Document for DISCOVER BANK vs AMY ELIZABETH LENT

Re: Wells Fargo Bank, N.A., v. Jones Superior Court Case No. 21CECG02532 Hearing Date: July 25, 2024 (Dept. 503) Motion: by Plaintiff to Vacate Judgment Tentative Ruling: To grant. The judgment entered against Ken L. Jones on December 04, 2023 is vacated and the complaint is dismissed without prejudice. Explanation: “The law is well settled that ‘(i)f the plaintiff or defendant was dead before the action was begun, the judgment is void and subject to collateral attack, because he Never was a party, i.e., the court never acquired jurisdiction of the person.” (Walter v. National Indem. Co. (1970) 3 Cal.App.3d 630, 634, citations omitted.) “The cases enunciating this rule were concerned with judgments, in which there was a living party of whom the court could have acquired jurisdiction, but of whom it only acquired apparent but not actual jurisdiction because of lack of service of process or unauthorized appearance of an attorney. Because of the death … there was no defendant over whom the court could acquire or exercise jurisdiction.” (Garrison v. Blanchard (1932) 127 Cal.App. 616, 621.) Since defendant passed away on October 23, 2020, which was before this action’s commencement, there was no defendant over whom the court could acquire or exercise jurisdiction. Accordingly, the plaintiff’s motion to vacate the judgment entered against defendant on December 4, 2023, is granted. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: jyh on 7/23/24 . (Judge’s initials) (Date)

No appearances necessary. This is a collections case, as defined in Rule 3.740 of the California Rules of Court, filed on January 12, 2024. A proof of service is filed. Plaintiff must obtain default judgment within 360 days of filing the complaint. (Cal. Rules of Court, Rule 3.740(f).) This matter is continued for further CMC to December 4, 2024 at 1:30 p.m. in Dept 3.

PORTFOLIO RECOVERY ASSOCIATES, LLC VS. COMBEST Case Number: 23CVG-01320 Tentative Ruling on Motion for Judgment on the Pleadings: The present motion is unopposed. This collection case was filed on December 18, 2023. Plaintiff is a debt buyer and sole assignee of an agreement entered into by Defendant on a credit card account with Plaintiff’s predecessor Synchrony Bank. The Complaint alleged causes of action for Account Stated and Open Book Account, with a prayer for $2,523.69 against Defendant Jennifer Combest. Defendant filed her Answer on January 26, 2024. On April 11, 2024, Plaintiff filed a motion to deem matters admitted. Defendant did not oppose the motion to deem matters admitted, and the Court granted the motion on May 13, 2024. Meet and Confer: “The moving party shall file and serve with the motion for judgment on the pleadings a declaration stating” the attempts made to meet and confer. CCP § 439(a)(3). The Declaration of Gregory Parks provides sufficient evidence of Plaintiff’s meet and confer efforts. Request for Judicial Notice: The Court GRANTS Plaintiff’s request for judicial notice of the Court’s May 13, 2024 Order that Matters in Request for Admission be Admitted, pursuant to Evid. Code § 452(d) and 453. Merits of Motion: CCP § 438(c)(1)(A) provides a plaintiff may move for judgment on the pleadings if the complaint states sufficient facts to constitute a cause of action and the answer does not state facts sufficient to constitute a defense to the complaint. The grounds for the motion shall appear on the face of the challenged pleading or from any other matter of which the court may take judicial notice. CCP § 438(d). The Court may take judicial notice of responses to discovery records pursuant to Evidence Code §§ 452(d) and 453. Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485. The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due. Leighton v. Forster (2017) 8 Cal. App. 5th 467, 491. “A ‘book account’ is ‘a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith ....’ ” [Citations.] The creditor must keep these records in the regular course of its business and “in a reasonably permanent form,” such as a book or card file. (Code Civ. Proc., § 337a.) “A book account is ‘open’ where a balance remains due on the account.” [Citation.] Pro. Collection Consultants v. Lujan (2018) 23 Cal. App. 5th 685, 690–91. This Court’s Order, entered May 13, 2024, deemed admitted Plaintiff’s requested admissions 1-9. The admissions establish that: 1) Defendant had a credit account ending in 8363, 2) the credit account was issued by Synchrony Bank, 3) Defendant received periodic statements regarding the account, 4) as of December 18, 2023, the balance owed on the account was $2,523.69, 5) Defendant has not made any payments on the account since December 18, 2023, 6) Defendant submitted a payment toward the outstanding debt on the account within 4 years immediately prior to December 18, 2023, 7) Plaintiff was assigned the debt, 8) Plaintiff is the current owner of the debt, and 9) Defendant received through the US mail a pre-legal notification from Plaintiff regarding the account. Defendant’s admissions establish the required elements of each cause of action. Plaintiff’s Motion for Judgment on the pleadings is GRANTED. The admissions establish that a principal sum of $2,523.69 is due and owing. That sum is awarded. Plaintiffs have also submitted a memorandum of costs for $369.50, comprising the filing and service of this motion. The amount appears reasonable and is awarded. A proposed order and judgment have been lodged with the Court and will be executed.

