Tentative ruling on Jul. 10, 2024 in Sonoma County, CA - Case no: xxxxx614

SCV-269115, Griffin v. Dixon, DDS Plaintiffs move to strike, or in the alternative to tax, costs from Defendants’ memorandum of costs filed by counsel The Goldman Law Firm(“Goldman”) claiming $77,150.38. The motion is DENIED as to each request, per Code of Civil Procedure sections 998 and 1033.5. PROCEDURAL HISTORY Plaintiffs commenced this medical malpractice action against Defendants regarding Defendant Dixon’s medical treatment of Plaintiff Linda. Plaintiffs issued two separate offers to compromise per Code of Civil Procedure (“C.C.P.”) section 998 for $249,999.00 and $49,999.00 on the same day. Defendants did not accept these. After discovery, Defendants issued Plaintiffs two separate offers per section 998 for $125,000.00 and $25,000.00. Plaintiffs neither responded to nor objected to these offers. Ultimately, after a jury trial, the jury rendered a verdict in Defendants favor against Plaintiffs entitling Defendants to recover costs as the prevailing party. Defendants filed a memorandum of costs for $77,150.38. Plaintiffs seek to strike this entire amount. Defendants have opposed and Plaintiffs submitted a reply. ANALYSIS Legal Standard Fees & Costs C.C.P. section 1032 allows the prevailing party of an action to recover costs. C.C.P. section 1033.5(a) lists the costs that the prevailing party may claim, while section 1033.5(b) lists the costs that are not allowed. Motion to Tax Costs A party seeking to tax costs on a memorandum of costs has the burden of showing that the costs were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) If this burden is met using proper objections, the burden of proof shifts to the party claiming costs by providing documentary evidence. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.) Once documentation is provided, the party challenging the costs must provide contradicting evidence and the trial court will determine if the disputed costs were reasonably necessary. (Id. at 1265-1266.) If a cost claimed is expressly allowed by a statute, the party seeking to tax the costs must show that it was unnecessary and unreasonable; however, where costs are not expressly allowed by statute, the burden is on the party claiming the costs to show the charges were reasonable and necessary. (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) Moving Papers Plaintiffs seek to strike or cost the following: 1. Defendants’ entire memorandum of costs because there are no receipts or invoices to support it and because the claimed costs were not “reasonably necessary to the conduct of the litigation” per C.C.P. section 1033.5(c)(2). 2. All costs that predate Defendants’ 998 offers to compromise because per C.C.P. section 998(c)(1), “if an offer made by defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall pay the defendant’s costs from the time of the offer.” 3. Item 1 for the $120.00 claimed in filing costs because Plaintiffs argue that there is no statutory authority for the recovery of filing fees for a motion to continue the trial date. 4. Item 8 for the $48,797.66 claimed in expert witness fees because these costs were not reasonably necessary to conduct the litigation per C.C.P. sections 1033.5(c)(2)-(3). 5. Item 11 for court reporter fees in the amount of $13,114.89 because costs relating to transcripts not ordered by the court are excluded by C.C.P. section 1033.5(b)(5). 6. Item 16 for anatomy warehouse fees claimed in the amount of $134.13 because the item should have been listed under Item 13 instead of 16 and the cost was not reasonably necessary to the conduct of the litigation. Defendants oppose the motion for the following reasons: 1. Plaintiffs’ objection and request to strike the entire cost memorandum is without merit because per authority cited by Defendants, “there is no requirement that copies of bills, invoices, statements or any other such documents be attached to the memorandum.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) 2. Defendants obtained a judgment more favorable than Defendants’ section 998 offer to compromise to Plaintiffs, which offers Defendants argue were reasonable and made in good faith at the time. 3. Plaintiffs’ objection to Item I for filing fees and costs is without merit because they are expressly allowed by C.C.P. section 1033.5(a)(1). 4. Plaintiffs’ objection to witness fees is without merit because these are recoverable under section 998 because they were incurred in the defense of the action and Plaintiffs have not sufficiently demonstrated the fees were unreasonable. Under section 998, a court may award a prevailing party expert witness fees incurred in preparing of or during trial. 5. Plaintiffs’ objection to Item 11 is without merit because court reporter fees are specifically recoverable under C.C.P. section 1033.5(a)(11) and Government Code 68086(c). 6. Defendants argue Plaintiffs’ objection to Item 16 is without merit because costs incurred for models and exhibits are expressly allowed under C.C.P. section 1033.5(a)(13). The Anatomy Warehouse fee of $134.13 was specifically expended for the model and trial exhibit “Colon Anatomy Model with Pathologies.” Application 1. Per Ladas and Jones, when items appear to be proper charges on the face of a verified memorandum of costs, then it is prima facie evidence that they are proper and the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. Here, Plaintiffs have not demonstrated that the entire memorandum of costs is without merit just because receipts were not attached. This motion is DENIED as to this request to strike the entire memorandum of costs. 2. Plaintiffs must pay costs from the time Defendants made an offer to compromise in good faith if later Defendants obtained a more favorable judgment than the offer to compromise that was made. However, this does not preclude Defendants from also seeking fees and costs incurred prior to the offer to compromise if the costs were reasonably necessary to conduct the litigation and are allowable by statute. The motion is DENIED as to this request to strike costs predating Defendants’ offers to compromise. 3. Per C.C.P. section 1033.5(c)(1), costs are allowable if incurred. Defendants incurred $120.00 in costs for filing of the motion, so the Court will allow it. The motion is DENIED as to this request to strike filing costs. 4. Per C.C.P. section 998, when an offer to compromise is made by a defendant and not accepted and plaintiff later fails to obtain a favorable judgment, then the Court may require the plaintiff to pay post-offer expert witness fees. Section 1033.5(c)(1) does not allow fees of experts not order by the court, unless they are expressly authorized by law, such as section 998. For these reasons, the Court DENIES Plaintiffs’ motion as to this request to tax expert witness fees. 5. Court reporter fees as established by statute, such as the government code section cited by Defendants, are authorized by C.C.P. section 1033.5(a)(11). On this basis, the Court DENIES Plaintiffs’ motion as to this request to tax court reporter fees. 6. The Court finds the cost of $134.13 expended for the model and trial exhibit “Colon Anatomy Model with Pathologies” a reasonable expense necessary to conduct litigation and an allowable cost under C.C.P. section 1033.5(a)(13). Therefore, the motion is DENIED as to Item 16. CONCLUSION Based on the foregoing, Plaintiffs’ motion is DENIED in its entirety. Defendants shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

SCV-271884, Cresson v. Always Engineering, Inc. Defendant’s motion to compel further responses from Plaintiff to Special Interrogatories, Set One is GRANTED. Defendant’s request for sanctions is GRANTED in the amount of $3,037.50. Plaintiff shall pay these sanctions to Defendant within 30 days of service of an order on this motion. Plaintiff shall provide code-compliant responses, without objections, to Defendant’s Special Interrogatories, Set One, within 14 days of notice of an order on this motion. Defendant’s counsel shall submit a written order consistent with this tentative ruling and in compliance with Rule 3.1312. Analysis: This Court previously issued an order compelling Plaintiff to provide further responses to Defendant’s Special Interrogatories, Set One, that are code compliant and without objections. (See February 27, 2024 Order Granting Defendant’s Motion to Compel Further Responses) Plaintiff subsequently provided further responses. However, Plaintiff’s new responses do not comply with the Court’s previous order compelling further responses or with the Discovery Act. Plaintiff was ordered to provide further responses for the answers already given and to provide answers without objections, since all objections were waived by Plaintiff’s late original response. Instead, Plaintiff either amended some of his responses or continued to assert answers without support or further explanation. Plaintiff’s newly provided answers are not code compliant. Plaintiff also continues to assert objections even though the Court has explained to Plaintiff that objections to these interrogatories are waived and the Court found no basis for relieving Plaintiff from the waiver. Plaintiff has failed to file a memorandum of points and authority in opposition to this motion and simply submitted a declaration in opposition in which Plaintiff does not provide any justification for his failure to abide by the Court’s previous order. Plaintiff simply argues that Defendant’s meet and confer efforts were insufficient. The Court does not agree. Defendant did not need to grant Plaintiff an extension of time for providing even further responses nor request an extension from Plaintiff for filing this motion because Plaintiff was ordered by this Court to provide code compliant responses within 14 days of service of the order on the Court’s previous ruling. Plaintiff did not do so. Plaintiff is now again ordered to do so. The Court has repeatedly advised Plaintiff about the age of his case and the importance of acting expeditiously. This applies to discovery practices as well. This case will not move forward expeditiously if Plaintiff continues to fail to cooperate with discovery. For all of the above reasons, the Court finds that sanctions are warranted. Defendant requests $4,387.50 in sanctions based on an hourly rate of $225 and based on spending 5.5 hours on meet and confer efforts, 9.5 hours preparing this motion, and an anticipated 4.5 hours reviewing the opposition and replying to it. The Court finds the hourly rates requested to be unwarranted for this motion, especially given that the opposition consists solely of a 3-page declaration with one attachment. The Court finds that sanctions in the amount of $3,037.50 are warranted based on 5.5 hours for meet and confer efforts, 5 hours preparing the motion, and 3 hours reviewing the opposition and replying. Defendant also requests issue and evidentiary sanctions in this motion. However, Defendant has not provided compelling argument for issuing such sanctions at this time. This is especially so given that monetary sanctions were not previously imposed because they had not been requested. However, if Plaintiff does not comply with this order of the Court by providing full and complete answers to the special interrogatories without objections, the Court will consider such sanctions in the future. 3. 24CV02958, Leach v. City of Cloverdale Petitioner Phillip Leach’s Petition for Writ of Mandate is CONTINUED to September 18, 2024 at 3:00 p.m. in Department 18 in order for Petitioner to lodge the administrative record with the Court. CCP § 1094.5(a) provides, “All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court.” The Court is unable to determine whether relief should be granted without reviewing the administrative record. Since no opposition was filed, Petitioner is ordered to lodge the administrative record with the Court not later than August 6, 2024. Furthermore, as provided by CCP § 1094.5(a), “the cost of preparing the record shall be borne by the petitioner.” If no administrative record is lodged by August 6, 2024, the petition will be denied as unsupported by evidence.

