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Electronically FILED by Superior Court of California, County of Los Angeles on 02/11/2020 04:27 AM Sherti R. Carter, Executive Officer/Clerk of Court, by V. Rico,Deputy Clerk
20CHCV00095,
Assigned for all purposes to: Chatsworth Courthouse, Judicial Officer: Melvin Sandvig
TIFFANY & BOSCO
MEGAN E. LEES (SBN 277805)
mel@tblaw.com
ROBERT P. ZAHRADKA (SBN 282706)
rpz@tblaw.com
1455 Frazee Road, Suite 820
San Diego, CA 92108
Tel.: (619) 501-3503
Attorneys for Plaintiff
PennyMac Loan Services, LLC
IN THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
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11 PennyMac Loan Services, LLC, CASE NO.
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Plaintiff, [Unlimited Jurisdiction]
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vs.
COMPLAINT FOR REFORMATION OF
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Joel Donald Brown, an individual; and DEED OF TRUST
15 DOES 1-100, inclusive,
16
17 Defendants.
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20 Plaintiff, PennyMac Loan Services, LLC (“Plaintiff’ or “PennyMac”), hereby alleges the
21 following:
22 Parties and Jurisdiction
23 1 PennyMac is a limited liability company authorized to conduct business in the State of
24 California.
25 2 Upon information and belief, defendant, Joel Donald Brown (“Brown”), during all times
26 relevant to the Complaint and the underlying transaction, resided in Los Angeles County, California.
COMPLAINT
3 Brown is the owner of the real property that is the subject of this action, which located in
the County of Los Angeles and is commonly known as 9548 Hayvenhurst Avenue, Northridge (Los
Angeles), CA 91343 (the “Property”).
4 The true names and capacities, whether individual, corporate, associate or otherwise of|
defendants named herein as DOES 1-100 are unknown to Plaintiff who therefore sues these defendants
by their fictitious names. Plaintiff will amend this Complaint to show their true names and capacities
when they have been ascertained.
5 Jurisdiction and venue are proper in Los Angeles County, California because the Property
is located in Los Angeles County.
10 Factual Allegation:
11 6 On or about July 17, 2015, F and N Investments, a California Limited Liability Company
12 (“Grantor”), executed a Grant Deed transferring title to the Property to Joel Donald Brown, a single man.
13 The Grant Deed was recorded in the Official Records of Los Angeles County on August 24, 2015, as
14 Document No. 20151035926 (the “Original Grant Deed”). A true and correct copy ofthe Original Grant
15 Deed is attached hereto as “Exhibit A” and incorporated herein by reference.
16 7 On or about August 14, 2015, Joel Donald Brown obtained a loan from Plaza Home
17 Mortgage, Inc. in the original principal amount of $476,215.00 (the “Loan”), which was secured by a
18 Deed of Trust (the “Deed of Trust”) in favor of Mortgage Electronic Registration Systems, Inc., solely
19 as nominee for Plaza Home Mortgage, Inc., its successors and assigns, as beneficiary. The Deed of Trust
20 was recorded in the Official Records of Los Angeles County on August 24, 2015, as Document No.
21 20151035927. A true and correct copy of the Deed of Trust is attached hereto as “Exhibit B” and
22 incorporated herein by reference.
23 8 On or about February 1, 2018, the beneficial interest under the Deed of Trust was
24 transferred to Plaintiff by way of an Assignment of Deed of Trust. The Assignment of Deed of Trust was
25 recorded in the Official Records of Los Angeles County on February 9, 2018, as Document No.
26
COMPLAINT
1 20180136480. A true and correct copy of the Assignment of Deed of Trust is attached hereto as “Exhibit
2 C” and incorporated herein by reference.
9 The legal description for the Property is as follows:
LOT 69 OF TRACT NO. 21415, IN THE CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 576
PAGES 45 THROUGH 48, INCLUSIVE OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON
SUBSTANCES IN AND UNDER OR RECOVERABLE FROM SAID LAND
WITHOUT HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID
LAND TO EXPLORE FOR, DEVELOP OR REMOVE SAID SUBSTANCES, BUT
WITH FULL RIGHT TO EXPLORE FOR, DEVELOP AND REMOVE ALL OIL, GAS,
PETROLEUM AND OTHER HYDROCARBON SUBSTANCES BY MEANS OF
WELLS AND EQUIPMENT HAVING SURFACE LOCATIONS OUTSIDE THE
10 OUTER BOUNDARIES OF SAID LAND AND ENTERING SAID LAND BELOW 500
FEET FROM THE PRESENT NATURAL LEVEL OF THE SURFACE OF SAID
11 LAND, AS RESERVED IN THE DEED FROM JOSEPH Y. WOO, WHO ACQUIRED
TITLE AS WOO YEN JOSEPH, RECORDED IN BOOK 47268, PAGE 150 OFFICIAL
12 RECORDS.
13
10. The Assessor’s Parcel Number for the Property is 2677-003-018.
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11. The Original Grant Deed and Deed of Trust contained the correct address and Assessor’s
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Parcel Number for the Property, however, the legal description contains a typographical error in bot
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documents. Specifically, the legal description incorrectly lists the Page Number range as “45 through 43”
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instead of “45 through 48.”
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12. On or about December 2, 2019, after a demand by Plaintiff's counsel, Grantor corrected the
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Original Grant Deed (the “Corrective Grant Deed”) to reflect the proper legal description for the Property]
20
The Corrective Grant Deed was recorded in the Official Records of Los Angeles County on December 13
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2019, as Document No. 20191391779. A true and correct copy of the Corrective Grant Deed is attache
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hereto as “Exhibit D” and incorporated herein by reference.
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13. The mistake in the legal description occurred due to a scrivener's error.
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14. Plaintiff is informed and believes that the above-referenced error in the Deed of Trust
25
(incorrectly listing the Page Number range as “45 through 43” instead of “45 through 48”) was caused b
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a mutual mistake between the parties.
COMPLAINT
15. Due to the above-referenced error in the legal description, there is a defect in Plaintiff's lie
interests in the Property with respect to the Deed of Trust.
16. Plaintiff, upon discovery of the mistake, caused a written demand to be sent to Brown
requesting a voluntary modification of the Deed of Trust to correct the legal description; however, as of
the date of this filing no response has been received.
17. The Los Angeles County Official Records reflect that title to the Property is still vested in
Joel Donald Brown, a single man.
18. Plaintiff is seeking reformation of its Deed of Trust to reflect the correct legal description
in order to reflect the intent of the parties at the time of execution of the Deed of Trust.
10 Count I
11 (Reformation — Against All Defendants)
12 19. Plaintiff re-alleges and incorporates by reference, Paragraphs 1 — 18 set forth in the
13 Complaint as though set forth in full herein.
14 20. The purpose of reformation is to correct a written instrument in order to effectuate a
15 common intention of both parties that was incorrectly reduced to writing.
16 21. Pursuant to California Civil Code §§ 3399 - 3401, this Court is authorized to revise a
17 written instrument to express the true intention of the parties.
18 22. Pursuant to California Civil Code § 3399, when, through fraud or mutual mistake of the
19 parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does
20 not truly express the intention ofthe parties, it may be revised on the application of the party aggrieved,
21 so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons
22 in good faith and for value.
23 23. Here, a mutual mistake (the typographical error in the legal description described above)
24 prevented the Deed of Trust from accurately expressing the intention of the parties.
25 24. Revising the Deed of Trust can be done without prejudice to rights acquired by third
26 persons in good faith and for value because Joel Donald Brown is still the owner of the Property and the
COMPLAINT
Deed of Trust is still encumbering the Property. Upon information and belief, no third parties have
acquired any rights in the Property.
25. An action for reformation is the appropriate remedy where the contract does not accurately
reflect the parties’ mutual agreement. Thrifty Payless, Inc. v. Americana at Brand, LLC, 218 Cal. App.
Ath 1230, 1243, 160 Cal. Rptr.3d 718, 729 (2013).
26. As specified above, the Deed of Trust does not accurately reflect the parties’ mutual
agreement because there is a typographical error in the legal description which incorrectly lists the Page
Number range as “45 through 43” instead of “45 through 48”.
27. Although Plaintiff was not a party to the Deed of Trust, reformation will lie in favor of a
10 third party who has suffered prejudice or monetary loss arising out of a mistake in a contract between
11 other parties. Shupe v. Nelson, 254 Cal. App. 2d 693, 698, 62 Cal.Rptr. 352, 356 (1967). Plaintiff was
12 not a party to the Deed of Trust at the time it was executed, but obtained the beneficial rights under the
13 Deed of Trust when it obtained such rights by way of the Assignment of Deed of Trust. Plaintiff may
14 seek reformation because the mistake in the legal description in the Deed of Trust affects Plaintiff's rights
15 in the Deed of Trust and in the Property.
16 WHEREFORE, Plaintiff respectfully requests judgment against the Defendants as follows:
17 A Reforming the legal description in the Deed of Trust to reflect:
18 LOT 69 OF TRACT NO. 21415, IN THE CITY OF LOS ANGELES, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
19 576 PAGES 45 THROUGH 48, INCLUSIVE OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
20
21 EXCEPT ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON
SUBSTANCES IN AND UNDER OR RECOVERABLE FROM SAID LAND
22 WITHOUT HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF
SAID LAND TO EXPLORE FOR, DEVELOP OR REMOVE SAID SUBSTANCES,
23 BUT WITH FULL RIGHT TO EXPLORE FOR, DEVELOP AND REMOVE ALL
OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUBSTANCES BY
24
MEANS OF WELLS AND EQUIPMENT HAVING SURFACE LOCATIONS
25 OUTSIDE THE OUTER BOUNDARIES OF SAID LAND AND ENTERING SAID
LAND BELOW 500 FEET FROM THE PRESENT NATURAL LEVEL OF THE
26 SURFACE OF SAID LAND, AS RESERVED IN THE DEED FROM JOSEPH Y.
COMPLAINT
WOO, WHO ACQUIRED TITLE AS WOO YEN
JOSEPH, RECORDED IN BOOK
47268, PAGE 150 OFFICIAL
RECORDS,
Assessor’s Parcel Number 2677-003-01 8.
B. Such other and further relief as the Court deems just and proper.
RESPECTFULLY SUBMITTED this 11th day of February, 2020.
TIFFANY & BOSCO, P.A.
By:
Megan E. Lees SEisy. {SBN 277805)
Attorney for Plaintiff, PennyMac Loan Services, LLC
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COMPLAINT
EXHIBIT “A”
20179016175200003
CONTRA COSTA Co Recorder Office
JOSEPH CANCIAMILLA, Clerk-Recorder
RECORDING REQUESTED BY OC 2017-0161752-00
ct 2126-SPL Placer Title
Placer Title Col
Escrow Numb er: i ‘tuesday, SEP 05, 2017 14:22:34
OD $3.00/REC $13.00|/FTC $2.00
Branch: 811
ED $1.00|ERD $1.00|/S34 $10.00
AND WHEN RECORDED MAIL TO CC $364.10|RIC$2,317.00|
tl Pd $2,711.10 Nbr-0003014832
Timothy William Rowen
766 7th Street at/RC/1-3
Richmond, CA 94801
A.P.N.: 534-072-028-2 SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT DEED
The undersigned grantor(s) declare(s):
Documentary transfer tax is $364.10 City Transfer Tax: $2,317.00
(_) Unincorporated Area ( X ) City of Richmond
(X) computed on full value of property conveyed, or
(_) computed on full value less value of liens and encumbrances remaining at time of sale.
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, DALLIN LLC A LIMITED
LIABILITY COMPANY
Hereby GRANT(S) to Timothy William Rowen, unmarried man
The land described herein is situated in the State of California, County of Contra Costa, City of Richmond, described as
follows:
Parcel One:
Portion of Lat 11 in Block 7, as delineated upon that certain Map entitled, “Map of Martha Washington Tract", Contra
Costa County, California. Filed February 3, 1906 in Map Book "E" Page 114, in the Office of the Recorder of the County of
Contra Costa, State of California, described as follows:
Beginning at a point on the Easterly line of 7th Street, at the Southwest comer of said Lot 11; thence from said point of
beginning Easterly along the Southerly line of said Lot 11, 100.54 feet to the Southeast corner thereof; thence Northerly
along the Easterly line of said Lot 11 to the Southeast corner of the parcel of land described in the Deed from James C.
