Document for Elliots LP vs Willie Sims

MSC22-00125 CASE NAME: AGAPITO VS. NACELLI *HEARING ON MOTION IN RE: NOTICE OF MOTION AND MOTION TO EXPUNGE LIS PENDENS FILED BY: *TENTATIVE RULING:* Before the Court is Defendant Tina Paclebar’s Motion to Expunge Lis Pendens. Factual Background Plaintiffs allege that they met with Defendant Joseph Nacelli in July 2009 to discuss their desire to purchase real property located at 761 Mariposa Ave. in Rodeo, California (“Property”). As Plaintiffs did not qualify for a mortgage, they wanted to have Defendant Nacelli hold title to the Property in trust for them. At that time, Mr. Nacelli was living rent-free with Plaintiffs. In return, Plaintiffs agreed they would make the down payment for the Property and pay all costs related to the Property, including property taxes, insurance, and maintenance and repair costs. Defendant Nacelli agreed to these terms. On July 1, 2009, title to the Property was transferred to Mr. Nacelli, per the terms of the above agreement. Plaintiffs used Josephine Agapito’s sister, Elizabeth Monsanto, as their real estate agent. Plaintiffs, not Mr. Nacelli, paid into escrow the down payment for the Property. Since that time, SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 Plaintiffs have paid the mortgage, paid for all upkeep of the Property, and have rented the Property to family members of Plaintiff Arnel Agapito. Mr. Nacelli never moved into the Property, but instead continued to live rent-free with Plaintiffs until 2017 when he voluntarily moved out. Mr. Nacelli admits he never paid any expenses related to the Property, nor had anything to do with maintaining the Property. However, in December 2021, Mr. Nacelli sold the Property to Defendant Tina Paclebar – without consulting with or informing Plaintiffs. Defendant Paclebar is the long-term domestic partner of Defendant Jane Nacelli – who is Plaintiff Josephine Agapito’s (and Defendant Joseph Nacelli’s) sister. Ms. Paclebar has been considered ‘part of the family’ to the Agapito’s for over 15 years. She has been invited to family holidays and events. The Property was never put up for sale to the general public. Instead, the Property was sold to Ms. Paclebar for $365,000. The closing statement for the sale, however, indicates that Mr. Nacelli ‘gifted’ $154,163.43 of that amount to Ms. Paclebar. Plaintiffs filed the instant lawsuit on January 24, 2022. They allege a number of causes of action against Mr. Nacelli, including fraud and breach of fiduciary duty. They also allege causes of action aimed at nullifying the sale of the Property, including quiet title, constructive trust, and fraudulent conveyance. Plaintiffs allege that Ms. Paclebar knew, or should have known, that Mr. Nacelli was not the rightful owner of the Property, and was not authorized to sell it. Ms. Paclebar contends she is a bona fide purchaser of value for the Property, and had no knowledge of the alleged agreement between Plaintiffs and Mr. Nacelli. Legal Standard “[A] lis pendens is recorded by someone asserting a real property claim, to give notice that a lawsuit has been filed which may, if that person prevails, affect title to or possession of the real property described in the notice.” (Federal Deposit Ins. Corp. v. Charlton (1993) 17 Cal.App.4th 1066, 1069, citing CCP §§ 405.2, 405.4, 405.20.) Under Code Civ. Proc. § 405.30, at any time after a notice of pendency of action has been recorded, any party with an interest in the real property may apply to the Court to expunge the notice. “The expungement statutes provide that a lis pendens may be expunged on three grounds: (1) ‘the pleading on which the notice is based does not contain a real property claim’ (Code Civ. Proc., § 405.31); (2) ‘the claimant has not established by a preponderance of the evidence the probable validity of the real property claim’ (Code Civ. Proc., § 405.32); or (3) ‘adequate relief can be secured to the claimant by the giving of an undertaking’ (Code Civ. Proc., § 405.33).” (Carr v. Rosien (2015) 238 Cal.App.4th 845, 857.) Probable validity is met when the Plaintiff establishes her claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.) The party prevailing on an expungement motion must be awarded reasonable attorney fees and costs incurred in making or opposing the motion unless the court finds the other party acted with “substantial justification” or that other circumstances make the imposition of attorney fees and costs “unjust.” (Code Civ. Proc., § 405.38.) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 Overview of Issues and Arguments Real Property Claim Initially, it is uncontested that Plaintiff’s complaint involves a real property claim. Those claims include the claims for quiet title, constructive trust, and fraudulent conveyance. Probable Validity of Plaintiff’s Claims Next, the Court considers the merits of the claim. “‘ “If the claimant does plead a real property claim, but the claim pleaded has no evidentiary merit, the lis pendens must be expunged upon motion under [Code of Civil Procedure §] 405.32.” ’ [Citation.]” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 475; see also Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1011-1012.) Under section 405.32, “the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” “Probable validity” means “it is more likely than not that the [plaintiff] will obtain a judgment against the defendant on the claim.” (Code of Civil Procedure §405.3.) Plaintiff again has the burden on this issue and must present evidence showing it is likely to prevail on the real property claim. Defendant’s Position Defendant argues that she is a bona fide purchaser for value of the Property. “A bona fide purchaser for value “is one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings.” (Melendrez v. D & I Investments, Inc. (2005) 127 Cal.App.4th 1238, 1250 quoting Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 442.) “The elements of bona fide purchase are payment of value, in good faith, and without actual or constructive notice of another’s rights.” (Id. at 1251 citations omitted.) “Thus, the two elements of being a BFP are that the buyer (1) purchase the property in good faith for value, and (2) have no knowledge or notice of asserted rights of another.” (Ibid.) “The first element does not require that the buyer’s consideration be the fair market value of the property (or anything approaching it.) [citation] Instead, the buyer need only part with something of value in exchange for the property.” (Ibid.) “The second element required to establish BFP status is that the buyer have neither knowledge nor notice of the competing claim.” (Ibid.) Defendant presents evidence that the recorded grant deeds for the Property showing title transferred to Joseph Nacelli on July 1, 2009, and then from Mr. Nacelli to Defendant Tina Paclebar on December 17, 2021. (Brink Decl. Exs. A-B.) There are no other recorded documents showing any other ownership interest in the Property by any other person, including Plaintiffs. In addition, when Defendant Paclebar purchased the Property Mr. Nacelli executed the purchase agreement as well as a Homeowner’s Policy of Title Insurance Affidavit. (Paclebar Decl. Exs. A-B.) By executing these documents, Mr. Nacelli warranted that he was the owner of the Property and was unaware of any SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 liens or encumbrances on the Property. Defendant Paclebar also submits a declaration which states that, prior to the close of escrow, she “was never informed either verbally or in writing, that Joseph Nacelli did not have authority to sell me the Property, or that there was a verbal agreement between Joseph Nacelli and Plaintiffs concerning ownership of the Property.” (Paclebar Decl. ¶ 10.) Thus, Defendant argues, that as the recorded documents only showed the Mr. Nacelli owned the Property, Mr. Nacelli indicated in multiple documents that he was the owner, and Mrs. Paclebar claims that she was never informed of any claims of ownership of the Property by Plaintiffs, she is a bona fide purchaser for value. Plaintiffs’ Position Plaintiffs dispute the claim that Ms. Paclebar had no knowledge of the arrangement they had with Mr. Nacelli regarding their true ownership of the Property and the fact that Mr. Nacelli was merely holding title on their behalf. They present evidence that Mr. Nacelli confirms that he was merely holding title in their name, and that he never paid any money for the Property and had no real connection to the Property. Mr. Nacelli testified as much: Q. So you never paid a cent for the Mariposa property; is that accurate? A. Yes. Q. And you never lived there; is that correct? A. Yes, that’s correct. Q. And you never received any income from the property; is that correct? A. Yes, that’s correct. Q. You merely put your name on the title for the plaintiffs; is that correct? A. Yes, that’s correct. … (Nacelli Depo. at 42:13-23.) Thus, Mr. Nacelli was aware that when he put the Property into his name, he was not doing so as the ‘real’ or equitable owner, but was only the named or ‘paper’ title owner holding the Property on behalf of Plaintiffs. Plaintiffs acknowledge that Mr. Nacelli asserts that Plaintiffs breached the above agreement – apparently by allowing the Property to go into foreclosure on two occasions. (Nacelli Depo. 42:21-48:4.) There were discussions between the parties during this time, and Plaintiffs eventually fixed the foreclosure issues. (Ibid.) Since Plaintiffs addressed the issues, and ultimately started making all necessary payments on the Property again, Mr. Nacelli confirmed he was continuing to hold title to the Property on behalf of Plaintiffs: Q. And then because they fixed [the foreclosure issues], you continued to hold title in your name but for [Plaintiffs] Josephine and Arnel; is that correct? A. Yes. (Nacelli Depo at 48:5-8.) Plaintiffs also dispute the claim that Ms. Paclebar had no knowledge of the above agreement, or the SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 fact that Plaintiffs were the owners-in-fact of the Property. While not technically a part of the family, Plaintiffs explain that Ms. Paclebar has been treated as such for over 15 years. She has been the long- term partner of Jane Nacelli – the sister of Joseph Nacelli and Plaintiff Josephine Agapito. (Arnel Agapito Decl. ¶ 2.) She has visited Plaintiffs’ house on numerous holidays over the years. (Id. ¶ 