SCV-273607, Mendoza-Lopez v. Filice Defendants Ariana Lucia Filice, Charles Filice, and Vanessa Lind’s motion for order compelling Plaintiffs Mendoza-Lopez and Saavedra-Aguilera’s depositions is DENIED as moot because Plaintiffs’ depositions already took place on June 26. However, requested sanctions are awarded in the amount of $1,310.00 as it was only after four months of defense counsel’s efforts to schedule the depositions and the filing of this motion that Plaintiffs agreed to a deposition date. Defendants’ unopposed motion to continue trial is GRANTED. The motion was made on the grounds that Plaintiffs’ depositions were not taken despite over four months of attempts to schedule them with Plaintiffs objecting without offering alternate dates. Though the parties resolved the issues because the depositions already took place, Defendants argue that additional discovery is necessary after Plaintiffs depositions. As this is the first request by any party to continue trial and it does not appear to the Court that any party will be prejudiced by continuing the trial date, the Court will grant the unopposed motion to continue trial per California Rules of Court, rule 3.1337. The trial date currently set for September 13, 2024, is hereby VACATED. A new trial date is now set for February 28, 2025, at 8:30 a.m. in Dept. 17. Moving party shall submit a written order to the Court consistent with this tentative ruling on the two motions and in compliance with Rule of Court 3.1312(a) and (b).

SCV-273272, ROP WMCC LLC v. Town of Windsor TENTATIVE RULING (AS TO CEQA): The Petition is DENIED with respect to the claims based on a violation of the California Environmental Quality Act. Facts Petitioners, ROP WMCC LLC and Resident Owned Parks, Inc. (“Petitioners”) challenge the decision of Respondents Town of Windsor (“Town”) and Town Council of the Town of Windsor (“Council”) to adopt Ordinance No. 2023-373 (the “Ordinance”), which caps the rent for mobile home parks within the Town’s jurisdiction. They seek a writ of mandate directing Respondents to set aside the Ordinance due to the failure to comply with the California Environmental Quality Act (“CEQA”); inquire into the validity of the Ordinance for lack of jurisdiction, acting in excess of jurisdiction, and abuse of discretion; set aside the Ordinance based on a deprivation of fundamental vested rights pursuant to the United States Constitution and California Constitution; set aside the Ordinance based on equitable estoppel; set aside the Ordinance based on lack of fair hearing; and related claims. They also seek a monetary award, injunctive and declaratory relief, and an award of attorneys’ fees and costs. The History and Adoption of the Ordinance Prior to Respondents enacting the Ordinance, the Town originally adopted a mobile home rent stabilization ordinance, Ordinance No. 92-25 (the “1992 Ordinance”) on October 28, 1992. AR 92. Eventually, on February 1, 2023, the Council held the second reading of the Ordinance and adopted it. AR 550. CEQA Claims In the portion of Petitioners’ allegations and arguments relating to CEQA, they contend that Respondents improperly adopted the Ordinance on February 1, 2023, with a determination that it was exempt from CEQA pursuant to Guideline 15061(b)(3). Overall Application of CEQA An EIR is required for a project which substantial evidence indicates may have a significant effect on the environment. Guidelines for the Implementation of CEQA (“Guidelines”), 14 California Code of Regulations (“CCR”) section 15063(b) (hereinafter, the court shall cite to Guidelines simply by stating “Guideline” and the section number); Public Resources Code (“PRC”) sections 21100, 21151. EIRs are, in the words of the California Supreme Court, “the heart of CEQA.” Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights I). An agency must prepare, cause to be prepared, or certify completion of, an EIR when for a project which “may have a significant effect on the environment.” See, e.g., PRC sections PRC section 21068, 21100(a), 21151(a); Guideline 15382. As a result, CEQA requires review of a project’s impacts on the environment, not the reverse, and in other words, CEQA is generally not concerned with impacts on the project. California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, at 386 (CBAI). CEQA is accordingly concerned with whether an agency action may cause physical effects on the environment, whether direct or indirect. PRC 21080, setting forth the basic standards for determining whether an action implicates CEQA, explains that where an agency is not exempt from CEQA, an agency must prepare an EIR where there is “substantial evidence” in the record “that the project may have a significant effect on the environment.” PRC 21080(c). It also provides the definition of “substantial evidence” at subdivision (e), stating at (e)(2) that “substantial evidence” does not include “argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to or are not caused by, physical impacts on the environment.” Emphasis added. Guideline 15064 also sets forth the basic standards for determining whether an action implicates CEQA, stating that this depends on whether an action may lead to significant effects on the environment. Subdivision (e) also states, with emphasis added, Economic and social changes resulting from a project shall not be treated as significant effects on the environment. Economic or social changes may be used, however, to determine that a physical change shall be regarded as a significant effect on the environment. Where a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change resulting from the project. Alternatively, economic and social effects of a physical change may be used to determine that the physical change is a significant effect on the environment. If the physical change causes adverse economic or social effects on people, those adverse effects may be used as a factor in determining whether the physical change is significant. For example, if a project would cause overcrowding of a public facility and the overcrowding causes an adverse effect on people, the overcrowding would be regarded as a significant effect. Guideline 15384 likewise states that “evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does not constitute substantial evidence.” Emphasis added. Guideline 15358 further defines “effect” and states, in full and with emphasis added, “Effects” and “impacts” as used in these guidelines are synonymous. (a) Effects include: (1) Direct or primary effects which are caused by the project and occur at the same time and place. (2) Indirect or secondary effects which are caused by the project and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect or secondary effects may include growth-inducing effects and other effects related to induced changes in the pattern of land use, population density, or growth rate, and related effects on air and water and other natural systems, including ecosystems. (b) Effects analyzed under CEQA must be related to a physical change. Guideline 15131 discusses social and economic impacts and it notes that while an EIR may include discussion of economic or social information, “[e]conomic or social effects of a project shall not be treated as significant effects on the environment,” unless there is a demonstrated “chain of cause and effect from a proposed decision on a project through anticipated economic or social changes resulting from the project to physical changes caused in turn by the economic or social changes.” In that case, the “intermediate economic or social changes need not be analyzed in any detail greater than necessary to trace the chain of cause and effect. The focus of the analysis shall be on the physical changes.” The court in Hecton v. People of the State of California (1976) 58 Cal.App.3d 653, at 656, stated that CEQA is “not designed to protect against the particular risk of loss claimed here—decline in commercial value of property adjacent to a public project. Rather the acts are intended to ensure consideration of qualitative environmental factors as well as quantitative economics in proposed actions affecting the environment.” Accordingly, the court in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, at 1019-1022, rejected petitioners’ argument that allowing a large chain bookstore in an approved shopping center would result in economic and social impacts by threatening the business of local bookstores, causing related problems. The court explained, Plaintiff's argument is based solely upon speculation and unsubstantiated opinion. If accepted, plaintiff's position would stand CEQA on its head. CEQA and its implementing guidelines make it clear that social and economic effects are not to be considered a significant environment effect and need be considered only to the extent they are relevant to an anticipated physical change in the environment or, on the basis of substantial evidence, are reasonably likely to result in physical change to the environment. Plaintiff's argument is that, because it is arguably possible that in some instances the establishment of a retail business may have social or economic effects, and because it is arguably possible that in some instances social or economic effects can cause physical changes in the environment, social and economic effects must be addressed in an EIR as a matter of law. We reject such an argument as flatly inconsistent with CEQA and its implementing guidelines. Basic Principles Applicable to Review of Agency Decisions Under CEQA The burden of investigation rests with the government and not the public. Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1378-1379. The court in Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, at 1202, finding that a city failed to consider an issue, ruled that the city could not rely on information to make good the gap in its analysis where the record did not show that the information had ever been available to the public. Similarly, as the court explained in Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, at 311, an “agency should not be allowed to hide behind its own failure to gather relevant data.... CEQA places the burden of environmental investigation on government rather than the public.” See also Gentry, supra (quoting Sundstrom). At the same time, in judicial review agency actions are presumed to comply with applicable law unless the petitioner presents proof to the contrary. Evid. Code section 664; Foster v. Civil Service Commission of Los Angeles County (1983) 142 Cal.App.3d 444, 453. The petitioner in a CEQA action thus has the burden of demonstrating that there was a violation of CEQA. Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740. Under CEQA, a court may only issue a writ for any abuse of discretion, including making a finding without substantial evidence, if the error was prejudicial. PRC section 21005; Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1143. When substantial evidence does support a decision, but there is no prejudicial abuse of discretion, the court must defer to the agency’s substantive conclusions an uphold the determination. Chaparral Greens, supra; see PRC 21168, 21168.5, Laurel Heights I, supra 47 Cal.3d 392, fn.5. An “error is prejudicial ‘if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’” San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, at 721-722, quoting Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, at 712. Exhaustion of Administrative Remedies Respondents argue that Petitioners failed to exhaust administrative remedies with respect to the claim that Respondents violated CEQA by finding the Ordinance to be exempt. Brief in Opposition (“Oppo”) 20-23. Petitioners acknowledge that they did not raise any specific CEQA violations, never expressly discussed CEQA or claimed a violation of CEQA in any way, and never presented any challenge to the decision that the action was exempt from CEQA, but counter with two basic arguments. Trial Brief (“TB”) 14:28-15:4, 15:10-15, 16:3-6; Reply Brief (“Reply”) 5:5-28. First, in their opening Trial Brief, Petitioners claim that they are excused from compliance. TB 14:28-15:4, 15:10-15, 16:3-6; Reply 5:27-28. They assert that they are excused from complying with the exhaustion requirement because Respondents did not give prior notice of the grounds for the CEQA exemption and, upon approving the Ordinance, did not publish a Notice of Exemption (“NOE”). TB 14:28-15:4, 15:10-16:6. Second, in their Reply, they also contend that although they never mentioned CEQA or expressly challenged the exemption determination in any way, they nevertheless raised objections implicating CEQA by asserting that the Ordinance would result in reduced services and facility maintenance, and that these are environmental impacts. Reply 5: 9-26. According to PRC section 21177, “[a] person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of the notice of determination.” This does not, however, bar an association or organization formed after approval from raising a challenge which one of its constituent members had raised, directly or by agreeing with or supporting another’s comments. PRC section 21177(c). Moreover, someone may file a legal challenge based on an issue as long as “any person” raised that issue during the review process. PRC section 21177(a); see Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 267-268. It also does not apply to any grounds of which the agency did not give required notice and for which there was no hearing or opportunity to be heard. PRC section 21177(e). PRC section 21177(e) states, in full, “[t]his section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing before the approval of the project, or if the public agency failed to give the notice required by law.” Accordingly, while a petitioner challenging an administrative decision ordinarily must exhaust administrative remedies in the underlying proceedings and may only raise an argument in court which had been raised in the underlying proceedings, this does not apply where the issue was unknown prior to the final determination so that no member of the public had notice and an opportunity to raise the issue. Attard v. Board of Supervisors of Contra Costa County (2017) 14 Cal.App.5th 1066, 1083. As explained in Attard, “[w]hen a litigant suspects bias on the part of a member of an administrative hearing body, the issue must be raised in the first instance at the hearing.” A party challenging decision under CEQA cannot, to exhaust administrative remedies, rely merely on “general objections” or “unelaborated comments.” Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535; Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197. However, “[l]ess specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding….” Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163. However, section 21177 does not require exhaustion of administrative remedies in the absence of CEQA comment period or notice of a CEQA determination, or a public hearing before a notice of determination. It states that the issues need to be raised “during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of the notice of determination.” Emphasis added. The Supreme Court in Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, held that the petitioner needed to exhaust administrative remedies prior to raising its challenge to a determination that a project was exempt from CEQA, clarifying a prior dispute over this requirement. It found that in the case before it, the agency had held public hearings and allowed for public comment and objections prior to making the exemption determination, giving the public a chance to be heard on, and raise objections to, such a decision. The court added, however, that in instances where the agency has not given notice of, and allowed for public hearings and comments regarding, an exemption determination, then exhaustion of administrative remedies is not required. It explained that the case before it was distinguishable from Azusa Land Reclamation Co., Inc. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 on this very basis because in Azusa, the agency adopted an order finding the project exempt after having conducted a “regularly scheduled public meeting,” but without ever disclosing prior to, or at, a public hearing that it was contemplating finding the project to be exempt. Azusa, 1187-1188. Accordingly, in Azusa, the issue of CEQA exemption was never itself raised in the context of a public hearing where the public had an opportunity to comment, object, and be heard on the issue. In support of their argument that Petitioners failed to exhaust administrative remedies, Respondents provide several citations to the record which they claim reflect the notice to the public regarding the Ordinance meetings and CEQA determination, as well as comments from the public which fail to address CEQA or the exemption determination. Oppo 22:3-12, 23:9-18. Respondents cite to AR 113, 157, 248-249, and 537, among others, for the Council meetings on the Ordinance. They also cite to AR 149 and 240 as showing Petitioners attending and speaking at two of the meetings, and AR 297-301 and 599-600 for Petitioners’ two letters to the Council outlining their objections. They cite specifically to AR 162, 253, and 542 for notice of the reliance on the common-sense exemption from CEQA. Petitioners provide no citations to the record whatsoever regarding the CEQA discussion, with respect to either the exhaustion issue or the substantive analysis. See, e.g., TB 6-8, 14-19; Reply 1-3, 5-6. The agenda for the Council meeting of November 2, 2022, is at AR 110-114, the report on the Ordinance for that meeting is at AR 115-117, written correspondence is at AR 118-140, additional information and correspondence for the meeting are at AR 141-146, and the minutes are at AR 147. The report states, at AR 117, that they determined that the Ordinance “is not subject to review under… (CEQA).” AR 153-237 is the agenda for the Council meeting of December 7, 2022, plus the report on the Ordinance, correspondence, and other documents, followed by the minutes. The report on the Ordinance states at AR 162 that the action “is exempt from…[CEQA] under CEQA Guidelines Section 15061(b)(3) and 15378 in that there is no possibility that the implementation of this action will have significant effects on the environment, and no further environmental review is required.” The agenda, report on the Ordinance, correspondence, attachments, and minutes for the Council meeting of December 21, 2022, are found at AR 244-534. The report, at AR 253, repeats the full exemption statement from the meeting of December 7, 2022, as quoted above. The agenda, report on the Ordinance, and minutes for the Council meeting of February 1, 2023, are found at AR 535-556. At AR 542, the report once again repeats the full statement from the December 7, 2022, meeting that the decision is exempt from CEQA. All four of the above Council meetings were regular meetings, noticed and open to the public, with the Ordinance presented, discussed, and considered, and with members of the public submitting written comments and also appearing and orally submitting comments on the Ordinance at the meetings. AR 110-111, 113, 118-149 (November 2, 2022, meeting); AR 153, 155-157, 173-228, 237, 239-240 (December 7, 2022 meeting); 244-245, 248-249, 250-251 528, 532 (December 21, 2022 meeting); AR 535-537, 549-550 (February 1, 2023 meeting). The Ordinance itself states that the Council expressly finds that it is exempt from CEQA. AR 166, 258, 546. In this regard, it states, WHEREAS, The Town Council hereby finds the approval of this Ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§2100 et seq., “CEQA,” and 14 Cal.Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under Section 15061(b)(3) of the CEQA Guidelines. This is an emergency response measure aimed at capping rent increases in mobile home parks. No new development will result from the proposed action. No impact on the physical environment will result. It included this language in each version presented in the record for each of the meetings starting with the meeting of December 7, 2022. AR 166, 258, 546. The Ordinance as adopted, and set forth in the record at AR 10-15, likewise includes the same language. AR 13. The report on the Ordinance for the meeting of December 21, 2022, notes that at the prior meeting, the staff had made recommendations based in part on public requests but then recommended a continuance of the decision in order to allow time to consider the most recent, late, public correspondence on the Ordinance which had been received that day. The Council thus continued the decision in order to consider that last correspondence. AR 250-251. The minutes for the meeting of December 7, 2022, state that the Council decided at the hearing to continue the decision on the Ordinance to December 21, 2022, based on the additional correspondence received late that afternoon. AR 240. Petitioners sent two letters to the Council outlining their objections to the Ordinance at the Council. AR 297-301, 599-600. The first one Petitioners sent, and Respondents received, in the afternoon of December 7, 2022, and is among the correspondence which had been received late that day and which lead Respondents to continue the decision to December 21, 2022, in order to consider the correspondence. It was included with the items for, and considered at, the meeting of December 21, 2022. The second was sent on December 21, 2022, and was included with the items for, and considered at, the meeting of February 1, 2023. The first letter, at AR 297-301, discusses Petitioners’ rental rates and increases pursuant to a 2008 Settlement Agreement (the “Agreement”). See also AR 582-586 (duplicate copy in the record). Petitioners in this letter claim that the Agreement has “significantly curtailed” the ability to implement rent increases, they have complied with the Agreement, and “[f]ailing to acknowledge the history of the Park and its tradition of minor rent increases over its history flies in the face of public policy.” AR 298-299. They object to the Ordinance on the following bases: the Agreement is sufficient regulation of rent increases; the Ordinance will interfere with their vested property rights; the Ordinance creates a “risk [of] smothering the life out of the Park” because Petitioner have relied on the Agreement and thus lost the ability to obtain higher profits already; the Ordinance conflicts with the Agreement, which requires the owners to perform various