Helms, et ux, to James Art McNeill, et ux, dated February 13, 1950, and recorded February 17, 1950 under Recorder’s
Series No, 7498; thence Westerly along the Southerly line of said McNeill parce! (7498-50), 100.00 feet to a point in the
Easterly line of said 7th Street; thence Southerly along said Easterly line 4.14 feet to the point of beginning.
Parcel Two:
Portion of Lot 31 in Block 15, as delineated upon that certain Map entitled, "Map of Turpins Addition to the City of
Richmond", Contra Costa County, California. Filed June 29, 1903, in Map Book "C“, Page 53. in the Office of the Recorder
of the County of Contra Costa, State of California, described as follows;
MAIL TAX STATEME! 'S ‘LO PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY SHOWN, MAIL AS
DIRECTED ABOVE
SAME AS ABOVE.
Name Street Address City & State
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Beginning at a point in the Easterly line of 7th Street, at the Northwest corner of said Lot 34; thence Easterly along the
Northerly line of said Lot 31, 100.54 feet to the Northeast corner thereof; thence Southerly 12,86 feet to the Northeast
corner of the parcel of land described in the Deed from Edwin Willlam Waller to Florence Quindt, dated December 2,
1939 and recorded December 4, 1939 in Book 526 of Official Records, at Page 318; thence Westerly along the Northerly
line of said Quindt Parcel, 100,00 feet to @ point In the Easterly line of sald 7th Street, thence Northerly along said line,
22,95 feet to the point of beginning
A.P.N: APN: 534-072-028-2
Dated: August 24, 2017
He Ctr o-
DALUIN LLC A LIMIT LIABILITY COMPANY
By:
Authorized Signer
Susan Goldberg
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of Arizona
Maricopa ss.
County of ———
On
~ August as Aor before me,
phirie Cuads ‘
Notary Public personally appeared Susan Goldberg, Authorized Signatory of Dallin, LLC
who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/thoir
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument,
| certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and
correct, WITNESS my hand and official seal.
sionavURE phone Pubr—
we STEPHANIE BONDS
Notary Public - Ariz
S my Mar icopa Countyona
Commission Expires
aie
oes
May 5, 2020
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EXHIBIT “B”
Recording Ro
questeg by 20179016175300014
CONTRA COSTA Co Recorder Office
JOSEPH CANCIAMILLA, Clerk-Recorder
When recorded, mail to: DOC 2017-0161753-00
American Financial Network, Inc. Acct 2126-SPL Placer Title
Attn: Final Document Department Tuesday, SEP 05, 2017 14:22:34
10 Pointe Drive Suite 330 MOD $14.00|REC $24.00|FTC $13.00
Brea, CA 92821
RED $1.00/ERD $1.00|
TtlPd $53.00 Nbr-000301 4833
kat/RC/1-14
Loan *
[Space Above This Line For Recording Data]
FHA Cace No
DEED OF TRUST
on:
MERS PHONE #: 1-888-679-6377
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in Sections 3,10,12,17,19,
and 21. Certain rules regarding the usage of words used in this document are also provided in Section 15.
(A) “Security Instrument” means this document, which is dated August 24, 2017, together with all
Riders to this document.
(B) “Borrower” is TIMOTHY WILLIAM ROWEN, UNMARRIED MAN.
Borrower's address is 766 7th St, Richmond, CA 94801.
Borrower is the trustor under this Security Instrument.
(C) “Lender” is American Financial Network, Inc..
CALIFORNIA — Single Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/04
Modified for FHA 9/2014 (HUD Handbook 4000.1)
Ellie Mae, inc. Page 1 of 13 CAEFHAISDL 0915
CAEDEDL (CLS)
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Lender is a California Corporation,
under the laws of California.
LOAN #;
organized —
and exi: Ing
Lender’s address is 10 Pointe Drive Suite 330, Brea, CA 92821,
(D) “Trustee” is Placer Title Co.
(E) “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a
nominee for Lender and Lender's successors and assigns. MERS is the beneficiary under this Security Instrument.
MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O, Box 2026,
Flint, MI 48501-2026, tel. (888) 679-MERS.
(F) “Note” means the promissory note signed by Borrower and dated August 24, 2017. The Note states
that Borrower owes Lender THREE HUNDRED TWENTY FIVE THOUSAND FOUR AND NO/100* ****** 4 *## HH
PRAT R AORTA RRNA HAE RAEN ADK REE R REE RHR RANE REESE Dollars (U.S, $325,004.00
plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than
September 1, 2047.
(G) “Property” means the property that is described below under the heading “Transfer of Rights in the Property.”
(H) “Loan” means the debt evidenced by the Note, plus interest, late charges due under the Note, and all sums due under
this Security Instrument, plus interest.
(l) “Riders” means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be
executed by Borrower [check box as applicable):
CO Adjustable Rate Rider CJ Condominium Rider (C) Planned Unit Development Rider
{] Other(s) [specify]
(J) “Applicable Law” means all controlling applicable federal, state and local statutes, regulations, ordinances and admin-
istrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions.
(K) “Community Association Dues, Fees, andAssessments” means all dues, fees, assessments and other charges that
are imposed on Borrower or the Property by a condominium association, homeowners association or similar organization.
(L) “Electronic Funds Transfer” means any transfer of funds, other than a transaction originated by check, draft, or
similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or magnetic
tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not
limited to, point-of-sale transfers, automated teller machine transactions, transfers initiated by telephone, wire transfers,
and automated clearinghouse transfers.
(M) “Escrow Items” means those items that are described in Section 3.
(N) “Miscellaneous Proceeds” means any compensation, settlement, award of damages, or proceeds paid by any third
party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to, or destruction
of, the Property; (ji) condemnation or other taking of all or any. part
of the Property; (iii) conveyance in lieu of condemnation:
or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property.
(0) “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, or default on, the Loan.
(P) “Periodic Payment” means the regularly scheduled amount due for (i) principal and interest under the Note, plus
(ii) any amounts under Section 3 of this Security Instrument.
(Q) “RESPA” means the Real Estate Settlement Procedures Act (12 U.S.C. §2601 et seq.) and its implementing regulation,
Regulation X (12 C.F.R. Part 1024), as they might be amended from time to time, or any additional or successor legislation
or regulation that governs the same subject matter. As used in this Security Instrument, “RESPA’ refers to all requirements
and restrictions that are imposed in regard to a “federally related mortgage loan” even if the Loan does not qualify as a
“federally related mortgage loan” under RESPA.
(R) “Secretary” means the Secretary ofthe United States Departmentof Housing and Urban Development orhis designee.
(8) “Successor in Interest of Borrower” means any party that has taken title to the Property, whether or not that party
has assumed Borrower's obligations under the Note and/or this Security Instrument.
CALIFORNIA - Single Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/01
Modified for FHA 9/2014 (HUD Handbook 4000.1)
Ellie Mae, Inc, Page 2 of 13 CAEFHAISDL 0915
CAEDEDL (CLS)
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Loan +:
TRANSFER OF RIGHTS IN THE PROPERTY
The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns)
and the successors and assigns of MERS, This Security Instrument secures to Lender: (i) the repayment of the Loan, and
all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements
under this Security Instrument and the Note. For this purpose, Borrower irrevocably mortgages, grants and conveys to
Trustee, in trust, with power of sale, the following described property located in the
County Type of Recording Jurisdiction]
of Contra Costa
[Name of Recording Jurisdiction]:
SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART HEREOF AS "EXHIBIT A".
APN #: 534-072-028-2
which currently has the address of 766 7th St, Richmond,
[Street] [City]
California 94801 (“Property Address"):
[Zip Code]
TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances,
and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security
Instrument. All of the foregoing is referred to in this Security Instrumentas the “Property.” Borrower understands and agrees
that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply
with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or
all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required
of Lender including, but not limited to, releasing and canceling this Security Instrument.
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage,
grant and convey the Property and that the Property is unencumbered, except for encumbrances of record, Borrower warrants
and will defend generally the title to the Property against all clains and demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited
variations by jurisdiction to constitute a uniform security instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
4 Payment of Principal, Interest, Escrow Items, and Late Charges. Borrower shall pay when due the principal
of, and interest on, the debt evidenced by the Note and late charges due under the Note. Borrower shall also pay funds
for Escrow Items pursuant to Section 3. Payments due under the Note and this Security Instrument shall be made in U.S.
currency. However, if any check or other instrument received by Lender as payment under the Note or this Security Instru-
ment is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this
Security Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money order;
CALIFORNIA — Singie Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/01
Modified for FHA 9/2014 (HUD Handbook 4000.1)
Ellie Mae, inc. Page
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LOAN #:]
(c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution
whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer.
Payments are deemed received by Lender when received at the location designated in the Note or at such other
location as may be designated by Lender in accordance with the notice provisions in Section 14. Lender may return any
payment or partial payment if the payment or partial payments are insufficient to bring the Loan current. Lender may accept
any payment or partial payment insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice
to its rights to refuse such payment or partial payments in the future, but Lender is not obligated to apply such payments
at the time such payments are accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender
need not pay interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to bring
the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds or
return them to Borrower. If not applied earlier, such funds will be applied to the outstanding principal balance under the Note
immediately prior to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall
relieve Borrower from making payments due under the Note and this Security Instrument or performing the covenants and
agreements secured by this Security Instrument.
2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all payments accepted
and applied by Lender shail be applied in the following order of priority:
First, to the Mortgage Insurance premiums to be paid by Lenderto the Secretary or the monthly charge by the Secretary
instead of the monthly mortgage insurance premiums;
Second, to any taxes, special assessments, leasehold payments or ground rents, and fire, flood and other hazard
insurance premiums, as required;
Third, to interest due under the Note;
Fourth, to amortization of the principal of the Note; and,
Fifth, to late charges due under the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shail not
extend or postpone the due date, or change the amount, of the Periodic Payments.
3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are due under the Note,
until the Note is paid in full, a sum (the “Funds”) to provide for payment of amounts due for: (a) taxes and assessments and
other items which can attain priority over this Security Instrument as a lien or encumbrance on the Property; (b) leasehold
payments or ground rents on the Property, if any; (c) premiums for any and ail insurance required by Lender under Section
5; and (d) Mortgage Insurance premiums, to be paid by Lender to the Secretary or the monthly charge by the Secretary
instead of the monthly Mortgage Insurance premiums. These items are called "Escrow Items.” At origination or at any time
during the term of the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if any, be
escrowed by Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to
Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless
Lender waives Borrower's obligation to pay the Funds for any or all Escrow Iterns. Lender may waive Borrower's obligation
to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be in writing. In the event of such
waiver, Borrower shall pay directly, when and where payable, the amounts due for any Escrow Items for which payment of
Funds has been waived oy Lender and, if Lender requires, shall furnish to Lender receipts evidencing such payment within
such time period as Lender may require. Borrower's obligationto make such payments and to provide receipts shall for all
purposes be deemed to be a covenant and agreement contained in this Security Instrument, as the phrase “covenant and
agreement’ is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower
fails to pay the amount due for an Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and
Borrower shall then be obligated under Section 9 to repay to Lender any such amount. Lender may revoke the waiver as to
any or all Escrow Items at any time by a notice given in accordance with Section 14 and, upon such revocation, Borrower
shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3.
Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit Lender to apply the Funds at the
time specified under RESPA, and (b) not to exceed the maximum amount a lender can require under RESPA. Lender shall
estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow
Items or otherwise in accordance with Applicable Law.
