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Filing # 97514852 E-Filed 10/18/2019 12:48:59 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
DANIEL SHELATZ and
ALLYN SHELATZ,
Plaintiffs,
vs. Case No.: 18000223CA
PUNTA GORDA HMA, LLC,
a Florida limited liability company, d/b/a
BAYFRONT HEALTH PUNTA GORDA,
Defendant.
/
SECOND AMENDED NOTICE OF TAKING DEPOSITION
PLEASE TAKE NOTICE that the undersigned will take the depositions, by oral
examination, of the person named below, at the time, on the date, at the hour and at the place
indicated:
NAME OF DEPONENT DATE/TIME PLACE OF DEPOSITION
Roy A. Wadding October 29, 2019 La Cava & Jacobson, P.A.
(To be produced) 11:00 a.m. 501 E. Kennedy Blvd., Suite 1250
Tampa, FL 33602
Before, Tampa Court Reporting, or some other officer duly authorized to take depositions. These
depositions are being taken for the purpose of discovery, for use at trial, or for some other purposes
as are permitted under the Florida Rules of Civil Procedure.
In accordance with the Americans for Disabilities Act of 1990, persons needing a special
accommodation to participate in this proceeding should contact the undersigned firm no later than
seven (7) days prior to the proceeding for assistance. If hearing impaired, telephone 800-955-8771,
Florida Relay Service, for assistance.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 187 day of October 2019, a true and correct copy of
the foregoing has been furnished via electronic mail to A. Kevin Houston, Esquire and Louis J. La
Cava, Esquire, LA CAVA & JACOBSON, P.A., 2590 Northbrook Plaza, Suite 307, Naples, FL
34119 at the following primary and secondary emails: khouston@lacavajacobson.com
llacava@lacavajacobson.com kkeyte@lacavajacobson.com leddings@lacavajacobson.com
FLORIN, GRAY, BOUZAS, OWENS, LLC
/s/Christopher D. Gray
CHRISTOPHER D. GRAY, ESQUIRE
Florida Bar No.: 902004
Primary: chris@fgbolaw.com
Secondary: debbie@fgbolaw.com
WOLFGANG M. FLORIN, ESQUIRE
Florida Bar No.: 907804
wolfgang@fgbolaw.com
HUNTER A. HIGDON, ESQUIRE
Florida Bar No.: 85963
hunter@fgbolaw.com
16524 Pointe Village Drive, Suite 100
Lutz, FL 33558
Telephone (727) 254-5255
Facsimile (727) 483-7942
Attorneys for Plaintiff
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BOBS LLC vs ORANGE COAST TITLE COMPANY
Jul 19, 2024 |
CVPS2101103
Motion For Leave to File Motion for
Summary Adjudication by REAL
BOBS LLC vs ORANGE COAST ADVANTAGE TITLE INSURANCE
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TITLE COMPANY COMPANY, ORANGE COAST TITLE
INSURANCE COMPANY OF SOUTHERN
CALIFORNIA
Tentative Ruling: No tentative ruling. A hearing will be conducted at 10:00 a.m.
Ruling
WALEED SABRAH vs. CHHUONG CHOW
Jul 10, 2024 |
C23-03175
C23-03175
CASE NAME: WALEED SABRAH VS. CHHUONG CHOW
*FURTHER CASE MANAGEMENT CONFERENCE
FILED BY:
*TENTATIVE RULING:*
See Line 8.
Ruling
TAWANA JEAN COOPER VS OCTAPHARMA PLASMA, INC., ET AL.
Jul 16, 2024 |
23NWCV01923
Case Number:
23NWCV01923
Hearing Date:
July 16, 2024
Dept:
C
Tawana Jean Cooper vs Octapharma Plasma, Inc., et al.
Case No.: 23NWCV01923
Hearing Date: July 16, 2024 @ 9:30 AM
#7
Tentative Ruling
Defendants Motion for an Order Declaring Plaintiff to be a Vexatious Litigant is DENIED without prejudice.