14.) Plaintiffs make clear that during these get togethers, both Plaintiffs specifically told Ms. Paclebar that they owned the Property. (Ibid.) Specifically, Arnel Agapito’s declaration states: “During these family get-togethers, on more than one occasion, my wife and I told Defendant Tina Nacelli that we owned the Mariposa Property.” (Agapito Decl. ¶ 14.) Defendant’s Reply On Reply, Defendant refutes a number of the key statements in Mr. Agapito’s declaration – by citing to Mr. Agapito’s own deposition testimony. First, Defendant disputes the claim that Mr. Agapito had an agreement (or personally knew about and agreement) with Mr. Nacelli wherein he would be named the owner of the Property but would hold title for the benefit of Plaintiffs. Second, Defendant challenges the claim that Mr. Agapito told Defendant Paclebar about this alleged agreement. Specifically, with regard to supposed agreement between Plaintiffs and Mr. Nacelli, Mr. Agapito testified at his deposition as follows: Q. We touched on this earlier, but you personally never had a verbal agreement with Joseph [Nacelli] regarding him being on title to the Mariposa property to be held in trust for you or your wife; true? A. True. Q. If there was such a conversation, it was between your wife and Joseph; right? A. If -- if there was, it would be between Joseph and my wife. Yeah. (Agapito Depo. at 36:25-37:8.) Defendant contends the above testimony undermines the statements in the Agapito Declaration which state that Mr. and Mrs. Agapito had conversations with Mr. Nacelli regarding the arrangement and that Mr. Agapito has direct knowledge of the agreement. (See Agapito Decl. ¶¶ 4-7.) Defendant also takes issue with the declaration’s statement that “my wife and I told Defendant Tina Nacelli (sic) that we owned the Mariposa Property.” (Agapito Decl. ¶ 14.) Defendant points out that Mr. Agapito’s deposition testimony is just the opposite: Q. Did you ever personally ever tell Tina that your wife and Joseph had reached a verbal agreement concerning the Mariposa property? A. No. … Q. Right. My question is a little more to the point. How do you know what Tina knows regarding any agreement between Joseph and your wife regarding any agreement between Joseph and your wife regarding the Mariposa property? How do you know SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 that? A. I don’t know. Q. You don’t know; right? A. I don’t know. I’m just speculating. (Agapito Depo. at 39:24-40:2; 68:1-7.) More specifically, Mr. Agapito testified at deposition that he “never had any conversation to -- to Tina regarding the property.” (Id. at 79:13-21.) Thus, Mr. Agapito testified at deposition that (1) he never had an agreement with Mr. Nacelli, (2) he can only speculate that Mrs. Agapito had an agreement with Mr. Nacelli, and (3) he never spoke to Mrs. Paclebar regarding that alleged agreement. Defendant also submits deposition testimony from Mr. Nacelli confirming that he never told Defendant Paclebar that he was not the true owner of the Property. (Nacelli Depo. at 31:22-32:15.) Essentially, on reply Defendant refutes any argument that she had any actual notice of the allege agreement between Plaintiffs and Mr. Nacelli regarding title to the Property. Analysis As noted above, there is no dispute that Plaintiffs’ complaint alleges real property claims. Thus, the focus of the Court’s inquiry relates to whether Plaintiffs has established by a preponderance of the evidence the probable validity of the real property claim. (Cal. Code Civ. Proc. § 405.32.) It is undisputed that the recorded chain of title for the Property indicates that Mr. Nacelli was the owner of the Property from July 1, 2009 until December 17, 2021, when title was transferred to Defendant Paclebar. Plaintiffs’ general theory of their case is that Mr. Nacelli was holding the Property in trust for them, and that Defendant Paclebar knew this to be the case. They allege a number of different causes of action which all rely upon this general theory. Plaintiffs have presented evidence that Mr. Nacelli did not actually own the Property, but was merely holding title in his name for the benefit of Plaintiffs. In fact, Mr. Nacelli admitted as much during his deposition. While Mr. Nacelli testified that he ‘believed’ that Plaintiffs’ breached their agreement – he also testified that they fixed any breach by remedying the foreclosure proceedings and continuing to make payments on the mortgage. (Nacelli Depo at 48:5-8, quoted above.) Even if there were some time limit discussed as to when Plaintiffs would transfer title into their name, there is no explanation as to why any breach of that term would result in actual title of the Property being conveyed to Mr. Nacelli. While Defendant cites to the representations made by Mr. Nacelli in, for example, the Homeowner’s Policy of Title Insurance Affidavit that he was the true ‘owner’ of the Property, Plaintiffs allege fraud and breach of fiduciary duty causes of action against Mr. Nacelli that address these representations. Mr. Nacelli’s own testimony appears to undermine his representations made in these documents. While this evidence supports their claims against Mr. Nacelli, the main focus of the instant motion SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 relates to what Defendant Paclebar was aware of – or should have been aware of. Plaintiffs evidence regarding Defendant Paclebar’s knowledge of the agreement between Plaintiffs and Mr. Nacelli appeared convincing on first blush. Plaintiffs show that Defendant Paclebar is not a distant third-party to parties to this litigation. While she is not legally a member of the family, she has been the long-term partner of the sister of the two main parties to the agreement – i.e. Plaintiff Mrs. Agapito and Defendant Nacelli. She has attended numerous family holidays over the years. Mr. Agapito, in his declaration in support of the opposition, affirmatively states that “my wife and I told Defendant Tina Nacelli (sic) that we owned the Mariposa Property,” during these family events. That statement, however, turns out to be false. As outlined above, Mr. Agapito testified in his deposition that (1) he personally did not have an agreement with Mr. Nacelli regarding taking title to the Property for the benefit of Plaintiffs, (2) he had no personal knowledge about any such agreement between his wife and Mr. Nacelli, and (3) he never personally told Defendant Paclebar that such an agreement existed. The statements in Mr. Agapito’s declaration were the sole basis for evidencing that Ms. Paclebar had knowledge of the alleged agreement between Plaintiffs and Mr. Nacelli. “But a declaration may not contradict factual admissions made in a deposition.” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 419 fn. 4 citations omitted.) As courts have made clear, in the context of summary judgment motions, a “party cannot evade summary judgment by submitted a declaration contradicting his own prior deposition testimony.” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120 citations omitted; see also Best Rest Motel, Inc. v. Sequoia Ins. Co. (2023) 88 Cal.App.5th 969, 708-09, citing Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12 [“A party cannot create a triable issue of fact by providing a declaration that contradicts its prior deposition testimony.”]) The rationale behind this rule applies in the current situation. It is notable that Plaintiffs failed to submit a declaration by Mrs. Agapito – who Mr. Agapito indicates was the party that allegedly had conversations with Mr. Nacelli and Mrs. Paclebar regarding the Property. Instead, they attempt to have Mr. Agapito’s declaration evidence Mrs. Agapito’s knowledge. It is clear from Mr. Agapito’s deposition testimony, however, that he does not have personal knowledge of any agreement with Mr. Nacelli, nor of any discussions with Ms. Paclebar regarding this alleged agreement. “A bona fide purchaser for value “is one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings.” (Melendrez, supra, 127 Cal.App.4th at 1250.) Plaintiffs have failed to provide any admissible and credible evidence showing that Mrs. Paclebar had any knowledge of the alleged agreement between Mr. Nacelli and Mrs. Agapito regarding the Property. As for paying value, Plaintiffs concede that the Property was sold for $365,000, and that Ms. Paclebar paid approximately $211,000 after the gift from Mr. Nacelli of roughly $154,000. They contend, without evidence, that this is ‘below market.’ Even if that is the case, a bone fide purchaser “need SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 2 SITTING IN 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 07/19/2024 only part with something of value in exchange for the property,” and that amount need not “be the fair market value of the property (or anything approaching it.)” (Melendrez, supra, 127 Cal.App.4th at 1251.) Under section 405.32, “the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” “Probable validity” means “it is more likely than not that the [plaintiff] will obtain a judgment against the defendant on the claim.” (Code of Civil Procedure §405.3.) Based on the above, the Court finds that Plaintiffs have failed to meet their burden. As such, Defendant Paclebar’s motion to expunge the lis pendens is granted. Attorney Fees California Code of Civil Procedure section 405.38 provides: The court shall direct that the party prevailing on [a motion to expunge a lis pendens] be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust. Plaintiff contends that their recording of the lis pendens was not frivolous and as such attorney’s fees and costs should be denied, citing a couple of unpublished federal district opinions. (Opp. at 12:25- 13:4.) Such decisions are “neither binding nor controlling on matters of state law.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 175.) Plaintiffs have made no showing that they ‘acted with substantial justification.’ Instead, it appears to be quite the opposite. Plaintiffs’ opposition relies upon statements in Mr. Agapito’s supporting declaration, made under penalty of perjury, which are directly contradicted by his earlier deposition testimony. They fail to provide any admissible evidence showing that Ms. Paclebar had knowledge of the alleged agreement between Mrs. Agapito and Mr. Nacelli. Based on the above, the Court finds that attorney fees are properly awarded to Defendant in the amount of $4,675.