The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity
(including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank. Lender shall
apply the Funds to pay the Escrow Items no later than the time specified under RESPA. Lender shall not charge Borrower
CALIFORNIA ~ Single Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/01
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for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender
pays Borrower interest on the Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is
made in writing or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower
any interest or earnings on the Funds, Borrower and Lender can agree in writing, however, that interest shall be paid on
the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds as required by RESPA.
if there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall accountto Borrower for the excess
funds in accordance with RESPA. If there is a shortage of Funds held in escrow, as defined under RESPA, Lender shall
notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the shortage
in accordance with RESPA, but in no more than 12 monthly payments. If there is a deficiency of Funds held in escrow, as
defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount
necessary to make up the deficiency in accordance with RESPA, but in no more than 12 monthly payments.
Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any
Funds held by Lender.
4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions attributable to the
Property which can attain priority over this Security Instrument, leasehold payments or ground rents on the Property, if
any, and Community Association Dues, Fees, and Assessments, if any. To the extent that these items are Escrow Items,
Borrower shall pay them in the manner provided in Section 3.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees
in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Bor-
rower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in,
legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are
pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory
to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to
a lien which can attain priority over this Security Instrument, Lender may give Borrowera notice identifying the lien. Within
10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth
above in this Section 4.
6. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property
insured against loss by fire, hazards included within the term “extended coverage,” and any other hazards including, but
not limited to, earthquakes and floods, for which Lender requires insurance. This insurance shall be maintained in the
amounts (including deductible levels) and for the periods that Lender requires. What Lender requires pursuant to the
preceding sentences can change during the term of the Loan. The insurance carrier providing the insurance shall be
chosen by Borrower subject to Lender's right to disapprove Borrower's choice, which right shall not be exercised unrea-
sonably. Lender may require Borrower to pay, in connection with this Loan, either: (a) a one-time charge for flood zone
determination, certification and tracking services; or (b) a one-time charge for flood zone determination and certification
services and subsequent charges each time remappings or similar changes occur which reasonably might affect such
determination or certification. Borrower shail also be responsible for the payment of any fees imposed by the Federal
Emergency Management Agency in connection with the review of any flood zone determination resulting from an objection
by Borrower.
\f Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender’s
option and Borrower's expense. Lender is under no obligation to purchase any particular type or amount of coverage
Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower's equity in the Property,
or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than
was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly
exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5
shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the
Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower
requesting payment.
All insurance policies required by Lender and renewals of such policies shall be subject to Lender's right to disapprove
such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or as additional loss
payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Note up to the
amount of the outstanding loan balance. Lender shall have the right to hold the policies and renewal certificates. If Lender
requires, Borrower shall promptly give to Lender alll receipts of paid premiums and renewal notices. If Borrower obtains any
CALIFORNIA — Single Family — Fannie Mae/Freddie Mao UNIFORM INSTRUMENT Form 3006 4/01
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LOAN #;]
form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the Propert
Shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an additional loss payee and
Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Note up to the amount of the
outstanding loan balance.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of
loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds,
whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property,
if the restoration or repair is economically feasible and Lender's security is not lessened. During such repair and restora-
tion period, Lender shail have the right to hold such insurance proceeds until Lender has had an opportunity to inspect
such Property to ensure the work has been completed to Lender's satisfaction, provided that such inspection shall be
undertaken promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of
progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest
to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings on such pro-
ceeds, Fees for
Related Content
in Los Angeles County
Ruling
YOUNG CHOW DAI VS PAUL P. CHENG & ASSOCIATES, ET AL.
Jul 30, 2024 |
Echo Dawn Ryan |
18STCV10177
Case Number:
18STCV10177
Hearing Date:
July 30, 2024
Dept:
26
Dai v. Paul P. Cheng & Associates, et al.
MOTION FOR LEAVE
TENTATIVE RULING:
Plaintiff Young Chow Dais Motion for Leave is DENIED.
ANALYSIS:
On December 31, 2018, Plaintiff Young Chow Dai (Plaintiff) filed the instant action against Defendants Paul P. Cheng & Associates and Marsha S. Mao. Plaintiff filed the operative Second Amended Complaint (SAC) on October 4, 2019 against Defendants Paul P. Cheng (Defendant Cheng), Marsha S. Mao (Defendant Mao), and Law Offices of Paul P. Cheng & Associates (Defendant Cheng & Associates). The SAC, which arises from alleged wrongful actions in connection with a settlement agreement, alleges causes of action for: (1) accounting; and (2) fraud.
On February 7, 2023, Defendant Cheng filed a motion for summary judgment (MSJ). On March 1, 2023, Defendant Cheng filed a motion to deem the truth of the matters in Defendants Requests for Admission, Set One, served on Plaintiff, admitted and for monetary sanctions. On April 12, 2023, Plaintiff filed a motion to transfer venue to the Santa Monica Courthouse.
On July 24, 2023, after hearing and oral argument, the Court: (1) granted the MSJ filed by Defendant Cheng; (2) granted Defendant Chengs motion to deem the truth of the matters in Defendants Requests for Admission, Set One, as admitted and awarded Defendant monetary sanctions; and (3) denied Plaintiffs motion to transfer and change venue. (Minute Order, 07/24/23.) On August 4, 2023, Defendant Cheng filed and served Notice of Entry of Judgment or Order as to the Courts July 24, 2023 order.
On August 7, 2023, Plaintiff filed a
Motion to Vacate Judgment and Enter a New and Different Judgment
. On August 8, 2023, the Court entered judgment in favor of Defendant Cheng and against Plaintiff. The Courts order for entry of summary judgment provides that Plaintiffs case against Defendant Paul P. Cheng is therefore dismissed with prejudice. (Minute Order, 08/08/23, p. 3:1-4.) Plaintiff filed an Amended Motion to Vacate Judgment and Enter a New and Different Judgment on August 11, 2023. Plaintiff filed similar motions to vacate on August 25, 2023 and September 29, 2023.
In a ruling considering all three Motions to Vacate, the Court denied the request to vacate the judgment on January 17, 2024. (Minute Order, 01/17/24.) Plaintiff then filed a Motion for Reconsideration on January 23, 2024. The Motion for Reconsideration was denied on March 26, 2024. (Minute Order, 03/26/24.) On April 16, 2024, the Court granted Defendants Motion to Deem Plaintiff a Vexatious Litigant. (Minute Order, 04/16/24.) Plaintiff sought to challenge that ruling via a motion in Department 1, which was denied on June 27, 2024. (Minute Order, 06/27/24.)
The instant Motion for Leave was filed by Plaintiff on May 2, 2024. The Motion was originally set for hearing on July 3, 2024 and then continued to July 30, 2024. Defendant filed an opposition on July 24, 2024.
The instant Motion does not explain what relief is sought or on what basis.
The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. (Cal. Rules of Court, Rule 3.1113(b).) Indeed, Plaintiffs failure to provide a memorandum as required by the Rule is an admission that the [request] is without merit and cause for its denial. (Cal. Rules of Court, Rule 3.1113(a), (b);
In re Marriage of Falcone & Fyke
(2012) 203 Cal.App.4th 964, 976.) As the Court cannot discern what relief Plaintiff seeks or the legal basis for any relief, the Motion for Leave is denied.
Conclusion
Plaintiff Young Chow Dais Motion for Leave is DENIED.
Court clerk to give notice.
Ruling
THE MANIJEH SHAMS TRUST, ET AL. VS FARIBA JAVAHERPOUR
Jul 26, 2024 |
22BBCV00226
Case Number:
22BBCV00226
Hearing Date:
July 26, 2024
Dept:
A LOS ANGELES SUPERIOR COURT
NORTH CENTRAL DISTRICT - BURBANK
DEPARTMENT A
TENTATIVE RULING
JANUARY 25, 2024
MOTION TO ENFORCE SETTLEMENT AGREEMENT
Los Angeles Superior Court Case # 22BBCV00226
MP:
THE MANIJUE SHAMS TRUST AND MANIJEH SHAMS (Plaintiff)
RP:
FARIBA JAVAHEROUR, ET AL (Defendant)
All parties are requested to appear either in person or via LA Court Connect to address the tentative ruling.
Brief Summary of Requested Relief
The Court has read and considered Plaintiffs Motion to Enforce Settlement, Defendants opposition, as well as Defendants Further Opposition to the Motion.
The parties entered into a settlement as set forth in Plaintiffs moving papers, which included a CCP §664.6 provision.
Defendant has declined to sign the written settlement agreement until Plaintiff amends her trust to reflect that the settlement of $60,000 will inure to the benefit of the Plaintiffs grandchildren, specifically the children of Plaintiffs deceased son, Massoud Bahmanyar.
The parties appear to be at an impasse.
Ruling on Motion to Enforce Settlement
Pursuant to CCP §664.6, a Court has continuing jurisdiction to enforce a settlement agreement.
As such, the Court exercises its authority under CCP §664.6 and orders the following be completed within the next 30 days:
1.
Plaintiff Manijeh Shams is to create a new irrevocable trust: The Manijeh Shams Irrevocable Grandchild Trust in which she is the primary beneficiary, and the children of Massoud Bahmanyar are the contingent beneficiaries.
Manijeh Shams shall be the initial trustee, with a successor trustee to be named by Ms. Shams in the trust.
2.
The terms of the trust will include that the $60,000 settlement, as well as any earnings, may be used for the direct support of the settlor, and upon settlors death will inure to the benefit of Massoud Bahmanyars children in equal parts
per stirpes
. In the event that any grandchild predeceases the settlor, that grandchilds share shall inure to the grandchilds children
per stirpes.
In the event that a deceased grandchild has no children, the share shall be divided equally among the remaining living grandchildren.
3.
Defendant Fariba Javaherpour shall deposit the total sum of $60,000 into the newly established trust within ten days of being informed that the new irrevocable trust has been established and a bank account in the name of the new trust is set up.
4.
The Manijeh Shams Irrevocable Grandchild Trust shall be subject to Part 4, Chapter 1 of the California Probate Code, beginning at §16060 et seq., including but not limited, to §§16062 and 16063.
Upon request from any contingent beneficiary, the contingent beneficiaries shall have a right directly, or through their representative if minors, to have an accounting no more than annually.
The accounting may be informal, and the cost of the accounting shall be incurred by the trust.
Any contingent beneficiary has the right to petition the court for a formal accounting if there is a prima facie basis to believe that the informal accounting does not properly reflect the trust distributions and expenses.
5.
The individual trustee shall not be entitled to compensation for administration of the trust, nor shall any bond be required of any individual trustee.
A professional or commercial trustee shall be entitled to compensation as permitted by law.
Manijeh Shams may propose specific language to the Court if necessary, with objections and alternative language being proposed by Defendant Fariba Javaherpour.
The Court sets a Status Conference Re: Settlement Agreement compliance for August 8, 2024 at 10:00 AM.
ORDER
The Plaintiffs Motion to Enforce the Settlement Agreement c
ame on for hearing on July 25, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE MOTION TO ENFORCE THE SETTLEMENT AGREEMENT IS GRANTED.
PLAINTIFF TO CREATE NEW IRREVOCABLE TRUST CONSISTENT WITH THE TERMS OF THE SETTLEMENT AGREEMENT MEMORIALIZED IN THE COURTS PRIOR MINUTE ORDER.
NEW IRREVOCABLE TRUST SHALL CONTAIN THE TERMS SET FORTH IN THIS RULING.
DEFENDANT IS TO FUND THE TRUST WITHIN 10 DAYS OF BEING NOTIFIED OF THE NEW TRUSTS CREATION AND BEING PROVIDED BANKING INFORMATION IN THE NAME OF THE NEW TRUST.
STATUS CONFERENCE RE: SETTLEMENT AGREEMENT COMPLIANCE IS AUGUST 8, 2024 AT 10:00 AM.
UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: July 26, 2024
_______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
Ruling
MARIA PADILLA, ET AL. VS JOSEPH HEFFESSE, ET AL.
Jul 29, 2024 |
23STCV15942
Case Number:
23STCV15942
Hearing Date:
July 29, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
maria padilla
, et al.;
Plaintiffs
,
vs.
joseph heffesse,
as trustee of the Coldwater Canyon Trust
, et al.;
Defendants
.
