Preview
Filing # 201927410 E-Filed 07/04/2024 07:04:45 AM
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION: "AG"
CASE NO.: 502024CA006158XXXAMB
WILMINGTON SAVINGS FUND SOCIETY FSB NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLEY IN ITS CAPACITY AS OWNER TRUSTEE FOR CASCADE FUNDING
MORTGAGE TRUST AB2,
Plaintiff/Petitioner
vs.
HILLIARD BURTON SMITH,
UNKNOWN SPOUSE OF HILLIARD BURTON SMITH AKA HILLARD BURTON SMITH,
UNITED STATES OF AMERICA DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
et al.,
Defendant/Respondents.
________________________________________/
ORDER IMPLEMENTING DIFFERENTIATED CASE MANAGEMENT PLAN
DESIGNATING CASE TO THE EXPEDITED TRACK, ORDER SETTING
CALENDAR CALL AND CASE MANAGEMENT CONFERENCE
AND DIRECTING PRETRIAL PROCEDURES
(DCMENT)
THIS MATTER is a Circuit Civil Foreclosure case calling for a non-jury trial.
Accordingly, it is
ORDERED AND ADJUDGED that this case is designated to the EXPEDITED
TRACK to be resolved within eight (8) months from the date of filing. The following
procedures and deadlines will be strictly enforced:
I. SERVICE OF THIS ORDER, ACTIVE CASE MANAGEMENT AND NON-
COMPLIANCE
Plaintiff/Petitioner is directed to serve this Order upon each Defendant/Respondent
with the Initial Complaint/Petition and Summons. The deadlines and procedures set forth
herein are firm and may be modified only upon a showing of a good faith attempt to
comply with the deadlines or demonstration of a significant change of circumstances and
through the process established in the 15th Circuit's Administrative Order 3.110 (as
amended).
The parties are expected to actively manage the case and to confer early and often to
ensure compliance with this order and timely resolution of the case. The parties and
counsel are expected to govern themselves at all times with a spirit of cooperation,
professionalism, and civility. They are expected to accommodate each other whenever
reasonably possible and eliminate disputes by reasonable agreements.
Self- Represented/Pro se litigants (i.e. those without counsel) are held to the same
obligations imposed upon counsel.
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*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 07/04/2024 07:04:45 AM ***
Case No. 50-2024-CA-006158-XXXA-MB
Motions to extend deadlines must be filed prior to the deadline. Untimely motions will be
denied absent compelling circumstances and showing of good cause.
NONCOMPLIANCE WITH THIS ORDER, ABSENT A SHOWING OF GOOD
CAUSE, MAY RESULT IN DISMISSAL OF THE ACTION, THE STRIKING
OF PLEADINGS, WITNESSES, OR EXHIBITS, REMOVAL OF THE CASE
FROM THE DOCKET, DEFAULT OR ANY OTHER APPROPRIATE
SANCTION.
The failure to act in good faith and comply with this order must be reported, if not
resolved through a conference of the parties and good faith conferral, by filing a
"Suggestion of Non- Compliance with Pre- Trial Order" that must be set for hearing in
a timely manner. The Suggestion must name the non-compliant person, describe the act of
non-compliance, be served upon all parties and sent to the Court's chambers. Responses
may only be submitted upon request of the Court. Failure to correct any non-compliance
before the hearing may result in sanctions as described above. The parties will notify the
Court immediately if non-compliance is cured; if cured more than 7 days before the
hearing, the hearing may be cancelled.
All deadlines must be observed unless all defendant(s) have been defaulted and/or
dismissed.
If all defendant(s) are defaulted and / or dismissed, then the Plaintiff shall file the
appropriate documentation and upload the appropriate orders to move the case to final
disposition within thirty (30) days from the date of the last default and /or dismissal. The
case may be set for an Uncontested Summary Judgment Hearing pursuant to the 15th
Circuit's Online Scheduling System. Failure to comply within this timeframe will result in an
order of dismissal without further notice or hearing.
If the case is only requiring fifteen to ninety minutes for trial, the parties may move for an
earlier trial setting by filing a Notice for Trial indicating the estimated time for trial and
emailing a copy to CAD-SRJDTRIALS@PBCGOV.ORG.
II. SCHEDULING AND PRETRIAL DEADLINES
A CASE MANAGEMENT CONFERENCE and CALENDAR CALL will be held
on March 28, 2025. The parties must be ready to try the case by that day. The specific
time for the Case Management Conference, and procedures for conducting Calendar Call
can be found on the Division's webpages at www.15thcircuit.com. The Calendar Call may
be conducted in-person or by e-calendar. Failure to attend Calendar Call may result in an
order to show cause why the case should not be dismissed without prejudice, or default
not entered, without further notice or hearing.
The trial period begins the first business day of the immediately following week after the
above-listed Case Management Conference and Calendar Call, unless otherwise
described in the divisional instructions or by court order.
The following deadlines (discussed in detail below) shall apply unless otherwise
modified by the Court:
EVENTS COMPLETION DATE
October 29, 2024 Service under extension
1. Service of Complaint
is only by court order.
2. Answer filed or default obtained November 18, 2024
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Case No. 50-2024-CA-006158-XXXA-MB
Amendment of pleadings/adding
3. November 28, 2024
parties
Resolution of all motions/objections
4. directed to the pleadings (i.e. motions January 7, 2025
to dismiss or strike)*
5. File Witness and Expert Lists February 11, 2025
6. Close of discovery February 26, 2025
7. File Exhibit Lists March 3, 2025
8. File Joint Pretrial Stipulation March 18, 2025
Deadline to hear Dispositive Motions
9. March 23, 2025
(i.e. Motions for Summary Judgment)
Deadline to hear Pretrial Motions (i.e.
