Order: Trustco Bank v. Joseph Polchinski, Sustainable Neighborhoods, Llc

Case Number: 22SMCV01685 Hearing Date: July 18, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 18, 2024 CASE NUMBER 22SMCV01685 MOTION Motion for Summary Judgment MOVING PARTY Plaintiff SM 10000 Property LLC OPPOSING PARTY none MOVING PAPERS: Notice of Motion and Motion for Summary Judgment Memorandum of Points and Authorities Separate Statement of Undisputed Material Facts Declaration of Nicole Browne Declaration of Thomas F. Olsen BACKGROUND This breach of contract case arises from a dispute regarding the amount of back rent Defendants allegedly owe Plaintiff in connection with a residential property lease. On September 26, 2022, Plaintiff SM 10000 Property LLC (Plaintiff) brought suit against tenant Defendants Nicolai Bergman (Nicolai), Amanda McDermott-Bergmann (Amanda), and Nicolai Bergmann KK (Nicolai KK) (together, Defendants.) Amanda answered the complaint, but default was entered against Nicolai and Nicolai KK on August 10, 2023. Plaintiff now moves for summary judgment against Amanda on the single breach of contract cause of action. Plaintiffs motion is unopposed. LEGAL STANDARD MOTION FOR SUMMARY JUDGMENT [T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact . ( Ibid .) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial. ( Binder v. Aetna Life Ins. Co . (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility. ( Id . at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party].) DISCUSSION To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. ( Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Plaintiff has provided evidence that on May 25, 2019, the parties entered into a 12-month lease agreement effective April 25, 2019 to April 24, 2020, and to become month-to-month thereafter. (UMF Nos. 1-3.) Pursuant to the terms of the lease, Defendants were to pay Plaintiff $11,850 in monthly rent. (UMF No. 4.) Defendants also agreed to pay a $150 monthly technology fee, a $22,400 refundable security deposit, a refundable club amenity deposit of $2,000, a $200 monthly storage fee, and a $150 annual club membership. (UMF No. 5.) Defendants were also required to pay 100% of the electricity service separately metered to the premises and billed by Plaintiff. (UMF No. 6.) After April 6, 2022, Defendants failed to make any payments for rent, utilities, or technology fees. (UMF Nos. 12-15, 18-19.) After Defendants vacated the premises, Plaintiff completed all repairs to the premises on December 6, 2023. (UMF Nos. 19-20.) The Lease further requires that if a resident fails to pay any portion of rent when due and it remains owing on the fifth following the due date, the resident owes liquidated damages of $400. (UMF No. 16.) And as of December 6, 2023, Defendants outstanding principal balance due for rent, utilities, technology fees, and late fees was $255,003.28. (UMF No. 20.) The Lease also contains an attorney fee provision, entitling the prevailing party to recover reasonable attorneys fees not to exceed $10,000. (UMF No. 24.) Plaintiff incurred $12,407.50 in reasonable attorneys fees and $2,421.97 in costs, and anticipates incurring reasonable attorneys fees in the total amount of $14,829.47. (UMF Nos. 27-30.) Plaintiff further calculated prejudgment interest owed in the amount of $31,828.76. (UMF No. 21.) Therefore, Plaintiff has met its initial burdens of establishing a prima facie case that a lease agreement exists, Plaintiff performed under the agreement by providing Defendants the premises, Defendants breached the agreement by failing to pay the rental amounts owed, and as a result, Plaintiff has suffered damages in the amount of $255,003.28. Because Amanda has not opposed the motion, she has not met her burden of production to raise a triable issue of material fact. Consequently, Plaintiff has demonstrated entitlement to damages in the amount of $255,003.28, attorneys fees in the amount of $10,000, costs in the amount of $2,421.97, and prejudgment interest in the amount of $31,828.76. CONCLUSION AND ORDER For the foregoing reasons, the Court grants Plaintiffs unopposed motion for summary judgment. Further, the Court will enter the Order lodged on April 29, 2024, and orders Plaintiff to lodge a proposed Judgment in conformity with the Courts ruling on or before August 1, 2024. Plaintiff shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 18, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

S-CV-0052479 Keim, Michael vs. Rushmore Loan Management Services, LLC No appearance required. CMC is continued to 10/21/24 at 2pm in Dept. 6. Complaint is not at issue - Need responsive pleading, default or dismissal as to Defendant(s): PMIT REI 2021-A LLC; Rushmore Loan Management Services, LLC; Werking Inc.; ZBS Law LLP Additionally, no proof of service has been filed as to Defendant(s): PMIT REI 2021-A LLC; Rushmore Loan Management Services, LLC; Werking Inc.; ZBS Law LLP