Clerk to give notice.
Background
On June 23, 2023, Plaintiff Tawana Jean Cooper, proceeding in propria persona, filed suit against Defendants Octapharma Plasma, Inc. and Caitlin Ryan for employment discrimination, among other causes of action, related to her job as a part-time medical screener.
Defendants move this Court for an order declaring Plaintiff to be a vexatious litigant and an order that Plaintiff furnish security pursuant CCP § 391.
In the alternative, Defendants seek terminating sanctions or a pre-filing order pursuant to CCP § 391.7(a).
Request for Judicial Notice
Defendants request judicial notice of thirty-four (34) exhibits in this action, including various documents in the court record and documents filed in other court proceedings.
The Court may take judicial notice of its own court records and those of any court of this state or of the United States. (Cal. Evid. Code § 452, subd. (d).) Accordingly, the Requests for Judicial Notice are GRANTED.
Legal Standard
As relevant here, a vexatious litigant is a person who does any of the following:
(1) I
n the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing&
(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. (CCP § 391, subd. (b).)
Discussion
Plaintiffs Prior Litigation
To qualify as a vexatious litigant under
CCP § 391, subd. (b)(1), Defendants must demonstrate that Plaintiff commenced, in propria persona, and within the past seven years, at least five litigations (other than in small claims court) that have been finally determined against her, or have been unjustifiably permitted to remain pending for at least two years.
Here, Defendants have produced evidence of seven lawsuits involving Plaintiff.
However, it appears
only two of these actions (the 2018 red-light citation and the 2021 lawsuit against OptumRx) were commenced within seven years of June 23, 2023, when the instant lawsuit was filed.
Additionally, the red-light citation was not commenced by Plaintiff and the action filed in 2021 is still on-going.
Therefore, neither of these cases qualify as actions commenced by Plaintiff which have been finally determined against her.
The Court may not declare Plaintiff to be a vexatious litigate based upon Plaintiffs prior litigation.
Litigation in the Current Lawsuit
To qualify as a vexatious litigant under CCP § 391, subd. (b)(3), Defendants must demonstrate that Plaintiff repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
Defendants argue that Plaintiff has filed nine motions to compel discovery responses and each motion heard to date has been denied by the Court.
Defendants also point to complaints Plaintiff has made against former defense counsel and this Court.
Plaintiff disagrees with how the Court has ruled on her discovery motions.
She argues she has a right to preserve the record for appeal.
At this juncture, the Court determines there is insufficient evidence that Plaintiff meets the criteria set forth in CCP § 391, subd. (b), to qualify as a vexatious litigant.
In her motions to compel discovery, Plaintiff argues that Defendants responses were not properly verified because the oath was on a verification page, not on the response itself.
The Code requires a responding party to sign the response under oath. (Code Civ. Proc., §2031.250, subd. (a).) In denying the motions, the Court noted that in practice the responding party may sign a verification form as Defendants did.
Although the Court has rejected Plaintiffs argument, the Court cannot determine that Plaintiffs argument is wholly without merit.
Defendants cite no authority for the proposition that a non-frivolous argument may become frivolous by virtue of being repeated.
Moreover, the motions to compel discovery are substantially similar to each other, and they have been met with substantially similar oppositions and rulings by the Court.
At this time, the Court does not find that Plaintiff has placed an unreasonable burden on the Court or opposing counsel.
Accordingly, Defendants motion to declare Plaintiff a vexatious litigant is DENIED without prejudice.
Defendants requests for an order requiring Plaintiff to furnish security and for a pre-filing order prohibiting the filing of new litigation are dependent upon a finding that Plaintiff is a vexatious litigant.
Accordingly, these requests are also DENIED without prejudice.
Defendants request for terminating sanctions is DENIED without prejudice for the reasons stated above.