10. March 23, 2025
Motions in Limine)
11. Calendar Call/Trial Ready Date ** March 28, 2025
Fla. R. Gen. Prac. & Jud. Admin. Rule 2.514 governs if any deadlines falls on a
weekend or holiday.
*The parties must expeditiously address any motions directed to the pleadings. Defensive
motions under Rule 1.140 of the Fla. R. Civ. P., motions to extend time to file a defensive
motion or pleading, and any other motion preventing the matter from being at issue shall be
set for hearing within five (5) days of filing. The motion should be scheduled for hearing
at the earliest date that the Court and parties are available.
**The Court reserves the authority to expedite the trial setting and amend the pretrial
deadlines accordingly.
III. UNIFORM PRE- TRIAL PROCEDURE
A. TIMELY SERVICE AND DEFAULTS
Parties must make reasonable efforts to ensure speedy service. Each return of
service must be separately filed for each defendant. If service is not completed
within 90 days, an Order will be issued directing service by the 120 DAY
DEADLINE. Failure to comply will result in dismissal of the case or party for lack
of service. Any motions to extend the deadline for service must specify why
service could not have been effectuated, what is being done to effectuate service
and request only that amount of additional time necessary.
If all defendants become defaulted, a Motion for Default Final Judgment along with
supporting documentation must be filed within 30 days of the last default and set for
hearing at the next available hearing time.
B. WITNESS LISTS
If not already done, each party must file and serve a list of the names and addresses
of all fact and expert witnesses to be called at trial no later than forty- five (45)
days prior to Calendar Call.
C. EXHIBIT LISTS
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Case No. 50-2024-CA-006158-XXXA-MB
No later than twenty- five (25) days prior to Calendar Call, each party shall file
and serve an exhibit list. Each exhibit shall be separately numbered and identified. On
the exhibit list, each party shall provide for a reasonable time, and place for the
other parties to see the exhibits. Each party shall file and serve a list of all objections
to an opposing party's exhibits no later than ten (10) days prior to Calendar Call.
D. DISCOVERY CUTOFF
All discovery must be completed thirty (30) days prior to Calendar Call absent
exceptional circumstances. Rulings as to admission on late discovery will be made
on a case by case basis.
E. MOTIONS
All dispositive motions, motions in limine, deposition objections and expert
challenges must be filed, served and heard at least five (5) days prior to Calendar
Call.
F. COUNSEL MEETING AND PRE-TRIAL STIPULATION
Counsel for the parties shall meet at a mutually convenient time and place no later
than twenty (20) days prior to Calendar Call to discuss settlement, simplify the
issues and stipulate to as many facts and issues as possible, and prepare a Pre-Trial
Stipulation in accordance with this paragraph. This requirement is waived if one party
is not represented by counsel.
It shall be the duty of Plaintiff's counsel to see that the Pre-Trial Stipulation is
drawn, executed by counsel for all parties, and filed no later than ten (10) days
prior to Calendar Call.
UNILATERAL PRE- TRIAL STATEMENTS ARE DISALLOWED
UNLESS APPROVED BY THE COURT AFTER NOTICE AND
HEARING. Counsel(s) for all parties are charged with good faith cooperation in
preparing the Pre-Trial Stipulation.
The Pre-Trial Stipulation shall contain the following in separately numbered
paragraphs:
1. Names and contact information of attorneys to try case.
2. A list of all pending motions requiring action by the Court.
3. A statement of estimated trial time.
4. Statement of the Facts: A concise statement of the facts of the case in an
impartial, easily understandable manner.
5. Stipulated Facts and Agreed Rules of Law: A list of any stipulated facts
requiring no proof at trial and any agreed rules of law.
6. Statements of Disputed Law & Fact: A statement of disputed issues of law
and fact that are to be tried.
7. Witness Lists: Parties must attach their Witness Lists, including "Rebuttal" or
"Impeachment" witnesses. If any party objects to any witness, such objections
must be stated in the Stipulation, setting forth the grounds with specificity. At
trial, all parties will be strictly limited to witnesses properly and timely
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Case No. 50-2024-CA-006158-XXXA-MB
disclosed. Only those witnesses listed by NAME will be permitted to testify
at trial.
8. Exhibit Lists: Parties must attach their Exhibit Lists. All exhibits to be offered
in evidence at trial must have been made available to opposing counsel for
examination. Only those exhibits listed may be offered in evidence. If any
party objects to the introduction of any such exhibit, such objection must be
stated in the Pre-Trial Stipulation, setting forth the grounds with specificity.
All exhibits must be pre-marked and numbered consistent with Clerk's
guidelines:
www.mypalmbeachclerk.com/departments/courts/evidence-guidelines/civil-
evidence.
9. And other agreements or issues for trial, if any.
G. ADDITIONAL EXHIBITS OR WITNESSES
A party desiring to use an exhibit or witness discovered after the deadline date(s)
set above shall immediately furnish the Court and other counsel with a description of
the exhibit or with the witness' name and address and the expected subject matter of
the testimony, together with the reason for the late discovery of the exhibit or
witness.
H. UNIQUE QUESTIONS OF LAW
Counsel shall submit memoranda with citations to legal authority in support of any
unique legal questions which may reasonably be anticipated to arise during the trial.
DONE AND ORDERED at West Palm Beach, Palm Beach County, Florida.