Case No.:
23STCV15942
Hearing Date:
July 29, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
petition for approval of compromise of claim for minor claimant anthony jayden diaz
MOVING PARTY:
Petitioner Jeanette Oliveros
RESPONDING PARTY:
Unopposed
Petition for Approval of Compromise of Claim for Minor Claimant Anthony Jayden Diaz
The court considered the moving papers filed in connection with this petition.
No opposition papers were filed.
DISCUSSION
Plaintiff and petitioner Jeanette Oliveros (Petitioner) seeks court approval of the settlement made on behalf of minor claimant Anthony Jayden Diaz (Minor Claimant) in this action.
The compromise of a minors disputed claim for damages is valid only after it has been approved, upon the filing of a petition, by the court.¿ (Prob. Code, § 3500.)¿ The petition must be verified by the petitioner, must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, and must be prepared on Judicial Council form MC-350.¿ (Cal. Rules of Court, rule 7.950.)¿
Defendants Joseph Heffesse, as trustee of the Coldwater Canyon Trust, Sandra B. Sternberg Heffesse, and LA Properties Heffesse LLC have agreed to pay a total of $175,000 to settle this action, of which $5,000 will be separately allocated to Minor Claimant.
(MC-350, ¶¶ 10-11.)
Of the $5,000 allocated to Minor Claimant, $1,250 will be paid to counsel for attorneys fees and $134.35 will be paid to counsel for legal costs.
(MC-350, ¶¶ 13, 16.)
The remaining $3,615.65 will be paid or delivered to the parent of Minor Claimant, i.e., Petitioner, without bond, on the terms and under the conditions specified in Probate Code sections 3401-3402.
(MC-350, ¶ 18, subd. (b)(5); MC-350, Attachment 18b(5), Oliveros Decl., ¶¶ 1-2, 6; Prob. Code, §§ 3401, 3402.)
The court has reviewed the petition and finds the settlement to be fair and reasonable, and in the best interest of Minor Claimant.
The court further finds that the declaration of Rachel Fishenfeld is sufficient to support the request for attorneys fees in the amount of $1,250 (representing 25 percent of the $5,000 settlement).
(Fishenfeld Decl., ¶¶ 2-3, 6-11; Cal. Rules of Ct., rule 7.955.)
The court therefore grants Petitioners petition.
ORDER
The court grants petitioner Jeanette Oliveross petition for approval of compromise of claim on behalf of minor claimant Anthony Jayden Diaz.
The court orders that the $3,615.65 settlement on behalf of minor claimant Anthony Jayden Diaz may be paid to plaintiff and petitioner Jeanette Oliveros pursuant to Probate Code sections 3401 and 3402.
The court orders petitioner Jeanette Oliveros to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 29, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
IRENE YOUNG, ET AL. VS PACIFIC PLAZA ELITE - ALHAMBRA HOMEOWNERS ASSOCIATION, A CALIFORNIA CORPORATION; AND DOES 1-20;
Jul 31, 2024 |
22STCV08879
Case Number:
22STCV08879
Hearing Date:
July 31, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 31, 2024
Case Name:
Young, et al. v. Pacific Plaza Elite-Alhambra Homeowners Association, et
al.
Case No.:
22STCV08879
Matter:
Motions to Compel Further Responses (4x)
Moving Party:
Plaintiffs Irene Young and Jesse Chang
Responding Party:
Defendant Pacific Plaza Elite-Alhambra Homeowners Association
Notice:
OK
Ruling:
The Motion as to Requests for Production is granted in part.
The Motions as to Form Interrogatories and Request for Admission
are granted.
Moving parties to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Plaintiffs Irene Young and Jesse Chang seek to compel further responses from Defendant Pacific Plaza Elite-Alhambra Homeowners Association as to their requests for production, set two, form interrogatories, set two, request for admission no. 15.
Request for Admission
Request for Admission no. 15 states, Admit that YOU have not repaired the defects that were the subject of the CONSTRUCTION DEFECT DISPUTE.
Previously, Defendant responded: After a reasonable inquiry concerning the matter contained in this request, admit in part and deny in part. The Court compelled a further response because there was no specificity as to what was admitted and denied.
Defendant then served the following amended response that is the subject of the current Motion: After a reasonable inquiry concerning the matter contained in this request, to the best of Responding Partys knowledge, the Developer has completed the repairs to Plaintiffs property and therefore responds: Deny.
Plaintiffs argue that this is evasive because the request did not relate to the Developer, who is never identified in the response anyway. They also contend that it is unclear whether the phrase Plaintiffs property relates to Plaintiffs unit or the entire condominium building that was the subject of the CONSTRUCTION DEFECT DISPUTE.
The Motion to Compel is granted. A further response should be provided in 10 days that (a) admits that Defendant itself did not do the repairs at issue, but (b) denies that the repairs were never done, because the developer, Pacific Plaza Investments, LLC, addressed them. This would seem to better embody a response that complies with CCP § 2033.220. The Court declines to award sanctions.
Form Interrogatories (2x)
The next Motions pertain to form interrogatory no. 17.1 as it relates to requests for admission nos. 7 and 15.
Given that the Court has required a further response for RFA no. 15, a further accompanying response should also be provided for FI no. 17.1.
With respect to request no. 7, the response for form interrogatory no. 17.1 is deficient. No facts or documents are specifically identified and no contact information is provided for Partners Community Management.
Thus, the Motions to Compel are grantedfurther responses are required within 30 days. The Court awards reduced sanctions to Plaintiffs in the amount of $750.
Requests for Production
With respect to the requests for production, Defendant contends that supplemental documents were served such that the Motion is moot. Defendant, however, never addresses its actual responses. The Motion is granted as to request nos. 1-7, 9-12, 15-22 because the non-privilege objections lack merit and Defendant should provide updated responses in which documents are identified with Bates numbers. For its privilege log, Defendant should indicate recipients and authors.
With respect to request nos. 8, 13, 14, 24, and 25, Defendant should provide a response that complies with Code Civ. Proc. § 2031.230. The Motion is denied without prejudice as to request no. 23, which seems to target predominantly privileged matters. Further responses are to be provided within 30 days. The Court awards Plaintiffs reduced sanctions in the amount of $750.
Moving parties to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
FLOSSIE C PARUNGAO VS RONAL B. BIBONIA, AS AN INDIVIDUAL AND AS CO-TRUSTEE OF THE THE RONALD B. BIBONIA AND WILFRED T. CO REVOCABLE TRUST DATED NOV
Jul 30, 2024 |
23PSCV02165
Case Number:
23PSCV02165
Hearing Date:
July 30, 2024
Dept:
K
Defendant Ronald B. Bibonias Demurrer to Complaint is SUSTAINED without leave to amend. Defendant Bibonia is ordered to file an Answer within 10 days.
Wilfred T. Cos Demurrer to Complaint is SUSTAINED in part (i.e., as to the first through fourth, sixth and seventh, and ninth causes of action). The court will inquire of the parties whether leave to amend should be granted.
Background
Plaintiff Flossie C. Parungao (Plaintiff) alleges as follows: Plaintiff and Wilfred T. Co aka Winnifredo T. Co (Co) are siblings. In June 2004, Plaintiff located and negotiated the purchase of the property located at 302 S. Loraine Ave., Glendora, California 91741 (Property) to serve as her residence. Co offered to assist Plaintiff with the purchase of the subject property. Plaintiff and Co agreed that (1) Co would co-sign the purchase financing documents and take record title to the subject property, (2) Plaintiff would provide all of the funds needed for the down payment and closing costs, (3) Plaintiff would thereafter directly pay or provide funds for payment of the loan, property taxes, insurance and other subject property related-expenses, and that (4) upon request from Plaintiff, Co would execute such documents and take such other actions as might be needed to evidence he had no interest in the subject property other than the bare record title he would be relinquishing (Contract). Plaintiff did all things required of her under the Contract.
In 2023, Plaintiff asked Co to sign over record title to her; Co refused. Plaintiffs ensuing investigation revealed that Co transferred the subject property into the Ronald B. Bibonia and Wilfred T. Co Revocable Trust dated November 24, 2020 (Trust).
On July 18, 2023, Plaintiff filed a complaint, asserting causes of action against Co, individually and as Co-Trustee of the Trust, Ronald Bibonia (Bibonia), individually and as Co-Trustee of the Trust (collectively Defendants), and Does 1-50 for:
1.
Specific Performance of Oral Contract
2.
Breach of Oral Contract
3.
Fraud [Promise Without Intent to Perform]
4.
Intentional Misrepresentation
5.
Breach of Fiduciary Duty
6.
Conversion
7.
Violation of Penal Code § 496
8.
Quiet Title
9.
Accounting
10.
Imposition of Constructive Trust
On April 26, 2024, the court sustained with leave to amend the demurrer as to the first through fourth, and sixth and seventh causes of action. It also overruled the demurrer as to fifth and eighth causes of action. On May 16, 2024, the Plaintiff filed a First Amended Complaint against Co, individually and as Co-Trustee of the Trust, Bibonia, individually and as Co-Trustee of the Trust (collectively Defendants), and Does 1-50 for:
1.
Specific Performance of Oral Contract
2.
Breach of Oral Contract
3.
Fraud [Promise Without Intent to Perform]
4.
Intentional Misrepresentation
5.
Breach of Fiduciary Duty
6.
Conversion
7.
Violation of Penal Code § 496
8.
Quiet Title
9.
Accounting
10.
Imposition of Constructive Trust
A Case Management Conference is set for July 30, 2024.
Legal Standard
A demurrer may be made on the grounds that the pleading,
inter alia
, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) When considering demurrers, courts read the allegations liberally and in context. 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. (
SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (
Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) [A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge. (
S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732 [citations omitted].)
Discussion
Defendants demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first through ninth causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.
[1]
Request for Judicial Notice
The court rules on Defendants Request for Judicial Notice (RJN) as follows: Granted as to Exhibit A (i.e., deed of trust recorded April 11, 2007).
Merits
As to Bibonia
Bibonia contends that the demurrer should be summarily sustained as it pertains to him, on the basis that the FAC is again completely devoid of factual allegations against him. (Dem., 18:9). A review of the FAC demonstrates that Bibonia was not contractually bound based on the alleged oral contract but merely listed on the Propertys title. Plaintiffs contention that Bibonia is a beneficiary to the property is insufficient to allege his involvement in the alleged oral agreement. Nevertheless, Bibonias name on the Propertys title is sufficient to include him on the eighth cause of action for quiet title. As a result, Bibonias demurrer is sustained on this basis as to causes of action one through seven, and nine without leave to amend.
As to Co
First and Second Causes of Action (i.e., Specific Performance of Oral Contract and Breach of Oral Contract, Respectively)
[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (
Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 821.) Plaintiff has alleged that in June 2004, she located and negotiated the purchase of the Property to serve as her residence and that [a]t the time, . . . [her brother] Co offered to assist [her] with the purchase of the Property (FAC, ¶¶ 7 and 8); that she and Co agreed that (1) Co would assist [her] by co-signing the purchase financing documents and taking record title to the Property, (2) [she] would provide all of the funds needed for the down payment and closing costs, (3) [she] would thereafter directly pay or provide funds for the payment of the loan, property taxes, insurance and other Property related expenses, and (4) upon request from [her, Co would execute such documents and take such other actions as might be needed to evidence he had no interest in the Property other than the bare record title he would be relinquishing (Contract) (
Id.
). Co first argues that the alleged oral contract is barred by the Statute of Frauds. (See Civil Code § 1624, subd. (a)(3) [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 parts agent: . . . (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein . . .]
On April 26, 2024, the court overruled the demurrer on statute of frauds grounds.