Case Number: 23STCV08125 Hearing Date: July 26, 2024 Dept: 82 Wilmington Trust, N.A., Case No. 23STCV08125 v. Hearing: July 26, 2024 Location: Stanley Mosk Courthouse Maguire Properties Department: 82 350 S. Figueroa, LLC Judge: Stephen I. Goorvitch [Tentative] Order Denying Motion for Leave to Intervene INTRODUCTION Proposed Intervening Defendant Nonghyup Bank, as Trustee of Meritz Private Real Estate Fund 27, c/o Meritz Alternative Investment Management (Meritz or the Proposed Intervenor) seeks leave to intervene in this action as a defendant. Meritz moves for mandatory intervention pursuant to Code of Civil Procedure section 387(d)(1)(B), or, in the alternative, permissive intervention pursuant to section 387(d)(2). Plaintiff Wilmington Trust National Association, as Trustee on behalf of the Holders of GCT Commercial Mortgage Trust 2021-GCT, Commercial Mortgage Passthrough Certificates, Series 2021-GCT (Plaintiff) opposes the motion. This action arises from the $465 million debt financing of properties known as the Gas Company Tower and World Trade Center Parking Garage located at 555 W. Fifth Street and 350 S. Figueroa Street in Los Angeles, CA (the property). The $465 million loan facility for the property was split into three tranches: (1) the $350 million senior mortgage loan; (2) a $65 million Mezzanine A loan; and (3) a $50 million Mezzanine B loan. Only the senior loan is secured by a deed of trust on the property. Plaintiff, as assignee of the senior lender, seeks specific performance of the rents, issues, and profits clause of the deed of trust securing the $350 million senior loan for the Property. A receiver has been appointed to manage the property, collect rents, and market the property for sale. Meritz, an assignee of a mezzanine lender and potential bidder, now contends that it has a direct interest in the property and the outcome of this action. The court concludes that Meritzs asserted interest is, at most, indirect and consequential. Accordingly, the motion is denied. BACKGROUND On or about February 5, 2021, Citi Real Estate Funding Inc. and Morgan Stanley Bank, N.A. (the Original Senior Lenders) originated a $350 million mortgage loan (Senior Loan), which was securitized into a commercial mortgage-backed security (CMBS) facility that is currently administered by Plaintiff. The Senior Loan is secured by a deed of trust that encumbers the Property. (Allegrette Decl. ¶¶ 2-5, Exh. 1.) Simultaneously with origination of the Senior Loan, Citigroup Global Markets Realty Corp. and Morgan Stanley Mortgage Capital Holdings LLC (Original Mezz A Lenders) originated a $65 million Mezzanine A loan, as evidenced by, among other documents, a Mezzanine A Loan Agreement (Mezz A Loan). Meritz submits evidence that it acquired ownership of the Mezz A Loan on or about March 4, 2021, having purchased the loan from the Original Mezz A Lenders. (Id. ¶¶ 3, 9, Exh. 5-1 and 5-2.) According to Meritzs principal and co-founder, Russ Allegrette, the Mezz A Loan is secured by a pledge of 100% membership interests in the owners of the Property, Defendants Maguire Properties 350 S. Figueroa, LLC, and Maguire Properties 555 W. Fifth, LLC. (Id. ¶¶ 3, 9; see also Suppl. Allegrette Decl. ¶ 2.) As stated succinctly by Plaintiff, Meritz holds only a pledge of membership interests in the Defendant property owners. (Amended and Replacement Memorandum in Opposition to Application to Intervene [Oppo.] 10:28.) [1] On April 12, 2023, Plaintiff filed its verified complaint seeking specific performance of the terms and provisions of the deed of trust and appointment of a receiver. On April 19, 2023, the court (Beckloff, J.) appointed Gregg Williams as receiver (the receiver) to manage and market the property, collect rents, and review and evaluate offers from third parties with respect to the sale of the property. On May 24, 2023, the court entered an order confirming the appointment. Meritz has expressed interest in bidding on the property and contacted the receiver directly in March 2024 seeking a tour of the Property. (Receiver Decl. ¶¶ 3-6.) In March 2024, Meritz, as a non-party, filed an opposition to the receivers ex parte application for authorization to enter a lease with the City of Los Angeles for certain premises in the property. The receiver later withdrew that motion. On May 3, 2024, the receiver filed an ex parte application for approval of an exclusive listing agreement in order to sell the property. Meritz filed an opposition. The court granted the ex parte application. (See courts minute order, dated May 13, 2024.) LEGAL STANDARD A. Mandatory Intervention Under Code of Civil Procedure section 387(d)(1)(B), a non-party may intervene as a matter of right if that non-party claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. The moving party must make a timely application and submit a proposed pleading. (See Code Civ. Proc. § 387(c) and (d)(1).) Section 387 should be liberally construed in favor of intervention. ( Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1200.) B. Permissive Intervention Under Code of Civil Procedure section 387, the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. ( Siena Court Homeowners Ass'n, supra, 164 Cal.App.4th at 1428.) DISCUSSION A. Mandatory Intervention 1. Meritz does not demonstrate a sufficient interest in the transaction For mandatory intervention, Meritz must show that the interest relating to the property or transaction which is the subject of the action & is a significantly protectable interest. ( Siena Court Homeowners Assn v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1423-1424.) To demonstrate a significant protectable interest, an applicant must establish that the interest is protectable under some law and that there is a relationship between the legally protected interest and the claims at issue. ( Citizens for Balanced Use v. Mont. Wilderness Assn (9th Cir. 2011) 647 F.3d 893, 897.) Meritz argues that it should be granted mandatory intervention given [its] position as the mezzanine lender, its interests in the Property, the subject matter