50-2024-CA-006158-XXXA MB 07/04/2024
Lul^*Deiqado Circuit Judqe
50-2024-CA-006158-XXXA-MB 07/04/2024
Luis Delgado
Circuit Judge
A copy of this Order has been furnished to the Plaintiff. The Plaintiff shall serve this Order to the
Defendant(s) in compliance with Administrative Order 3.110 (amended).
This notice is provided pursuant to Administrative Order No. 2.207-7/22
“If you are a person with a disability who needs any accommodation
in order to participate in this proceeding, you are entitled, at no cost to
you, to the provision of certain assistance. Please contact William
Hutchings, Jr., Americans with Disabilities Act Coordinator, Palm Beach
Page 5 of 6
Case No. 50-2024-CA-006158-XXXA-MB
County Courthouse, 205 North Dixie Highway West Palm Beach, Florida
33401; telephone number (561) 355-4380 at least 7 days before your
scheduled court appearance, or immediately upon receiving this
notification if the time before the scheduled appearance is less than 7 days;
if you are hearing or voice impaired, call 711.”
“Si usted es una persona minusválida que necesita algún
acomodamiento para poder participar en este procedimiento, usted tiene
derecho, sin tener gastos propios, a que se le provea cierta ayuda. Tenga la
amabilidad de ponerse en contacto con William Hutchings, Jr., 205 N.
Dixie Highway, West Palm Beach, Florida 33401; teléfono número (561)
355-4380, por lo menos 7 días antes de la cita fijada para su comparecencia
en los tribunales, o inmediatamente después de recibir esta notificación si
el tiempo antes de la comparecencia que se ha programado es menos de 7
días; si usted tiene discapacitación del oído o de la voz, llame al 711.”
“Si ou se yon moun ki enfim ki bezwen akomodasyon pou w ka
patisipe nan pwosedi sa, ou kalifye san ou pa gen okenn lajan pou w peye,
gen pwovizyon pou jwen kèk èd. Tanpri kontakte William Hutchings, Jr.,
kòòdonatè pwogram Lwa pou ameriken ki Enfim yo nan Tribinal Konte
Palm Beach la ki nan 205 North Dixie Highway, West Palm Beach, Florida
33401; telefòn li se (561) 355-4380 nan 7 jou anvan dat ou gen randevou
pou parèt nan tribinal la, oubyen imedyatman apre ou fin resevwa
konvokasyon an si lè ou gen pou w parèt nan tribinal la mwens ke 7 jou; si
ou gen pwoblèm pou w tande oubyen pale, rele 711.”
Page 6 of 6
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Gary Kidgell vs County of Merced
Jul 24, 2024 |
23CV-04276
23CV-04276 Gary Kidgell v. County of Merced
Demurrer by Defendant County of Merced to first, third, fourth, fifth and sixth causes of action in
Second Amended complaint
The Demurrer to the Second Amended Complaint’s First Cause of Action for Cancellation
of a Written Instrument for failure to state a claim not barred by the statute of limitations
is SUSTAINED WITH LEAVE TO AMEND to plead around the statute of limitations.
The Demurrer to the Second Amended Complaint’s Third cause of Action for failure to
allege a fiduciary duty that was breached by the County of Merced is SUSTAINED WITH
LEAVE TO AMEND to state facts establishing a fiduciary duty owed to Plaintiff by the
City of Merced.
The Demurrer to the Second Amended Complaint’s Fourth cause of Action for failure to
allege a statutory basis for liability against the County of Merced is SUSTAINED WITH
LEAVE TO AMEND to state a statutory basis for Plaintiff’s claim.
The Demurrer to the Second Amended Complaint’s Fifth cause of Action for failure
conduct a fraud investigation of recorded documents is SUSTAINED WITH LEAVE TO
AMEND to state fact establishing a duty to conduct an investigation of recorded
documents.
The Demurrer to the Second Amended Complaint’s Sixth cause of Action for breach of
duty is SUSTAINED WITH LEAVE TO AMEND to state fact establishing a duty to breached
by the recording of the subject deed.
Motion to Strike Proofs of Service and Punitive Damages Claims in Second Amended
Complaint by Defendant City of Merced
The Motion to Strike Punitive Damages Claims is GRANTED WITH LEAVE TO AMEND to
state a cause of action and grounds for an award of punitive damages.
The Motion to Strike Proof of Service filed with the Court is DENIED AS MOOT given that
Defendant has made a general appearance in this action by filing a demurrer addressing
the merits of various causes of action therein. (See e.g. Fireman’s Fund Ins. Company v.
Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)
Ruling
FLORIDALMA AGUSTIN, ET AL. VS GARY GILLMAN, AS TRUSTEE OF THE GILLMAN FAMILY TRUST, ET AL.
Jul 29, 2024 |
23STCV11783
Case Number:
23STCV11783
Hearing Date:
July 29, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
FLORIDALMA AGUSTIN,
et al.
,
Plaintiffs,
vs.
GARY GILLMAN,
et al.
,
Defendants.
CASE NO.: 23STCV11783
[TENTATIVE] ORDER RE: PETITIONS FOR APPROVAL OF COMPROMISE OF CLAIM OR ACTION OF DISPOSITION OF PROCEEDS OF JUDGMENT FOR MINOR
Date: July 29, 2024
Time: 9:00 a.m.
Dept. 56
MOVING PARTY:
Plaintiff Floridalma Agustin (Petitioner)
The Court has considered the moving papers.
No opposition papers were filed.
Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (CCP) section 1005, subdivision (b).
