidently timely served. However, plaintiff is cautioned that in the future that plaintiff must comply with both service and filing deadlines, and that the Court may refuse to consider papers not filed in compliance with the applicable rules, statutes, and deadlines. Defendant Linda K. Lees Motion to Compel Responses by Plaintiff Jean Kechichian to Defendants Form Interrogatories, Set Three, is GRANTED. Plaintiff Jean Kechichian is ordered to serve verified responses to Form InterrogatoriesGeneral, Set No. Three, without objection, within 10 days. Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorneys fees and costs incurred for the work performed in connection with the pending motion is $1,382.50 (3.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP sections 2030.290(c), 2023.010(d), and 2023.030(a). Monetary sanctions requested in the opposition are DENIED. Defendant Linda K. Lees Motion to Compel Responses by Plaintiff Jean Kechichian to Defendants Special Interrogatories, Set Three, is GRANTED. Plaintiff Jean Kechichian is ordered to serve verified responses to Defendant Linda K. Lees Special Interrogatories (Set Three) Propounded on Plaintiff Jean Kechichian, without objection, within 10 days. Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorneys fees and costs incurred for the work performed in connection with the pending motion is $987.50 (2.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP sections 2030.290(c), 2023.010(d), and 2023.030(a). Monetary Sanctions requested in the opposition are DENIED. Defendant Linda K. Lees Motion to Compel Responses by Plaintiff Jean Kechichian to Defendants Request for Production of Documents, Set Three, is GRANTED. Plaintiff Jean Kechichian is ordered to serve verified responses to Defendant Linda K. Lees Request for Production of Documents (Set Three) Propounded on Plaintiff Jean Kechichian, without objection, and to permit inspection and copying within 10 days. Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorneys fees and costs incurred for the work performed in connection with the pending motion is $987.50 (2.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP §§ 2031.300(c), 2023.010(d), and 2023.030(a). Monetary sanctions requested in the opposition are DENIED. Defendant Linda K. Lees Motion to Deem Facts Admitted is GRANTED. Plaintiff Jean Kechichian has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The Court therefore orders that all matters specified in Defendant Linda K. Lees Requests for Admissions (Set Three) Propounded on Plaintiff Jean Kechichian are deemed admitted as true, pursuant to CCP § 2033.280(c). Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorneys fees and costs incurred for the work performed in connection with the pending motion is $987.50 (2.5 hours @ $395 per hour) [4.5 hours requested] plus $66.90 filing fee [Amount Requested $1,844.20], which sum is to be awarded in favor of defendant Linda K. Lee and against plaintiff Jean Kechichian, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), and 2023.030(a). Monetary sanctions requested in the opposition are DENIED. DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE AUDIO OR VIDEO APPEARANCES Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED. If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.

23CV047195: MESCHINO, et al. vs THE IRWIN AND ANNETTE SHAPIRO TRUST, ORIGINALLY DATED 2/07/1986 AND AMENDED ON 8/15/2018, et al. 07/25/2024 Hearing on Motion to Continue Trial filed by Chris Meschino (Plaintiff) + in Department 24 Tentative Ruling - 07/20/2024 Rebekah Evenson The Motion to Continue Trial Date filed by Cindy Kok, Chris Meschino on 05/31/2024 is Granted. Plaintiffs' unopposed Motion to Continue Trial Date and Pretrial Conference Date is GRANTED. The Case Management Conference currently scheduled for December 18, 2024 is CONTINUED to April 2, 2025 at 9:00 a.m. in Department 24. The Mandatory Settlement Conference currently scheduled for January 22, 2025 is CONTINUED to May 5, 2025 at 9:00 a.m. in Department 301. The pretrial conference currently scheduled for February 14, 2025 is CONTINUED to June 13, 2025 at 10:00 a.m. in Department 24. The trial currently scheduled for February 24, 2025 is CONTINUED to June 23, 2025 at 9:30 a.m. in Department 24. The Case Management Conference scheduled for 12/18/2024 is continued to 04/02/2025 at 09:00 AM in Department 24 at Rene C. Davidson Courthouse . The Mandatory Settlement Conference (MSC) scheduled for 01/22/2025 is continued to 05/05/2025 at 09:00 AM in Department 301 at George E. McDonald Hall of Justice . The Pre-Trial Conference scheduled for 02/14/2025 is continued to 06/13/2025 at 10:00 AM in Department 24 at Rene C. Davidson Courthouse . The Court Trial scheduled for 02/24/2025 is continued to 06/23/2025 at 09:30 AM in Department 24 at Rene C. Davidson Courthouse .