SUPERIOR COURT OF CALIFORNIA COUNTY OF VENTURA Tentative Ruling 2024CUPT022273: IN THE MATTER OF: LEILA BEHPURIAN 07/26/2024 in Department 21 Motion Hearing on Petition for Release of Property from Lien The morning calendar in courtroom 21 will normally begin between 8:30 and 8:45 a.m. Please arrive at the courtroom no later than 8:30 a.m. The door will be opened before the calendar is called. The Court allows appearances by CourtCall but is not equipped for Zoom. If appearing by CourtCall, call in no later than 8:15 a.m. If you intend to appear by CourtCall, you must make arrangements with CourtCall by 4:00 p.m. the day before your scheduled hearing. Requests for approval of a CourtCall appearance made on the morning of the hearing will not be granted. No exceptions will be made. With respect to the tentative ruling below, no notice of intent to appear is required. If you wish to submit on the tentative ruling you can fax notice to Judge Riley's secretary, Ms. Sedillos at 805-289-8705, stating that you submit on the tentative. You may also email the Court at: Courtroom21@ventura.courts.ca.gov with all counsel copied on the email. Do not call in lieu of sending a fax or email. If you submit on the tentative without appearing and the opposing party appears, the hearing will be conducted in your absence. If you are the moving party and do not communicate to the Court that you submit on the tentative or you do not appear at the hearing, the Court may deny your motion irrespective of the tentative. Unless stated otherwise at the hearing, if a formal order is not signed at the hearing, the prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a), (b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with the court. A "notice of ruling" in lieu of this procedure is not authorized. Tentative Ruling The Court notes that Petitioner Leila Behpourian filed an Amended Verified Petition on June 24, 2024, but that she has not yet filed a proof of service of the Amended Verified Petition on Respondent Fidelity Builders & Design Inc. (“Fidelity”) in the manner required by Civil Code §8486(b). If and only if Petitioner files proper proof of service of the Verified Amended Petition on Fidelity prior to or at the hearing on this matter as indicated above – the Court WILL GRANT Petitioner’s Amended Verified Petition, order the subject Property released from Fidelity’s lien, and award Petitioner reasonable attorney’s fees, with the amount of such fees to determined by way of a post-judgment motion. for the reasons stated below: Civil Code §8484 establishes the requirements for a petition to release a mechanic’s lien: “A petition for a release order shall be verified and shall allege all of the following: 2024CUPT022273: IN THE MATTER OF: LEILA BEHPURIAN (a) The date of recordation of the claim of lien. A certified copy of the claim of lien shall be attached to the petition. (b) The county in which the claim of lien is recorded. (c) The book and page or series number of the place in the official records where the claim of lien is recorded. (d) The legal description of the property subject to the claim of lien. (e) Whether an extension of credit has been granted under Section 8460, if so to what date, and that the time for commencement of an action to enforce the lien has expired. (f) That the owner has given the claimant notice under Section 8482 demanding that the claimant execute and record a release of the lien and that the claimant is unable or unwilling to do so or cannot with reasonable diligence be found. (g) Whether an action to enforce the lien is pending. (h) Whether the owner of the property or interest in the property has filed for relief in bankruptcy or there is another restraint that prevents the claimant from commencing an action to enforce the lien.” Petitioner's Amended Verified Petition filed on June 24, 2024, contains the allegations required in §8484, subdivisions (a) (Amended Verified Petition, ¶5, Exh. A), (b) (id. at ¶5), (c) (id.), (d) (id. at ¶2), (f) (id. at ¶8, Exh. B), (g) (id. at ¶6), and (h) (id. at ¶10) above. Moreover, the Amended Verified Petition also contains the allegations required by §8484(e) above relating to whether an extension of credit has been granted and indicating that the time for commencement of an action to enforce the lien has expired. (Id. at ¶¶5, 6.) Moreover, these allegations appear to be correct. Civil Code §8460(a) establishes the time limits for filing an action on a recorded mechanic's lien where no extension of credit has been granted, providing that: “The claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien. If the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.” Here, the subject Lien was recorded on February 15, 2024, and 90 days from that date is May 15, 2024, a date almost over one month prior to the filing of Petitioner’s Verified Amended Complaint on June 24, 2024. Accordingly, the time to commence an action to enforce the lien has expired. Pursuant to Civil Code §8488, Fidelity has the burden at the hearing on this matter of demonstrating the continuing validity of the Lien. (See Civil Code §8488(a).) In the absence 2024CUPT022273: IN THE MATTER OF: LEILA BEHPURIAN of any evidence from Fidelity demonstrating the validity of the lien, Petitioner is entitled to a judgment releasing the Property from the Lien. (See Civil Code §8488(b).) Additionally, pursuant to §8847(c), “[t]he prevailing party it entitled to reasonable attorney’s fees.” Accordingly, she is entitled to recover her reasonable attorney’s fees, with the amount of such fees to be determined by way of a post-judgment motion.

CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO Case Number: 23CVG-00362 Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the amount of $1,572.75 for each motion. Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by counting backwards from the hearing date but excluding the hearing date. CCP § 12c. Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is denied. Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted. Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or issue sanctions. Without additional evidence, terminating sanctions would be premature. The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the denial. Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is necessary on today’s calendar to discuss available trial dates.

Motion to be Relieved as Counsel for CVPS2305949 LVNV FUNDING LLC vs FINELT HOWARD FINELT Tentative Ruling: This hearing was vacated.

CAPITAL ONE, N.A. VS. WARD Case Number: 23CVG-01215 Tentative Ruling on Motion for Order that Matters in Request for Admission of Truth of Facts be Admitted: Plaintiff Capital One, N.A. seeks an order deeming the truth of matters specified in Plaintiff’s Request for Admissions, Set One. Despite being timely served, Defendant Leah Ward did not file an Opposition. When a party fails to respond to a request for admission, the requesting party may move for an order deeming the genuineness of documents and the truth of matters specified in the requests admitted. CCP § 2033.280(b). Failure to respond also waives any objections to the discovery propounded. CCP § 2033.280(a). Plaintiff’s moving papers sufficiently demonstrate that Defendant has failed to respond to the Request for Admissions within the required time frame. Unlike a motion to compel further responses, a motion to compel responses when no responses have been provided does not require the propounding party to demonstrate good cause or that it satisfied a meet-and-confer requirement. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390. Despite there being no requirement to meet and confer, Plaintiff sent a meet and confer letter to Defendant, through her former counsel, prior to filing the motion. Monetary sanctions are mandatory per CCP 2033.280(c), however, Plaintiff did not seek monetary sanctions and provided no evidence regarding attorney’s fees or other costs associated with bringing the motion. Sanctions should only be imposed for “reasonable” expenses. CCP § 2023.030. The Court does not have information upon which to make a finding that any amount of sanctions were for reasonable expenses and should not impose sanctions. The motion is GRANTED. Defendant is deemed to have admitted as true each of the items contained in Plaintiff’s Request for Admissions, Set One. Objections are waived. Plaintiff provided a proposed Order that will be executed by the Court. The Court confirms the trial date of January 21, 2025.

Matter on the Discovery Calendar for Friday, Jul-26-2024, Line 10, DEFENDANT JASON JONE'S Motion To Deem Facts Admitted. Pro Tem Judge Aaron Minnis, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Granted, no opposition filed. Defendant's Requests for Admission Nos. 1-7 are deemed admitted by Plaintiff. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to aaron@minnisandsmallets.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/JPT)