Related Content
in Los Angeles County
Case
ADAM GARASAD VS LINDA VEERKAMP
Jul 09, 2024 |
Douglas W. Stern
|
Unlawful Detainer/Residential (not drugs or wrongful eviction) (General Jurisdiction) |
Unlawful Detainer/Residential (not drugs or wrongful eviction) (General Jurisdiction) |
24TRCV02269
Case
DUME PLAZA I, LLC, ET AL. VS SHRISHA RX, INC
Jul 10, 2024 |
Lisa K Sepe-Wiesenfeld |
Unlawful Detainer/Commercial (not drugs or wrongful eviction) (General Jurisdiction) |
Unlawful Detainer/Commercial (not drugs or wrongful eviction) (General Jurisdiction) |
24SMCV03330
Case
RUTH VELASQUEZ, AN INDIVIDUAL, ET AL. VS YAYA ORION, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
Stephanie M. Bowick
|
Other Real Property (not eminent domain, landlord/tenant, foreclosure) (General Jurisdiction) |
Other Real Property (not eminent domain, landlord/tenant, foreclosure) (General Jurisdiction) |
24STCV16990
Ruling
DANIEL KWAN HAENG LEE VS JPMORGAN CHASE BANK N.A.
Jul 11, 2024 |
23LBCV01651
Case Number:
23LBCV01651
Hearing Date:
July 11, 2024
Dept:
S27
1.
Background Facts
Plaintiff, Daniel Kwan Haeng Lee filed this action against Defendant, JP Morgan Chase Bank, N.A., as Successor-in-Interest for WaMu Mortgage Pass-Through Certificates Series 2008-AR12 and Does 1-25 for quiet title, slander of title, cancellation and expungement of void instrument, and declaratory relief.
Plaintiff filed the complaint on 9/06/23.
On 10/09/23, JP Morgan filed a demurrer and motion to strike directed at the complaint.
On 3/06/24, prior to the hearing on the pleading challenge, Plaintiff filed his operative First Amended Complaint.
The FAC includes causes of action for cancellation and expungement of void instruments and declaratory relief.
2.
Demurrer
a.
Legal Standard on Demurrer
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading.
It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39 Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no speaking demurrers). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within].
Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted.
Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading.
Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond.
CCP § 430.10(f).
However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. Financial Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41 requires that [b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP §430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP §430.41(a)(3).)
b.
Meet and Confer
Defense Counsel, Steven M. Dailey filed a declaration establishing he and Plaintiff met and conferred prior to the filing of the demurrer, but were unable to agree on a resolution of the merits of the pleading challenge.
The demurrer is therefore ripe for resolution.
c.
Grounds for Demurrer
Defendants demur to the FAC, contending:
Plaintiff failed to join an indispensable party to the lawsuit;
Plaintiff is not the real party in interest to allege causes of action relating to the foreclosure because he is not the borrower;
Plaintiffs FAC is barred by the doctrine of res judicata;
Plaintiffs claims are time-barred;
The subject sale is presumed valid;
Claims attacking the sale fail absent tender of all amounts due under the loan;
WaMu was a bona fide encumbrancer on the property via its loan agreement with Plaintiffs spouse;
Plaintiff does not allege facts to show any assignment was void;
Each of Plaintiffs causes of action fails to state a cause of action.
d.
Summary of Opposition
Plaintiff opposes the demurrer.
He argues:
Plaintiff needs to file a Second Amended Complaint to cure defects concerning the identification of the defendants to the action;
Plaintiff is the only damaged party by way of Defendants actions, and there is no indispensable party who needs to be joined in the suit; Plaintiff wishes to add claims for fraud and wrongful foreclosure to cure any defects in his claims;
Plaintiff is the real party in interest because he is the trustee of the trust that owns the subject property;
Res judicata does not apply in this case because Plaintiff has never sued before, and the issues decided in the prior litigation were different from the issues posed by way of this action;
There is no statute of limitations defense because the subject deed of trust is void, and there is no time bar to asserting a claim based on a void instrument;
Similarly, claims based on the trustees sale are not barred by the statute of limitations because the sale is void;
The presumption of valid sale does not operate to save Defendants from Plaintiffs claims;
Tender is excused because the subject deed of trust is void on its face;
It cannot be determined, at the pleading stage, whether WaMu was a bona fide encumbrancer for value;
Plaintiff adequately alleged facts to support each of his causes of action pled, and if the Court finds he did not do so, he should be given leave to do so.
e.
Summary of Reply
The reply restates the moving arguments and contends nothing in the opposition defeats the demurrer.
Defendants ask the Court to sustain the demurrer without leave to amend.
f.
Request for Judicial Notice
Defendants seek judicial notice of various documents relating to the subject property, all of which have been recorded in the County Recorders office.
They also seek judicial notice of documents filed in two lawsuits, NC055738 and NC061515, as well as various documents filed in bankruptcy court and the court of appeals.
The RJN is unopposed and granted.
g.
Allegations of the FAC and Facts Subject to Judicial Notice
The crux of Plaintiffs FAC is that a deed of trust and assignment of deed of trust, Exhibits 3 and 4 to his FAC, are void and should be cancelled and expunged.
Exhibit 3 to the complaint is a Deed of Trust in favor of Washington Mutual and indicating a security interest in the subject property due to a loan taken out by Yuri I. Lee, a married woman, as her sole and separate property.
The document was recorded on 8/28/06.
The document is signed by Yuri I. Lee, dated 8/18/06, and notarized by Michele D. Reynoso.
Exhibit 4 to the FAC is an assignment of the deed of trust from Washington Mutual to Bank of America, and it is dated 11/04/10.
The crux of Plaintiffs complaint is that the deed of trust is void because he, by virtue of his community property interest in the property, was a co-owner of the property at the time his wife encumbered the property.
Specifically, Plaintiff alleges that he purchased the property using a community property fund he shares with his wife in January of 2004, and the residence was officially designated as community property by way of a grant deed executed on 7/28/06 and conveyed into a family trust via grant deed the same day.
FAC, ¶2.
Defendants, in their demurrer, show that the 7/28/06 grant deeds upon which Plaintiff relies were not actually recorded until 9/05/06, approximately one week AFTER Defendants predecessor-in-interest recorded the purportedly void deed of trust.