Ruling
Mariam Diarra vs Carson Kelly, et al
Jul 16, 2024 |
23CV02998
23CV02998
DIARRA v. KELLY et al
MOTION FOR AN ORDER DECLARING CARSON KELLEY’S JUDGMENT
DEBT TO MARIAM DIARRA TO BE A COMMUNITY PROPERTY DEBT
The motion is denied without prejudice.
Diarra obtained a default judgment against Carson Kelly and Humanize Global, US, Inc.
in the amount of $40,718.24. The underlying complaint alleged Labor Code violations, breach of
contract, promise without intent to perform, and violations of Business and Professions Code
section 17200. Carson Kelly is alleged to be the managing agent of Humanize Global. Diarra
worked for or was contracted by Carson Kelly and Humanize Global.
Diarra, now as judgment creditor, moves the court to declare that the debt of Carson
Kelly is a debt of the marital community of Carson Kelly and his wife Shannon Kelly, to declare
the wages of Shannon Kelly be subject to garnishment to satisfy Diarra’s judgment against
Carson Kelly, and to authorize that a writ of execution issue in her name.
Family Code section 902 defines debt as “an obligation incurred by a married person
before or during marriage, whether based on contract, tort, or otherwise.” Family Code section
910, subdivision (a) states that “[e]xcept as expressly provided by statute, the community estate
is liable for a debt incurred by either spouse before or during marriage, regardless of which
spouse has the management and control of the property and regardless of whether one or both
spouses are parties to the debt or the judgment for debt.”
Page 3 of 4
Diarra has not made a sufficient showing in this motion as follows:
1. Evidence of a marriage between Shannon and Carson Kelly, including the date
Carson and Shannon married. The only evidence are the vague statements from
counsel and Diarra in their declarations.
2. Evidence that Humanize Global US, Inc. was community property, rather than the
separate property of Carson Kelly.
In light of the above deficiencies, the court need not reach the merits of the motion.
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 4 of 4
Ruling
HENRIQUEZ vs AMERICAN HONDA MOTOR CO., INC., A CALIFORNIA COR...
Jul 18, 2024 |
Civil Unlimited (Contract/Warranty Breach - Se...) |
23CV029106
23CV029106: HENRIQUEZ vs AMERICAN HONDA MOTOR CO., INC., A
CALIFORNIA CORPORATION
07/18/2024 Hearing on Motion to Compel MTC re. PMQ; filed by JIMMY HENRIQUEZ
(Plaintiff) in Department 517
Tentative Ruling - 07/12/2024 Keith Fong
[JL]
CASE NAME and NO.: 23CV029106
MOTION: Plaintiff’s Motion to Compel Deposition Attendance
HEARING DATE: 7/18/2024
DEPT: 517
JUDICIAL OFFICER: Fong
PROPOSED TENTATIVE
Plaintiff’s Motion to Compel Deposition Attendance is DENIED.
DISCUSSION
Plaintiff brings this action under the Song-Beverly Act (“SBA”). Defendant filed a motion for
judgment on the pleadings, arguing that a “used” vehicle is outside the scope of the SBA. On
5/21/2024, the Court issued an order in connection with the motion. The Court noted that the
issue of whether the SBA covers used vehicles currently is before the California Supreme Court
in Rodriguez v. FCA US, LLC (2022) 77 Cal. App. 5th 209, review granted July 13, 2022,
S274625. The Order states: “Given that the Supreme Court’s decision will have a direct impact
on this case dispositive issue, the Court STAYS the instant action pending the Supreme Court’s
decision in Rodriguez.” In view of the stay order, Plaintiff’s motion to compel is premature. In
addition, Plaintiff did not comply with Local Rule 3.31, which requires that the parties schedule
an Informal Discovery Conference before filing a discovery motion. Accordingly, Plaintiff’s
motion to compel is denied without prejudice.