tasks such as maintenance, beautification, and assistance of very low-income residents which they will be less likely to be able to do with the Ordinance’s restrictions; and they have been behind the fair market value for 14 years. AR 300-301. With respect to the claim that the Ordinance will impair their ability to perform tasks, they assert that this may result in dilapidated conditions in their mobile home park and underfunding for senior low-income units. At no point does it, in any manner, mention CEQA, environmental impacts, the need for environmental review, or the exemption determination. In their second letter, at AR 599-600, Petitioners state that they “are again writing to request… that appropriate consideration be granted for the unique legal constraints presented to the Park. Specifically, that the Park is bound by a longstanding arbitration order which governs the Park’s rental conditions.” AR 599. They state that “we would like to reiterate our letter dated December 7, 2022,” they do not support the Ordinance, they object to the change in the cap, they want Respondents to acknowledge their circumstances, and they request an “explicit exception” to the rent components which will allow the residents to continue to enjoy the benefits of the [Agreement] which was negotiated in good faith more than fourteen years ago.” AR 599-600. It says nothing more and therefore again does not in any manner mention CEQA, environmental impacts, the need for environmental review, or the exemption determination. As Respondents note, the record contains, at AR 149 and 240, that Petitioners attended and spoke at two of the meetings. The record includes no indication of what they said. The court has found one additional e-mail from Petitioners in the record at AR 731-733. This is merely a brief statement that Petitioners are interested in cooperating with the Town in providing affordable housing and setting forth their reluctance to provide financial or proprietary information. It otherwise includes only an effort to set up a telephone call. As Respondents argue, the record clearly demonstrates that the public was notified, at the latest by the meeting of December 7, 2022, that Respondents were expressly finding the Ordinance to be exempt based on the common-sense exemption. This was repeated at both of the two subsequent meetings, including the final meeting where Respondents actually made the final decision adopting the Ordinance. For all three of these meetings, the exemption finding was made expressly clear in both the published report on the Ordinance for each meeting and in the very language of the Ordinance itself, as detailed above. Moreover, before this, at the meeting of November 2022, Respondents already at least gave some indication that they were finding that CEQA did not apply. Although that statement was vague and insufficient, it demonstrates that Respondents had already given some notice then that they were considering the Ordinance exempt from CEQA. They simply made it expressly clear starting with the subsequent meeting. At no point do Petitioners claim, much less demonstrate, that this information and these documents were not disclosed to the public and the record clearly demonstrates that they were, and that the public was, aware of the documents, the Ordinance terms, and the meetings. The facts that members of the public, including Petitioners, submitted written comments, and appeared at the meetings to make oral comments, regarding the substance of the Ordinance demonstrates this. Moreover, at no point in the record as far as the court has been able to ascertain is there any comment indicating a lack of disclosure or notice to the public, or any other indicia of such lack of notice. Accordingly, Petitioners are unequivocally incorrect in their assertion that there was no sufficient notice of the exemption determination which would relieve them of the obligation to exhaust administrative remedies on this point. However, at no point did Petitioners, or anyone else as far as this court can determine ever discuss CEQA, claim that CEQA applied, claim that Respondents violated CEQA, or in any way mention, much less challenge, the exemption determination. Petitioners now claim that they did in effect raise CEQA issues in the underlying proceedings. They base this on their statements to Respondents that adopting the Ordinance would impair their ability to perform tasks, they assert that this may result in dilapidated conditions in their mobile home park and underfunding for senior low-income units. As noted above, the record demonstrates that they did, at last in the first letter discussed above, mention this complaint. However, at no point do Petitioners, in any manner, mention CEQA, environmental impacts, the need for environmental review, or the exemption determination. They never mention any of these issues or challenge the CEQA determination in any way, expressly or otherwise. Their claim that reducing their rent revenue may lead to a decline in the services or maintenance they provide does not implicate the effects on the physical environment with which CEQA is concerned. At most they only implicate social and economic impacts. Moreover, they are based solely on speculation, without evidence, and a possible statement of their own choices, not actual impacts of the Ordinance. Finally, the statements in the record about this are so vague, speculative, and facially unrelated to CEQA in any way that there is no hint in the record that they were in any way raising a CEQA concern by these statements. Petitioners also note that Respondents never issued a Notice of Exemption (“NOE”) from CEQA, but this is immaterial. The NOE would have been at the end when Respondents made their decision, after public comment was concluded, so it would have had no impact in giving the public notice that Respondents were finding the adoption of the Ordinance to be exempt. Moreover, Guideline 15062 makes it clear that the failure to publish an NOE is not itself a violation of CEQA and instead it triggers the statute of limitations for bringing an action challenging the decision. Guideline 15062(a) states, in pertinent part and with emphasis added, “When a public agency decides that a project is exempt from CEQA… and the public agency approves or determines to carry out the project, the agency may, file a notice of exemption. The notice shall be filed, if at all, after approval of the project.” Accordingly, Respondents were not required to file the NOE. Subdivision (d) adds, again with emphasis added, “The filing of a Notice of Exemption and the posting on the list of notices start a 35-day statute of limitations period on legal challenges to the agency's decision that the project is exempt from CEQA. If a Notice of Exemption is not filed, a 180-day statute of limitations will apply.” Accordingly, the court finds that Petitioners failed to exhaust their administrative remedies pursuant to the requirements of CEQA and thus may not raise the CEQA challenge here. The court DENIES the petition as to the claim that the decision to adopt the Ordinance violated CEQA. Substantive Discussion PRC section 21084 is the statutory authority for exemptions from CEQA and exceptions to those exemptions, which forbid an agency to rely on an exemption if an exception applies. Guideline 15061 governs “Review for Exemption” from CEQA. Guideline 15061(a) states that a lead agency, upon finding that a project is subject to CEQA, “shall determine whether the project is exempt from CEQA” and subdivision (b) sets forth the types of exemptions. These exemptions set forth in subdivision (b) are (1) by statute; (2) pursuant to a categorical exemption found in Guidelines 15300, et seq.; (3) the “common sense exemption” for projects with a potential for causing a significant effect and which applies “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment”; (4) if a public agency will reject it; and (5) pursuant to Article 12.5 of the Guidelines, which governs agricultural and affordable housing and residential infill. Guideline 15061 states, in pertinent part, (a) Once a lead agency has determined that an activity is a project subject to CEQA, a lead agency shall determine whether the project is exempt from CEQA. (b) A project is exempt from CEQA if: … (3) The activity is covered by the common-sense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Subdivision (b)(3) is the “common-sense” exemption. See Apartment Association of Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th 1162, 1171; Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 116-117. The Discussion following the Guideline states that this “provides a short way for agencies to deal with discretionary activities which could arguably be subject to the CEQA process, but which common sense provides should not be subject to the act.” The common-sense exemption may be used “only in those situations where its absolute and precise language clearly applies.” Myers v. Board of Supervisors (1st Dist. 1976) 58 Cal.App.3d 413, 425. Where one can raise a legitimate question of a possible significant impact, the exemption does not apply and, because it requires a finding that such impacts are impossible, it requires a factual evaluation based on evidence which shows that it could have no possible significant impact. Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 116-117. The agency thus bears the burden of basing its decision on substantial evidence that shows no such possibility. Ibid. Respondents note that they expressly determined that the Ordinance approval is exempt from CEQA because “No new development will result from the proposed action. No impact on the physical environment will result.” AR 13, 166, 258, 546 (findings as set forth in the Ordinance). Respondents also correctly note that nothing refers to the Ordinance as a zoning regulation. The Ordinance itself states, “the California Constitution, Article XI, section 7, provides cities with authority to enact ordinances to protect the health, safety, welfare, and morals of the citizens, and zoning regulations are a permissible exercise of this authority. AR 12; see also, e.g., AR 18, 545. Nothing indicates that the Ordinance regulates or changes the use of land in any way; instead, it simply limits the rent which owners of mobile home parks may charge. See, e.g., AR 12-15, 19-21, 159-162, 250-254, 541-542, 546-548. Petitioners claim that Respondents failed to investigate whether the decision was in fact exempt under the common-sense exemption. This argument is wholly unpersuasive. First, Petitioners provide no citation to the record, and they offer no explanation for this argument. As noted above, although the agency has the burden of conducting an investigation and analysis into the possible environmental impacts of a project, in judicial review the petitioner bears the burden of demonstrating that the agency’s action does not comply with CEQA. Petitioners have provided neither evidence nor analysis explaining how the adoption of this Ordinance was not exempt from CEQA as Respondents determined, or how the record lacks substantial evidence to support the determination. Second, Petitioners’ reliance on their claims that capping the rent they can charge may cause them to cut back