As a result, the court will not consider the Statute of Frauds argument. Co next argues that the alleged oral contract fails for lack of consideration. (See Civ. Code § 1550 [It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration].) Plaintiffs only response is that making substantial payments over an extended period of time constitutes consideration. (See Opposition at 14.) Plaintiff relies on
Flojo International, Inc. v. Lassleben
(1992) 4 Cal.App.4th 713, 719, in support of her contention. However,
Flojo
does not support her contention. In
Flojo
, a former distributor of products for a company obtained ownership of the company, extinguished the debts the company owned to the distributor, and provided the former owner royalty rights for future sale of goods. (
Id
. at 719-20.) The court reversed an order granting summary judgment and held that consideration to the companys prior owner in extinguishing debt was sufficient reason or consideration to bind the company. (
Id
. at 720.) Here, Plaintiff again fails to articulate the consideration that Co received. Her contention that other family members benefited by making the Property available as a residence for a sibling demonstrates a sibling promissory estoppel cause of action more so than an oral agreement. Moreover, it appears this alleged consideration was not alleged as part of the original oral agreement. The demurrer is sustained.
Third and Fourth Causes of Action (i.e., Fraud [Promise Without Intent to Perform and
Intentional Misrepresentation, Respectively)
The essential allegations of an action for fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage. (
Roberts v. Ball, Hunt, Hart, Brown & Baerwitz
(1976) 57 Cal.App.3d 104, 109.)
Promissory fraud is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (
Lazar v. Superior Court
(1996) 12 Cal.4th 631, 638.) Co asserts that there is no actionable misrepresentation because, [Plaintiff] herself failed to perform her own obligations under the alleged agreement, including (1) failure to co-sign for the loan and (2) failure to pay off the mortgage as agreed. (Dem., 13:15-17). Plaintiff alleges that Co promised beginning in 2004 that he would execute documents and take such [] actions as might be needed to evidence he had no interest in the Property other than the bare record title he would be relinquishing (Promise). (FAC ¶ 23.) However, there is no specificity as to the specific false statements made by Co. (
Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157.) In fact, it is unclear what actionable statements are alleged in the FAC except for that found in paragraph 30 in the FAC (I will do that.). (
People ex rel. Allstate Ins. Co. v. Discovery Radiology Physicians, P.C.
(2023) 94 Cal.App.5th 521, 549.) Because the consideration (i.e. as to Co) under the alleged oral agreement is ambiguous, the statement in paragraph 30 does not provide the necessary sufficiency to support a claim because the extent of the agreement has not been fully described. Cos demurrer to the third and fourth causes of action is sustained.
Sixth Cause of Action (i.e., Conversion)
The elements of a conversion claim are: (1) the plaintiffs ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages. (
Los Angeles Federal Credit Union v. Madatyan
(2012) 209 Cal.App.4th 1383, 1387
[quotations and citation omitted].) Further, [t]he tort of conversion applies to personal property, not real property. (
Salma v. Capon
(2008) 161 Cal.App.4th 1275, 1295.)
Plaintiff has alleged that Defendant Co has repudiated his agreement to replace himself with Plaintiff as record title holder of the Property, denied Plaintiffs interest as owner of the Property. In doing so, Defendants have effectively converted and taken for their own use and benefit all of the monies expended by Plaintiff in connection acquisition [sic] and ownership of the Property. (FAC, ¶ 43).
[2]
Co asserts that Plaintiffs cause of action fails because the Property cannot be the subject of a claim for conversion. Plaintiff, in turn, argues that [w]hat was taken was not real property, but instead a specific corpus of personal propertymoney. . . (Opp., 12:14-15). Plaintiff, however, has not alleged that the monies expended by Plaintiff to live in the property ever went to Co, as opposed to the lender. Cos demurrer to this cause of action is sustained.
Seventh Cause of Action (i.e., Violation of Penal Code § 496)
Penal Code § 496, subdivision (a) provides, in relevant part, that [e]very person who
buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.
While Co does not provide any authority for his position that Penal Code § 496 does not apply to real property, Plaintiffs allegation portend to allow a lower threshold or burden to obtain more than compensatory damages. As stated before, without greater foundation and briefing, the court will not allow this cause of action to proceed at this time. Cos demurrer to this cause of action is sustained.
Ninth Cause of Action (i.e., Accounting)
A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. (
Teselle v. McLoughlin
(2009) 173 Cal.App.4th 156, 179.) Plaintiff has alleged that she is entitled to an accounting of all loans and other transactions secured by or relating in any way to the Property from 2004 to the present, an accounting of any charges or liens against the Property resulting from the conduct and activities of Defendant, as well as an accounting of all property and other assets obtained or derived by Defendants with funds borrowed against or otherwise obtained with respect to the Property. (FAC, ¶ 55). As the court held before, Plaintiff has not alleged that Co ever received any monies for the Property from Plaintiff or anyone else in connection with the Property at any time. Further, Plaintiff has not alleged that Co encumbered the Property at any time. Cos demurrer to this cause of action is sustained.
[1]
The court previously overruled the demurrer as to the fifth and eighth causes of action. (See Order, April 26, 2024.) As a result, the court will consider only the demurrer as to the first through fourth, sixth and seventh, and ninth causes of action.
[2]
It appears Plaintiff failed to edit the FAC as the same grammatical mistakes are repeated in both versions.
Ruling
MAIN CO., LLC VS JANNA SIMON LEWIS
Jul 29, 2024 |
24STCV08420
Case Number:
24STCV08420
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
None Set
CASE:
Main Co. LLC v. Janna Simon Lewis
CASE NO.:
24STCV08420
MOTION FOR RECONSIDERATION
MOVING PARTY
: Plaintiff Main Co., LLC
RESPONDING PARTY(S)
: Defendant Janna Simon Lewis
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an unlawful detainer action for nonpayment of rent that was filed on April 3, 2024.
Plaintiff moves for
reconsideration of the Courts June 11, 2024 order granting Defendant Janna Simon Lewiss motion for summary judgment.
TENTATIVE RULING:
Plaintiffs Motion for Reconsideration is DENIED.
DISCUSSION:
Plaintiff moves for reconsideration of the Courts June 11, 2024 order granting Defendant Janna Simon Lewiss motion for summary judgment.
Legal Standard
Code of Civil Procedure section 1008 provides, in relevant part:
a)
When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and
based upon new or different facts
,
circumstances, or law
, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application
shall state by
affidavit
what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown
.
* * *
(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.
(d)
A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.
(e)
This section specifies the courts jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.
(Code Civ. Proc. § 1008(a), (c)-(e) (bold emphasis added).)
Timeliness
A motion for reconsideration must be made within 10 days after service upon the moving party of written notice of entry of the order. (Code Civ. Proc. § 1008(a).) Here, the Court Clerk served notice of the Courts June 11, 2024 ruling granting the Motion for Summary Judgment on June 11, 2024. (April 29, 2024 Notice of Ruling.) This motion followed on June 20, 2024, less than ten days later. (See Proof of Service.) The Court therefore finds that this motion is timely made.
Analysis
Plaintiff seeks reconsideration of the Courts June 11, 2024 order granting Defendant Janna Simon Lewiss motion for summary judgment based on what Plaintiff characterizes as evidence and/or facts and law which were not available or considered at the time of the hearing. The evidence offered consists of a Los Angeles Certificate of Occupancy showing a change in use of the premises to an artist in residence unit on November 29, 1993 and two Document Reports with the same date referring to the same CHG OF USE apparently concerning the same unit. (Declaration of Yousef Monadjemi, ¶¶ 3-5, Exh. D-F.) The motion for reconsideration must be rejected for several reasons.
First, Plaintiff has offered no explanation, much less any evidence, showing why the evidence belatedly presented was not submitted for the Courts consideration in connection with its ruling on Defendants motion for summary judgment. A party moving for reconsideration must show something more than that the new evidence was not previously presented. Instead, reconsideration may only be granted where there is proof that the moving party could not, with reasonable diligence, have discovered or produced the evidence in opposition to the original motion. (
New York Times Co. v. Superior Court
(2005) 135 Cal.App.4th 206, 212-213.) Here, Plaintiff has failed to demonstrate any valid reason for not presenting the new evidence in opposition to Defendants original motion. (
Gilberd v. AC Transit
(1995) 32 Cal.App.4th 1494, 1500.) As the documents presented are all dated November 29, 1993, the Courts assumption is that they were available to Plaintiff during the pendency of the summary judgment motion, if Plaintiff had sought to secure them for submission to the Court.
Second, the documents recently submitted to the Court are not relevant to the unlawful detainer action before the Court. Plaintiffs complaint alleges: The building in which the premises is located is under L.A.M.C. 150.000 et seq. (1979) as amended, but that defendants unit is exempt from LARSO, because it is an Artist-in-Residence unit. (Complaint, p. 3 & Attachment 17.) As is proper for any motion for summary judgment, Defendants motion was predicated on these allegations of the Complaint and necessarily limited by those allegations. (
Juge v. County of Sacramento
(1993) 12 Cal.App.4th 59, 67 [The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues].) Defendants summary judgment motion did not contest the exemption now being advanced by Plaintiff, and given the narrow scope of the Complaint, such an exemption could not have been challenged in such a motion. As a result, the motion Plaintiff asserts is not one that calls for reconsideration of the prior motion but rather for a ruling on a separate question that falls outside the scope of this lawsuit.
Finally, the recently submitted evidence does not support the conclusion Plaintiff urges. The exemption relied on excludes housing accommodations from regulation under LARSO if the units are located in a structure for which the first Certificate of Occupancy was issued after October 1, 1978 (L.A.M.C. § 151.02, Rental Units, exemption 6), but the records offered say nothing about when the first Certificate of Occupancy was issued for the structure. The records suggest, however, that there may have been such a certificate previously issued because the documents recognize the building as an existing structure that was used as a Retail/Sro Hotel/Dance Hall building. (Exh. D-F.) Even if considered, therefore, Plaintiffs new evidence does not raise a triable issue of fact that would preclude entry of summary judgment in Defendants favor.
CONCLUSION
:
For the reasons explained above,
Plaintiffs Motion for Reconsideration is DENIED.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: July 29, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@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
HAMID REZA MIRSHOJAE, ET AL. VS 5975-5999 TOPANGA CANYON BLVD LLC, ET AL.
Jul 26, 2024 |
21STCV37556
Case Number:
21STCV37556
Hearing Date:
July 26, 2024
Dept:
F43 Dept. F43
Date: 7-26-24
Case #21STCV37556,
Hamid Reza Mirshojae, et al. vs. 5975-5999 Topanga Canyon Blvd LLC, et al.
Trial Date: N/A
MOTION FOR ATTORNEY FEES
MOVING PARTY: Plaintiffs Hamid Reza Mirshojae and Woodland Hills Medical Clinic II, Inc.
RESPONDING PARTY: Defendants 5975-5999 Topanga Canyon Blvd, LLC and Ahang Mirshojae
RELIEF REQUESTED
Plaintiffs are requesting attorney fees in the amount of $
619,675
, plus $17,036.01 in costs, from Defendants.
RULING
: Motion for attorney fees is granted at a reduced amount. No costs will be awarded at this time.
SUMMARY OF ACTION
Plaintiff Hamid Reza Mirshojae (Hamid) and Defendant Ahang Zarin Mirshojae (Ahang) were formerly married and were engaged in extensive litigation against each other prior to 2017. The assets in dispute were in excess of $20 million. At mediation, Hamid and Ahang entered a complex settlement agreement. Immediately after, Hamid alleges that Ahang breached the settlement agreement, and he was forced to incur attorney fees to enforce various terms of the agreement. Eventually, Hamid filed the current suit to enforce the settlement agreement on October 12, 2021.
Ahang accused Hamid and his counsel of inducing her to sign the settlement agreement and sued him for $7 million in damages. This Court eventually struck Ahangs complaint based on Plaintiffs anti-SLAPP motion and determined that Ahang was a vexatious litigant. After this ruling, Ahang attempted to disqualify Hamids lead counsel, though that motion was rejected. Hamid alleges that he has incurred significant legal fees over the course of this litigation.
Finally, after two years of litigation, the parties settled via a 998 Offer on November 17, 2023. The 998 Offer required Defendants to pay Plaintiffs $270,000 and reasonable fees and costs as determined by the Court. Plaintiffs are requesting attorney fees pursuant to the part of the 998 Offer that allows for reasonable fees to be paid.