Case Number: 24SMCV00796 Hearing Date: July 25, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 25, 2024 CASE NUMBER 24SMCV00796 MOTIONS Demurrer and Motion to Strike Portions of Cross-Complaint MOVING PARTY Cross-Defendant Kevin Southerland OPPOSING PARTY Cross-Complainant Maureen Donohue MOTIONS On February 21, 2024, Plaintiff and Cross-Defendant Kevin Southerland (Plaintiff) brought suit against Defendant and Cross-Complainant Maureen Donohue (Defendant) for partition and an accounting. On April 25, Defendant filed a Cross-Complaint against Plaintiff, alleging six causes of action for (1) promissory estoppel; (2) unjust enrichment; (3) negligent misrepresentation; (4) intentional misrepresentation; (5) breach of contract; and (6) intentional infliction of emotional distress. Plaintiff now demurs to causes of action 1-4 and 6 of Cross-Complaint on the grounds that it fails to state facts sufficient to constitute causes of action pursuant to Code of Civil Procedure section 430.10, subdivision (e) and Plaintiff demurs to the fifth cause of action for breach of contract on the grounds that it cannot be ascertained from the pleading whether the contract is written, oral, or implied by conduct, pursuant to Code of Civil Procedure section 430.10, subdivision (g). Plaintiff also moves to strike requests for punitive damages from the Cross-Complaint. Defendant opposes both motions. ANALYSIS 1. DEMURRER It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts [a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [in considering the merits of a demurrer, however, the facts alleged in the pleading are deemed to be true, however improbable they may be].) Further, in ruling on a demurrer, a court must liberally construe the allegations of the complaint with a view to substantial justice between the parties. (See Code Civ. Proc., § 452.) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) In summary, [d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) A. FAILURE TO STATE A CAUSE OF ACTION i. First Cause of Action Promissory Estoppel The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) The Cross-Complaint alleges: 19. When the parties decided to purchase the Subject Property, SOUTHERLAND made the following promises to DONOHUE: he would agree to enact the Ellis Act (which was a deciding factor in DONOHUEs willingness to purchase the property); promised to pay half of the maintenance and repairs related to the property; also promised that he would agree to obtaining a HELOC so that the parties could pay for the renovations of the property. Since the HELOC was taking longer to obtain due to SOUTHERLANDs high DTI and low income, SOUTHERLAND promised that the HELOC funds could be used to repay the money DONOHUE was forced to pay out of her savings, retirement, and loans to cover the renovations. 20. SOUTHERLAND intended that DONOHUE rely on these promises. 21. DONOHUE relied on this promise and moved from Santa Clarita to Los Angeles. 22. SOUTHERLAND did not intend to perform the promise when he made it, since he refused to proceed with the Ellis Act unless DONOHUE agreed to give him the two-bedroom. He was also unable to pay half of the maintenance expenses and repairs, which DONOHUE had to pay for 100%. 23. SOUTHERLAND failed to act on all of his promises. 24. DONOHUE reasonably relied on the promises, and was harmed as a result. The harm consists of financial harm and the loss of the agreed-upon housing plans. 25. DONOHUEs reliance on SOUTHERLANDs promise was a substantial factor in causing her harm. (Cross-Complaint at ¶¶ 19-25.) Plaintiff demurs to the first cause of action for promissory estoppel on the grounds that an enforceable contract exists, and therefore the breach of contract analysis governs. However, plaintiffs are permitted to plead in the alternative and make inconsistent allegations. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.) Therefore, the Court overrules Plaintiffs demurrer to the first cause of action. ii. Second Cause of Action Unjust Enrichment Plaintiff demurs to the second cause of action for unjust enrichment on the grounds that (1) there is no such cause of action for unjust enrichment; and (2) like promissory estoppel, no cause of action for unjust enrichment lies where there is a binding and enforceable agreement. Several courts have recognized unjust enrichment as a valid cause of action. (See, e.g., Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726 [explaining the elements of an unjust enrichment claim are receipt of a benefit and unjust retention of the benefit at the expense of another]; Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769 [same].) Further, courts that do not recognize unjust enrichment as a cause of action have nonetheless held that it is synonymous with restitution, and construed it as such. (See, e.g., Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.) In analyzing pleadings, Courts elevate substance over form. (See Plumlee v. Poag (1984) 150 Cal.App.3d 541, 546 [Courts under the reformed system of procedure look to the substance of things rather than to form].) Thus, regardless of whether unjust enrichment is a valid cause of action in its own right, or if it must be construed as a cause of action for restitution, the Court declines to sustain Plaintiffs demurrer, which would improperly elevate form over substance. Regarding Plaintiffs second argument, as discussed above in connection with the first cause of action for promissory estoppel, because Defendant is permitted to plead inconsistent allegations in the alternative, the Court similarly declines to sustain the demurrer on the grounds that a contract has also been alleged. Therefore, the Court overrules Plaintiffs demurrer to the second cause of action. iii. Third and Fourth Causes of Action Negligent and Intentional Misrepresentation The elements for fraudulent misrepresentation are (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605606.) The essential elements of a count for negligent misrepresentation are the same [as intentional misrepresentation] except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231 (hereafter Chapman).) Like intentional misrepresentation, causes of action for negligent misrepresentation sound in fraud, and must also, therefore, be pleaded with particularity. (Ibid.) In California, fraud must be pled specifically; general and conclusory allegations do not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) Causes of action for negligent misrepresentation sound in fraud, and must also, therefore, be pleaded with particularity. (Chapman, supra, 220 Cal.App.4th at pp. 230-231.) One of the purposes of the specificity requirement is notice to the defendant, to furnish the defendant with certain definite charges which can be intelligently met. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) As such, less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy[.] (Ibid.) Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party. (Ibid.) Defendant alleges: 7. DONOHUE and SOUTHERLAND (PARTIES) were formally in a romantic relationship. 8. On or about June 2nd, 2022, the parties purchased the SUBJECT PROPERTY, which consists of a multifamily unit with two one-bedroom and one two-bedroom units. One of the one-bedroom units was, and is currently still, occupied by tenants. 9. The PARTIES initially purchased the SUBJECT PROPERTY with the intent to enact the Ellis Act, which would allow the parties to Ellis (sic) the tenants in the larger one-bedroom unit. DONOHUE has three daughters. The original plan was that the two-bedroom and the unoccupied unit would be renovated, and the two-bedroom occupied by DONOHUE and SOUTHERLAND and one of DONOHUEs daughters, and the other one-bedroom occupied by another of DONOHUEs daughters. The plan was for the tenants to move out and one of DONOHUEs daughters would occupy their unit when SOUTHERLANDs daughter returned from college, 15 months after the property purchsase (sic). Following the end of the personal relationship, the new plan was to Ellis (sic) the tenants and renovate the unit they occupy. The renovation would take two months. After renovation, DONOHUE would occupy the tenants larger one-bedroom unit with one of her daughters. Her second daughter would occupy the smaller one-bedroom unit. The parties planned to give the tenants in the larger one-bedroom unit the required 120-day notice. After the tenants vacated, the one-bedroom unit would be renovated, which was expected to take approximately two months. The second, larger one-bedroom unit was to be occupied by SOUTHERLAND. Based on this agreement, DONOHUE moved her family from her home in Ventura, California. 