C23-02292 CASE NAME: BEN HADDAD VS. MONROE RE, LLC HEARING ON DEMURRER TO: DEMURRER OF THE CALIFORNIA DEPARTMENT OF SOCIAL SERVICES TO VERIFIED COMPLAINT FILED BY: *TENTATIVE RULING:* Motion continued to August 9, 2024, at 9:00 a.m. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: DANIELLE K DOUGLAS HEARING DATE: 07/12/2024

HULL, ET AL. VS. THE CADLE COMPANY, ET AL. Case Number: 22CV-0200159 Tentative Ruling on Order to Show Cause Re Sanctions: An Order to Show Cause Re: Sanctions (“OSC”) issued on May 17, 2024, to Plaintiffs James Hull and Shirley Hull for failure to abide by California Rule of Court 3.110. Defendant Tri Counties Bank was amended into the Complaint on January 24, 2024. There has been no summons issued for Tri Counties Bank, and they have not been served. The matter is not at issue. No response to the OSC has been filed. Plaintiff remains in violation of CRC 3.110. Sanctions will be imposed in the amount of $250. The clerk is instructed to prepare a separate Order of Sanctions. The Court confirms today’s review hearing set for 9:00 a.m.

Real Property/Housing Court Law and Motion Calendar for July 18, 2024 line 10. PLAINTIFF ISA MUAWIEH MOTION FOR SUMMARY JUDGMENT Hearing Required to address service. Proof of Service on file indicates service at a location that is not Defendant's address of record. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.