Plaintiffs are requesting $619,675 in attorney fees from Defendants. Plaintiffs argue in their motion that the attorney fees and hourly rates are reasonable. Plaintiffs evidence in support of their request for attorney fees included a declaration from their attorney, Christopher Beatty, and billing statements (with some redactions) that show which attorney worked on a task, what the task was, and how much time was spent on the task. (Beatty Decl., Ex. H.) The Beatty Declaration also includes a table which shows the hourly rates of the attorneys who worked on the case and their hourly rates at different times. (Beatty Decl., ¶ 35.)
Christopher Beattys hourly rates were $950 (for 2.5 hours in 2021), $975 (for 19.2 hours in 2022), and $1,300 (for 1.5 hours in 2022 and 71.6 hours in 2023). Tami K. Sims hourly rate was $1,115 (for 83.4 hours in 2023). Trevor T. Garneys hourly rate was $955 (for 87.8 hours in 2023). Arron J. Paks hourly rate was $705 (for 277.3 hours in 2023). Minh-Van Dos hourly rates were $795 (for 0.5 hours in 2021) and $840 (for 76.1 hours in 2022). Benjamin Mandels hourly rate was $595 (for 89.6 hours in 2022). Finally, Scarlet Speakmores hourly rate was $350 (for 38.8 hours in 2022).
The total lodestar was calculated by multiplying each of these attorneys hourly rate by their hours worked then adding them all together. The total hours worked for the attorneys totaled 748.3. The total lodestar amount, as previously noted, is $619,675.
Plaintiffs have also requested costs in the amount $17,036.01. However, costs are awarded pursuant to California Rules of Court, Rule 3.1700. If Plaintiffs wish to request costs, Plaintiffs should file a memorandum of costs at the appropriate time.
Defendants Evidentiary Objections to the Declaration of Keith M. Maziarek:
Sustained: Entire Declaration (irrelevant), Paragraph 11
Overruled: None
Plaintiffs Evidentiary Objections to the Declaration of June D. Coleman and the Declaration of Raffi Kassabian: The individual evidentiary objections presented by Plaintiffs to these two declarations are not consecutively numbered. Typically, when written objections to evidence are filed, the written objection must be number consecutively. (See Cal. Rules of Court Rule 3.1354 (applies to written objections to evidence for summary judgment motions).) While Plaintiffs listed them by paragraph number from the declarations, this is not necessarily effective, because in some instances Plaintiffs objected to different sentences from the same paragraph and listed them separately with the same paragraph number. The Court will not rule on the individual evidentiary objections based on this procedural deficiency. Plaintiffs have objected to the entire Coleman Declaration on the basis that it is improper expert testimony because Coleman has not shown any special knowledge, skill, etc., related to billing for these types of cases pursuant to Evidence Code § 720. The Court has determined that Coleman has sufficiently demonstrated her special knowledge as a fee expert with this declaration and her recently submitted supplemental declaration. Plaintiffs objection to the entire Coleman Declaration is overruled.
On April 9, 2024, a hearing was held on Plaintiffs motion for attorney fees. That same day, the Court issued a ruling on the submitted matter requesting that the parties submit additional briefing and that Plaintiffs submit invoices that do not redact the lawyers hourly rates or the amounts billed, along with supplemental points and authorities supporting their fee requests in light of that information.
On May 24, 2024, Plaintiffs submitted their supplemental brief. In their brief, Plaintiffs argue that the Court should award standard hourly rates and that the fees sought for all tasks are reasonable. Plaintiffs submitted new billing records that still contain some redactions, but they do not redact the lawyers hourly rates or the amounts billed.
On June 25, 2024, Defendants submitted their supplemental opposition brief. Defendants argue that the Court should significantly reduce the fees requested by Plaintiffs. Defendants also argue that the Court should consider Defendants expert declaration. Defendants also acknowledge that Plaintiffs conceded that the actual hourly rates and amounts billed are not privileged.
ANALYSIS
A prevailing party is entitled to recover its attorneys fees when authorized by contract, statute, or law. (See CCP § 1033.5(a)(10); Cal. Civ. Code § 1717(a).) A successful party means a prevailing party, and [a party] may be considered prevailing parties for attorneys fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. (
Bowman v. City of Berkeley
(2005) 131 Cal.App.4th 173, 178.)
Plaintiffs are the prevailing party by virtue of the fact that the parties settled in Plaintiffs favor via the 998 Offer. Plaintiffs have requested a total of $619,675 in attorney fees.
Defendants previously opposed Plaintiffs motion on the basis that Plaintiffs agreed only to recover fees actually incurred and according to proof in the 998 Offer, and Defendants argued that Plaintiffs have not provided this proof. However, this argument was resolved with Plaintiffs supplemental brief, as Plaintiffs have now provided unredacted hourly rates and amounts billed.
Plaintiffs attorney Christopher D. Beatty acknowledges in his supplemental declaration that the actual amount charged to the client was $543,156. (Beatty Supp. Decl., ¶ 5.) Defendants argue in their supplemental opposition that this should be the baseline from which any reductions in the requested amount should be made. Defendants argue that Plaintiffs should only be able to recover fees actually incurred because that is what the 998 Offer between the parties allowed. (See
San Dieguito Pship, L.P. v. San Dieguito River Valley Regl Open Spake Park Joint Powers Auth.
(1998) 61 Cal.App.4th 910, disapproved on other grounds by
PLCM Group v. Drexler
(2000) 22 Cal.4th 1084.) The Court agrees. Plaintiffs should only recover the fees actually incurred, which in this case is, at a maximum, $543,156.
Next, Defendants contest the reasonableness of the fees incurred by Plaintiffs.
In determining the reasonableness of fees, courts look to the factors from
Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628, disapproved on other grounds by
Equilon Enters. v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68 n.5. The factors from
Wollersheim
are (1) the amount of money involved in the litigation; (2) the nature of the litigation and its difficulty and the intricacies and importance of the litigation; (3) the skill required and employed in handling the litigation, the necessity for skilled legal training and ability in trying the case, and counsels education and experience in the particular type of work involved; (4) the attention given to the case; (5) the success of the attorneys efforts; and (6) the time consumed by the litigation. (
Id.
)
Plaintiffs argued in the initial motion that they met all of these factors. First, Plaintiffs argue that large amounts of money were involved in this litigation because of Ahangs cross-complaint for $7 million and the fact that the original settlement agreement divided the parties assets that were valued in excess of $20 million. Next, for the second factor, Plaintiffs argue that the nature of this case was an emotional case between two ex-spouses and business partners with significant assets at issue, and Ahang had been determined by the Court to have engaged in fraud. For the third factor, Plaintiffs argued that this was a complex case that required an experienced legal team to handle it, and Beattys team were the logical ones to handle it because Beatty had handled the cases that led to the settlement agreement. For the fourth factor, Plaintiffs argued that their counsel had to devote significant attention to this case. For the fifth factor, Plaintiffs argued that their counsel had success throughout the case in prevailing on the anti-SLAPP motion and defeating the attempt to disqualify Beatty, as well as being the prevailing party for the 998 Offer. Finally, for the sixth factor, Plaintiffs argued that this case consumed considerable time and went on for two years and would have gone on much longer if Hamid had not accepted the 998 Offer.
Defendants argue that the attorney fee award should be reduced as the hours billed are excessively unreasonable. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (
Chavez v. City of Los Angeles
(2010) 47 Cal.4th 970, 990-991(citing
Serrano v. Unruh
(1982) 32 Cal.3d 621, 635).)
This Court previously acknowledged in its tentative ruling the apparent excessive billing for several of Plaintiffs motions: the Anti-SLAPP Motion (160.5 hours), Opposition to Motion to Disqualify (96.5 hours), Demurrer (90.2 hours), Motion for Attorney fees re Anti-SLAPP Motion (49 hours), and Motion to Quash Summons (38.6 hours). This Court also suggested reducing the time spent on those motions by 25%. Defendants argue that they should be reduced by at least 60% because they are beyond excessive.
Other specific tasks that Defendants argue were excessively billed were the 4.0 hours for a half-page notice of continuance; 12.1 hours for a subpoena with 8 document requests; 14.7 hours spent on two identical subpoenas with 6 document requests; 22.3 hours spent on 3 page ex parte application and 2 page declaration to advance a hearing date; 18.3 hours preparing for and drafting a mediation brief; and 10.3 hours on generic case analysis over 48 entries. Defendants argue that the Court should also take into account all of these minor issues in awarding the attorney fees.
Defendants also argue that the at least 209.5 hours spent in relation to the Anti-SLAPP motion was beyond excessive and should be reduced by more than 25%. Defendants cite a case where the Court of Appeal affirmed a reduction in attorney fees and costs related to an Anti-SLAPP motion from $112,288.63 to just $23,000, with the Court of Appeal stating that claiming 200 hours of work & seems excessive and that such a motion should not have been such a monumental undertaking. (
Maughan v. Google Technology, Inc.
(2006) 143 Cal.App.4th 1242, 1248-1252.) Defendant
Finally, Defendants argue that the Court should consider Defendants expert declaration because it would be admissible because the experts declaration included descriptions of her experience as a fee expert. (See Coleman Decl., ¶¶ 3-10, 14, and 15.) The Court previously sustained Plaintiffs objections to the Coleman Declaration, but in light of Defendants arguments and Colemans supplemental declaration, the Court will consider Colemans declaration.
In light of all of the foregoing, the Court believes that some reduction of the requested fees is necessary. Both the previously indicated major issues and the minor issues that Defendants have brought to the attention of the Court should be reduced.
The amount that the Court will start with is $543,156 in fees actually incurred. The Court previously considered reducing certain fees by 25%. Defendants request an across the board reduction of 60%, which would be $217,262 in fees awarded. Alternatively, Defendants request that the Court do an across the board reduction of 25%, since that percentage is what the Court previously found was appropriate. Based on both the major and minor issues with the billing records, the Court agrees that an across the board reduction is appropriate. The Court also finds that an across the board reduction of 25% is reasonable. That would make the fee award $407,367.
The Court will award this amount. Plaintiffs have demonstrated that their attorneys hourly rates are rates are reasonable. Furthermore, this was a complex class requiring a lot of motion practice, particularly where the Anti-SLAPP motion is concerned. Plaintiffs have provided proof of the amount of time spent on the case through the now-unredacted billing statements.
CONCLUSION
Plaintiffs motion for attorney fees is granted in the amount of $407,367.00. Costs should be requested in a memorandum of costs.
Moving party to give notice.
Ruling
805 WOOSTER, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS BRETT HYMAN, AN INDIVIDUAL
Jul 26, 2024 |
23STCV27912
Case Number:
23STCV27912
Hearing Date:
July 26, 2024
Dept:
50
Superior Court of California
County of Los Angeles
Department 50
805 WOOSTER, LLC
,
Plaintiff,
vs.
BRETT HYMAN
,
et al
.,
Defendants.
Case No.:
23STCV27912
Hearing Date:
July 26, 2024
Hearing Time:
10:00 a.m.
[TENTATIVE] ORDER RE:
MOTION TO BE RELIEVED AS COUNSEL
Carlos A. LLoreda, Jr. of The Law Office of Carlos A. LLoreda, Jr.
(Counsel) moves to be relieved as counsel of record for Defendant
Brett Hyman.
While Counsel has provided sufficient reason for withdrawal, Items 5, 6, and 7 of the proposed order
(Form MC-053)
are blank.