BACKGROUND
Petitioner, individually and as guardian ad litem for minor claimants Kayro Jehiel Carranza-Agustin (10); Loida Jocabed Carranza (8); and Elimelec Aliel Carranza-Agustin (4) (collectively, Minor Claimants), and Plaintiff Hugo Adolfo Carranza (collectively Plaintiffs), initiated this action against Defendants Gary Gillman; Debbie Gillman; and Encino Management Services (collectively, Defendants).
This action arises out of a landlord/tenant relationship.
The complaint alleges: (1) breach of warranty of habitability; (2) breach of covenant of quiet enjoyment; (3) negligence; and (4) breach of contract.
Petitioner filed the instant petitions to approve the compromise of disputed claim on behalf of Minor Claimants (collectively, the Petitions).
DISCUSSION
If an action is pending and settlement is effected prior to trial, the minors compromise must be approved by the court.
(CCP § 372.)
A petition to approve a minors compromise is governed by California
Rules of Court
(CRC)
, rules 7.950,
et seq
. and
Probate Code
sections 3500 and 3600
et seq
.
The trial court is authorized to approve and allow payment of reasonable expenses, costs, and attorney fees in an action concerning the compromise of a minors claim.
(Prob. Code, § 3601, subd. (a);
Curtis v. Estate of Fagan
(2000) 82 Cal.App.4th 270, 277-79;
see also
CCP § 373.5.)
Attorneys Fees
Unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney's fees payable from money or property paid or to be paid for the benefit of a minor or a person with a disability.
(CRC, r. 7.955(a).)
The court must give consideration to the terms of the agreement between the attorney and minors representative and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made.
(CRC, r. 7.955(a)(2).)
CRC Rule 7.955(b)(2) sets out nonexclusive factors the court may consider in determining the reasonableness of attorneys fees in connection with a petition for minors compromise.
Under CRC Rule 7.955(c), the petition must include a declaration by the attorney addressing the factors set forth in CRC Rule 7.955(b)(2) that are applicable to the matter that is before the Court.
Here, the Minor Claimants, by and through Petitioner, their guardian ad litem, have agreed to settle their claims against Defendants in exchange for $5,000 each.
Upon approval, $1,250 of each settlement payment will be allocated towards attorneys fees, and $725.61 will be used to reimburse the fees and costs advanced by Plaintiffs' counsel, leaving a balance of $3,024.39 to be disbursed to Petitioner for each minor claimant.
The Court finds that the settlement is fair and reasonable.
Further, the Court considers the requested amount in attorneys fees, which amounts to 25% of each settlement payment, to be fair and reasonable.
For these reasons and because they are unopposed, the Court provisionally GRANTS the Petitions, conditioned on Petitioner appearing (either remotely or in person) at the hearing.
(
Sexton v. Superior Court
(1997) 58 Cal.App.4th 1403, 1410.)
Moving party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 29th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
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YAEL MAGUIRE ET AL VS. EASTWOOD DEVELOPMENT INC. ET AL
Jul 23, 2024 |
CGC23607922
Real Property/Housing Court Law and Motion Calendar for July 23, 2024 line 3. DEFENDANT EASTWOOD DEVELOPMENT INC., LUCAS EASTWOOD, 4028 25TH STREET, LLC DEMURRER TO 1ST AMENDED COMPLAINT is continued to August 23, 2024 on Court's own motion. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
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ATLANTIC MANAGEMENT, LLC VS LOS ANGELES CLINICA MEDICA GENERAL MEDICAL CENTER, INC.
Jul 26, 2024 |
23STCV28108
Case Number:
23STCV28108
Hearing Date:
July 26, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 26, 2024
TRIAL DATE:
NOT SET
CASE:
Atlantic Management LLC v. Los Angeles Clinica Medica General Medical Center, Inc.
CASE NO.:
23STCV28108
MOTION TO CONSOLIDATE
MOVING PARTY
: Defendant Los Angeles Clinica Medica General Medical Center, Inc.
RESPONDING PARTY(S)
: Plaintiff Atlantic Management, LLC
CASE HISTORY
:
·
11/15/23: Complaint filed.
·
05/21/24: Dismissal entered without prejudice as to all parties and all causes of action.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an unlawful detainer action. Plaintiff alleges that Defendant failed to timely vacate the premises after failing to exercise an option to renew or extend the commercial lease agreement between the parties.
Defendant moves to consolidate this action with three other actions.
TENTATIVE RULING:
Defendants Motion to Consolidate is DENIED.
DISCUSSION:
Defendant to consolidate this action,
Atlantic Management LLC v. Los Angeles Clinica Medica General Medical Center, Inc
., Case No. 23STCV28108, with two other unlawful detainer actions with the same title, Case Nos. 23STUD14911 and 24STCV11586, and with the civil action entitled
Los Angeles Clinica Medica General Medical Center Inc. v. Atlantic Management LLC
, Case No. 24STCV13007.
Legal Standard for Consolidation
When actions involving a common question of law or fact are pending before the court, it may order a
joint hearing or trial
of any or all the matters in issue in the actions; it may order
all the actions consolidated
and it may make
such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay
.
(Code Civ. Proc. § 1048(a), bold emphasis added.)
Requests for Judicial Notice
Plaintiff requests that the Court take judicial notice of (1) the Request for Dismissal in this action and (2) the Request for Dismissal in the identically titled action with Case No. 23STUD14911. Plaintiffs request is GRANTED pursuant to Evidence Code section 452(d) (court records).
Procedural Requirements
A motion to consolidate must satisfy the requirements of California Rules of Court Rule 3.350, which provides, in relevant part:
(a) Requirements of motion
(1) A notice of motion to consolidate must:
(A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of
record;
(B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and
(C) Be filed in each case sought to be consolidated.