Specifically, Defendants judicially noticeable documents show that, on 2/25/04, a grant deed was recorded showing the property owned by Daniel and Yuri as husband and wife.
Then on 8/28/06, Daniel and Yuri conveyed the property to Yuri only as a married woman as her sole and separate property.
The same day, Daniel and Yuri recorded an interspousal grant deed, which also conveyed all interest in the property from Daniel to Yuri.
Exhibit 5 to the RJN shows that it was not until 9/05/24 that Daniel and Yuri recorded documents purporting to transfer interest in the property back to both of them as spouses.
h.
Analysis
The Court finds the FAC fails to state a cause of action for numerous reasons set forth in the demurrer.
First and foremost, the FAC does not plead the existence of a void deed of trust because the judicially noticeable documents show that Plaintiffs wife was the sole owner of the property on the date the deed of trust was recorded, and therefore Defendants predecessors were under no obligation to include Plaintiff on the loan or resultant deed of trust.
The Court finds, as Defendants correctly note in their demurrer, that Plaintiffs spouse is a necessary party to this litigation.
She is the one who signed the loan agreement that resulted in recording of the deed of trust.
Pursuant to CCP §389(a), therefore, she qualifies as an indispensable party and must be named in the suit.
Additionally, the Cout finds Plaintiff lacks standing to challenge the deed of trust, assignment of deed of trust, or any resulting sale.
Plaintiff was not the owner of the property, per recorded documents, on the date of the encumbrance.
Only his wife was.
Plaintiff sets forth no facts showing why the deed of trust was somehow void due his lack of signature on the loan if he was not an owner of the property on the date of the loan.
Additionally, the Court finds this case is barred by res judicata.
Plaintiffs spouse has filed two prior actions against Defendants or their predecessors.
Pursuant to Hawkins v. SunTrust Bank (2016) 246 Cal.App.4
th
1387, 1394, Plaintiff is in privity with his spouse.
Pursuant to Barnes v. Homeward Residential, Inc. (N.D. Cal. 2013) 2013 WL 5217393, Defendants are in privity with their predecessors.
The Court has reviewed judicially noticeable documents from NC055738 and NC061515.
In NC055738, Plaintiffs spouse sued JP Morgan Chase and California Reconveyance Company to enjoin a foreclosure sale.
On 6/02/11, the Court sustained Defendants demurrer without leave to amend.
In NC061515, Plaintiffs spouse sued US Bank and various others seeking injunctive relief precluding a foreclosure sale.
The case was removed to the Bankruptcy Court, which ultimately dismissed the case; notably, Plaintiffs spouse appealed the dismissal, and the court of appeals affirmed the dismissal.
The Court finds the two prior cases were sufficiently similar to this case, in that both of them sought to preclude foreclosure and this case seeks an order that the deed of trust upon which the foreclosure was conducted is void.
Finally, the Court finds the claims are time-barred.
Plaintiffs only contention in support of his position that the claims are not time-barred is essentially that void documents can always be challenged without a time limitation.
However, as noted above, the Court finds Plaintiff failed to plead facts establishing the subject documents are void, and therefore he also failed to plead facts circumventing the statute of limitations.
i.
Leave to Amend
Plaintiff, in the event the demurrer is sustained, seeks an order granting him leave to amend.
Notably, he also seeks an order granting him leave to add additional defendants to the action and/or additional causes of action to the action.
The Court finds this case presents purely legal issues for determination, and leave to amend would be entirely futile.
Leave to amend is therefore denied.
3.
Motion to Strike
Defendants motion to strike is moot in light of the ruling on the demurrer.
4.
Conclusion
The demurrer is sustained without leave to amend.
Defendants must prepare a judgment of dismissal for processing.
Defendants are ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.
Ruling
MICHAEL DEEMING VS AIDS HEALTHCARE FOUNDATION, ET AL.
Jul 15, 2024 |
23STCV30116
Case Number:
23STCV30116
Hearing Date:
July 15, 2024
Dept:
17
Superior Court of California
County of Los Angeles
DEPARTMENT 17
TENTATIVE RULING
MICHAEL DEEMING
vs.
AIDS HEALTHCARE FOUNDATION,
et al.
Case No.:
23STCV30116
Hearing Date:
July 15, 2024
Defendants demurrer is OVERRULED. Defendants motion to strike is DENIED.
On 12/8/2023, Plaintiff Michael Deeming filed suit against AIDS Healthcare Foundation and Golden Hills Towers, LLC. On 4/23/2024, Plaintiff filed a first amended complaint (FAC) against the same parties, alleging: (1) negligence; (2) intentional infliction of emotional distress; (3) breach of the implied warranty of habitability; (4) tortious breach of the warranty of habitability; (5) private nuisance; (6) breach of covenant of quiet enjoyment; (7) violation of Civil Code section 1942.4; and (9) violation of the UCL.
Now, Defendant AIDs Healthcare Foundation (AHF or Defendant) demurs to Plaintiffs second, third, and fifth causes of action. Defendant also moves to strike portions of Plaintiffs FAC.
Factual Background
Plaintiff brings this action against his current landlord (AHF) and former landlord (Golden Hill Towers LLC).
Discussion
Defendant argues that Plaintiffs claims are insufficiently pled.
As to the second cause of action, the elements of a cause of action for intentional infliction of emotional distress (IIED) are (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 plaintiff suffered severe emotional distress; and (3) the defendants extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. (
Crouch v. Trinity Christian Center of Santa Ana, Inc.
(2019) 39 Cal.App.5th 994, 1007).
In the previous round of demurrer, the Court sustained Defendants demurrer to this claim writing:
Thus, while conclusory allegations of a failure to repair will not establish extreme and outrageous conduct, specific allegations that the landlord knowingly allowed uninhabitable conditions to continue will suffice under certain circumstances. However, similar facts are not alleged here. For instance, in the complaint, Plaintiff alleges At all relevant times, Defendants had actual and/or constructive notice of the following defects yet failed to take timely or reasonable steps to abate and/or remedy the defects which is
specific as to how Defendants knew about the issues. (Complaint ¶ 23.) Further in Newby, the court of found there was outrageous behavior when the evidence showed that after the plaintiff tenant organized opposition to rent increases, the landlord shouted at the tenant and insulted her, directed her to vacate the premises. The plaintiff was also told if she did not leave . . ., [w]e [will] handle this the way we do down South. (Id. at 921-922.) Again, here, Plaintiff was not threatened with bodily harm.