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV029106: HENRIQUEZ vs AMERICAN HONDA MOTOR CO., INC., A
CALIFORNIA CORPORATION
07/18/2024 Hearing on Motion to Compel MTC re. PMQ; filed by JIMMY HENRIQUEZ
(Plaintiff) in Department 517
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Ruling
NICOLAS PEREZ VS GENERAL MOTORS, LLC
Jul 16, 2024 |
21CMCV00174
Case Number:
21CMCV00174
Hearing Date:
July 16, 2024
Dept:
A
21CMCV00174 Nicolas Perez v. General Motors, LLC
Tuesday, July 16,
2024, at 8:30 a.m.
[TENTATIVE] ORDER
GRANTING PLAINTIFFS MOTION FOR ATTORNEYS FEES
[TENTATIVE] ORDER DENYING DEFENDANTS MOTION TO TAX COSTS
I.
BACKGROUND
Plaintiff alleges that Defendant issued an express warranty in connection with Plaintiffs purchase of a 2019 Chevrolet Silverado. Plaintiff alleges that the vehicle developed defects in its transmission, braking, and mechanical systems which Defendant failed to remedy or repair in violation of the Song-Beverly Consumer Warranty Act (Act).
On September 18, 2023, Plaintiff filed Notice of Settlement of Entire Case. Plaintiff now requests attorneys fees of $55,497.00 and additional fees of $5,000 to review Defendants opposition to this motion and to appear at the hearing.
[1]
II.
ARGUMENTS
Plaintiff argues he is entitled to attorneys fees under the Act because Defendant unreasonably forced Plaintiff to file suit and litigate the case. Defendant settled the case for $110,000, which includes damages for restitution and civil penalties.
In opposition, Defendant argues this case did not present any unique issues and did not require special skill. This case is identical to the hundreds of matters litigated against Defendant. The fee request is padded, unreasonable, inefficient, and unsupported by the record.
In reply, Plaintiff argues that Defendants contentions are based on an entirely arbitrary assessment of the work expended by Plaintiff to litigate this case, which arose as a result of Defendants unreasonable conduct. Other courts have affirmed that Plaintiffs counsels fees are reasonable.
III.
LEGAL STANDARDS
A prevailing buyer in an action under the SBA shall be allowed by the court to recover the aggregate amount of costs and expenses, including attorneys fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.
(Civ. Code, § 1794 subd.(d).)
A prevailing buyer has the burden of showing that the fees incurred were allowable, reasonably necessary to the conduct of the litigation, and were reasonable in amount.
(
Pulliam v. HNL Automotive Inc.
(2021) 60 Cal.App.5th 396, 405.)
The reasonable hourly rate is that prevailing in the community for similar work. (
Id
.)
A reasonable fee can be measured by the marketplace by analyzing the quality and necessity of services and then comparing that cost with what other attorneys with similar experience and ability charge for the same services.
(
Shaffer v. Superior Court
(1995) 33 Cal.App.4th 993, 1002.)
In lemon law cases, the court applies the lodestar method in calculating attorneys fees, including the use of fee multipliers where applicable.
(
Robertson v. Fleetwood Travel Trailers of California, Inc.
(2006) 144 Cal.App.4th 785, 818.)
The court determines a lodestar figure based on a careful compilation of the actual time spent and reasonable hourly compensation for each attorney.
(
Robertson
at 819.)
The lodestar may be augmented or diminished by taking various relevant factors into account including (1) the novelty and difficulty of the questions involved and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, based on the uncertainty of prevailing on the merits and of establishing eligibility for the award.
(
Robertson
at 819.)
The multiplier is a risk enhancement based on the probability of loss.
(
Robertson
at 821.)
The prevailing party is entitled to compensation for
all
the hours
reasonably spent
in litigating the action to a successful conclusion. (
Ibid.,
italics in original.) Reasonably spent means that time spent in the form of inefficient or duplicative efforts is not subject to compensation. (
Horsford v. Board of Trustees of California State University
(2005) 132 Cal.App.4th 359, 394
.)