(2) The motion to consolidate:
(A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered
case;
(B) Must be served on all attorneys of record and all
nonrepresented
parties in all of the cases sought to be consolidated; and
(C) Must have a proof of service filed as part of the motion.
(Cal. Rules of Court Rule 3.350(a).)
Under Los Angeles Superior Court Local Rule 3.3(g), cases must be related into the same department prior to consolidation.
Defendant seeks to consolidate this action,
Atlantic Management LLC v. Los Angeles Clinica Medica General Medical Center, Inc.
, Case No. 23STCV28108, with two other unlawful detainer actions with the same title, Case Nos. 23STUD14911 and 24STCV11586, and with the civil action entitled
Los Angeles Clinica Medica General Medical Center Inc. v. Atlantic Management LLC
, Case No. 24STCV13007.
The moving party has
not
listed the parties who have appeared in each case in the notice of motion, as required by Rule 3.350(a)(1)(A). Defendant merely recites the abbreviated case names with docket numbers for each of the cases at issue. (See Notice of Motion pp.1-2.) The moving party also has
not
listed the names of the respective attorneys of record, as required by Rule 3.350(a)(1)(A). The motion does not contain the
captions
of all the cases sought to be consolidated, as required by Rule 3.350(a)(1)(B), nor has it been filed in any of the other actions as required by Rule 3.350(a)(1)(C). Further, Defendant has neglected to include a proof of service or provide any evidence that the motion was served on
all
attorneys of record and
all
nonrepresented parties in
all
cases, as required by Rule 3.350(a)(2)(B)-(C). Moreover, the other three actions have not been related into this department, as required by Local Rule 3.3(g).
While the parties are identical across the three unlawful detainer actions and have retained the same counsel in all three cases, the civil action (Case No. 24STCV13007) names an additional party, Sergio Gutierrez, as a defendant, who is not accounted for in any of the papers. The Court therefore cannot find that Defendant has complied with the procedural requirements for a motion to consolidate.
CONCLUSION
:
Accordingly, Defendants Motion to Consolidate is DENIED.
Moving
Party
to give notice.
IT IS SO ORDERED.
Dated: July 26, 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
Pacific Gas and Electric Company vs DKM, LLC, et al
Jul 26, 2024 |
24CV47310
24CV47310
PLAINTIFF’S MOTION FOR PRE-JUDGMENT
POSSESSION OF PROPERY
This is an action in eminent domain where Pacific Gas and Electric (“PG&E”) seeks to
take certain property (“Property”) located at 4150 Carson Street, in an unincorporated
area of Calaveras County, near Vallecito, California, also known as Calaveras County
Assessor's Parcel No. 066-025-04. DKM, LLC (“DKM”) is the fee simple interest holder
of the Property. Calaveras County Water District (“District”) and Northern California
Power Agency (“NCPA”) both hold easements on the Property.
PG&E seeks this property for the purpose of replacing and upgrading a tower and
transmission conductor as part of a larger scope of work that involves replacing
approximately 410 existing electrical transmission structures with new steel structures
(referred to as the Project). The Complaint states that the “new tower and conductor
replacement necessitates a wider span of easement to accommodate sway in the
electrical lines to ensure that PG&E's operations fall within its existing easements.”
(Complaint ¶ 6.)
PG&E seeks the following interests (the Easement Interests) in portions of the Property:
a. Plaintiff seeks to modify its existing electric transmission easement rights
in the Owner's real property described in EXHIBIT C, which modified
easement rights are described as STRIP on EXHIBIT and depicted on
EXHIBIT "A-l" and EXHIBIT "B", attached hereto and incorporated herein
as though set forth in full by this reference.
b. PG&E seeks to modify PG&E'S existing electric distribution pole line
easement rights in the Owner's real property described in EXHIBIT C,
which modified distribution easement rights are described in EXHIBIT "A"
and shown on EXHIBIT "A-2, attached hereto and incorporated herein as
though set forth in full by this reference, as STRIP ONE, STRIP TWO,
STRIP THREE, STRIP FOUR, STRIP FIVE, AND STRIP SIX.
c. The right to excavate for, construct, reconstruct, replace, remove,
maintain, inspect, use facilities and associated equipment for public utility
purposes, including but not limited to electric and communication facilities
over and across the lands described in EXHIBIT "C" and shown on
EXHIBIT "C-l" as PG&E shall from time to time deem to be reasonably
required for the transmission and distribution of electric energy, and for
communication purposes within the STRIPS of lands described in
EXHIBIT "A" and shown on EXHIBIT "A-l" EXHIBIT "A-Z".
d. The right of ingress to and egress from the STRIPS of lands as described
in EXHIBIT "A" and shown on EXHIBIT "A-l" EXHIBIT "A-2" over and
across the lands described in EXHIBIT "C" and shown on EXHIBIT "C-l"
by means of roads and lanes thereon, if such there be, otherwise by such
route or routes as shall occasion the least practicable damage and
inconvenience, provided, that such right of ingress and egress shall not
extend to any portion of the lands which is isolated from said STRIPS of
lands by any public road or highway, now crossing or hereafter crossing
said lands.
e. The right from time to time to enlarge, improve, reconstruct, relocate and
replace any facilities constructed with any other number or type of facilities
either in the original location or at any alternate location or locations within
the STRIPS of lands as described in EXHIBIT "A" and shown on EXHIBIT
"A-l" EXHIBIT "A-2".