(4/3/2024 Minute Order.)
Now, Plaintiffs FAC includes allegations such as:
-
The Property was inspected by the Los Angeles Department of Public Health (LACDPH) on February 12, 2019, and again in October 12, 2021, during AFHs ownership and/or control and various violations were found including, but not limited to, cockroaches, torn carpet, trash/debris accumulation, holes in ceiling and walls and more. The LACDPH provided actual notice to Defendants of these various public health violations. Plaintiffs were on actual notice of their duty and obligation as landlord and their responsibility to provide habitable housing for its tenants yet knowingly allowed the uninhabitable conditions to continue harming their tenants and Plaintiff thereby. (FAC ¶ 30.)
-
On at least one occasion, in 2023, Plaintiff provided AFHs agents and/or employee, Ebony [last name unknown], a signed letter where Plaintiff describes the black mold that persisted for over a year, how the black mold was simply painted over three times in the course of nine months, and how it took three months for the mold to start showing up again. This letter also states that Apt. 510 lack adequate weatherproofing as the plastic window does not retain heat in the winter, defective locking mechanism on Plaintiffs door which he was told twice would be repaired but never was and Plaintiff had to pay and replace the lock himself, the bathroom light fixture was defective, inadequate water temperature, deteriorating carpeting, peeling paint, and the lack of addressing these issues over the years. (FAC ¶ 31.)
Accordingly, Plaintiff has now alleged specific facts which could show that Defendant knew about uninhabitable conditions and the harm it was causing, and failed to take steps to abate the issues.
Accepted as true at the pleading stage, these allegations are sufficient to state a claim for IIED.
As for the third cause of action, to state a claim for the breach of implied warranty of habitability, plaintiff must show the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. (
Erlach v. Sierra Asset Servicing, LLC
(2014) 226 Cal.App.4th 1281, 1297.)
Here, just as above, the Court sustained Defendants demurrer to this claim, on the grounds that [t]he allegations contain conclusory statements that do not present sufficient specific information regarding the defects, when and how they were reported to Defendants, and whether Defendants had an opportunity to remedy these conditions. (4/3/2024 Minute Order.) Now, as set forth above, Plaintiff has alleged specific facts to show how and when he put Defendant on notice as to various defects, and alleges they were not remedied in a reasonable time. (FAC ¶ 31.) Moreover, Plaintiff now alleges that Defendant failed to remedy conditions that were identified by the Los Angeles Department of Public Health (LACDPH) during inspections on 2/12/2019 and 10/12/2021. (FAC ¶ 30.) Accepted as true at the pleading stage, these allegations are sufficient to state a claim for breach of the warranty of habitability.
As for the fifth cause of action, Defendant argues that this claim is redundant because the new allegations were incorporated into both the negligence and nuisance claims making them duplicative of each other by relying on the same set of facts. (Demurrer, 2: 11-13.) However, this argument is not supported by any additional analysis beyond this assertion, nor is it accompanied by legal authority. (This failure to cite pertinent legal authority is enough reason to reject the argument);
Akins v. State of California
(1998) 61 Cal.App.4th 1, 50, 71 (contention waived by failure to cite legal authority).
Based on the foregoing, Defendants demurrer is overruled.
Motion to Strike
Defendant argues that Plaintiff cannot state a claim for punitive damages. However, as set forth above, the Court overruled Defendants demurrer as to the IIED and breach of implied warranty of habitability claims. Accordingly, Plaintiff has alleged sufficient facts that could show Defendant engaged in
despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294,
subd
. (c)(1).)
Based on the foregoing, Defendants motion to strike is denied.
It is so ordered.
Dated:
July
, 2024
Hon. Jon R. Takasugi
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the court at
smcdept17@lacourt.org
by 4 p.m. the day prior as directed by the instructions provided on the court website at
www.lacourt.org
. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If all parties to a motion submit, the court will adopt this tentative as the final order.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
For more information, please contact the court clerk at (213) 633-0517.
Ruling
VICTORIA MARIE TEJEDA VS CHRISTOPHER LEE MAGDOSKU, ET AL.
Jul 10, 2024 |
23NWCV03984
Case Number:
23NWCV03984
Hearing Date:
July 10, 2024
Dept:
C
TEJEDA v. CHRISTOPHER LEE MAGDOSKU, ET AL.
CASE NO.:
23NWCV03984
HEARING
: 7/10/24 @ 10:30 A.M.
#10
TENTATIVE RULING
I.
Defendant Christopher Lee Magdoskus Motion to Set Aside Default is GRANTED.
The Answer and Cross-Complaint attached to the motion are not deemed filed as of this date.
Defendant is ordered to file and serve their Answer and Cross-Complaint within 5 days.
Moving Party to give NOTICE.
This is an action for quiet title based on adverse possession.
On March 25, 2024, default was entered against defendant Christopher Lee Magdosku.
Defendant seeks to set aside default based upon mistake, inadvertence or excusable neglect under CCP § 473, subd. (b).
No opposition has been filed as of July 8, 2024.
Discussion
Code of Civil Procedure section 473, subdivision (b) states:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.
Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted
, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.
The purpose of mandatory relief is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. (
Rodriguez v. Brill
(2015) 234 Cal.App.4th 715, 723.) Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations very slight evidence will be required to justify a court in setting aside the default. [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (
Fasuyi v. Permatex, Inc.
(2008) 167 Cal.App.4th 681, 695.)
Here, default was entered on March 25, 2024, and Defendant filed the instant motion on April 19, 2024, within the six-month time specified in CCP § 473.
Hence, the motion is timely.
Defendants attorney states that he miscalculated the time to respond to the pleading. (Decl. Pena, ¶ 3.) This is inadvertence and excusable neglect.
Defendant included a copy of the answer and cross-complaint.