of this action, and the outcome of this action. (Application to Intervene (Appl.) 13:7-9.) The court disagrees. Meritz does not claim an interest in the property that is the subject of this action. The complaint includes a single cause of action for specific performance of the deed of trust that secures the Property. (Compl. ¶¶ 16-24.) Only the Senior Loan is secured by the deed of trust on the Property. The Mezz A Loan, which was assigned to Meritz, does not hold a security interest in the Property. (See Allegrette Decl. ¶¶ 2-11, Exh. 1-5.) This is clear from the Intercreditor Agreement (ICA), in which Meritzs predecessor acknowledged that the Mezz A Loan does not constitute or impose & a lien or encumbrance upon, or security interest in any portion of the Premises or any other collateral securing the Senior Loan or any assets of Borrower&. ( Id . Exh. 6 at p. 27, ¶ 2(a).) Nor does Meritz claim an interest in the transaction that is the subject of this action. In the complaint, Plaintiff alleges that the borrower has defaulted on the Senior Loan by failing to make payments due and that Plaintiff is entitled to specific performance of terms and conditions of the deed of trust, which encumbers the Property. (Compl. ¶¶ 16-24.) The claim does not involve any default on the Mezz A Loan or any contractual dispute related to the Mezz A Loan, the ICA, or the interrelationship between the senior and mezzanine lenders. (See generally California Physicians Service v. Superior Court (1980) 102 Cal.App.3d 91, 96 [health insurers contract claim was not the transaction at issue in the subscribers tort action].) Meritz suggests that it has an interest in the property or transaction at issue in the complaint because Mezz A Borrower pledged one hundred percent (100%) of its membership interests in the Defendants to Original Mezz A Lenders to secure the Mezz A Loan. (Appl. 5:19-20.) As phrased in the reply, Meritz contends that if it were to exercise remedies as contemplated under the Pledge Agreement, Meritz would own and control the Receivership Defendants . (Reply 3:19-21.) This argument is not persuasive. If Meritz exercised its purported remedies, it would own and control the receivership defendants and therefore would not need to intervene. Rather, Meritz seeks to intervene on its own behalf as a mezzanine lender. Further, Meritz concedes that there is an event of default under the Senior Loan and that Defendants would not have access to such sums to make payments to Mezz A Lender. (Appl. 4:21-23.) Meritz does not present any evidence suggesting that, if it exercised rights to assume membership interests in the Defendants, it would have any greater interest in the Property than it does now as a mezzanine lender. Under such circumstances, Meritz does not show that a lien on membership interests of the Defendants confers a protectable interest in the Property or in the transaction at issue in the complaint. (See Corp. Code § 17701.04(a) [A limited liability company is an entity distinct from its members.]; § 17703.04(a) [debts, obligations, and liabilities of an LLC do not become the debts, obligations, or other liabilities of a member or manager solely by reason of the member acting as a member or manager].) Citing various provisions of the loan documents, Meritz contends that the action could indirectly impact its interests as a mezzanine lender. (See Appl. 4-10.) As an example, Meritz states that the Senior Loan Agreement also makes extensive reference to the existence of the Mezzanine A Loan and Mezzanine B Loan, including: (i) stating in Section 1.1 that the lien and security interests created by each Mezzanine Loan Agreement, the Other Mezzanine Loan Documents and any loan documents entered into with respect to a Replacement Mezzanine Loan are Permitted Encumbrances on the Property. (Appl. 4:3-7.) Meritz cites section 8.5 of the Senior Loan Agreement, which pertains to the remittance of debt service payments under the Mezz A Loan from Property cash flow. (Appl. 4:12-16.) As Meritz concedes, these provisions are conditioned so long as no Event of Default had occurred. (Appl. 4:10.) Later, Meritz cites to provisions of the ICA that, according to Meritz, authorize payments to mezzanine lenders following repayment of the Senior Loan. (Appl. 7:23.) Since it is undisputed that an event of default has occurred and the Senior Loan has not been repaid, Meritzs interest in excess proceeds is indirect and consequential. (See Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 550 [a n unsecured creditor of a defendant who will be rendered unable to pay the debt if he loses a lawsuit is held to have only a consequential interest not justifying intervention in the litigation]; see also Id. at 553 [a shareholder has a consequential but not direct interest in the outcome of litigation involving the corporation].) Meritz also asserts that the ICA reflects additional agreements between the Original Senior Lender and the Mezzanine Lenders in respect of matters such as removal and replacement of the property manager for the Properties, budget approval and requests for disbursement of sums held in reserve. (Appl. 7:25-28, citing Allegrette Decl. ¶ 14.) Relatedly, Meritz asserts that section 15(a) of the ICA requires written consent of the mezzanine lenders in certain circumstances. (Appl. 8.) Meritzs briefs and the Allegrette declarations do not analyze the specific contract terms upon which Meritz relies or explain how they are relevant to this action, including the courts appointment of a receiver. Accordingly, the arguments are forfeited for purposes of this application. ( Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived].) Moreover, in its proposed answer, Meritz does not allege any defense based on breach of the ICA or other loan document. This action concerns Defendants default and the specific performance of the deed of trust, and Meritz does not show that any contract dispute related to the ICA is directly at issue in this action. The court has considered Meritzs remaining contentions, including about the complexity of the capital stack utilized in this transaction by the Original Senior Lenders. (See Appl. 2:7-8.) None convinces the court that Meritz claims an interest relating to the property or transaction that is the subject of the action. (Code Civ. Proc. § 387(d)(1)(B).) Accordingly, Meritz is not entitled to mandatory intervention. 