f. The right, from time to time, to trim or to cut down, without PG&E paying
compensation, any and all trees and brush now or hereafter within the
STRIPS of lands as described in EXHIBIT "A" and shown on EXHIBIT "A-
l" EXHIBIT "A-2", and shall have the further right, from time to time, to trim
and cut down trees and brush along each side of said STRIPS of lands
which now or hereafter in the opinion of PG&E may interfere with or be
hazard to PG&E facilities, or as PG&E deems necessary to comply with
applicable state or federal regulations.
g. The right to use such portion of said said lands contiguous to the STRIPS
of lands as described in EXHIBIT "A" and shown on EXHIBIT "A-l"
EXHIBIT "A-2" as may be reasonably necessary in connection with the
excavation, construction, reconstruction, replacement, removal,
maintenance and inspection of PG&E facilities.
h. The right to install, maintain and use gates in all fences which now cross
or shall hereafter cross the STRIPS of lands as described in EXHIBIT "A"
and shown on EXHIBIT "A-l" EXHIBIT "A-2". I. The right to mark the
location of the STRIPS of lands as described in EXHIBIT "A" and shown
on EXHIBIT "A-l" EXHIBIT "A-2" by suitable markers set in the ground.
Plaintiff also seeks the enjoin the owner from:
a. Placing or constructing any building or other structures, storing flammable
substances, drill or operate any well, constructing any reservoir or other
obstruction, diminishing or substantially adding to the ground level within
the STRIPS of lands as described in EXHIBIT "A" and shown on EXHIBIT
"A-l" EXHIBIT "A-2", or construct any fences that will interfere with the
maintenance and operation of PG&E facilities.
b. Depositing or allowing to be deposited, earth, rubbish, debris or any other
substance or material whether combustible or noncombustible within the
STRIPS of lands as described in EXHIBIT "A" and shown on EXHIBIT "A-
l" EXHIBIT "A-2", which not or hereafter in the opinion of PG&E may
interfere with or be hazard to the PG&E facilities installed.
Now before the Court is PG&E’s motion for prejudgment possession of the Property.
NCPA has filed a timely opposition to the motion. On July 9, 2024, DKM filed a notice of
joinder in NCPA’s opposition. The notice of joinder was filed more than thirty days after
PG&E’s notice of its intent to seek prejudgment possession. Pursuant to Code of Civil
Procedure (“CCP”) § 1255.410(d), all defendants needed to oppose the motion within
30 days of April 4, 2024. As DKM’s notice of joinder was untimely, NCPA’s opposition is
the only one that will be considered by the Court.
I. Legal Standard and Analysis
Under Code of Civil Procedure section 1255.410, a moving party may seek immediate
possession of the property to be taken or condemned. Where the motion for immediate
possession is opposed, as in this case, the Court may order prejudgment possession
after a hearing on the motion if the Court finds each of the following: 1) The plaintiff is
entitled to take the property by eminent domain; 2) The plaintiff has deposited an
amount that satisfies the legal requirements; 3) There is an overriding need for the
plaintiff to possess the property prior to the issuance of final judgment in the case, and
the plaintiff will suffer a substantial hardship if the application for possession is denied or
limited and 4) The hardship that the plaintiff will suffer if possession is denied or limited
outweighs any hardship on the defendant or occupant that would be caused by the
granting of the order of possession. (Code Civ. Proc. §1255.410(d)(2).)
Plaintiff claims all four necessary elements for prejudgment possession are satisfied.
A. Entitled to Take Property By Eminent Domain
Generally, to establish entitlement to take property for a project, a plaintiff must
establish, all of the following: (a) the public interest and necessity require the project, (b)
the project is planned or located in the manner that will be most compatible with the
greatest public good and the least private injury; and (c) the property sought to be
acquired is necessary for the project.” (Code of Civil Procedure section 1240.030.)
In support of its claim that it is entitled to take the property by eminent domain, PG&E
provides the declaration of Sanjeev S. Bhatawadekar, who is a Senior Consulting
Project Manager for PG&E. (Declaration of Sanjeev S. Bhatawadekar (“SB Decl.” ¶ 4.)
Mr. Bhatawadekar oversees the implementation of complex transmission system
projects. (Ibid.) According to Mr. Bhatawadekar, the Project is part of PG&E’s goal of
improving and enhancing the safety of its operations and the reliability of utility service
because they are upgrading and replacing hundreds of transmission structures. (Id. ¶
8.) The Project is necessary in order for PG&E to continue providing safe and reliable
electric service the public. (Id. ¶10.) Mr. Bhatawadekar further states that there is little
risk of private injury because there are no residences within the easement area and any
risk to grazing livestock will be mitigated. (Id. ¶ 13.) Finally, Mr. Bhatawadekar states
that the location has been chosen because PG&E already has existing structures in that
area. (Id. ¶ 9.) The Project only needs “a wider span of easement to accommodate
overhead sway in the electrical lines to ensure PG&E's operations fall within its existing
easements.”(Ibid.).
In opposition, Defendants argue that PG&E has failed to meet this first required element
because Plaintiff has not made a showing that it is entitled to take the property by
eminent domain as a compatible use with the Defendants’ existing public use. (Code
Civ. Proc. §1240.520). Pursuant to section 1240.510:
Any person authorized to acquire property for a particular use by eminent
domain may exercise the power of eminent domain to acquire for that use
property appropriated to public use if the proposed use will not
unreasonably interfere with or impair the continuance of the public use as
it then exists or may reasonably be expected to exist in the future.