The Court will not adjudicate Defendants requests for judicial notice because they are not material to the determination of the instant motion.
Hence, the Court GRANTS the motion.
The Answer and Cross-Complaint attached to the motion is not deemed filed as of this date.
Defendant is ordered to file and serve their Answer and Cross-Complaint within 5 days.
Ruling
WHITE CAP, L.P., A FLORIDA LIMITED PARTNERSHIP VS FMB DEVELOPMENT, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 11, 2024 |
23STCV26532
Case Number:
23STCV26532
Hearing Date:
July 11, 2024
Dept:
49 White Cap, L.P. v. FMB Development, LLC, et al.
1317 S HOPE 26, LLCS MOTION FOR LEAVE TO INTERVENE
MOVING PARTIES:
Defendant-Intervenor 1317 S Hope 26, LLC
RESPONDING PARTY(S): None
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff White Cap, L.P., alleges it entered into a written credit application agreement with Defendant FMB Development, LLC, to provide Defendants with building materials for a project at 1317 S. Hope St, Los Angeles, CA 90015. Plaintiff further alleges Defendants have failed to fully pay for the materials.
Defendant-Intervenor 1317 S Hope 26, LLC, now moves for leave to intervene. No oppositions were filed. [FN 1]
TENTATIVE RULING:
1317 S. Hope 26, LLCs Motion for Leave to Intervene is GRANTED.
Defendant-Intervenor is ordered to file and serve a standalone copy of its Answer-In-Intervention within 10-days of this Ruling.
Defendant-Intervenor is ordered to give notice to all interested parties.
DISCUSSION:
Motion for Leave to Intervene
I.
Judicial Notice
Pursuant to Defendant-Intervenors request, the court takes judicial notice of TRUSTEES DEED UPON SALE, to 1317 S Hope 26 LLC, Recorded/Filed March 26, 2024, in Official Records, Recorders Office, Los Angeles, California, instrument number 20240191974. (Exh. 1.)
II.
Legal Standard
Intervention may be mandatory or permissive. Code of Civil Procedure, section 387, subdivision (d)(1) provides that the court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene, or [t]he person seeking intervention 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 persons ability to protect that interest, unless that persons interest is adequately represented by one or more of the existing parties. Additionally, upon timely application, a court may permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both. (Code Civ. Proc., § 387, subd. (d)(2).)
To establish a direct and immediate interest in the litigation for purposes of permissive intervention, a non-party seeking intervention must show that he or she stands to gain or lose by direct operation of the judgment, even if no specific interest in the property or transaction at issue exists.¿ (Simpson Redwood Co. v. State of California¿(1987) 196 Cal.App.3d 1192, 1201.)¿ Whether the interveners interest is sufficiently direct must be decided on the facts of each case¿. . . .¿And section 387 should be liberally construed in favor of intervention.¿ (Id.¿at 1200.)¿ In order that a party may be permitted to intervene it is not necessary that his interest in the action be such that he will inevitably be affected by the judgment.¿ It is enough that there be a substantial probability that his interests will also be so affected.¿ The purposes of intervention are to protect the interests of those who may be affected by the judgment¿. . . .¿ (Timberidge¿Enterprises, Inc. v. City of Santa Rosa¿(1978) 86 Cal.App.3d 873, 881-882 (citations and emphasis omitted).)
III.
Analysis
Defendant-Intervenor 1317 S Hope 26, LLC, moves for leave to intervene in this action. The dispute arises over the nonpayment for materials Plaintiff provided to Defendant FMB Development, LLC, for a project at 1317 S. Hope St, Los Angeles, CA 90015. (See Compl. ¶¶ 13-16, 32.) In Plaintiffs Fifth Cause of Action for Foreclosure of Mechanics Lien, Plaintiff seeks to foreclose on a lien against Defendant 1317 Hope, LLC, who Plaintiff alleged was the owner of the property. (Id. ¶ 32.)
Defendant-Intervenor asserts it is the current owner of the property at 1317 S Hope St, which it acquired by public auction on March 21, 2024. Defendant-Intervenor recorded a Trustees Deed Upon Sale on March 26, 2024. (RJN, Exh. 1.)
As the current owner of the property, Defendant-Intervenor argues it has a direct interest in the subject of this action, because a favorable verdict for foreclosure on Plaintiffs claim will affect Defendant-Intervenor 1317 S Hope 26, LLCs ownership interest in the Property. (Mtn. 4: 25-26.) For the same reasons, Defendant-Intervenor suggests its interests will be impaired absent intervention. Finally, Defendant-Intervenor argues its interests are contrary to Plaintiff and the other Defendants, and thus, its interests are not adequately represented by existing parties.
Here, Defendant-Intervenor, as owner of the property subject to the mechanics lien, has demonstrated an interest relating to the property that is the subject of the action. Defendant intervenor has also demonstrated and that it is so situated that the disposition of the action may impair or impede its ability to protect that interest, and that there are no other parties that will adequately protect that interest.
Finally, Defendant-Intervenors motion is timely. A court will determine the timeliness of a motion to intervene based on the date when a nonparty knew or should have known their interests in the litigation were not being adequately represented. (Ziani Homeowners Assn. v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 282.) Defendant-Intervenor recorded a Trustees Deed Upon Sale on March 26, 2024. (See RJN, Exh. 1.) Defendant-Intervenor moved for leave on May 31, 2024. There is no evidence the delay was unjustified or that it will prejudice any current party to the action.
Accordingly, 1317 S. Hope 26, LLCs Motion for Leave to Intervene is GRANTED.
IT IS SO ORDERED.
Dated: July 11, 2024
___________________________________
Randolph M. Hammock
Judge of the Superior Court
FN 1 - Defendant Intervenor served the moving papers on Plaintiff electronically on May 31, 2024. The remaining Defendants in this actionFMB Development, LLC, Ilan Kenig, and 1317 Hope LLChave not been served with this motion nor the summons and complaint.
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
JOHN LE NGUYEN VS MINH LE NGUYEN
Jul 12, 2024 |
22AHCV00822
Case Number:
22AHCV00822
Hearing Date:
July 12, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
JOHN LE NGUYEN
,
Plaintiff(s),
vs.