10. The PARTIES anticipated that it would cost approximately $200,000 to renovate all three units, and planned to complete the work within a short period of time. The agreement was that the parties would obtain a HELOC loan to pay for the renovations. Since SOUTHERLAND paid the down payment, DONOHUE was to pay the monthly payments on the HELOC. Outside of the renovation expenses that were anticipated at the time of purchase, the parties were to equally share the expenses for maintenance and repairs for new damages incurred on the Property. The mortgage amount each party would pay was apportioned based on the unit each party was occupying at that time. The PARTIES were to equally share the expenses related to the rented unit, including utilities, until the tenants vacated since the PARTIES were prohibited from charging the tenants any utilities under Santa Monica rent control. DONOHUE paid for the renovation of the two-bedroom unit and the unoccupied one-bedroom. Once the tenants moved out, DONOHUE would pay for the renovations for that unit prior to her occupancy. 11. Approximately four months after the Property was purchased, the parties terminated their romantic relationship. SOUTHERLAND insisted that he would only continue to proceed with the Ellis Act process if DONOHUE agreed to allow SOUTHERLAND to occupy the two-bedroom so that his daughter could live with him when she returned from college. DONOHUE reluctantly agreed. One of her daughters moved out and DONOHUE was left with the smaller 450 sq foot one bedroom unit. The understanding was that the parties would evict the tenants, renovate the unit, and DONOHUE would move into that unit. Her daughter was to occupy the smaller one-bedroom once she returned from her summer internship in mid-August 2023. 12. The plan to file an Ellis Action was agreed by the parties prior to the purchase of the property. The parties were subsequently advised by their attorney to seek an exemption from rent control and raise the tenants rent to full market value, which they did. The process took a year. The City of Santa Monica rent control board modified the way they had been interpreting the law for decades, and in response, threatened to sue the parties for harassing their tenants. The parties then agreed to pursue an Ellis action again. 13. Due to the delays regarding the eviction of the tenants and the Ellis Act, the tenants did not vacate as planned. The unit was not available prior to the date that DONOHUEs daughter returned home. As such, DONOHUE had nowhere to live since the tenants had not vacated the unit since August 15, 2023. This has caused a significant strain on DONOHUEs life as her plans for housing were swayed by SOUTHERLANDs actions. 14. Outside of the renovations, there were several unexpected legal costs and repairs on the Property. Obtaining the HELOC became challenging, since the parties were required to increase income to qualify jointly for the loan due to SOUTHERLAND's high debt-to-income ratio and low income. 15. SOUTHERLAND, who makes approximately $60,000 a year working as a parttime architect and also receives funds from his familys trust, was unable to maintain his half of maintenance and repairs for new damages incurred on the Property, which caused DONOHUE to cover 100% of those costs, causing DONOHUE to drain her investments, savings, borrow money from third parties, and take early disbursements from her 401K, which triggered early penalties, and retire ten years early, incurring a 40% cut in her pension. Once the HELOC was obtained, some of the funds from that loan were to be used to repay the debt DONOHUE had to incur to complete the renovations. 16. In August 2022, a loan was provided by SYLVIA SOUTHERLAND, Trustee of the SOUTHERLAND FAMILY TRUST AGREEMENT to KEVIN LEE SOUTHERLAND in the amount of $62,000. The payments on this loan were paid by DONOHUE. 17. After almost a year and a half of back-and-forth with the City of Santa Monica, the Parties had an appointment with the City to enact the Ellis Act. However, several days before the appointment, SOUTHERLAND demanded that DONOHUE sign a partnership agreement and agree to unfavorable terms that were never previously agreed upon or discussed. Since DONOHUE did not agree to this agreement, SOUTHERLAND decided that he no longer wanted to continue with the Ellis Act or the planned HELOC. This caused a significant inconvenience to DONOHUE since the plan was for her to reside in the tenant-occupied unit. This decision caused DONOHUE to be without a firm plan for housing indefinitely and separated her family. (Cross-Complaint ¶¶ 7-17.) Regarding Negligent Misrepresentation, specifically, Defendant alleges: 32. SOUTHERLAND represented that the following were true: SOUTHERLAND agreed to enact the Ellis Act (which significantly increases property value in Santa Monica rent-controlled properties),was a deciding factor in DONOHUEs willingness to purchase the property); agreed to pay half of the maintenance expenses and repairs related to the property; agreed that DONOHUE and her daughter could occupy the larger one-bedroom while her second daughter occupied the smaller one-bedroom; agreed that the parties would obtain a HELOC for the renovations. Once this was proving difficult, it was agreed that the HELOC could be used to recoup the penalties for DONOHUE having to drain her savings, take loans, and take funds out early from her retirement account. 