If Counsel provides the Court with a revised order prior to the hearing, the Court will grant the motion.¿
Counsel is ordered to give notice of this order.¿
DATED:
July 26, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Document
TONI HULL VS MANVEL CHAPKINYAN
Dec 20, 2023 |
Valerie Salkin
|
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) |
23VECV05619
Document
TONI HULL VS MANVEL CHAPKINYAN
Dec 20, 2023 |
Valerie Salkin
|
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) |
23VECV05619
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 02/11/2020 04:27 AM Sherti R. Carter, Executive Officer/Clerk of Court, by V. Rico,Deputy Clerk 20CHCV00095, Assigned for all purposes to: Chatsworth Courthouse, Judicial Officer: Melvin Sandvig TIFFANY & BOSCO MEGAN E. LEES (SBN 277805) mel@tblaw.com ROBERT P. ZAHRADKA (SBN 282706) rpz@tblaw.com 1455 Frazee Road, Suite 820 San Diego, CA 92108 Tel.: (619) 501-3503 Attorneys for Plaintiff PennyMac Loan Services, LLC IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES 10 11 PennyMac Loan Services, LLC, CASE NO. 12 Plaintiff, [Unlimited Jurisdiction] 13 vs. COMPLAINT FOR REFORMATION OF 14 Joel Donald Brown, an individual; and DEED OF TRUST 15 DOES 1-100, inclusive, 16 17 Defendants. 18 19 20 Plaintiff, PennyMac Loan Services, LLC (“Plaintiff’ or “PennyMac”), hereby alleges the 21 following: 22 Parties and Jurisdiction 23 1 PennyMac is a limited liability company authorized to conduct business in the State of 24 California. 25 2 Upon information and belief, defendant, Joel Donald Brown (“Brown”), during all times 26 relevant to the Complaint and the underlying transaction, resided in Los Angeles County, California. COMPLAINT 3 Brown is the owner of the real property that is the subject of this action, which located in the County of Los Angeles and is commonly known as 9548 Hayvenhurst Avenue, Northridge (Los Angeles), CA 91343 (the “Property”). 4 The true names and capacities, whether individual, corporate, associate or otherwise of| defendants named herein as DOES 1-100 are unknown to Plaintiff who therefore sues these defendants by their fictitious names. Plaintiff will amend this Complaint to show their true names and capacities when they have been ascertained. 5 Jurisdiction and venue are proper in Los Angeles County, California because the Property is located in Los Angeles County. 10 Factual Allegation: 11 6 On or about July 17, 2015, F and N Investments, a California Limited Liability Company 12 (“Grantor”), executed a Grant Deed transferring title to the Property to Joel Donald Brown, a single man. 13 The Grant Deed was recorded in the Official Records of Los Angeles County on August 24, 2015, as 14 Document No. 20151035926 (the “Original Grant Deed”). A true and correct copy ofthe Original Grant 15 Deed is attached hereto as “Exhibit A” and incorporated herein by reference. 16 7 On or about August 14, 2015, Joel Donald Brown obtained a loan from Plaza Home 17 Mortgage, Inc. in the original principal amount of $476,215.00 (the “Loan”), which was secured by a 18 Deed of Trust (the “Deed of Trust”) in favor of Mortgage Electronic Registration Systems, Inc., solely 19 as nominee for Plaza Home Mortgage, Inc., its successors and assigns, as beneficiary. The Deed of Trust 20 was recorded in the Official Records of Los Angeles County on August 24, 2015, as Document No. 21 20151035927. A true and correct copy of the Deed of Trust is attached hereto as “Exhibit B” and 22 incorporated herein by reference. 23 8 On or about February 1, 2018, the beneficial interest under the Deed of Trust was 24 transferred to Plaintiff by way of an Assignment of Deed of Trust. The Assignment of Deed of Trust was 25 recorded in the Official Records of Los Angeles County on February 9, 2018, as Document No. 26 COMPLAINT 1 20180136480. A true and correct copy of the Assignment of Deed of Trust is attached hereto as “Exhibit 2 C” and incorporated herein by reference. 9 The legal description for the Property is as follows: LOT 69 OF TRACT NO. 21415, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 576 PAGES 45 THROUGH 48, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR RECOVERABLE FROM SAID LAND WITHOUT HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND TO EXPLORE FOR, DEVELOP OR REMOVE SAID SUBSTANCES, BUT WITH FULL RIGHT TO EXPLORE FOR, DEVELOP AND REMOVE ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUBSTANCES BY MEANS OF WELLS AND EQUIPMENT HAVING SURFACE LOCATIONS OUTSIDE THE 10 OUTER BOUNDARIES OF SAID LAND AND ENTERING SAID LAND BELOW 500 FEET FROM THE PRESENT NATURAL LEVEL OF THE SURFACE OF SAID 11 LAND, AS RESERVED IN THE DEED FROM JOSEPH Y. WOO, WHO ACQUIRED TITLE AS WOO YEN JOSEPH, RECORDED IN BOOK 47268, PAGE 150 OFFICIAL 12 RECORDS. 13 10. The Assessor’s Parcel Number for the Property is 2677-003-018. 14 11. The Original Grant Deed and Deed of Trust contained the correct address and Assessor’s 15 Parcel Number for the Property, however, the legal description contains a typographical error in bot 16 documents. Specifically, the legal description incorrectly lists the Page Number range as “45 through 43” 17 instead of “45 through 48.” 18 12. On or about December 2, 2019, after a demand by Plaintiff's counsel, Grantor corrected the 19 Original Grant Deed (the “Corrective Grant Deed”) to reflect the proper legal description for the Property] 20 The Corrective Grant Deed was recorded in the Official Records of Los Angeles County on December 13 21 2019, as Document No. 20191391779. A true and correct copy of the Corrective Grant Deed is attache 22 hereto as “Exhibit D” and incorporated herein by reference. 23 13. The mistake in the legal description occurred due to a scrivener's error. 24 14. Plaintiff is informed and believes that the above-referenced error in the Deed of Trust 25 (incorrectly listing the Page Number range as “45 through 43” instead of “45 through 48”) was caused b 26 a mutual mistake between the parties. COMPLAINT 15. Due to the above-referenced error in the legal description, there is a defect in Plaintiff's lie interests in the Property with respect to the Deed of Trust. 16. Plaintiff, upon discovery of the mistake, caused a written demand to be sent to Brown requesting a voluntary modification of the Deed of Trust to correct the legal description; however, as of the date of this filing no response has been received. 17. The Los Angeles County Official Records reflect that title to the Property is still vested in Joel Donald Brown, a single man. 18. Plaintiff is seeking reformation of its Deed of Trust to reflect the correct legal description in order to reflect the intent of the parties at the time of execution of the Deed of Trust. 10 Count I 11 (Reformation — Against All Defendants) 12 19. Plaintiff re-alleges and incorporates by reference, Paragraphs 1 — 18 set forth in the 13 Complaint as though set forth in full herein. 14 20. The purpose of reformation is to correct a written instrument in order to effectuate a 15 common intention of both parties that was incorrectly reduced to writing. 16 21. Pursuant to California Civil Code §§ 3399 - 3401, this Court is authorized to revise a 17 written instrument to express the true intention of the parties. 18 22. Pursuant to California Civil Code § 3399, when, through fraud or mutual mistake of the 19 parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does 20 not truly express the intention ofthe parties, it may be revised on the application of the party aggrieved, 21 so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons 22 in good faith and for value. 23 23. Here, a mutual mistake (the typographical error in the legal description described above) 24 prevented the Deed of Trust from accurately expressing the intention of the parties. 25 24. Revising the Deed of Trust can be done without prejudice to rights acquired by third 26 persons in good faith and for value because Joel Donald Brown is still the owner of the Property and the COMPLAINT Deed of Trust is still encumbering the Property. Upon information and belief, no third parties have acquired any rights in the Property. 25. An action for reformation is the appropriate remedy where the contract does not accurately reflect the parties’ mutual agreement. Thrifty Payless, Inc. v. Americana at Brand, LLC, 218 Cal. App. Ath 1230, 1243, 160 Cal. Rptr.3d 718, 729 (2013). 26. As specified above, the Deed of Trust does not accurately reflect the parties’ mutual agreement because there is a typographical error in the legal description which incorrectly lists the Page Number range as “45 through 43” instead of “45 through 48”. 27. Although Plaintiff was not a party to the Deed of Trust, reformation will lie in favor of a 10 third party who has suffered prejudice or monetary loss arising out of a mistake in a contract between 11 other parties. Shupe v. Nelson, 254 Cal. App. 2d 693, 698, 62 Cal.Rptr. 352, 356 (1967). Plaintiff was 12 not a party to the Deed of Trust at the time it was executed, but obtained the beneficial rights under the 13 Deed of Trust when it obtained such rights by way of the Assignment of Deed of Trust. Plaintiff may 14 seek reformation because the mistake in the legal description in the Deed of Trust affects Plaintiff's rights 15 in the Deed of Trust and in the Property. 16 WHEREFORE, Plaintiff respectfully requests judgment against the Defendants as follows: 17 A Reforming the legal description in the Deed of Trust to reflect: 18 LOT 69 OF TRACT NO. 21415, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 19 576 PAGES 45 THROUGH 48, INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. 20 21 EXCEPT ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER OR RECOVERABLE FROM SAID LAND 22 WITHOUT HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND TO EXPLORE FOR, DEVELOP OR REMOVE SAID SUBSTANCES, 23 BUT WITH FULL RIGHT TO EXPLORE FOR, DEVELOP AND REMOVE ALL OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUBSTANCES BY 24 MEANS OF WELLS AND EQUIPMENT HAVING SURFACE LOCATIONS 25 OUTSIDE THE OUTER BOUNDARIES OF SAID LAND AND ENTERING SAID LAND BELOW 500 FEET FROM THE PRESENT NATURAL LEVEL OF THE 26 SURFACE OF SAID LAND, AS RESERVED IN THE DEED FROM JOSEPH Y. COMPLAINT WOO, WHO ACQUIRED TITLE AS WOO YEN JOSEPH, RECORDED IN BOOK 47268, PAGE 150 OFFICIAL RECORDS, Assessor’s Parcel Number 2677-003-01 8. B. Such other and further relief as the Court deems just and proper. RESPECTFULLY SUBMITTED this 11th day of February, 2020. TIFFANY & BOSCO, P.A. By: Megan E. Lees SEisy. {SBN 277805) Attorney for Plaintiff, PennyMac Loan Services, LLC 10 1 2 13 4 15 16 17 18 19 20 21 22 23 24 25 26 COMPLAINT EXHIBIT “A” 20179016175200003 CONTRA COSTA Co Recorder Office JOSEPH CANCIAMILLA, Clerk-Recorder RECORDING REQUESTED BY OC 2017-0161752-00 ct 2126-SPL Placer Title Placer Title Col Escrow Numb er: i ‘tuesday, SEP 05, 2017 14:22:34 OD $3.00/REC $13.00|/FTC $2.00 Branch: 811 ED $1.00|ERD $1.00|/S34 $10.00 AND WHEN RECORDED MAIL TO CC $364.10|RIC$2,317.00| tl Pd $2,711.10 Nbr-0003014832 Timothy William Rowen 766 7th Street at/RC/1-3 Richmond, CA 94801 A.P.N.: 534-072-028-2 SPACE ABOVE THIS LINE FOR RECORDER'S USE GRANT DEED The undersigned grantor(s) declare(s): Documentary transfer tax is $364.10 City Transfer Tax: $2,317.00 (_) Unincorporated Area ( X ) City of Richmond (X) computed on full value of property conveyed, or (_) computed on full value less value of liens and encumbrances remaining at time of sale. FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, DALLIN LLC A LIMITED LIABILITY COMPANY Hereby GRANT(S) to Timothy William Rowen, unmarried man The land described herein is situated in the State of California, County of Contra Costa, City of Richmond, described as follows: Parcel One: Portion of Lat 11 in Block 7, as delineated upon that certain Map entitled, “Map of Martha Washington Tract", Contra Costa County, California. Filed February 3, 1906 in Map Book "E" Page 114, in the Office of the Recorder of the County of Contra Costa, State of California, described as follows: Beginning at a point on the Easterly line of 7th Street, at the Southwest comer of said Lot 11; thence from said point of beginning Easterly along the Southerly line of said Lot 11, 100.54 feet to the Southeast corner thereof; thence Northerly along the Easterly line of said Lot 11 to the Southeast corner of the parcel of land described in the Deed from James C. Helms, et ux, to James Art McNeill, et ux, dated February 13, 1950, and recorded February 17, 1950 under Recorder’s Series No, 7498; thence Westerly along the Southerly line of said McNeill parce! (7498-50), 100.00 feet to a point in the Easterly line of said 7th Street; thence Southerly along said Easterly line 4.14 feet to the point of beginning. Parcel Two: Portion of Lot 31 in Block 15, as delineated upon that certain Map entitled, "Map of Turpins Addition to the City of Richmond", Contra Costa County, California. Filed June 29, 1903, in Map Book "C“, Page 53. in the Office of the Recorder of the County of Contra Costa, State of California, described as follows; MAIL TAX STATEME! 