MINH LE NGUYEN
,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
22AHCV00822
[TENTATIVE] ORDER RE:
MOTION FOR ATTORNEY FEES; MOTION TO APPOINT PARTITION REFEREE
Dept. 3
8:30 a.m.
July 12
, 2024
)
I.
INTRODUCTION
On January 26, 2024, the Court issued a statement of decision ruling that plaintiff John Le Nguyen (Plaintiff) and defendant Minh Le Nguyen (Defendant) are co-owners of the real property located at 2070 Meridian Avenue, South Pasadena, California 91030 (the South Pasadena Property). The Court concluded that Plaintiff is entitled to partition the South Pasadena Property by sale and that the net proceeds from the sale will be shared equally between the parties, except that the cost of the title report ($450) and sanctions ($1,800) are to be deducted from Defendants portion of the proceeds and paid to Plaintiff.
On February 27, 2024, Plaintiff filed a motion for attorney fees. The same day, Plaintiff also filed a motion to appoint a partition referee.
The motions are unopposed.
II.
DISCUSSION
A.
Attorney Fees
Attorney fees are considered costs of a partition action which shall be apportioned among the parties in proportion to their interests or in other equitable manner. (Code Civ. Proc., §§ 874.010, 874.040.) Calculating an attorney fee award requires the Court first determine the lodestar, which is the number of hours reasonably expended multiplied by the reasonable hourly rate. (
Serrano v. Priest
(1977) 20 Cal.3d 25, 49.) The submitted evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. (
City of Colton v. Singletary
(2012) 206 Cal.App.4th 751.) The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. (
Gorman v. Tassajara Development Corp.
(2009) 178 Cal. App. 4th 44, 98.)
Here, Plaintiff is currently self-represented, but was previously represented by Kathy T. Luong (Luong). Plaintiff states that Luong devoted a total of 42.1 hours to this action. (Motion, p. 5.) Plaintiff also submits a declaration from Luong in which Luong states that she has practiced law for 16 years and her hourly rate for this case is $400. (Luong Decl., ¶ 2.) Luong states that Plaintiff has incurred $16,840 in attorney fees and $3,181.12 in costs, totaling $20,021.12. (
Id
., ¶ 3.) Luong also attaches around 50 pages of billing statements and invoices documenting the services performed by her office.
The hourly billing rate and the amount of time billed appears to be reasonable from Luongs declaration and these billing statements. However, it would be inequitable to award Plaintiff 100% of his fees and costs when he only has a 50% interest in the South Pasadena Property. (
Finney v. Gomez
(2003) 111 Cal.App.4th 527, 545-46.) In
Finney
, which involved a partition action with only two parties who both held equal ownership interests, the Second Appellate District held that the trial court erred by deviating from an equal apportionment of costs to the co-owners and awarding 100% of the partys costs when there was no evidence that an award based on their equal ownership interests would not be equitable.
Here, Plaintiff argues that all of his costs were incurred for the common benefit, i.e., for both him and Defendant. He presents no evidence why it would be equitable for Defendant to be solely responsible for costs from which he benefitted. Therefore, even assuming that those costs were all for the common benefit, the Court limits Plaintiff to recovering 50% of them.
In addition, the Court notes that Plaintiff actually requests costs for services which were not incurred for the common benefit, such as $49.05 for filing fees related to a substitution of attorney in February 2024. Plaintiff also includes $450 in his calculation in costs for the title report, even though this expense was already accounted for in the Courts statement of decision. Therefore, the Court subtracts these amounts from Plaintiffs claimed costs and divides the difference by two, awarding Plaintiff $9,761.036 in costs incurred in this partition action for the common benefit.
B.
Appointing a Partition Referee
Plaintiff requests the Court appoint a referee to carry out the sale of the South Pasadena Property and order that the costs of the sale and fees of the referee be paid from the sale proceeds. A referee appointed by the court to carry out a partition by sale shall sell the property in the manner and following the procedures provided by Chapter 6, Title 10.5, Part 2 of the Code of Civil Procedure. (Code Civ. Proc., § 873.510.) The property shall be sold at public auction or private sale, depending on which is determined by the court to be more beneficial to the parties. (
Id
., § 873.520.) The court may refer the matter to a referee and take into account the referees report. Similarly, the court may prescribe such manner, terms, and conditions of sale . . . as it deems proper but may also refer the manners, terms, and conditions of sale to a referee for recommendation. (
Id
., § 873.610.) The court shall not approve the referees report except following a hearing upon noticed motion. (Code Civ. Proc., § 873.610, subd. (b).)
Plaintiff provides the names of two individuals with reference experience, Matthew L. Taylor and Stephen J. Donnell, and attaches their curricula vitae to the motion. The motion is unopposed and Defendant does not object to either proposed referee. However, Plaintiff does not actually nominate either individual, nor does he state that either of them are available and consent to any appointment. Plaintiff also does not submit either individuals fee schedules for the Courts review. Instead, Plaintiff only states that he is aware of Messrs. Taylor and Donnell. Furthermore, there is no evidence, such as a sworn declaration, that the parties have met and conferred and been unable to reach an agreement about the identity of any potential referee. Plaintiffs claim that Defendant is not cooperating is unsupported by any evidence. In light of these circumstances, the Court is not inclined to grant Plaintiffs motion at this time.
III.
CONCLUSION
Based on the foregoing, the Court GRANTS in part Plaintiffs motion for costs in the amount of $9,761.036.
The hearing on the motion to appoint a referee is CONTINUED to ______. The parties are ordered to meet and confer on selecting a referee. No later than 5 days before the hearing date, the parties are to submit a joint statement. In this statement, each party shall nominate up to 3 individuals who are willing to potentially serve as a referee in this matter. The parties must include these individuals curricula vitae, fee schedules, and any other information the parties think would assist the Court in the selection process. The statement shall also include a description of efforts made by both parties to reach an agreement on who the referee should be. If the parties do not reach an agreement before the hearing date, the Court will choose one of the nominees identified in the report to appoint as a referee for the sale of the South Pasadena Property.