Case Number: 23GDCV02307 Hearing Date: July 18, 2024 Dept: E Case No: 23GDCV02307 Hearing Date: 07/18/2024 8:30am Trial Date: UNSET Case Name: JOHN WOOD, as assignee of the Estate of Donald R. Wood; v. MARK G. MCNELIS; and MARK G. MCNELIS & ASSOCIATES, CPAS, INC., and DOES 1-20 [TENTATIVE RULING ON DEMURRER & MOTION TO STRIKE] Moving Party: Defendants, Mark G. Mcnelis and Mark G. Mcnelis & Associates, CPAs, Inc. Responding Party: Plaintiff, John Wood Moving Papers: Notice/Demurrer Opposition Papers: Opposition Reply Papers: No Reply RELIEF REQUESTED Defendants demur to all four causes of action in the Second Amended Complaint (SAC) filed 5/13/2024 on grounds of failure to state facts sufficient to constitute a cause of action under CCP § 430.10(e). BACKGROUND Plaintiffs initial Complaint was filed on 10/30/2023. An Amended Complaint (AC) was filed on 2/5/2024. On 2/16/2024, Defendants demurrer to the initial Complaint was denied as moot based on the filing of the Amended Complaint. On April 11, 2024, this Court heard Defendants demurrer to the AC. The AC asserted causes of action for: (1) Breach of Contract, (2) Common Counts, and (3) Accounting. On April 11, 2024, this Court overruled the demurrer to the first two causes of action and sustained the demurrer with leave to amend as to the third cause of action. On 05/13/2024, Plaintiff filed the SAC. The SAC alleges four causes of action: (1) Breach of Contract, (2) Common Counts, (3) Accounting, and (4) Unfair Competition. PROCEDURAL ANALYSIS Proof of Service Timely Filed (CRC Rule 3.1300): Ok 16/21 Court Days Lapsed (CCP 1005(b)) : Ok Proper Address (CCP §1013, §1013a, §1013b) :Ok Meet and Confer A party filing a demurrer 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. (Code Civ. Proc., §430.41, subd. (a).) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. (Code Civ. Proc., §430.41, subd. (a)(2).) Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).) Here, Defendants counsel alleges that the parties were unable to resolve the issue presented by this demurrer. (Bates Decl. ¶ 5.) LEGAL STANDARDS FOR DEMURRERS Demurrer Sufficiency A demurrer for sufficiency tests whether the complaint states a cause of action. ( Hahn v. Mirda , (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. ( Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law &. ( Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. ( Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. ( Hahn , supra , 147 Cal.App.4th at 747.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. ( Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) All that is required of a plaintiff, as a matter of pleading & is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action. ( Rannard v. Lockheed Aircraft Corp . (1945) 26 Cal.2d 149, 156-157.) On demurrer, a trial court has an independent duty to determine whether or not the & complaint alleges facts sufficient to state a cause of action under any legal theory. ( Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but must dispose of an entire cause of action to be sustained. ( Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. ( Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) ANALYSIS First Cause of Action (Breach of Oral Contract) This action arises from an alleged oral contract that was entered into between John Woods Assignor (the Estate of Donald R. Wood Wood Estate) and Defendants on or about May 20, 2020. Plaintiff alleges that on or about May 20, 2020 an oral agreement was entered between the Wood Estate and Defendants whereby the Wood Estate would transfer client files held by Donald R. Wood prior to his death on April 23, 2020 in exchange for Defendants agreement to pay the Wood Estate twenty-five percent (25%) of all fees, if any, earned by Defendants over a period of four years following the transfer of the aforementioned clients and/or client files. Since neither Plaintiff nor Plaintiff's assignor could guarantee that any of the clients whose files were transferred to Defendants would agree to utilize the services offered to them by Defendants within the following year, it is possible that Defendants would owe nothing to Plaintiff's assignor if such clients failed or refused to conduct business with Defendants. However, Plaintiff is informed and believes that several of the aforementioned clients whose files had been transferred to Defendants by the Wood Estate agreed to utilize the services offered by Defendants, and did in fact utilize Defendants services. (SAC ¶ 13.) Defendants demur on the basis of the statute of frauds by citing to Civil Code §1624(a)(1) which states, The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the partys agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof. (Civil Code §1624(a)(1).) Defendants point out that the allegations in the SAC are for an oral contract over a period of four years; Defendants argue the contract could not be performed within a year from the making thereof and is barred by the Statute of Frauds under Civil Code § 1624. Tentative Ruling First Cause of Action Breach of Oral Contract The fact that it is not probable or likely to be performed within a year from the date it is made does not make it invalid if by its terms it is possible that the contract may be performed within a year after it is made. ( Fisher v. Parsons (1963) 213 Cal.App.2d 829, 837.) In Opposition, Plaintiff argues that it was possible that the contract could have been performed within one year. Plaintiff argues: In the instant case it was possible that the contract could have been performed within one year. One such possibility exists if each of those clients whose files were transferred to Defendants demanded the return of their files. Another such possibility exists if each of those clients simply refused to engage Defendants as their tax accountant. The allegations in Paragraph 13 (pg. 3) which are incorporated into each cause of action clearly state that it was possible that the contract could be completed within one year if the clients failed or refused to conduct business with Defendants. Since the contract had the possibility of being performed within year, the defense of the statute of frauds does not apply. (Oppo. p. 4-5.) Here, after further consideration in reading the SAC and reading the Oppositions arguments on how it is possible that the contract could have been performed within one year, the Court fails to understand Plaintiffs argument on how the contract could be performed within one year. The alleged oral agreement is for a term of four years. Plaintiff argues that the contract could be performed within one year if each of those clients whose files were transferred to Defendants demanded the return of their files. The Court fails to understand this argument, because based on the allegations of the oral contract, the contract is still for a term of four years. The allegations of the oral contract alleged that 25% of all fees, if any, earned by Defendants over a period of four years following the transfer of the aforementioned clients and/or client files. The Court is unclear on how returning the files, presumably within the first year, shows that the contract could be performed within a year, because by the very nature of the terms of the alleged oral agreement, whether or not the demand of the files happened within the first year appears to be of no significance because the terms of the oral contract allege that the oral contract applies for a period of four years. Thus, the Court is