on services are, as explained above, insufficient for demonstrating that adopting the Ordinance was not exempt, or that Respondent’s actions violated CEQA. Petitioners’ assertions regarding the possible impacts of the rent restrictions are entirely speculative, vague, and unclear. They are also limited to tenuous and vague social or economic impacts with no physical change in the environment. In fact, in the court’s view, the statements appear to be nothing more than veiled threat that if their ability to raise rents is curtailed, they will respond by simply providing fewer services in order to protect their profits. This is hardly the sort of impact with which CEQA could possibly be concerned. Third, as Respondents argue, the Ordinance on its face involves no indication of a possible direct or indirect physical change in the environment. It is not a land-use decision, it makes no change whatsoever to land use, nothing indicates that it will affect development or promote or alter development, growth, activities on the land, or any other similar land-use change. It merely imposes a cap on rent which may be charged at mobile home parks. Petitioners argue that it necessarily implicates CEQA because it is a zoning regulation, but Respondents correctly note that it is not the type of regulation which implicates CEQA merely because it may be a zoning regulation. As the Supreme Court explained in Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, at 1190, 1193 (“UMMP”), PRC 21080 does not make a zoning ordinance necessarily a project subject to CEQA as a matter of law. Fourth, Respondents correctly note that they provided an explanation and analysis, however brief, supporting the exemption determination. This states, as noted above, that “No new development will result from the proposed action. No impact on the physical environment will result.” AR 13, 166, 258, 546. It is indeed brief, but it demonstrates an analysis based on the evidence consisting of the nature of the Ordinance itself and given that it is based on the inherent language of the Ordinance and its effects, it is facially sufficient. Petitioners point to nothing in the record indicating the contrary. Finally, as noted above, Respondents were not required to file an NOE. Their failure to do so therefore does not constitute a violation of CEQA. The court finds that, even if Petitioner had exhausted their administrative remedies, substantively they present no violation of CEQA. The court therefore DENIES the petition as to the CEQA claims on this basis as well. TENTATIVE RULING (AS TO ALL OTHER CAUSES): Petitioners, ROP WMCC LLC and Resident Owned Parks, Inc. (“Petitioners”) amended petition for writ of administrative mandate and request declaratory and injunctive relief is DENIED, as to the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action. The Second Cause of Action is addressed in a separate tentative ruling focused only on the CEQA issues raised in the amended petition. PROCEDURAL HISTORY Petitioners challenge the Ordinance No. 2023-373 (the “Ordinance”) adopted by Respondents Town of Windsor (“Town”) and Town Council of the Town of Windsor (“Town Council”) on February 1, 2023, after several public Town Council meetings. (AR 550.). The Ordinance caps the rent for mobile home parks within the Town’s jurisdiction and its purposed is to stabilize excessive rent in consideration of mobile home park residents. The predecessor to the Ordinance was adopted on October 28, 1992, for rent control. (Administrative Record [“AR”] 92.) In 2008, the parties participated in an arbitration regarding proposed rent increases at the park after which the parties entered into a settlement agreement. (Amended Petition, ¶¶ 35- 39.) Petitioners allege that according to the agreement, they are bound by its terms which detail precisely how rental rates and increases are to be calculated under Paragraph 5 to Exhibit 1 of the agreement. (Ibid.) The Petition seeks a writ of mandate directing Respondents to: (1) rescind, repeal, or set aside the Ordinance; (2) to set aside the Ordinance due to the failure to comply with the California Environmental Quality Act (“CEQA”); (3) inquire into the validity of the Ordinance for lack of jurisdiction, acting in excess of jurisdiction, and abuse of discretion; (4) set aside the Ordinance based on a deprivation of fundamental vested rights pursuant to the United States Constitution and California Constitution; (5) set aside the Ordinance based on equitable estoppel; and (6) set aside the Ordinance based on lack of fair hearing; and related claims. Petitioners also seek a monetary award, injunctive and declaratory relief, and an award of attorneys’ fees and costs. ANALYSIS 1. First, Third, Fourth, and Fifth Causes of Action a. Traditional or Administrative Writ of Mandate Code of Civil Procedure (“C.C.P.”) section 1094.5 provides for the review by a court sitting without a jury where the writ is issued “for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.” The inquiry into the validity of a final administration order extends to “whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” (C.C.P. § 1094.5(b).) A writ of traditional mandamus pursuant to C.C.P. section 1085(a) may be issued to “compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station” or to compel “the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded.” “Abuse of discretion” is established against the respondent if they did not proceed in the manner required by law, if the order or decision is not supported by the findings, or if the findings are not supported by the evidence. (Ibid.) “Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.” (CCP § 1094.5(c).) “In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Ibid.) b. First Cause of Action to Rescind, Repeal, or Set Aside the Ordinance (C.C.P. § 1085) The Petition seeks to rescind, repeal, or set aside the Ordinance per C.C.P. section 1085 claiming that counsel failed to responsibly research and determine an appropriate restriction on rental increases within mobile home parks. Petitioners argue that the Ordinance are “arbitrary, capricious, or entirely lacking in evidentiary support.” The Town opposes and argues that that California Courts have consistently upheld the power of municipalities to establish rent control as a valid police power, per Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 165 as well as other cases. The Town’s position is that as long as the rent control ordinance enacted serves a legitimate government purpose, permits a landlord to earn a just and reasonable return, and provides for some rental adjustment mechanism, then it is allowable, per Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 962-963. Here, as the Town argues, the Ordinance prevents excessive rents and does not prevent landlords from obtaining a just and reasonable return on their property. The Town argues that Petitioners have not shown that they cannot obtain a just and reasonable return with the Ordinance in place. The Town also points out that there is no requirement that “year long studies” need to be conducted before justifying a modification of its mobile home rent stabilization ordinance. The Town points to the administrative record, which contains evidence of the Town’s extensive fact-finding and research efforts, detailed staff reports, and presentations to the Town Council regarding the Ordinance before it was adopted. (AR 0115-0117, 0159-0162, 0250-0254.) During several Town Council meetings, the Town heard testimony from mobile home park owners, including from Petitioners, and from mobile home residents. (AR 0149, 0240, 0532.) Furthermore, the Town communicated with other municipalities and compiled information on their various mobile home rent control ordinances in order to support and form the Ordinance. (AR 0116.) Based on the foregoing, the Court finds that the Ordinance was supported by a legitimate public purpose as well as extensive evidence and findings prior to its adoption. Petitioners have not provided any authority that supports their argument that the Town was required to conduct years’ long studies by experts prior to the Ordinance being adopted. The Petition is DENIED as to the First Cause of Action. c. Third Cause of Action Regarding Validity of Ordinance (C.C.P § 1094.5) Petitioners argue that the Ordinance is a decision that requires a fair hearing, evidence to be considered, and discretion in the determination of facts that was vested in an inferior tribunal (namely the Town Council). Petitioners request the Court to inquire into the validity of the Ordinance to determine if there was a fair hearing and whether there was any prejudicial abuse of discretion, because Petitioners are of the position that the Ordinance is lacking in each category required under C.C.P. section 1094.5(b). As described above, the Town argues that the Ordinance has a legitimate public purpose to prevent excessive rents and does not prevent landlords from obtaining a just and reasonable return on their property. Furthermore, before the Ordinance was adopted, the Town relied on extensive fact-finding and research efforts, detailed staff reports, presentations to the Town Council, several public Town Council meetings during which the Town Council heard testimony from mobile home park owners, including from Petitioners, and from mobile home residents. The Town also considered a compilation of information regarding other similar municipalities and various mobile home rent control ordinances in adopting the Ordinance. The Town also argues that only governmental decisions which are adjudicative in nature are subject to procedural due process principles, per San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 526. The Town also distinguishes this matter from the case cited by Petitioners, Harris v. County of Riverside (9th Cir. 1990) 904 F.2d 497, by arguing that in Harris, an individual property owner might have procedural due process rights when a public agency specifically targets their property as part of a rezoning change and might eliminate that property altogether. The Court does not find that “abuse of discretion” has been established here against the Town. The Town had a legitimate purpose to adopt the Ordinance and relied on extensive evidence, including several public Town Council meetings at which Petitioners were heard as well as mobile home residents, prior to the adoption of the Ordinance. As such, the Petition is DENIED as to the Third Cause of Action. d. Fourth Cause of Action for Deprivation of Rights (42 U.S.C. § 1983) The Petition argues that the Ordinance deprives them of their due process rights under the United States and California constitutions. Petitioners argue that their vested rights have been deprived without just compensation and without a valid purpose. The Town makes the same arguments as described above under subsections 1b. and 1c. The Court does not find Petitioners’ arguments persuasive that they were deprived of their due process rights and that the alleged deprivation was without a valid purpose. The Ordinance is meant to stabilize mobile home rent in protection of the mobile home residents that reside there, which is a legitimate public purpose as well as within the Town’s legal authority. Furthermore, the