Dated this
12th
day of
July
, 2024
William A. Crowfoot
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
5901 CENTURY OWNER, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS FESTIVAL MANAGEMENT CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 15, 2024 |
22TRCV00181
Case Number:
22TRCV00181
Hearing Date:
July 15, 2024
Dept:
B
5901 Century Owner, LLC v. Festival Management Corporation, Case No. 22TRCV00181
Tentative Ruling: Motion
in limine
re Los Angeles County COVID-19 Tenant Protection Resolution
This is an action by Plaintiff 5901 Century Owner, LLC against Defendant Festival Management Corporation for alleged breach of lease. The Plaintiff seeks to recover unpaid rent, alleged to total $673,956.32, plus interest. By this
in limine
motion Plaintiff seeks to preclude the introduction of evidence or argument related to the Los Angeles County COVID-19 Tenant Protections Resolution (Resolution).
Plaintiff contends that under the express terms of the Resolution the matter asserted by the Defendant is an affirmative defense which has not been pleaded, and is thus waived. (The Court grants judicial notice of the January 24, 2023 Resolution of the Board of Supervisors and the June 10, 2022 Revised Guidelines to Aid in the Implementation of Los Angeles County COVID-19 Tenant Protections.)
The Resolution provides an affirmative defense to Evictions (Section VI) and in the Remedies article (Section XI).
Article VI.A.1. relates to evictions for nonpayment of rent. It provides:
Nonpayment of Rent
. During the time periods set forth below,
a Tenant may assert an affirmative defense to an unlawful detainer action for nonpayment of rent, late charges, interest, or any other fees
accrued if the Tenant demonstrates an inability to pay rent and/or such related charges due to Financial Impacts Related to COVID-19 and the Tenant has provided notice to the Landlord within seven (7) days after the date that rent and/or such related charges were due, unless extenuating circumstances exist that the Tenant is unable to pay.
The affirmative defense provided under this Paragraph is described in Section C of Paragraph XI, below
.
FOR COMMERCIAL TENANTS, THERE SHALL BE NO FURTHER EVICTION PROTECTIONS AFTER JANUARY 31, 2022. (Bold added.)
Article XI.C. states:
C.
Affirmative Defense
.
Effective March 4, 2020, any Protections
, including the Protection pertaining to Personal Guarantees
for commercial rental debt, provided under this Resolution shall constitute an affirmative defense for a Tenant in any unlawful detainer
action brought pursuant to California Code of Civil Procedure section 1161, as amended,
and any other civil action seeking repossession and repayment of rental debt. The Tenant shall have the burden to prove the basis of their affirmative defense, including the merit of any self-certification of a Financial Impact Related to COVID-19 made pursuant to this Resolution
. Said affirmative defenses shall survive the termination or expiration of these Protections. (Bold added.)
Defendant failed to assert the Resolution as an affirmative defense at any time in this proceeding.
Defendant makes a number of arguments claiming that it is entitled to introduce evidence of the Resolution created affirmative defense and related facts.
First, Defendant claims that the Central Issue of Plaintiffs Second Amended Complaint is the Effect of the Resolution on the Partys Rights. In essence, Defendant contends that since the Second Amended Complaint alleges the existence of the City and County COVID ordinances that therefore the affirmative defense issue was tendered by Plaintiff. The Court disagrees. The fact that the Plaintiff alleged that Defendant remained legally obligated to pay rent, but could not be evicted for a period of time (Complaint ¶ 11) did not relieve the Defendant of an obligation to plead its Resolution based affirmative defense. Nor does the fact that Plaintiff pleaded the existence of the March 2020 and September 2020 County resolutions (Complaint ¶ 12, 13) relieve the Defendant of an obligation to assert any claimed affirmative defense arising under either of those resolutions. Afterall, the affirmative defense is dependent upon proving certain facts to establish the defense. (Article VI.) Not all commercial entities were entitled to a defense.
The Court notes that paragraph 14 alleges:
Plaintiff does not know if Festival is entitled to the protections of the Resolution since it does not know if Festival was unable to pay rent incurred during the Moratorium due to Financial Impacts Related to Covid-19 as set forth in the Resolution
. In an abundance of caution, however, Plaintiff proceeds as if Festival was entitled to such protections.
This allegation reveals that Plaintiff is not asserting facts that constitute the affirmative defense. The mention of the resolutions did not relieve Defendant of its obligation to assert any defenses it might have, including an affirmative defense arising under the Resolution. Indeed, the fact that Plaintiff added surplusage to the Second Amended Complaint does not relieve Defendant of its obligation to plead its Resolution based affirmative defense.
Second, Defendant alleges that its general denial was sufficient to constitute the affirmative defense provided by the Resolution. Defendant cites no case authority for such a proposition. Nor does such a general denial of the material allegations give rise to the affirmative defense claimed by Defendant. This is particularly true here, as the Plaintiff expressly alleged in paragraph 14 that it was not aware of whether or not Defendant was entitled to the protections of the Resolution. Further, establishing the affirmative defense is dependent upon alleging and ultimately proving additional facts such as the financial impact of COVID-19. Paragraph 14 made clear that it was incumbent upon the Defendant to make such claimed defense known. Defendant did not make any assertion that the affirmative defense applied.
Third, Defendant asserts that it is not required to plead the Resolution provided affirmative defense, as the Resolution allows a tenant to plead an affirmative defense. (A tenant& may assert an affirmative defense&) The Court disagrees with this argument. The granting to the tenant of an affirmative defense that
may
be asserted does not mean that the affirmative defense need not be pleaded like every other affirmative defense expressly and affirmatively. The suggestion by Defendant that the affirmative defense was already in the case by virtue of Plaintiffs description of some of the provisions of the COVID ordinances and resolutions is wrong. (See discussion above.)
Finally, Defendant suggests that the affirmative defenses it did plead were adequate to raise the issue of the Resolution affirmative defense. The Court disagrees.
The Seventh Affirmative Defense states: As a separate and distinct affirmative defense to each of plaintiffs causes of action and, while denying each of the allegations contained therein, this answering defendant asserts that, by virtue of the acts or omissions of the plaintiff, it has been excused from performing under the subject matter lease. This cannot reasonably be understood to allege that the Resolution based defense was being asserted.