2. Meritzs interests are adequately represented The court also concludes that Meritzs interests as a mezzanine lender, including its interests in any excess proceeds from the Property, are adequately represented by the courts appointment of a receiver and the courts review and approval of any offer to purchase the property. A receiver is an agent and officer of the court, and is under the control and supervision of the court&. The receiver is also a fiduciary who must act for the benefit of all parties interested in the property. ( City of Chula Vista v. Gutierrez (2012) 207 Cal.App.4th 681, 685.) Meritz does not argue or present evidence that the Receiver has acted in bad faith or has taken any actions inconsistent with an intention to maximize the value of the Property. Nor does Meritz develop any argument that Plaintiff, acting for the Senior Lender, has acted in bad faith or taken actions inconsistent with maximizing the value of the Property. (See Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 553 [denying major shareholders request to intervene because there was no allegation of bad faith on the part of the trustee or implication that he intends to abandon prosecution of the litigation to the fullest extent possible].) Finally, the receiver has given Meritz notice of the ex parte applications he has filed in this action; Meritz does not claim a lack of notice of any proceeding; and the court has considered Meritzs oppositions to applications filed by the Receiver. (See Receivers Statement 2; see also Cal. Rules of Court, Rule 3.1184(c) [notice for receivers final report].) Therefore, Meritzs motion for mandatory intervention is denied. B. Permissive Intervention The court denies permissive intervention for several reasons. As discussed, Meritz does not have a direct and immediate interest in this action. Moreover, intervention will greatly enlarge the issues in the litigation. Finally, the purported reasons for intervention do not outweigh the opposing parties concerns. Indeed, the court has genuine concerns that Meritz is pursuing intervention merely to obtain a strategic advantage in purchasing the building. Previously, Meritz opposed the receivers efforts to retain a broker to market and sell the property. Some of Meritzs arguments were factually incorrect. For example: Counsel for the Bank argued that the listing agreement favors a sale to the City of Los Angeles. To the contrary, the listing agreement caps the commission for a sale to the City of Los Angeles and provides the same or higher commissions for a sale to purchasers other than the City or County of Los Angeles. Regardless, the court will review and approve any sale, which will include a review of all credible offers, so the listing agent cannot sell the property to the City of Los Angeles if there is a better offer. (Courts Minute Order, dated May 13, 2024, at 2.) More important, Meritz had no valid reason to oppose retention of a real estate broker to list the property for sale. (See ibid .) Meritzs opposition appears to have been nothing more than an attempt to delay the real estate listing to a time when there would be fewer prospective buyers and more comparable buildings, which would benefit Meritzs efforts to purchase the building: At the hearing, counsel for Nonghyup expressed concern that the Receiver is seeking appointment of a receiver on an ex parte basis and seeks to list the property in mid-June. The court finds no basis to delay appointment of a listing agent, as counsel for Nonghyup raises no valid objections to the listing agreement. Nor did counsel raise any concerns that suggest the court would benefit from further briefing. To the contrary, the court finds good cause to handle this matter on an expedited basis: (1) There are identified potential buyers for the Property that may not be available three months from now, including both the City and County of Los Angeles; (2) Any delay works against the markets perceived value of the Property; (3) Spring is the ideal time to list a commercial real estate investment property in Southern California; and (4) It is prudent to sell the property before the uncertainty of the election. (See Declaration of Jeffrey Bramson, ¶¶ 16-21.) The court also relies on the representation of Gregg Williams that he is aware of four comparable properties in receivership that will be marketed later this year, which may make it difficult to sell the property, i.e ., based upon the competition, especially given the declining market for office real estate. ( Ibid .) The receiverwho is a neutral party in this disputeraises a legitimate concern that Meritz will use intervention to obstruct any actions by the receiver that are inconsistent with Meritzs interests as a bidder on the property. Meritz previously did so in attempting to delay the receivers efforts to list the building for sale. Simply, Meritz has a conflict of interest. Meritz cannot seek intervention to protect its alleged security interest while seeking to purchase the building. Such an outcome would permit Meritz to attempt to sabotage any effort to sell the property to a purchaser other than Meritz. Therefore, the motion for permissive intervention is denied. CONCLUSION AND ORDER Based upon the foregoing, the Proposed Intervenors motion is denied. Counsel for the receiver shall provide notice and file proof of service with the court. IT IS SO ORDERED. Dated: July 26, 2024 ______________________ Stephen I. Goorvitch Superior Court Judge [1] A $50 million Mezzanine B loan (Mezz B Loan) was also originated as part of the debt facility related to the Property. In its motion, Meritz has not claimed an interest in the Mezz B Loan. (See Allegrette Decl. and Suppl. Allegrette Decl. generally.)