Town Council had four public meetings during which Petitioners as well as other mobile home park owners and residents were heard. For these reasons, the Petition is DENIED as to the Fourth Cause of Action. e. Fifth Cause of Action for Equitable Estoppel Petitioners cites to Congregation Etz Chaim v. City of Los Angeles (2004) 371 F.3d 1122 in support of their fifth cause of action to set aside the Ordinance based on equitable estoppel. Petitioners argue that when a property owner incurs substantial expense in reasonable reliance upon some governmental act, the principle of equitable estoppel prohibits a government entity from exercising its regulatory power to prohibit the land use. Petitioners allege that they were induced to rely on the 2008 arbitration that they sustained substantial economic and personal harm by the “sudden, unwarranted adoption of the Ordinance” because they made substantial changes, investments, and long-term financial and other commitments. The Town argues that Petitioners have failed to allege facts sufficient to support a claim for equitable estoppel. As described by both parties, an equitable estoppel claim has the following elements: (1) the party to be estopped must be apprised of the facts; (2) the party to be estopped must intend that their conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the truth state of facts; and (4) the other party must rely on the conduct to its injury. (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 489.) The Town contends that Petitioners’ participation in the 2008 arbitration cannot form the basis of any equitable estoppel claim because no assurance was made by the Town in that process that could be interpreted as a restriction on the Town’s future exercise of tis legislative power. Additionally, the Town makes note that Petitioners cannot and have not claimed injury from the Town’s adoption of the Ordinance, because Petitioners maintain the ability to seek a rent higher than allowed by going through the arbitration process outlined in the Windsor Municipal Code. Based on the above, the Court does not find that Petitioners’ participation in the 2008 arbitration in compliance of the Ordinance sufficiently establishes a basis for Petitioners’ equitable estoppel claim because no assurance was made by the Town during the arbitration that it would not seek to exercise its own legislative authority regarding rent control in the future. Thus, the Petition is DENIED as to the Fifth Cause of Action. 2. Declaratory Relief and Judicial Declaration a. Declaratory Relief Code of Civil Procedure (“C.C.P.”) section 1060 allows an interest person under a written instrument, not including a will or a trust, to seek a declaration of his or her rights or duties in cases of actual controversy relating to the legal rights and duties of the respective parties. In order for a party to seek declaratory relief, there must be: 1) an actual controversy about justiciable questions regarding the rights or obligations of a party which 2) involves a proper subject of declaratory relief. (C.C.P. § 1060; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.) The court may refuse to exercise the power to provide declaratory relief where its declaration or determination is not necessary or proper at the time under all circumstances. (C.C.P. § 1061.) b. Interference with a Valid Contract Petitioners allege that the Town is in violation of the Contracts Clause, under Article I, Section 10 of the U.S. Constitution, because the Ordinance “was not targeted at remedying a broad or pervasive social problem.” Petitioners argue that the plain language of the Ordinance is targeted to interfere with private contracts and so is void on its face. The Town argues that the ordinance does not substantially impair the 2008 agreement. A contractual relationship exists between the Petitioners and mobile home park residents, so the Town argues that the proper test is to determine whether the impairment to this contractual relationship is substantial in that it impairs the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating their rights. (Sveen v. Melin (2018) 584 U.S. 811, 819.) The Town argues that as it is within its power to take rent-control measures and that it has adopted the Ordinance and its predecessors to stabilize rent, that it is foreseeable to both the mobile home park residents and Petitioners that further regulation may be adopted to modify the restrictions. For that reason, the Town claims that the Ordinance neither interferes with the parties’ reasonable expectations nor prevents the parties from safeguarding or reinstating their rights. According to the Town, Petitioners are still able to follow the rental adjustment process to seek a higher rent. The Court finds that the Ordinance does not substantially impair the contracts between Petitioners and the mobile home park residents as it does not impair or eliminate the contractual bargain and because the history of regulation by the Town to stabilize and control rent made it foreseeable to Petitioners and the mobile home park residents that further measures could be taken to regulate rent in the future. Thus, the parties’ reasonable expectations were not interfered with and the parties were not prevented from safeguarding or reinstating their rights as they still have an avenue to seek higher rent. The Petition is DENIED as to the Sixth Cause of Action. c. Violation of Due Process Rights The Petition alleges that the Town is in violation of Petitioners’ right to due process of law under the 14th amendment to the U.S. Constitution and under 41 U.S.C. section 1983. Petitioners argue that there was a notice and opportunity to be heard needed before the deprivation of their rights. In opposition, the Town makes similar arguments as described above in subsections 1b.- 1d. For the same reasons as stated above, the Court does not find that the Ordinance deprived Petitioners of their due process rights or that the alleged deprivation was without a valid public purpose. The Petition is DENIED as to the Seventh and Eight Causes of Action. 3. Injunctive Relief to Prevent Enforcement of Ordinance Injunctive Relief Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted. (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.) Injunctive relief is an equitable remedy available to protect the party seeking it or prevent the invasion of a legal right. (Meridian, Ltd., v. San Francisco (1939) 13 Cal.2d 424, 447.) The circumstances in which an injunction may be granted are listed under C.C.P. section 526(a)(1)-(7) lists when an injunction may be granted by the court. For granting injunctive relief, trial courts consider two questions: “1) are the plaintiffs likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant; and 2) is there a reasonable probability that the plaintiffs will prevail on the merits.” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.) Petitioner’s Request for Injunction to Prevent Enforcement of Ordinance Petitioner requests injunctive relief as a separate cause of action and the bases is the violation of CEQA, other state law, and the U.S. and California constitutions. The Court finds that the cause of action for injunctive relief cannot stand independently per Shell Oil referenced above, and also that the relief requested should not be granted based on the rulings made on all other causes of actions above and based on the Court’s separate ruling denying the Petition based on the unwarranted CEQA claims. The Petition is DENIED as to the Ninth Cause of Action. CONCLUSION The Petition is DENIED as to the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth causes of action numbers. The Town shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule 3.1312.

SCV-267181, Anabi Oil Corporation, a California corporation v. Petersen APPEARANCES REQUIRED. Plaintiff Anabi Oil Corporation moves for a hearing regarding the remaining issues post settlement. The Court entered an order on May 15, 2024, outlining the enforcement order for the parties’ settlement. On June 14, 2024, the Court noted in its order regarding matters under submission that the only item remaining to be addressed is the issue of rent. The Court set evidentiary hearings on July 9 and 10 to hear testimony and rule on the matter. The Court orders the parties to appear and provide testimony regarding rent.

SCV-269625, Hammers v. Redwood Oil Company, Inc. This matter is scheduled for a review of the settlement distribution. The hearing is DROPPED from calendar. The final report and declaration regarding the distribution has been timely filed and shows that the settlement has been distributed according to the order of the Court.

SCV-269940, Lucio v. Epidendio Defendant’s counsel’s motion to be relieved as counsel is CONTINUED to August 14, 2024. This motion fails to comply with Cal. Rules of Court, Rule 3.1362 because Counsel did not lodge a proposed order with the moving papers as required by subdivision (e). Furthermore, the proof of service does not specify that a proposed order was served with the moving papers, as required by subdivision (d). Counsel shall submit to the Court an Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053) which complies with Rule 3.1362(e). Counsel shall also file a proof of service showing that the proposed order was served upon the client and other parties. Counsel shall file the documents not later than 5 court days prior to the next hearing date. 6-7. SCV-258938, Pochari v. Bodega Harbour Homeowners This is a joint ruling on Defendants’ Ex Parte Application for Order for (1) Sale of Dwelling and (2) for Issuance of an Order to Show Cause; on Plaintiffs’ January 29, 2024 Ex Parte Application to Vacate or Modify Judgment; and on Plaintiffs’ April 29, 2024 Motion to Vacate or Modify Judgment. Defendants’ ex parte motion and Plaintiffs’ ex parte motion were set for hearing on Department 19’s March 19, 2024 law and motion calendar. Prior to ruling on the ex parte motions, the Honorable Oscar A. Pardo recused from the case and the case was reassigned to Department 18. Defendants’ ex parte motion was re-scheduled to July 3, 2024. Plaintiffs’ ex parte motion was not given a new hearing date on the Department 18 calendar. Accordingly, it has not been ruled on. However, after the case was reassigned to Department 18, Plaintiffs filed a renewed Motion to Vacate or Modify Judgment that was scheduled for hearing on July 24, 2024. Defendants’ ex parte motion for sale of dwelling was continued to be heard concurrently with Plaintiffs’ motion to vacate. Plaintiffs’ April 29, 2024 motion raises identical arguments as those previously raised by Plaintiffs in their various briefs submitted relating to the pending motions. The Court issues the following ruling as to all motions that are before it. Plaintiffs’ motions to vacate the judgment are DENIED. Defendants’ motion for order of sale of dwelling is GRANTED. Defendants’ request for attorney’s fees and costs is GRANTED in the amount of $31,245.08. All requests for judicial notice are GRANTED. Defendants’ counsel shall submit a written order consistent with this tentative ruling and in compliance with Rule 3.1312. I. Background A. Procedural History Plaintiffs Catherine Pochari and Thomas Pochari (“Plaintiffs”) filed a third