Defendant claims that its Eleventh Affirmative Defense arises under the Resolution. As a separate and distinct affirmative defense to each of plaintiffs causes of action and, while denying each of the allegations contained therein, this answering defendant asserts that plaintiffs damages, if any, should be reduced, eliminated, and/or offset by the amount of damages suffered by defendant attributable to any wrongful acts and omissions of Plaintiff. That also fails to give anyone notice that the affirmative defense was based on the Resolution.
Defendant asserts that the Twelfth Cause of Action preserved this defense. As a separate and distinct affirmative defense to each of plaintiffs causes of action and, while denying each of the allegations contained therein, this answering defendant asserts that by virtue of plaintiffs unlawful, immoral, careless, negligent and other wrongful conduct, plaintiff is barred from recovery from defendant under the equitable doctrines of unclean hands and of in
pari delicto
. This is not an assertion of the Resolution as an affirmative defense.
The Court GRANTS the motion
in limine
. No evidence of the Resolution shall be introduced.
Ruling
CHRISTIAN CARRILLO, ET AL. VS BILL LEE, ET AL.
Jul 12, 2024 |
11/28/2022 |
22SMCV01397
Case Number:
22SMCV01397
Hearing Date:
July 12, 2024
Dept:
N TENTATIVE RULING
Plaintiff Christian Carrillos Motion to Compel Cross-Defendants Compliance with the Courts Prior Discovery Order and Request for Sanctions is DENIED.
Plaintiff Christian Carrillo to give notice.
REASONING
Plaintiff Christian Carrillo (Plaintiff) moves the Court for an order compelling Cross-Defendant Mohammed Tehrani (Cross-Defendant) to comply with the Courts order dated March 27, 2024, requiring Cross-Defendant to serve code-compliant responses to Plaintiffs Form Interrogatories, Set One, without objections, within thirty (30) days of entry of the Courts order and to pay monetary sanctions in the reduced amount of $1,010 within thirty (30) days of entry of the Courts order.
Put simply, the Court cannot issue an order compelling a party to compel with a court order, as it has already done so in issuing the prior order in the first place. While Code of Civil Procedure section 2023.010 provides a basis for imposing sanctions, including terminating, evidence, and monetary sanctions, where a party engages in the misuse of the discovery process, including disobeying a court order to provide discovery, Plaintiff has not moved for sanctions under this statute. Accordingly, Plaintiff Christian Carrillos Motion to Compel Cross-Defendants Compliance with the Courts Prior Discovery Order and Request for Sanctions is DENIED.
Ruling
HOF REO 1 LLC, A DELAWARE LIMITED LIABILITY COMPANY VS ANTHONY MARCIANO, ET AL.
Jul 10, 2024 |
11/28/2022 |
24SMCV00625
Case Number:
24SMCV00625
Hearing Date:
July 10, 2024
Dept:
N TENTATIVE RULING
Plaintiff HOF REO 1 LLCs Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.
Plaintiff HOF REO 1 LLC to give notice.
REASONING
Request for Judicial Notice Plaintiff HOF REO 1 LLC (Plaintiff) requests judicial notice of the Deed of Trust recorded November 6, 2019, in the Los Angeles County Recorders Office as Document No. 20191198681; the Assignment of Deed of Trust recorded February 12, 2021, in the Los Angeles County Recorders Office as Document No. 20210247143; and the Trustees Deed Upon Sale recorded March 3, 2021, in the Los Angeles County Recorders Office as Document No. 20210348502. Plaintiffs request is GRANTED pursuant to Evidence Code section 452, subdivision (c).
Analysis Plaintiff moves the Court for an order granting summary judgment or adjudication in its favor on the grounds that Defendants Eliyahu Marciano and Anthony Marciano (Defendants) have not paid any rent to Plaintiff since the time Plaintiff acquired and perfected its title to the property; the Tenant Protection Act of 2019 does not apply to this action or the tenancy because the more restrictive local ordinance applies instead, and Plaintiff has complied with all provisions of the local ordinance; and any contention that service of the complaint was defective is inapposite where Defendants appeared in the action and filed an answer.
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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)
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. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
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.) [T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment. (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
In the complaint, Plaintiff alleges that it owns the premises at 1352 and 1354 Palms Boulevard in Venice, and Defendants entered into a written fixed-term lease with Palms Blvd. Venice Beach, LLC for the period of November 30, 2020 to May 31, 2022 with monthly rent at $4,500, payable on the seventh day of each calendar month. (Compl. ¶¶ 1-8.) Plaintiff acquired title and ownership of the property following a nonjudicial foreclosure sale, and title was perfected on March 3, 2021. (Compl. ¶¶ 10-11.) Defendants failed to pay any rent after Plaintiff acquired title to the property, and Defendants comply with the 3-Day Notice to Pay Rent or Quit, which expired on January 26, 2024, a 30-Day Notice to Pay Rent or Quit, a second 30-Day Notice to Pay Rent or Quit, or a 5-Day Notice to Pay Rent or Quit. Plaintiff seeks past-due rent of $162,000 under four notices, holdover damages, and forfeiture of the agreement. (Compl. ¶¶ 13-19.) The basic elements of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (2), are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed. (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.)
Plaintiff provides evidence that it acquired title to the subject real property at 1352 and 1354 Palms Boulevard, Venice, California 90291 following a foreclosure sale that went forward on February 4, 2021, and Plaintiff perfected its title to the property by recording a Trustees Deed Upon Sale on March 21, 2021. (Mot., Holliday Decl. ¶¶ 4-5.) The property consists of a five-bedroom main residence with an additional guesthouse containing two additional bedrooms. (Mot., Holliday Decl. ¶ 3.)
Shortly after acquiring the property, on April 7, 2021, Defendants presented Plaintiff with a copy of a residential lease purportedly entered into by Defendants and the prior owner, Palms Blvd Venice Beach, LLC (Palms, LLC). (Mot., Holliday Decl. ¶ 6.) Plaintiff states it was unaware, prior to April 7, 2021, that any lease existed for any tenants or occupants of the property. (Mot., Holliday Decl. ¶ 7.) The lease reflects that, on November 30, 2020, Defendants entered into a residential lease for the property with Palms, LLC, providing that Defendants were to pay $4,500.00 per month, beginning on November 30, 2020, payable on the seventh day of each month, for a term expiring on May 31, 2022. (Mot., Holliday Decl. ¶ 8.) Plaintiff has not received any rent from Defendants since acquiring title to the property on or about February 4, 2021. (Mot., Holliday Decl. ¶ 9.)