The court may rely on his or her own experience and is given broad discretion in calculating reasonable attorneys fees. (
Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1132
["The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.].)
IV.
DISCUSSION
Plaintiff seeks reimbursement of fees incurred by a partner (Jordan G. Cohen), a senior associate (Rodney Gee), an associate, (Diana Rivero) and four paralegals. The bulk of the work was completed by Ms. Rivero (95.6 hours) and Robert Aguilar (18.5 hours).
The Court has considered all of the relevant factors including the nature of the case, which in the Courts view, is a relatively routine lemon law case that did not involve novel or difficult questions of law or fact and resolved relatively quickly with little motion practice. The case required minimal discovery. The Court also considers the outcome of the case, which resulted in restitution and civil penalties without requirement of trial.
With respect to the number of hours that each of three attorneys and five paralegals spent on various tasks, the Court has reviewed the billing record and finds that a number of the itemized tasks are unreasonable, inefficient, and at times duplicative among the attorneys and paralegal. Plaintiffs counsel is entitled to reasonable compensation; however, padding in the form of inefficient or duplicative efforts is not subject to compensation." (
Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1132
.)
The Court is permitted to make across the board cuts and apply a negative multiplier where it determines that the case was not complex, as well as the experience of counsel in this area. (
Warren v. Kia Motors America, Inc.
(2018) 30 Cal.App.5th 24, 41
[permitting a negative multiplier of 33% to the lodestar fee request of $351,055.26, resulting in a fee award of $115,848.24].)
The court has discretion to apply a reduction in hours for duplicative and or excessive billing. Proper factors to consider in applying a negative reduction are the lack of complexity, that the matter did not go to trial, that name partners were doing work that could have been done by lower-billing attorneys, and that all the attorneys were doing work that could have been done by paralegals, thus applying a 39% reduction in the lodestar. (
Morris v. Hyundai Motor America
(2019) 41 Cal.App.5th 24, 41
.) These factors are applicable here. Accordingly, the court declines fees incurred by senior counsel and a senior associate and four of the five paralegals except for Robert Aguilar.
The court finds that $400 per hour incurred by Diana Rivero and $210 per hour incurred by Mr. Aguilar are reasonable. Ms. Rivero claims 95.6 hours of work for this case which the court reduces to 77 hours. Mr. Aguilars total hours of 18.5 are reduced to 15 hours.
V.
CONCLUSION
Accordingly, Plaintiffs Motion for attorneys fees is GRANTED. The court permits fees as follows:
Counsel/paralegal
Hourly fee
Time
Diana Rivero
$400.00
77.00
$30,800.00
Robert Aguilar
$210.00
15
$3,150.00
TOTAL
$33,742.00
//
[TENTATIVE] ORDER DENYING DEFENDANTS MOTION TO TAX COSTS
I.
BACKGROUND
The parties settled this matter on September 18, 2023, and Defendant agreed to pay fees and costs to be determined by the court. Plaintiff filed his Memorandum of Costs on April 22, 2024, requesting $2,974.16 in costs.
Defendant asks for a reduction of $2,255.88, as these costs were unreasonable and unnecessary, the motions to compel discovery were boilerplate, frivolous, and did nothing to advance the case. Plaintiff seeks to enrich himself. Plaintiffs counsel should recover no more than $718.28.
In opposition, Plaintiff states he is entitled to recover costs as the prevailing party. Recoverable costs under the Song-Beverly Consumer Warranty Act (SBA) are not limited to statutory costs defined under Code Civ. Proc., § 1033.5. Plaintiff is entitled to out-of-pocket expenses. The SBA permits recovery of costs
and
expenses that are far broader than section 1033.5 permits.
In reply, Defendant reiterates its arguments that the majority of Plaintiffs costs were not necessary or reasonable.
II.
LEGAL STANDARDS
The court may, upon motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the 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).)