33. SOUTHERLAND represented that these facts were true. There was no condition that these items would only be agreed-upon if the parties remained in a relationship. 34. Although SOUTHERLAND may have honestly believed that the representations were true, SOUTHERLAND had no reasonable grounds for believing the representation was true when he made them. Hiss (sic) representations were not true, since he refused to execute the above-mentioned agreements once the parties terminated their relationship. 35. SOUTHERLAND intended that DONOHUE rely on these representations. 36. DONOHUE relied on these representations to her detriment. 37. DONOHUE was harmed because of these representations. 38. DONOHUEs reliance on SOUTHERLANDs representations were a substantial factor in her harm. 39. DONOHUE is entitled to actual damages in an amount to be determined at trial, and punitive damages. (Cross-Complaint at ¶¶ 32-39.) For Intentional Misrepresentation, Defendant alleges: 40. Cross-Complainant hereby realleges and incorporates herein by reference, paragraph 1 through paragraph 39, inclusive, of this Cross-Complaint as if set forth in full. 41. DONOHUE claims that SOUTHERLAND made a false representation that harmed her. 42. SOUTHERLAND represented to DONOHUE that the following facts were true: SOUTHERLAND agreed to enact the Ellis Act (which was a deciding factor in DONOHUEs willingness to purchase the property); agreed to pay half of the maintenance expenses and repairs related to the property; agreed that DONOHUE and her daughter could occupy the larger one-bedroom while her second daughter occupied the smaller one-bedroom; agreed that he would agree to obtaining a HELOC so that the parties could pay for the renovations, and later agreed that DONOHUE could use the HELOC to pay off the debt she incurred in prompt renovations. 43. SOUTHERLANDs representations were false. 44. SOUTHERLAND knew that the representation were false when he made it, and that he made the representation recklessly and without regard for its truth. 45. SOUTHERLAND intended that DONOHUE rely on the representations. 46. DONOHUE reasonably relied on SOUTHERLANDs representations. 47. DONOHUE was harmed. 48. DONOHUEs reliance on SOUTHERLANDs representations was a substantial factor in causing her harm. 49. DONOHUE is entitled to actual damages in an amount to be determined at trial, and punitive damages. (Cross-Complaint at ¶¶ 40-49.) Plaintiff argues that Defendant fails to state a cause of action for negligent misrepresentation because Defendant does not establish that Plaintiff owed Defendant a duty of care and representations about future events are not actionable. In support of the first argument, Plaintiff cites to Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864, which explained, As is true of negligence, responsibility for negligent misrepresentation rests upon the existence of a legal duty, imposed by contract, statute or otherwise, owed by a defendant to the injured person. However, Eddy goes on to explain, One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated, & facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances would reasonably expect a disclosure of those facts. (Ibid.) Therefore, Plaintiff owed Defendant a duty of reasonable care not to misrepresent basic facts about their joint purchase and renovation of the subject property. Regarding Plaintiffs second argument, however, the Court agrees that speculative opinions about future events are generally not actionable. (See, e.g., Cohen v. S & S Construction Co. (151 Cal.App.3d 941, 946.) Here, Defendant alleges Plaintiff promised (1) to evict the existing tenants pursuant to the Ellis Act; (2) to pay half the maintenance and repair expenses; (3) to allow Defendant and her daughter to occupy the property; and (4) to obtain a HELOC to pay for the renovations and to repay Defendant