On April 30, 2021, Plaintiff proceeded with a civil lawsuit against Defendants, Los Angeles Superior Court Case No. 21STCV16332 (HOF REO 1 LLC v. Marciano) to ascertain the validity of the lease, but Plaintiff ultimately dismissed the civil suit and concedes here that the lease is a bona fide lease between Defendants and the prior owner, Palms, LLC. (Mot., Holliday Decl. ¶ 10.) However, Plaintiff contends there was never any agreement between Plaintiff and Defendants directly to occupy the property, whether in writing, oral, or otherwise. (Mot., Holliday Decl. ¶ 11.)
Plaintiff served a total of four separate notices to pay rent to quit as follows: (1) On December 22, 2023, Plaintiff served a 30-Day Notice to Pay Rent or Quit for rent owing beginning March 7, 2021, through September 7, 2021, totaling $31,500.00. (Mot., Labarre Decl. ¶ 3, Ex. A.) (2) On December 22, 2023, Plaintiff served a 30-Day Notice to Pay Rent or Quit for rent owing beginning October 7, 2021, through January 7, 2023, totaling $76,500.00. (Mot., Labarre Decl. ¶ 4, Ex. B.) (3) On December 22, 2023, Plaintiff served a 5-Day Notice to Pay Rent or Quit for rent owing beginning February 7, 2023, through November 7, 2023, totaling $45,000.00. (Mot., Labarre Decl. ¶ 5, Ex. C.) (4) On January 23, 2024, Plaintiff served a 3-Day Notice to Pay Rent or Quit for rent owing beginning January 7, 2024, through February 7, 2024, totaling $9,000.00. (Mot., Labarre Decl. ¶ 6, Ex. D.) The time for Defendants to cure under each of the notices expired, and no payment was received, nor was there any attempt to make payment. (Mot., Holliday Decl. ¶ 12; Labarre Decl. ¶ 7.)
Plaintiff also provides evidence that it has complied with Los Angeles Municipal Code section 151.09, which applies in place of Civil Code section 1946.2 because the local ordinance is more protective (see Civ. Code, § 1946.2, subd. (g)(1)(B; Mot., Labarre Decl. ¶¶ 3-8, Exs. A-E), and Defendants answered the complaint on March 8, 2024, thereby waiving any argument that service of the complaint was incomplete (see Code Civ. Proc., § 1014 [A defendant appears in an action when the defendant answers].)
The lease agreement provided with the motion shows that Defendants entered into the lease with the prior owner, Palms, LLC, which Plaintiff does not dipsute. (Mot., Holliday Decl. ¶ 6; Ex. 5.) The lease agreement includes information on how to pay rent; specifically, lease payments must be made at the landlords address stated in the notices provision of the lease in paragraph 46. (Ibid.) Notably, Plaintiff provided no evidence with its initial motion that it informed Defendants of the name, telephone number, and address of the person or entity to whom rent payment must be made after Plaintiff became owner of the property, which is required under Civil Code section 1962, subdivision (c). The statute states that an owner shall not serve a notice to pay rent or quit or otherwise evict a tenant for nonpayment of rent that accrued during a period of noncompliance with Civil Code section 1962 (ibid.), and merely making contact with Defendants is insufficient to show compliance with the statute.
The Court continued the hearing on the motion, despite Defendants nonappearance at the hearing, and required Plaintiff to show compliance with the statute. In its supplemental filing, Plaintiff provides evidence that on November 22, 2023, it served a Notice Regarding Residential Lease, which provided Defendants with Plaintiffs name, a copy of the Trustees Deed Upon Sale through which Plaintiff acquired title, provided contact information for Plaintiffs agents, included information for service of process, provided the name and address for payments to be made, and included a copy of the lease agreement. (Labarre Supplemental Decl. ¶ 2, Ex. F.)
While compliance with Civil Code section 1962, subdivision (c), makes it such that Defendants may be liable for unpaid rent during the earlier noncompliance period, it is axiomatic that there is a one-year ceiling on a rent demand, i.e., a three-day notice can only demand rent accrued within one year prior to its service. (Code Civ. Proc., § 1161, subd. (2).) Plaintiff states that the first notice was served on December 22, 2023, seeking rent owing from March 7, 2021, through September 7, 2021, which clearly exceeds the one-year limit, and the second notice, served on the same day, sought rent owing from October 7, 2021, through January 7, 2023, also exceeding the one-year limit. While Code of Civil Procedure section 1179.05 tolled the one-year limitations period if the landlord was prohibited by COVID-19 related authority from demanding payment of rent, Plaintiff has not alleged any such tolling under this statute or any other statute. Thus, Plaintiff has not clearly established its claim for unlawful detainer as to the first two notices, and Plaintiff has moved only for summary judgment, not adjudication. Thus, the burden does not shift to Defendants to create a triable issue of material fact. For these reasons, Plaintiff HOF REO 1 LLCs Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.
Evidentiary Objections Defendants object to certain statements within the declarations of Kevin Holliday and Olivier J. Labarre. Defendants objections are OVERRULED.
Document
FOCUS LINE, LLC VS NANCY UTLEY JACOBS
Jul 09, 2024 |
Harry Jay Ford III
|
Other Real Property (not eminent domain, landlord/tenant, foreclosure) (General Jurisdiction) |
Other Real Property (not eminent domain, landlord/tenant, foreclosure) (General Jurisdiction) |
24SMCV03312
Document
JOSHUA GREER, ET AL. VS KINGA LOVASZ, ET AL.
Apr 25, 2024 |
Jon R. Takasugi
|
Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) (General Jurisdiction) |
Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) (General Jurisdiction) |
24STCV10341
Document
HOWARD SCHECHTER VS LOUISE TABBINER
Sep 07, 2016 |
H. JAY FORD III |
civil |
Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) (General Jurisdiction) |
SC126370