Section 1032 of the Code of Civil Procedure is the fundamental statutory authority for awarding costs in civil actions. (
Leiper v. Gallegos
(2021) 69 Cal.App.5th 284, 297
.) Section 1033.5 is a list of what is, and is not, allowable as a cost, [and] similarly is trial-court-oriented, with items exclusively related to trial court proceedings (e.g., references to jury fees, taking depositions, process servers, etc.). (
Stratton v. Beck
(2018) 30 Cal.App.5th 901, 910
.)
A prevailing party defined in part as the party with a net monetary recovery is entitled to costs as a matter of right. (
Code Civ. Proc., § 1032
subd. (b).) The SBA permits the buyers recovery of costs and expenses & determined to have been reasonably incurred by the buyer. (
Civ. Code, § 1794
subd (d).) For purposes of the SBA, "expenses encompass out-of-pocket expenses beyond the costs identified in Code of Civil Procedure section 1033.5. (
Smalley v. Subaru of America, Inc.
(2022) 87 Cal.App.5th 450, 457
.) Accordingly, Plaintiff is not limited to costs articulated under section 1033.5. (
Jensen v. BMW of North America, Inc.
(1995) 35 Cal.App.4th 112, 137
["it is clear the Legislature intended the word expenses to cover items not included in the detailed statutory definition of costs.].) Instead, the court considers whether costs were reasonably incurred by the buyer in connection with the commencement and prosecution of [this] action. (
Jensen
at 138
.)
Defendant has not established that any of the
expenses
incurred by Plaintiff as distinguished from
statutory costs
were unreasonably incurred.
1.
Filing fees incurred for the attorneys fees motion, discovery motions and court reporter fees incurred for the motion hearing were reasonable costs and expenses given Plaintiffs inability to obtain relevant information to prosecute the action. The fact that Defendant contends that this is an optional cost does not establish it was unreasonably incurred. Moreover, reservation fees are required at the time of reservation.
2.
Advanced and nonrefundable jury fees are required by local rule to be deposited in order for Plaintiff to preserve his right to a jury trial. (Code Civ. Proc., § 631 subd (b).) Although the matter did not go to trial, it remains a reasonably incurred expense.
3.
Remaining costs for filing CMC statements, Notice of Change of Address, and related notices and courtesy copy delivery fees.
Defendant contends that the notice fees were administrative in nature and not required for the litigation. While the Court may not charge a filing fee for some of these notices, Plaintiffs counsel still incurred an expense to a third party to file the notices with the court electronically. A Case Management Conference statement is required by the Court.
Defendant has not established that the expense of serving courtesy copies to the court is unreasonable. It is required with respect to discovery motions. (LASC First Amended General Order, ¶ 9.) It stands to reason that a litigant should make the court aware of changes in contact information to ensure delivery of court-issued communication.
V.
CONCLUSION
Based on the foregoing, Defendants Motion to Tax Costs is DENIED.
[1]
The propriety of Plaintiffs costs are addressed in a separate ruling regarding Defendants Motion to Tax Costs
Ruling
ANDREW MALAK VS FCA US, LLC, ET AL.
Jul 16, 2024 |
22STCV02754
Case Number:
22STCV02754
Hearing Date:
July 16, 2024
Dept:
19
After full consideration of the papers filed and oral argument at the hearing, Prospective Interveners Kyun Kyu Jung aka Brian K. Jung, Bongyong Song, and Sung Eun Lees unopposed Motion for Leave to File Complaint in Intervention is GRANTED.
The Court signs the proposed order filed on June 18, 2024 after indicating that Prospective Interveners Kyun Kyu Jung aka Brian K. Jung, Bongyong Song, and Sung Eun Lee must formally file the Verified Complaint in Intervention within 5 court days.
On the Court's own motion, the Case Management Conference is CONTINUED TO September 17, 2024, at 8:30 a.m.
Counsel for Moving Parties to give notice.