for the debt she incurred for renovations. (Cross-Complaint ¶¶ 32, 42.) However, the remainder of the allegations make clear that evicting the tenants was more complicated than the parties had anticipated, and was delayed by a year due to going back and forth with the City of Santa Monica. (Id. at ¶¶ 12, 17.) As a result, renovations were delayed, preventing Defendant and her daughter from moving into the property. (Id. at ¶ 13.) The parties also faced several unexpected legal costs and repairs on the Property and ran into difficulties obtaining a HELOC. (Id. at ¶ 14.) Thus, in context, all of the alleged false promises appear to be speculative opinions about future events that did not go according to the parties plans due to events outside their control. The Cross-Complaint therefore does not allege actionable misrepresentation, nor does it demonstrate that the promises were knowingly false when made. Further, the third and fourth causes of action, as pled, do not satisfy the heightened pleading requirement of specificity. Namely, Defendant does not allege specifically when or how the alleged promises were made. Therefore, the Court sustains Plaintiffs demurrer to the third and fourth causes of action. iv. Sixth Cause of Action Intentional Infliction of Emotional Distress To prevail on the Intentional Infliction of Emotional Distress (IIED) cause of action, a plaintiff must prove: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendants conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Ibid. [cleaned up].) Further, the defendants conduct must be intended to inflict injury or engaged in with the realization that injury will result. (Id. at p. 1051 [cleaned up].) The Cross-Complaint alleges: 56. Cross-Complainants hereby reallege and incorporate herein by reference, paragraph 1 through paragraph 55 inclusive, of this Cross-Complaint as if set forth in full. 57. SOUTHERLAND was negligent when he made the above-mentioned agreements with DONOHUE. 58. SOUTHERLAND was negligent when he made these agreements, since he had no intent to perform on them. 59. As a result of SOUTHERLANDs negligence, DONOHUE suffered emotional distress as a result due to the loss of housing, which was directly due to SOUTHERLANDs behaviors. 60. As a result, DONOHUE is entitled to actual damages in an amount to be determined at trial. (Cross-Complaint ¶¶ 56-60.) Defendant does not allege any extreme and outrageous conduct or conduct done with the intention of causing or reckless disregard of the probability of causing emotional distress. Therefore, the Court sustains Plaintiffs demurrer to the sixth cause of action. B. WHETHER CONTRACT IS WRITTEN, ORAL, or IMPLIED BY CONDUCT i. Fifth Cause of Action Breach of Contract To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) The Cross-Complaint alleges: 51. In 2022, when the parties decided to purchase the Subject Property, they made the following agreement: SOUTHERLAND would pay the down payment on the property while DONOHUE paid for renovations. SOUTHERLAND agreed to enact the Ellis Act (which was a deciding factor in DONOHUEs willingness to purchase the property); agreed to pay half of the maintenance expenses and repairs related to the property; agreed that DONOHUE and her daughter could occupy the two-bedroom while her second daughter occupied the smaller one-bedroom; agreed that the parties would obtain a HELOC to cover the renovations, and later for DONOHUE to recoup her penalties and interest for having to pay the cost of renovations, 50% of maintenance expenses and repairs, and the share of expenses and renovations that SOUTHERLAND was unable to pay. 52. In August 2022, SOUTHERLAND breached the agreement to proceed with Ellis unless he was able to occupy the two-bedroom. SOUTHERLAND also breached the agreement between the parties when he was unable to pay his 50% of maintenance expenses and repairs. He also breached the agreement to enter into a HELOC to allow DONOHUE to pay the planned debt she incurred for renovations costs as well as recover the additional expenses and repairs she had to pay for since SOUTHERLAND did not have the funds. 53. SOUTHERLANDs breaches caused significant financial harm to DONOHUE, as she had to pay for the expenses SOUTHERLAND was obligated to pay, which caused DONOHUE to take out loans, incur interest, and take a 40% cut in her pension due to early retirement. The breaches also caused DONOHUE to not have a place to live, since SOUTHERLAND now refuses to enact the Ellis Act. 54. DONOHUE has maintained all of her obligations under the agreement. 