amended complaint (“TAC”) on August 18, 2017, against Defendants Bodega Harbour Homeowners Association and Kemper Sports Management (individually referred to as “BHHOA” and “Kemper” respectively, and collectively referred to as “Defendants”). On March 1, 2017, Defendants filed a cross-complaint against Plaintiffs. The gravamen of these actions was Plaintiffs remodeling of their single-family residence (the “Property”) which Defendants contend was not done in conformity with BHHOA’s covenants, conditions, and restrictions. On April 12, 2018, the Parties reached a settlement which was then placed on the record in court. The general settlement terms were (1) assurances by Plaintiffs of compliance with BHHOA’s Review Committee’s requirements for the Property remodel, (2) completion of the remodel within one year, (3) the Court’s continued jurisdiction to enforce the settlement pursuant to CCP §664.6, (4) a mutual release of all claims pursuant to Civil Code §1542, (5) Plaintiffs’ payment of $15,000 in attorney’s fees to BHHOA, payable in $250 monthly installments over the next 5 years at 5% interest, and (6) a waiver by BHHOA of $36,000 in fines imposed on Plaintiffs’ prior to litigation, so long as the Plaintiffs complied with every other term of the agreement. (Plaintiffs’ Ex Parte App. at 1:18-25; 2:19-25; Ex. 1 at 4:17-5:28: 6:6; 10:12-24). Although the parties discussed a non-disparagement clause it was not consented to in open court. The parties effectively agreed to continue negotiating the non-disparagement clause and reduce it to writing. After the Mandatory Settlement Conference, the parties continued to negotiate, a non- disparagement agreement was circulated, but was never executed. On August 27, 2020, Defendants filed a Motion to Enforce Judgment (CCP §664.6), which was supported in part by the declarations of Anna Taylor and Rian Jones, Esq. (Plaintiffs’ Ex Parte App – Exhibits 1-3). Mr. Jones declaration identified two letters he sent to Plaintiffs on June 27, 2019, and December 26, 2019. The letters describe Plaintiffs’ breach of the agreement as being the nonpayment of the $250 monthly installments applicable to the $15,000 attorneys fee debt. The last letter also requested that Plaintiffs engage in dispute resolution as is required by Civil Code §5935. Plaintiffs acknowledge making only 10 payments and then withholding the remainder as an offset against BHHOA for previously paid application fees and unidentified expenses. (Plaintiffs’ Ex Parte App. 12:17-23). This withholding as an offset was not a term of the settlement agreement. Plaintiffs also contend that failure to timely proceed with their remodeling project or remove scaffolding were not conditions of the agreement, therefore, not breaches. (Plaintiffs’ Ex Parte App. at 12:7-17). Plaintiffs also contend that as an exercise of their right to free speech they were free to make statements against Defendants and doing so was certainly not a breach since there was never an executed non-disparagement agreement. On October 21, 2020, the Court held a hearing on Defendant’s Motion to Enforce Judgment, it received oral arguments, and took the matter under submission. The Court then issued a Judgement after hearing in which it granted Defendants’ motion and awarded Defendants $58,498.91 in damages. Of this amount $36,000 constituted the reinstatement of fines, which the Court determined Defendants were entitled to due to Plaintiffs’ breach, and an additional $22,498.91 in attorney’s fees and costs associated with the motion to enforce. (Plaintiffs Ex Parte App. - Exhibit 1). It should be noted that the Court excised Paragraph 3-C of the Judgment pertaining to purported disparaging comments made by Plaintiffs. This excised paragraph is not part of the Judgment signed by the Court on October 23, 2020. (Plaintiffs Ex Parte App. - Exhibit 1). B. Defendants’ Ex Parte Application for Order of Sale and for OSC Defendants filed an ex parte application December 14, 2023, requesting (1) an order for sale of dwelling, and (2) issuance of an order to show cause pursuant to CCP §704.740 - §704.850. Defendants now seek to enforce the Judgement and recover their damages through the sale of Plaintiffs’ Property, located at 21108 Hummingbird Court, Bodega Bay, CA 94923. On December 18, 2023, the Court issued an Order to Show Cause requiring Plaintiffs to appear and show cause why the Property should not be sold, and the Court placed the motion for hearing on its law and motion calendar. Defendants perfected the Judgement by recording the document at the Sonoma County Recorder’s Office on November 23, 2020. (Defendants Ex Partes App. -Ex. A). An Abstract of Judgment was also recorded on December 11, 2020. (Defendants Ex Partes App. -Ex. B). On September 5, 2023, Defendants had the Sonoma County Sheriff’s Department serve a Notice of Levy for the Enforcement of the Judgment on Plaintiffs. (Defendants Ex Partes App. -Ex. D). Defendants then timely filed the present application pursuant to CCP §704.750(a). Sonoma County Assessor’s records do not indicate the Property qualifies as a homeowner’s exemption. (Defendants Ex Partes App. -Ex. M). Sonoma County Recorder's Office similarly indicates that a Homestead Declaration on the Property has not been recorded. (Defendants Ex Partes App. -Ex. E). Defendants argue that for the Property to qualify as a “Homestead” under CCP §704.710, the judgment debtor and/or their spouse (1) must reside on the property on the date the creditor’s lien is attached, and (2) they must reside on the property continuously until the date of the court’s determination as a homestead. CCP §704.710(c). Defendants contended that Plaintiffs cannot comply with these requirements especially when the Sonoma County Permit Office has posted a “red tag” notice on the Property since May 20, 2023, prohibiting occupancy. (Defendants Ex Parte App. – Ex. G). In seeking the sale, Defendants obtained a report from First American Title Company which indicates there are no other liens or encumbrances on the Property other than the Judgment. (Defendants Ex Partes App. – Ex. E). Defendants also have obtained a “drive-by” appraisal of the Property which has provided a value of $825,000. (Defendants’ Ex Partes App. – Ex. F). Defendants are also requesting recovery of attorney’s fees and costs to be added to the judgment creditor Judgment. In opposition, Plaintiffs argue the Judgment entered is void per the arguments set forth in their separate ex parte application to vacate the judgment. Though they claim the Property is their permanent residence, Plaintiffs clarify they do not reside there now due to ongoing repairs. They state an intent to return to the Property and cite that this is one of the two essential factors in determining residence for homestead purposes, namely physical occupancy and intent to live there per In re Dodge (Bankr. E.D.Cal. 1992) 132 B.R. 602. Plaintiffs believe they are entitled to a homestead exemption of $600,000.00. CCP §704.730 requires that a homestead exemption ought to be the greater of either the countywide median sale price for the home (not more than $600,000), or otherwise $300,000. Plaintiffs take issue with the appraisal claiming it is not sufficiently supported by factual foundation. In reply, Defendants’ position is that the Judgment is enforceable. Defendants also argue that Plaintiffs’ intent to return to the Property is not conclusive to qualify for a homestead exemption without conduct supporting such intent. In re McKee (9th Cir. 2024) 90 F.4th 1244. Defendants point to a pending county “red tag” notice and order for abatement on the Property since 2023. Plaintiffs are required to correct existing violations either by demolishing the Property with a permit or obtaining all required permits and verifications necessary to legalize the construction done on it. Plaintiffs have done neither. Defendants argue that Plaintiffs have not provided sufficient evidence supporting their intent to return to the Property. Defendants also disagree that Plaintiffs were forced to temporarily vacate their residence due to safety concerns because Plaintiffs caused the issues that made their residence uninhabitable. C. Plaintiffs’ Ex Parte Application Plaintiffs also filed an ex parte application on January 29, 2024, requesting that the court vacate a void judgment (CCP §473(d)), or in the alternative, modify said judgment (CCP §664.6). Plaintiffs contend the Judgment should be void because it is predicated solely on the infringement of Plaintiffs’ exercise of free speech. Plaintiffs argue that the Court lacked subject matter jurisdiction because the Judgment was entered based on an “alleged violation of the generic non-disparagement clause.” (Plaintiffs Ex Parte App. at 6:25). Plaintiffs argue that the non-disparagement clause is void because it infringes upon the First Amendment of the United States Constitution. (Plaintiffs Ex Parte App. at 7:2-13). Plaintiffs also argue that they engaged in protected speech pursuant to CCP §425.16 and Civil Code §47(b). Finally, Plaintiffs argue they have paid the $15,000 amount in full, and the Judgment’s reinstatement of the $36,000 in fines constitutes improper, illegal, and unconscionable liquidated damages. (Plaintiffs’ Ex Parte App. at 11:27-12:17; 13:21-22). Defendants in opposition argue that Plaintiffs’ challenge to the Judgment is untimely under CCP §473(d). Defendants concede that although CCP §473(d) has no stated deadline for filing a motion challenging the judgment, courts have applied the two-year statute of limitations found in CCP §473.5(a) applicable to the entry of a default judgment. David B. v. Superior Court (1994) 21 Cal. App. 4th, 110, 119). Defendants argue that the Judgment is neither void nor voidable. Defendants also argue that the non-disparagement clause played no role in the issuance of the Judgment. Defendants claim not all speech is protected, and in this distinction, they should not be precluded from enforcing their Governing Documents against Plaintiffs’ use of offensive language. Finally, Defendants argue that the reinstatement of the $36,000 fine does not operate as liquidated damages but simply the enforcement of a settlement condition which Plaintiffs were fully aware of, and consented to, as part of the Settlement Agreement. In reply, Plaintiffs argue that the Court exceeded its jurisdiction in granting Defendants’ Motion to Enforce the Settlement because the grounds upon which the judgment was entered—the late payments— where not specifically stated as a basis for the motion in the Notice of Motion nor argued in the memorandum of points and authorities in support of the motion. The Court notes that the notice of motion states that the motion is based on Plaintiffs “breaches of the terms of the Settlement Agreement.” Plaintiffs also argue that a void judgment may be set aside at any time pursuant to CCP § 473(d). D. Plaintiffs’ April 29, 2024 Motion to Vacate or Modify Judgment On April 29, 2024, Plaintiffs filed a renewed Motion to Vacate or Modify Judgment, which raises identical arguments as those already raised by Plaintiffs in their Ex Parte Application for the same relief, their reply brief to Defendants’ opposition to Plaintiffs’ Ex Parte Application and in their two opposition briefs to Defendants’ Ex Parte