STATEMENT OF THE CASE
This is a fraud action. In the verified First Amended Complaint (FAC), Plaintiff Cynthia D. Brown-Lee (Plaintiff) brings suit against Defendant Guy Gary (Defendant) alleging the following causes of action:
1.
Intentional Misrepresentation Deceit;
2.
Fraud; and
3.
False Personation and Cheats.
The FAC alleges that Defendant fraudulently induced Plaintiff to execute a quitclaim deed transferring to Defendant real property with APN 5116-016-013 (the Subject Property).
Prospective Interveners Kyun Kyu Jung aka Brian K. Jung, Bongyong Song, and Sung Eun Lee (hereafter, Prospective Intervenors) filed the instant Motion for Leave to File Complaint in Intervention (the Motion).
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure section 387, subdivision (b), Prospective Intervenors move to intervene on the ground that they are the owners of the real property at issue and seek to expunge the lis pendens recorded by Plaintiff.
REQUEST FOR JUDICIAL NOTICE
The Court GRANTS Prospective Intervenors unopposed request to take judicial notice of Exhibits 1-3. (See Evid. Code, § 452(h); see
Fontenot v. Wells Fargo Bank, N.A
. (2011) 198 Cal.App.4th 256, 264, disapproved of on other grounds in Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256, 264 [pursuant to Evidence Code section 452, subdivisions (c) and (h), courts have taken judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged, because [t]he official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder's office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.].)
The Court notes that the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. (
Poseidon Development, Inc. v. Woodland Lane Estates, LLC
(2007) 152 Cal.App.4th 1106.) In
Poseidon
, the Court of Appeal held that, although& it would have been improper to take judicial notice of the truth of statements of fact recited within the documents, the trial court did not err in taking judicial notice of the effect of the recorded document when the validity of the document was not in dispute and the effect being judicially noticed could not be clearer and was not reasonably subject to dispute. (
Id.
at 1117-1118.)
DISCUSSION
As an initial matter, Plaintiff does not oppose the instant Motion, effectively consenting to the Court granting it. (See
Cal. R. Ct., 8.54(c) [A failure to oppose a motion may be deemed a consent to the granting of the motion.].)
Code of Civil Procedure section 387 provides, in part, that:
(b) An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:
(1) Joining a plaintiff in claiming what is sought by the complaint.
(2) Uniting with a defendant in resisting the claims of a plaintiff.
(3) Demanding anything adverse to both a plaintiff and a defendant.
(c) A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.
(d) (1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:
(A) A provision of law confers an unconditional right to intervene.
(B) The 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.
(2) The court may, upon timely application, 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.
(e) If leave to intervene is granted by the court, the intervenor shall do both of the following:
(1) Separately file the complaint in intervention, answer in intervention, or both.
(2) Serve a copy of the order, or notice of the courts decision or order, granting leave to intervene and the pleadings in intervention as follows:
(A) A party to the action or proceeding who has not yet appeared shall be served in the same manner for service of summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2.
(B) A party who has appeared in the action or proceeding, whether represented by an attorney or not represented by an attorney, shall be served in the same manner for service of summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2, or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.
(Code Civ. Proc., § 387(b)-(d).)
Code of Civil Procedure section 405.30 provides, in relevant part:
At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice.
(Code Civ. Proc., § 405.30.)
Here, the Court finds that Prospective Intervenors may intervene as a matter of right. In the [Proposed] Verified Complaint In Intervention, (Dina A. Ariza Decl., ¶ 12, Ex. A), Prospective Intervenors allege that they have ownership interests in the real property that is the subject of the action. (See,
e.g
., [Proposed] Verified Complaint In Intervention, ¶¶ 1-3, 5, 7-13.) Given the allegations and relief sought in the FAC, the Court finds that Prospective Intervenors are so situated that the disposition of the action may impair or impede their ability to protect their ownership interests.
Thus, the Court GRANTS the Motion.