55. As a result of the breach, DONOHUE is entitled to actual damages in an amount to be determined at trial, and punitive damages. (Cross-Complaint ¶¶ 51-55.) Plaintiff demurs on the grounds that it cannot be ascertained from the pleading whether the alleged contract is written, oral, or implied by conduct. The Court agrees. The Cross-Complaint does not specify whether the purported agreement is written, oral, or implied by conduct. Therefore, the Court sustains Plaintiffs demurrer to the fifth cause of action. 2. MOTION TO STRIKE Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) Here, Chan moves to strike from the complaint, references to and claims for punitive damages. In ruling on a motion to strike punitive damages, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) As set forth in the Civil Code, (1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) When nondeliberate injury is charged, allegations that the defendants conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs assertions related to their claim for punitive damages were insufficient to meet the specific pleading requirement. (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim].) Here, as discussed above, Defendant has not alleged facts with requisite specificity to state the fraud-based causes of action for negligent or intentional misrepresentation against Plaintiff. As such, the Court finds that the allegations do not adequately support a claim for punitive damages against Plaintiff. 3. LEAVE TO AMEND A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend. (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) Defendant indicates she can add facts (1) that the alleged agreement was initial an oral agreement and also partially memorialized in some writings; (2) that Plaintiff intended not to honor his promises when made; and (3) describing Plaintiffs allegedly extreme and outrageous conduct. (Opposition to Demurrer at p. 8.) Regarding the fraud-based causes of action, if indeed, Defendant can add facts that Plaintiff knew the promises were false when made, then they could not, by definition, be speculative opinions. Similarly, if Defendant adds facts about when and how the allegedly false promises were made, the Court finds the identified deficiencies can all be cured by amendment. Similarly, if Defendant can adequately allege the fraud-based causes of action, Defendant may also request punitive damages. Therefore, the Court grants Defendant leave to amend the third, fourth, fifth, and sixth causes of action and to reallege the request for punitive damages. CONCLUSION AND ORDER For the reasons stated, the Court overrules Plaintiffs demurrer to the first and second causes of action, and sustains with leave to amend Plaintiffs demurrer to the third, fourth, fifth, and sixth causes of action. Further, the Court grants Plaintiffs motion to strike with leave to amend and strikes from the Cross-Complaint the requested references to and requests for punitive damages. Defendant may file and serve an amended cross-complaint in conformance with the Courts ruling on or before August 15, 2024. Plaintiff shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 25, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Real Property/Housing Court Law and Motion Calendar for July 22, 2024 line 5. DEFENDANT ZACHARY HOWITT NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFFS ATTENDANCE AT DEPOSITION AND REQUEST FOR SANCTIONS Hearing Required. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

23CV02337 COX v. MROCZEK, et al. CONFIRMATION OF 6/28/24 ORDER TO GRANT DEFENDANTS’ MOTION TO STRIKE COMPLAINT AND OBJECTION TO DECLARATION OF NONMONETARY STATUS The court has reviewed plaintiff’s Notification of Objection to and Disapproval of Any Proposed Order or Other Order: 1) Granting Defendants’ Motion to Strike the Complaint; or 2) Striking Plaintiff’s First Amended Complaint. Plaintiff’s objections merely go to the process by which parties engage on proposed orders; CRC 3.1312 has no impact on the power of the court to strike plaintiff’s amended complaint and dismiss this action. The court’s previous order of 6/28/24 granting defendants’ motion to strike plaintiff’s amended complaint is confirmed, as is dismissal of this action. Defendants are ordered to submit a formal dismissal order for the court’s signature. Page 1 of 2 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. Page 2 of 2