'S ‘LO PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY SHOWN, MAIL AS DIRECTED ABOVE SAME AS ABOVE. Name Street Address City & State O der: Page 1 of 3 Req ested By: pthr tal, Printed 8/28/2019 54 AM Doc: CACONT:2017 00161752 Beginning at a point in the Easterly line of 7th Street, at the Northwest corner of said Lot 34; thence Easterly along the Northerly line of said Lot 31, 100.54 feet to the Northeast corner thereof; thence Southerly 12,86 feet to the Northeast corner of the parcel of land described in the Deed from Edwin Willlam Waller to Florence Quindt, dated December 2, 1939 and recorded December 4, 1939 in Book 526 of Official Records, at Page 318; thence Westerly along the Northerly line of said Quindt Parcel, 100,00 feet to @ point In the Easterly line of sald 7th Street, thence Northerly along said line, 22,95 feet to the point of beginning A.P.N: APN: 534-072-028-2 Dated: August 24, 2017 He Ctr o- DALUIN LLC A LIMIT LIABILITY COMPANY By: Authorized Signer Susan Goldberg O der: 19 Page 2 of 3 Req ested By: pthr tal, Printed 8/28/2019 54 AM oc CACONT:2017 00161752 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Arizona Maricopa ss. County of ——— On ~ August as Aor before me, phirie Cuads ‘ Notary Public personally appeared Susan Goldberg, Authorized Signatory of Dallin, LLC who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/thoir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument, | certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct, WITNESS my hand and official seal. sionavURE phone Pubr— we STEPHANIE BONDS Notary Public - Ariz S my Mar icopa Countyona Commission Expires aie oes May 5, 2020 O der: Page 3 of 3 Req ested By: pthr tal, Printed 8/28/2019 54 AM oc CACONT:2017 00161752 EXHIBIT “B” Recording Ro questeg by 20179016175300014 CONTRA COSTA Co Recorder Office JOSEPH CANCIAMILLA, Clerk-Recorder When recorded, mail to: DOC 2017-0161753-00 American Financial Network, Inc. Acct 2126-SPL Placer Title Attn: Final Document Department Tuesday, SEP 05, 2017 14:22:34 10 Pointe Drive Suite 330 MOD $14.00|REC $24.00|FTC $13.00 Brea, CA 92821 RED $1.00/ERD $1.00| TtlPd $53.00 Nbr-000301 4833 kat/RC/1-14 Loan * [Space Above This Line For Recording Data] FHA Cace No DEED OF TRUST on: MERS PHONE #: 1-888-679-6377 DEFINITIONS Words used in multiple sections of this document are defined below and other words are defined in Sections 3,10,12,17,19, and 21. Certain rules regarding the usage of words used in this document are also provided in Section 15. (A) “Security Instrument” means this document, which is dated August 24, 2017, together with all Riders to this document. (B) “Borrower” is TIMOTHY WILLIAM ROWEN, UNMARRIED MAN. Borrower's address is 766 7th St, Richmond, CA 94801. Borrower is the trustor under this Security Instrument. (C) “Lender” is American Financial Network, Inc.. CALIFORNIA — Single Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/04 Modified for FHA 9/2014 (HUD Handbook 4000.1) Ellie Mae, inc. Page 1 of 13 CAEFHAISDL 0915 CAEDEDL (CLS) O der: Page 1 of 14 Req ested By: pthr tal, Printed 8/28/2019 54 AM Doc: CACONT: 2017 00161753 Lender is a California Corporation, under the laws of California. LOAN #; organized — and exi: Ing Lender’s address is 10 Pointe Drive Suite 330, Brea, CA 92821, (D) “Trustee” is Placer Title Co. (E) “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O, Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. (F) “Note” means the promissory note signed by Borrower and dated August 24, 2017. The Note states that Borrower owes Lender THREE HUNDRED TWENTY FIVE THOUSAND FOUR AND NO/100* ****** 4 *## HH PRAT R AORTA RRNA HAE RAEN ADK REE R REE RHR RANE REESE Dollars (U.S, $325,004.00 plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than September 1, 2047. (G) “Property” means the property that is described below under the heading “Transfer of Rights in the Property.” (H) “Loan” means the debt evidenced by the Note, plus interest, late charges due under the Note, and all sums due under this Security Instrument, plus interest. (l) “Riders” means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Borrower [check box as applicable): CO Adjustable Rate Rider CJ Condominium Rider (C) Planned Unit Development Rider {] Other(s) [specify] (J) “Applicable Law” means all controlling applicable federal, state and local statutes, regulations, ordinances and admin- istrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions. (K) “Community Association Dues, Fees, andAssessments” means all dues, fees, assessments and other charges that are imposed on Borrower or the Property by a condominium association, homeowners association or similar organization. (L) “Electronic Funds Transfer” means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. (M) “Escrow Items” means those items that are described in Section 3. (N) “Miscellaneous Proceeds” means any compensation, settlement, award of damages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to, or destruction of, the Property; (ji) condemnation or other taking of all or any. part of the Property; (iii) conveyance in lieu of condemnation: or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property. (0) “Mortgage Insurance” means insurance protecting Lender against the nonpayment of, or default on, the Loan. (P) “Periodic Payment” means the regularly scheduled amount due for (i) principal and interest under the Note, plus (ii) any amounts under Section 3 of this Security Instrument. (Q) “RESPA” means the Real Estate Settlement Procedures Act (12 U.S.C. §2601 et seq.) and its implementing regulation, Regulation X (12 C.F.R. Part 1024), as they might be amended from time to time, or any additional or successor legislation or regulation that governs the same subject matter. As used in this Security Instrument, “RESPA’ refers to all requirements and restrictions that are imposed in regard to a “federally related mortgage loan” even if the Loan does not qualify as a “federally related mortgage loan” under RESPA. (R) “Secretary” means the Secretary ofthe United States Departmentof Housing and Urban Development orhis designee. (8) “Successor in Interest of Borrower” means any party that has taken title to the Property, whether or not that party has assumed Borrower's obligations under the Note and/or this Security Instrument. CALIFORNIA - Single Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/01 Modified for FHA 9/2014 (HUD Handbook 4000.1) Ellie Mae, Inc, Page 2 of 13 CAEFHAISDL 0915 CAEDEDL (CLS) O der: Page 2 of 14 Req ested By: pthr tal, Printed 8/28/2019 54 AM Doc: CACONT: 2017 00161753 Loan +: TRANSFER OF RIGHTS IN THE PROPERTY The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS, This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably mortgages, grants and conveys to Trustee, in trust, with power of sale, the following described property located in the County Type of Recording Jurisdiction] of Contra Costa [Name of Recording Jurisdiction]: SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART HEREOF AS "EXHIBIT A". APN #: 534-072-028-2 which currently has the address of 766 7th St, Richmond, [Street] [City] California 94801 (“Property Address"): [Zip Code] TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrumentas the “Property.” Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record, Borrower warrants and will defend generally the title to the Property against all clains and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 4 Payment of Principal, Interest, Escrow Items, and Late Charges. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section 3. Payments due under the Note and this Security Instrument shall be made in U.S. currency. However, if any check or other instrument received by Lender as payment under the Note or this Security Instru- ment is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; CALIFORNIA — Singie Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/01 Modified for FHA 9/2014 (HUD Handbook 4000.1) Ellie Mae, inc. Page 3 of 13 CAEFHAISDL 0915 CAEDEDL (CLS) O der: Page 3 of 14 Req ested By: pthr tal, Printed 8/28/2019 54 AM Doc: CACONT: 2017 00161753 LOAN #:] (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer. Payments are deemed received by Lender when received at the location designated in the Note or at such other location as may be designated by Lender in accordance with the notice provisions in Section 14. Lender may return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan current. Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future, but Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to bring the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments due under the Note and this Security Instrument or performing the covenants and agreements secured by this Security Instrument. 2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all payments accepted and applied by Lender shail be applied in the following order of priority: First, to the Mortgage Insurance premiums to be paid by Lenderto the Secretary or the monthly charge by the Secretary instead of the monthly mortgage insurance premiums; Second, to any taxes, special assessments, leasehold payments or ground rents, and fire, flood and other hazard insurance premiums, as required; Third, to interest due under the Note; Fourth, to amortization of the principal of the Note; and, Fifth, to late charges due under the Note. Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shail not extend or postpone the due date, or change the amount, of the Periodic Payments. 3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are due under the Note, until the Note is paid in full, a sum (the “Funds”) to provide for payment of amounts due for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a lien or encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any and ail insurance required by Lender under Section 5; and (d) Mortgage Insurance premiums, to be paid by Lender to the Secretary or the monthly charge by the Secretary instead of the monthly Mortgage Insurance premiums. These items are called "Escrow Items.” At origination or at any time during the term of the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Iterns. Lender may waive Borrower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due for any Escrow Items for which payment of Funds has been waived oy Lender and, if Lender requires, shall furnish to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligationto make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security Instrument, as the phrase “covenant and agreement’ is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given in accordance with Section 14 and, upon such revocation, Borrower shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3. Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit Lender to apply the Funds at the time specified under RESPA, and (b) not to exceed the maximum amount a lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with Applicable Law. The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time specified under RESPA. Lender shall not charge Borrower CALIFORNIA ~ Single Family — Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3006 1/01 Modified for FHA 9/2014 (HUD Handbook 4000.1) Ellie Mae, Inc. Page 4 of 13 CAEFHAIS5DL 0915 CAEDEDL (CLS) Page 4 of 14 Req ested By: pthr tal, Printed 8/28/2019 54 AM Doc: CACONT:2017 00161753 LOAN #;| — for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds, Borrower and Lender can agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds as required by RESPA. if there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall accountto Borrower for the excess funds in accordance with RESPA. If there is a shortage of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If there is a deficiency of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with RESPA, but in no more than 12 monthly payments. Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. 4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions attributable to the Property which can attain priority over this Security Instrument, leasehold payments or ground rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that these items are Escrow Items, Borrower shall pay them in the manner provided in Section 3. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Bor- rower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over this Security Instrument, Lender may give Borrowera notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4. 6. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term “extended coverage,” and any other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's right to disapprove Borrower's choice, which right shall not be exercised unrea- sonably. Lender may require Borrower to pay, in connection with this Loan, either: (a) a one-time charge for flood zone determination, certification and tracking services; or (b) a one-time charge for flood zone determination and certification services and subsequent charges each time remappings or similar changes occur which reasonably might affect such determination or certification. Borrower shail also be responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection with the review of any flood zone determination resulting from an objection by Borrower. \f Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender’s option and Borrower's expense. Lender is under no obligation to purchase any particular type or amount of coverage Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower's equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. All insurance policies required by Lender and renewals of such policies shall be subject to Lender's right to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or as additional loss payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Note up to the amount of the outstanding loan balance. Lender shall have the right to hold the policies and renewal certificates. If Lender requires, Borrower shall promptly give to Lender alll receipts of paid premiums and renewal notices. If Borrower obtains any CALIFORNIA — Single Family — Fannie Mae/Freddie Mao UNIFORM INSTRUMENT Form 3006 4/01 Modified for FHA 9/2014 (HUD Handbook 4000.1) Ellie Mae, Inc. Page 5 of 13 CAEFHAISDL 0915 CAEDEDL (CLS) O der: Page 5 of 14 Req ested By: pthr tal, Printed 8/28/2019 54 AM Doc: CACONT: 2017 00161753 LOAN #;] form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the Propert Shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Note up to the amount of the outstanding loan balance. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such repair and restora- tion period, Lender shail have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings on such pro- ceeds, Fees for