Case Number: 23CHCV01204 Hearing Date: July 26, 2024 Dept: F47 Dept. F47 Date: 7/26/24 Case #23CHCV01204 MOTION TO BE RELIEVED AS COUNSEL Motion filed on 3/22/24. MOVING ATTORNEY: Safora Nowrouzi CLIENT: Plaintiff Kyle A. Perez RELIEF REQUESTED : An order relieving Safora Nowrouzi as counsel for Plaintiff Kyle A. Perez in this action. RULING : The motion is granted. On 3/22/24, attorney Safora Nowrouzi filed and served the instant motion to be relieved as counsel for Plaintiff Kyle A. Perez (Plaintiff) in this action on the grounds the essential relationship of trust and confidence that underpins the attorney-client relationship has been irreparably compromised. ( See Nowrouzi Decl. No.2). On 7/19/24, Plaintiff filed and served an opposition to the motion wherein Plaintiff admits that the relationship between he and attorney Nowrouzi has deteriorated due to disagreements over litigation strategy. ( See Perez Decl. ¶6). Additionally, Plaintiff claims that attorney Nowrouzi has not diligently pursued [his] claims. Id . The motion also implies that Plaintiff believes he has a claim against attorney Nowrouzi for legal malpractice based on advice attorney Nowrouzi gave to Plaintiff regarding this case. ( See Opposition, generally). Despite the foregoing, Plaintiff asks the Court to deny the motion and require attorney Nowrouzi to continue to represent him in this matter and during settlement negotiations claiming that he will be prejudiced if attorney Nowrouzi is permitted to withdraw because the case is at a critical stage of settlement negotiations. (Perez Decl. ¶¶7-8). Based on the declarations of attorney Nowrouzi and Plaintiff, it is clear that that there has been an irreparable breakdown in the attorney-client relationship which warrants relieving attorney Nowrouzi as Plaintiffs counsel in this matter. Plaintiff admits that he received notice of attorney Nowrouzis intention to withdraw on 4/2/24. (Perez Decl. ¶4). Therefore, Plaintiff has had almost 4 months to retain replacement counsel to assist him in this matter. Plaintiffs failure to do so does not justify denying the motion under the circumstances.

Case Number: 24PSCV01393 Hearing Date: September 18, 2024 Dept: 6 Plaintiff Benik, LLCs Request for Entry of Default Judgment Defendants: Bespoke Group, Inc., and all other tenants, subtenants, and occupants in possession COURT RULING Plaintiffs request for entry of default judgment is DENIED without prejudice. BACKGROUND This is a commercial unlawful detainer action. On May 1, 2024, plaintiff Benik, LLC (Plaintiff) filed this action against defendant Bespoke Group, Inc. (Defendant) and Does 1 to 20, alleging the sole cause of action for unlawful detainer. On May 21, 2024, default was entered against Defendant and all other tenants, subtenants, and occupants in possession. On June 27, 2024, Plaintiff requested entry of default judgment. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) declaration of nonmilitary status; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.) ANALYSIS Plaintiff seeks default judgment against Defendant in the total amount of $391,597.71, including $67,169.72 in past-due rent, $97,314.56 in holdover damages, $1,115.84 in costs, and $225,997.59 in other damages. The Court finds Plaintiffs default judgment package has some issues. First, Plaintiffs holdover damages calculation is excessive. Holdover damages start from the day after the notice to quit period ends. (CACI 4340.) The Complaint alleges the notice period expired April 24, 2024. (Compl., ¶ 9.b.(1).) Thus, the calculations should begin April 25, 2024, not April 19, 2024. (UD-116, ¶ 12, subd. (c); Summary of Case, p. 2:13-14.) Second, Plaintiffs other damage calculation includes future rent and broker commissions, which are improper here. (UD-116, ¶ 24, subd. (b); Summary of Case, pp. 4-5.) It is well settled that damages allowed in unlawful detainer proceedings are only those which result from the unlawful detention and accrue during that time. [Citation.] ( Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 748, italics in original.) [T]he award of damages for breaches of the lease occurring before the unlawful detainer [citation] and of future damages for continued unlawful possession beyond the date of the judgment until such time as possession is returned to the landlord are not permitted in unlawful detainer. ( Hudec v. Robertson (1989) 210 Cal.App.3d 1156, 1163.) It is unclear if Plaintiff can even recover the $39,800 in free rent as past-due rent here since that arguably was not considered unpaid until a breach occurred. (See Compl., Ex. 1, ¶ 52; UD-116, ¶ 24, subd. (a); Summary of Case, p. 3.) If Plaintiff seeks to recover unpaid rent for the remainder of the lease term or other remedies provided under the contract, such as the broker commissions or free rent, Plaintiff may pursue such matters in a separate civil action. ( Vasey v. California Dance Co., supra, 70 Cal.App.3d at p. 748 fn. 2.) Finally, a default judgment for monetary damages can only be sought against the defendant. A default judgment for possession only may include all tenants, subtenants and occupants. (Civ. Proc. Code §§ 715.010, 1169.) CONCLUSION Based on the foregoing, Plaintiffs request for entry of default judgment is DENIED without prejudice.

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.

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

Real Property/Housing Court Law and Motion Calendar for July 24, 2024 line 5. DEFENDANT PAUL FRENKIEL, TIFFANY PINTOR DEMURRER TO COMPLAINT is SUSTAINED with leave to amend as Plaintiff's complaint is uncertain. Plaintiff shall allege the scope of encroachment and the starting date of the encroachment (specifically before or after Plaintiff's house was torn down). Demurrer is otherwise overruled. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

Case Number: 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.