Pursuant to section 1240.520, if it is established that the property is appropriated to
public use, the Plaintiff has the burden of proof that its proposed use satisfies the
requirements of Section 1240.510. Defendants argue PG&E acknowledges that the
Property is already appropriated to public use and that Plaintiff has failed to bear its
burden of showing that it the proposed use will not “unreasonably interfere with or
impair the continuance” of the Defendants’ current public use. Defendants argue that
Mr. Bhatawadekar’s conclusory statement that “PG&E has no evidence or reason to
believe that early possession will unreasonably displace or affect anyone in lawful
possession of the Property” (SB Decl. ¶ 13) is insufficient.
In support of its opposition, NCPA submits the declaration of Jake Eymann who is
employed by NCPA as the Hydroelectric Manager. (Declaration of Jake Eymann
(“Eymann Decl.”) ¶ 1.) NCPA acquired the generation tie line at issue in this case in
1988. (Id. ¶ 3.) Mr. Eymann declares:
NCPA operates the Collierville & Spicer Meadow Transmission Line
Project (Federal Energy Regulatory Commission [FERC] No. 11197,
"Collierville TL Project"). NCPA's rights are "project property" under
NCPA's FERC license for the Collierville TL Project, which comprises the
primary transmission lines that connect CCWD's North Fork Stanislaus
River Hydroelectric Project (FERC No. 2409) to the California Independent
System Operator (CAISO) controlled grid. NCPA must protect its rights,
use, and ability to operate and maintain the Collierville TL Project to
ensure compliance with its FERC license and to ensure its line remains
safe and operational.
Mr. Eymann further submits photos that show that PG&E’s and NCPA’s lines are near
each other on the Property. (Eymann Decl. ¶ 4, Ex. A.). Finally, Mr. Eymann avers that
based on the information provided by PG&E, “I am unable to conclude that PG&E's
Project and proposed easement will not interfere with or impact NCPA's operation and
maintenance of the Collierville TL Project.” (Id. ¶ 5.) NCPA argues that until PG&E can
establish compatibility with NCPA’s uses, the motion for prejudgment possession must
be denied. However, Mr. Eymann does not state any specific concerns about how
PG&E’s proposed Project would impact NCPA’s existing public use nor how it could
impact its FERC compliance.
In Reply, PG&E details the extensive communication between itself and NCPA
regarding the Project. In April of 2021, PG&E and NCPA entered into confidential,
nondisclosure agreements (NDA) to provide free and full disclosure of information by
PG&E to NCPA and NCPA's technical representatives about the Project. (Declaration of
Randy Kihara (“Kihara Decl.”) ¶ 5.) Over the ensuing months and years, PG&E provided
NCPA with specific information and drawings of the Project for NCPA’s review. (Id. ¶ 6.)
In April of 2024, PG&E and NCPA entered into another NDA to allow NCPA to “review
all technical engineering and electrical transmission aspects of the project.” (Id. ¶ ¶ 7,
9.) When NCPA raised concerns about whether there were sufficient clearances
between the varying structures, PG&E provided information which it believed had been
accepted as sufficient to show there would be no interference with NCPA’s lines. (Id. ¶ ¶
10-11.) Specifically, PG&E’s lines after the Project “will not extend beyond the boundary
of PG&E’s existing easement at rest conditions (no wind). Even with maximum
calculated sway conditions, PG&E’s lines will not come into physical contact with
NCPA’s lines.” (Id. ¶ 14.)
NCPA also argues NCPA is federally mandated to protect the property rights of a
FERC-licensed project. (Opposition p. 4.) NCPA states that NCPA is thus required to
seek prior FERC approval of any transfer of “project property” via condemnation. NCPA
further argues that FERC would not likely transfer its property rights to PG&E and even
if the Court ordered such transfer, FERC would condemn the rights back from PG&E
pursuant to its federal eminent domain powers. Accordingly, NCPA argues that this
would be an ultimate waste of judicial resources.
In Reply, PG&E points out that over the months and years of discussing this Project,
NCPA has never raised any concerns about its FERC-license. Further, it is unclear how
the Project would impact FERC’s property interests. PG&E already has a concurrent
easement on the Property. (Declaration of Trevor R. LaTurner (“LaTurner Decl.”) ¶ 5,
Ex. 1.) This easement preceded NCPA’s easement. (Id. ¶ 7, Ex. 3.) PG&E’s easement
specifically states that it has authority to enter the property to maintain, operate, repair
or reconstruct the transmission lines. (Id., Ex. 1.)
PG&E has sufficiently met it’s burden to show that its proposed use will not
unreasonably interfere with or impair the continuance NCPA’s use as it then exists or
may reasonably be expected to exist in the future. Accordingly, PG&E has
demonstrated that it is entitled to take the property by eminent domain.
B. Plaintiff’s Deposit
Under Section 1255.010(a), PG&E is required to deposit “the probable amount of
compensation, based on an appraisal, that will be awarded in the proceeding.” Here,
PG&E states that it has deposited with the State Condemnation Deposit Fund “probable
just compensation for the easement rights being acquired.” (SB Decl. ¶ 10.) According
to the declaration of appraiser Michelle Patton, the just compensation for the Property is
$12,300.00. (Declaration of Michelle Patton ¶ 6, Ex. A.)
NCPA does not object to the amount of the deposit.
C. Whether Plaintiff has demonstrated overriding need and substantial
hardship.
PG&E argues it has an overriding need to take the Property immediately and begin its
Project because it is a “priority project” for PG&E. (BS Decl. ¶ 11.) PG&E argues that
construction at this location and other Project locations “must be planned, coordinated
and implemented (as to materials, workers, equipment, securing necessary permit(s),
etc.) in an orderly fashion.” (Id. ¶ 11.) PG&E further argues that any delay in obtaining
possession of the Property “may result in major delays with completion of this part of the
Project and other segments of the Project.” (Id. ¶12.)