unclear how Plaintiff is presumably arguing that returning the files within a year terminates the four year contract. Plaintiff also argues that the contract could be performed within a year because [a]nother such possibility exists if each of those clients simply refused to engage Defendants as their tax accountant. The Court also fails to understand Plaintiffs argument here. The terms of the contract say &25% of all fees, if any, earned by Defendants over a period of four years& Therefore, even if the clients refuse to engage them as their accountant, the oral contract already considered that issue by stating 25% of all fees, if any & The exact terms of the oral contract appear to consider the fact that it is possible that there could be no fees earned. Either way, if there were fees earned or not, it appears as if this agreement were to apply for a four year period. Plaintiff also argues that the allegations in Paragraph 13 (pg. 3) which are incorporated into each cause of action clearly state that it was possible that the contract could be completed within one year if the clients failed or refused to conduct business with Defendants. However, the SAC does not in fact state that it was possible that the contract could be completed within one year. The SAC says, Since neither Plaintiff nor Plaintiff's assignor could guarantee that any of the clients whose files were transferred to Defendants would agree to utilize the services offered to them by Defendants within the following year, it is possible that Defendants would owe nothing to Plaintiff's assignor if such clients failed or refused to conduct business with Defendants. (SAC ¶ 13.) The allegations state that it is possible that Defendants would owe nothing if such clients failed or refused to conduct business with Defendants. The allegations do not state that the contract could be completed within one year. The Opposition also argued that Defendants partially performed the agreement and a contract that might otherwise be subject to the statute of frauds may by entire or partial performance support the contract. Plaintiff cites to Fisher v. Parsons (1963) 213 Cal.App.2d 829, 836 to support their argument. Plaintiffs also argue that Plaintiff has alleged partial performance, and Defendants reaffirmed the existence of the contract and the obligation to pay the Wood Estate at all times prior to September 30, 2023 when Mark G. McNelis told Plaintiff that no more accountings would be provided, or payments made. (Oppo. p. 5.) An issue with the Plaintiffs argument here is that Fisher does not state what Plaintiff alleges it to state. The citation to Fisher at 836 is cited entirely out of context. In the partial performance portion of the ruling, the Fisher court was not discussing the statute of frauds. The portion of the ruling in Fisher on partial performance occurred before the Fisher court even addressed the statute of frauds. The portion on partial performance was in a section generally discussing contract formation and law pertaining to requirements contracts. The Court will hear argument, but based on Plaintiffs Opposition and allegations in the SAC, the Court fails to see how the instant contract could be performed within a year. Defendants demurrer to the first cause of action for breach of oral contract is SUSTAINED WITHOUT LEAVE TO AMEND GRANTED. Second Cause of Action Common Counts The Court will hear from both parties on the cause of action titled Common Counts. It is unclear to the Court what this cause of action is. It is not for accounting, because the third cause of action is for accounting. The Movant simply argues that the first through third causes of action fail to comply with Civil Code § 1624, but Movant does not explicitly address the second cause of action titled Common Counts. Notably, the Opposition does not appear to address this cause of action. Tentative Ruling Second Cause of Action Common Counts The Court will hear argument. Tentative Ruling Third Cause of Action Accounting The Court will hear argument. TENTATIVE RULING Fourth Cause of Action Unfair Competition Defendants filed a motion to strike as to the fourth cause of action arguing that leave to amend was not granted to file a fourth cause of action. Here, the Defendants are correct to note that at the previous demurrer hearing leave to amend was not granted as to filing a fourth cause of action. In Opposition to the motion to strike, Plaintiff appears to concede that the fourth cause of action should be stricken. Plaintiff states, Plaintiff's opposition is limited to requesting that should Plaintiff desire to pursue a cause of action for unfair competition, or any other cause of action that Plaintiff may assert as a viable cause of action, that the instant motion be granted without prejudice to Plaintiff asserting such causes of action as may be ascertained during the course of this litigation following Plaintiffs n a motion to amend the complaint. Based on the fact that Plaintiff did not oppose Defendants motion to strike the fourth cause of action, Defendants motion to strike as to the fourth cause of action is GRANTED without prejudice. The Reply to the motion to strike noted that the Opposition to the motion to strike was untimely. The Court notes that it still considered the untimely opposition to the motion to strike. The Reply argues that any other causes of action must be filed now, and not in a motion to amend the complaint at a later time. The Replys argument on this point is unavailing. If Plaintiff wanted to file a motion for leave to amend, whether or not leave to amend would be granted would be determined at the resultant hearing. The Replys argument is not before this Court. The demurrer to the fourth cause of action is overruled as moot in light of the ruling on the motion to strike. The Court considered the motion to strike, the limited opposition to the motion to strike, and the reply in ruling on the motion to strike. The Court notes that a reply was not submitted to the demurrer. The Court notes that the ruling on the motion to strike is included within this tentative ruling on the fourth cause of action because the motion to strike only sought to strike the fourth cause of action for unfair competition.

ECKELMAN, ET AL. VS. OLCO, INC Case Number: 23CV-0202690 This matter is on calendar for review regarding status of the case and trial setting. The Court designates this matter as a Plan II case and intends to set the matter for trial no later than January 22, 2025. The parties are ordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessary on today’s calendar.

23CV02337 COX v. MROCZEK, et al. CONFIRMATION OF 6/28/24 ORDER TO GRANT DEFENDANTS’ MOTION TO STRIKE COMPLAINT AND OBJECTION TO DECLARATION OF NONMONETARY STATUS The court has reviewed plaintiff’s Notification of Objection to and Disapproval of Any Proposed Order or Other Order: 1) Granting Defendants’ Motion to Strike the Complaint; or 2) Striking Plaintiff’s First Amended Complaint. Plaintiff’s objections merely go to the process by which parties engage on proposed orders; CRC 3.1312 has no impact on the power of the court to strike plaintiff’s amended complaint and dismiss this action. The court’s previous order of 6/28/24 granting defendants’ motion to strike plaintiff’s amended complaint is confirmed, as is dismissal of this action. Defendants are ordered to submit a formal dismissal order for the court’s signature. Page 1 of 2 Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 2 of 2