NCPA does not address PG&E’s arguments about overriding need and substantial
hardship. The Court finds the PG&E has demonstrated an overriding need to begin the
Project.
D. Balancing of the hardships between Plaintiff and Defendants.
PG&E argues that NCPA will not suffer any hardships if the motion is granted because
prejudgment possession will not “displace or unreasonably affect any person in actual
and lawful possession of the subject property interests being acquired.” (MPA p. 6.) In
contrast, PG&E states that without prejudgment possession it cannot plan and finalize
contracts, materials, and personnel and the delayed project could cause “great expense
and potential harm to PG&E and the public at large.” (Ibid.)
The Court finds that PG&E has demonstrated that its hardships will outweigh any
hardships to others.
The Motion for Prejudgment Possession is GRANTED. The parties are ordered to
come to the hearing prepared to discuss whether they can reach an agreement on
the terms and conditions pursuant to CCP section 1240.530 or whether the Court
will need to fix the terms and conditions.
Ruling
Joshua Delage et al. vs Mark Alan Wall et al.
Jul 26, 2024 |
STK-CV-URP-2023-0012309
On the court’s own motion, the Plaintiff's (1) Motion to Compel Further Responses to Form Interrogatories and Sanctions and (2) Motion to Compel Further Responses to Requests for Admissions are CONTINUED to August 1, 2024 at 9:00 am in Dept. 10B. No further briefing allowed. Blanca A. Bañuelos Judge of the Superior Court of California
Ruling
Hull, et al. vs. The Cadle Company, et al.
Jul 24, 2024 |
22CV-0200159
HULL, ET AL. VS. THE CADLE COMPANY, ET AL.
Case Number: 22CV-0200159
Tentative Ruling on Order to Show Cause Re Sanctions: An Order to Show Cause Re:
Sanctions (“OSC”) issued on May 17, 2024, to Plaintiffs James Hull and Shirley Hull for failure
to abide by California Rule of Court 3.110. Defendant Tri Counties Bank was amended into the
Complaint on January 24, 2024. There has been no summons issued for Tri Counties Bank, and
they have not been served. The matter is not at issue. No response to the OSC has been filed.
Plaintiff remains in violation of CRC 3.110. Sanctions will be imposed in the amount of $250.
The clerk is instructed to prepare a separate Order of Sanctions. The Court confirms today’s
review hearing set for 9:00 a.m.
Ruling
Parkash Pabla et al. vs Gursharn Pabla et al.
Jul 25, 2024 |
20CV-03476
20CV-03476 Parkash Pabla et al. v. Gursharn Pabla, et al.
Motion By Defendant Dual Arch International Inc. for Prevailing Party Attorney’s fees of
$136,421.03 pursuant to CCP § 1717 on Breach of Contract Claim
Remittitur was issued on July 15, 2024 returning jurisdiction to this court and
establishing that the Court of Appeal Opinion filed May 14, 2024 is now final. That
Opinion affirmed this Court’s May 9, 2023 Order adopting the tentative ruling issued on
April 25, 2023 granting the motion to tax costs and providing: “Attorney’s fees claimed
(Item 9) are not provided for by statute or contract and are therefore not permissible
costs.” The Court of Court of Appeal opinion addressed each argument that one or more
documents in the case established a right by which Plaintiffs could obtain attorney’s fees
against Defendant Dual Arch International, Inc. and found that there was no legal basis to
support a right to attorney’s fees by Plaintiffs against Defendant Dual Arch. That there is
no contractual basis for an award of attorney fees by Plaintiffs against Dual Arch is now
the law of the case and binding on all the parties.
Defendant Dual Arch now seeks an award of $136,421.03 on the grounds that it is the
prevailing party by defeating a contract claim for attorney’s fees pursuant to a non-
existant contract. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128-129; Pacific
Custom Pools v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1268; Linear
Technology Corp. v. Tokyo Electron Ltd. (2011) 200 Cal.App.4th 1527, 1538; M. Perez Co.
Inc. v. Base Camp Condominium Assn. No. One (2003) 111 Cal.App.4th 456, 466;
International Billing Services, Inc. Emigh (2000) 84 Cal.App.4th 1175, 1178-1179.) The gist
of that argument is while there was no right to attorney’s fees before Plaintiffs brought,
appealed, and ultimately lost their motion for attorney’s fees based on contract, such
motion, appeal and loss created Defendant Dual Arch’s right to attorney’s fees as
prevailing party on an unsuccessful contract claim for attorney’s fees by Plaintiffs due
to the mutuality requirements of CCP § 1717.
Controlling Case Law supports the position of Defendant Dual Arch and is contrary to
the argument raised by Plaintiffs in opposition. Accordingly this Court finds that
Defendant Dual Arch is the prevailing party on the Attorney’s fee claim, that it is entitled
to an award of prevailing party attorneys fees pursuant to CCP § 1717 notwithstanding
the fact that the law of the case establishes that no applicable contract privudes a right
to attorney’s fees, and that the claim for attorney’s fees of $136,421.03 is reasonable
under the circumstances of this case. .
Order to Show Cause re Entry of Proposed Judgment
There having been no response to this Court’s Order to Show Cause why the proposed
judgment following by Plaintiffs and Cross-Defendants Jaswinder Kaur and Parkash
Pabla on the Cross-Complaint, that judgment is approved and will be signed by the
Court.