Application. On July 15, 2024, Plaintiffs submitted a reply to Defendants’ opposition to Plaintiffs’ Motion to Vacate. However, Defendants did not file an opposition to this renewed motion. Therefore, the Court will not consider Plaintiffs’ July 15th reply. This is especially so since Plaintiffs filed an unauthorized second opposition to Defendants’ Ex Parte Application on May 13, 2024, but the Court has exercised its discretion to consider the second opposition nonetheless. The Court notes that Defendants did file an opposition to Plaintiffs’ Ex Parte Application on February 29, 2024 and Plaintiffs filed a reply to that opposition on March 8, 2024. Therefore, that motion is already fully briefed. If Plaintiffs’ July 15th reply was in reply to Defendants’ February 29th opposition, it is improper because Plaintiffs already submitted a reply brief to that opposition. II. Analysis A. Plaintiffs’ Motions to Vacate or Modify Judgment In general, a motion to set aside a void default judgment may be filed at any time. (OC Interior Servs., LLC v. Nationstar Mtg., LLC (2017) 7 Cal.App.5th 1318, 1327; Dhawan v. Biring (2015) 241 Cal.App.4th 963, 973–975.) However, a judge has no statutory authority under CCP § 473(d) to set aside a judgment that is not void. (Cruz v. Fagor Am., Inc. (2007) 146 Cal.App.4th 488, 495-496.) A judgment that is voidable, but not void, cannot be set aside under CCP § 473(d), but can only be set aside under CCP § 473(b), which requires compliance with the 6-month time limit provided by that subdivision. (Lee v. An (2008) 168 Cal.App.4th 558, 563–566.) CCP § 473(d) provides that a judge “may” set aside any void judgment, which typically affords judicial discretion. When a court has jurisdiction over the defendant and the action but acts in excess of its defined power by failing to follow proper procedure, any resulting default judgment is voidable, not void. (Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98–99 [by awarding terminating sanctions on ex parte basis, judge at most failed to follow proper procedure, and resulting default judgment was voidable, not void]; Lee v. An, supra, 168 Cal.App.4th at pp. 564–566 [subsequent default judgment voidable, not void, when judge imposed terminating sanction against defendant for failure to appear at case management conference].) Relief from a voidable default judgment may only be sought under CCP § 473(b) within 6 months after entry of the default and not under CCP § 473(d) after the 6- month period expires. (Id. at pp. 563–566.) Here, Plaintiffs argue the Judgment is void because the purported breach of the Settlement Agreement was based solely on Plaintiffs’ exercise of their First Amendment right. (Citing Civ. Code § 47(b), CCP § 425.16, and CCP § 473(d).) Plaintiffs’ argument relies exclusively on dissecting the declaration of Anna Taylor, BHHOA’s General Manager, which was submitted in support of Defendants’ Motion to Enforce Judgment. (Plaintiffs’ Ex Parte App. - Ex. 2.) Plaintiffs highlight portions of that declaration that reference (1) a letter that Plaintiffs sent to BHHOA discussing fees, dues, and claims for offsets, (2) comments made by Plaintiffs on the social media site Nextdoor.com, where Thomas Pochari claims BHHOA was spying on his family; and (3) potential contacts that Plaintiffs may have had with the California Attorney General, County Counsel, the Sonoma County Board of Supervisors, and the State Bar of California regarding their interactions with Defendants and issues involved in the lawsuit. (Plaintiffs’ Ex Parte App. at 3:12- 5:3; Ex. 2.) Plaintiffs contend that the Judgment is void because the Court relied on allegations of violations of a nonexistent or unenforceable generic disparagement clause. The Court finds Plaintiffs’ arguments to be without merit. First, the Court notes that the Judgment contains an excision of Paragraph 3-C. This is the only paragraph in the Judgment that (prior to the excision) identified Plaintiffs’ purportedly disparaging statements and sought to enjoin Plaintiffs’ conduct. Hon. Richard Henderson, who heard and decided the Motion to Enforce Settlement, specifically struck this language from the final Judgment. Thus, in issuing the Judgment, the Court did not rely on Plaintiffs’ statements or on the cited portions of Ms. Taylor’s declaration. This is also clearly stated by the Court in the October 23, 2020 Order After Hearing. On the contrary, the material breach underlying the Judgment was Plaintiffs’ failure to timely submit $250 monthly payments to BHHOA, as agreed upon in the Settlement Agreement. These facts alone are dispositive of Plaintiffs’ claim that the Judgment is void. Moreover, a Judgment that may only be voidable cannot be set aside under CCP § 473(d) but can only be set aside under CCP § 473(b) by complying with the 6-month time limit of that section. (Lee v. An, supra, 168 Cal.App.4th at pp. 563–566.) Plaintiffs did not argue that the Judgment is voidable, as distinct from void, but even if they had, the request would be barred by the statute of limitations set forth in CCP § 473(b). Plaintiffs also argue that the Court acted in excess of its jurisdiction because it granted Defendants’ motion to enforce the settlement based on a breach of the settlement agreement that was not raised in Defendants’ moving papers. However, Defendants’ notice of motion challenges all of Plaintiffs’ “breaches of the terms of the Settlement.” Plaintiffs have provided no authority requiring that each individual alleged breach be outlined in the notice of motion. Though the memorandum of points and authorities does not specifically complain of late payments, the terms of the Settlement Agreement providing for the $250 monthly payments is outlined in the memorandum and the memorandum requests relief based on all of Plaintiffs’ breaches. The declarations in support of the motion provide foundation for the existence of the breach upon which the motion was granted. (See 8/27/20 Decl. of Rain W. Jones, ¶ 16-17, Exhs. 6-7.) Finally, Plaintiffs have not provided the Court with a transcript of the hearing on Defendants’ motion. Therefore, it is impossible for the Court to know what arguments were considered at the hearing such that the Court took the matter under submission. There is nothing from the record provided by Plaintiffs that indicates that a Due Process violation occurred. Finally, Plaintiffs argue that the Judgment was entered in excess of the Court’s jurisdiction because the Judgment’s reinstatement of the $36,000 in fines constitutes improper liquidated damages, which constitutes an illegal penalty. (Citing Ridgely v. Topa Thrift Loan Assn. (1998) 17 Cal.4th 970, 977; Civ. Code § 1671(b).) A provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made. (Civ. Code § 1671(b).) Furthermore, “a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” (Civ. Code § 1671(d).) In Ridgely, supra, our Supreme Court examined the relationship between late payments on a loan installment plan measured against the unpaid principal of the loan. (Id. at p. 977.) The Ridgley court found that when the late payment is not reasonably calculated to merely compensate the injured lender then it must be deemed punitive and therefore void. The Court finds that Plaintiffs’ argument on this point is factually flawed and without merit. The first flaw is Plaintiffs assumption that the $36,000 was a penalty and constituted liquidated damages. Ridgely involved a single installment-loan contract; here, in contrast, the parties engaged in settlement discussions on various distinct issues of liability and damages. For example, Defendants’ request for $15,000 in attorney’s fees was a distinctly different damages item than the $36,000 in HOA fines which Plaintiffs had accrued prior to settlement. Each is a separate and distinct damage item that served as consideration for the settlement, not liquidated damages. Plaintiffs could have contested the $36,000 in fines, but they ultimately accepted the amount as one of the material terms of the Settlement Agreement. Second, the Ridgley court deemed the late fee unreasonable because it had no rational relationship to the harm that the lender experienced by not receiving a timely payment. That analysis does not apply here because the $36,000 fine amount had value that was supported by independent evidence. Plaintiffs understood that waiver of the fine would be to their benefit assuming they complied with all other settlement terms. They also understood that Defendants were entitled to recover all compensatory damages in the event of a breach. As such, the $36,000 was not liquidated damages but the recovery of compensatory damages that Defendants agreed to waive only if Plaintiffs complied with all other settlement terms. Based on the foregoing, both of Plaintiffs’ motions seeking to vacate or modify the judgment are DENIED. B. Defendants’ Motion for Order of Sale of Dwelling Except as otherwise provided by law, all property that is subject to enforcement of a money judgment is subject to levy under a writ of execution to satisfy a money judgment. (CCP § 699.710.) Before a judgment debtor’s dwelling may be sold at an execution sale, the judgment creditor must obtain a court order for sale after a noticed hearing to determine whether the dwelling is subject to a homestead exemption and ensure debtor is paid the amount of the exemption if the property is sold. (CCP § 704.740.) Real property subject to enforcement of a money judgment is also subject to levy under a writ of execution to satisfy a money judgment. (CCP § 699.710(a)(1).) Within 20 days after receiving notice that the property was levied upon, the judgment creditor must apply for a court order for the sale of the dwelling. (CCP § 704.750.) i. Homestead Exemption A “homestead,” for purposes of the exemption, is the principal dwelling in which the judgment debtor or the debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling and in which the debtor spouse resided continuously thereafter until the date on which the court determined that the dwelling was a homestead. (CCP § 704.710(c).) An exemption for property described in any statute as exempt “may be claimed within the time and in the manner prescribed in the applicable enforcement procedure.” (CCP § 703.030(a).) These provisions are intended to preclude a judgment debtor from moving into a dwelling after creation of a judgment lien or after levy in order to create an exemption. (Legislative Com. Comment (Senate) to CCP § 704.710; see also California Coastal Com. v. Allen (2008) 167 Cal.App.4th 322, 329 [judgment debtor who leased property to tenant did not meet residency requirement for homestead exemption]. “Homestead,” by definition, means “the principal dwelling (1) in which the judgment debtor or the judgment debtor’s spouse resided on the date the judgment creditor’s lien attached to the dwelling, and (2) in which the judgment debtor or the judgment debtor’s spouse resided continuously thereafter until the date of the court determination that the dwelling is a homestead.” (CCP § 704.710(c), emphasis supplied.) Defendants contend that there is good cause for ordering the sale of the Property per CCP § 699.710. Plaintiffs’ Property has been duly levied upon by the writ of execution issued by the Clerk of the Court. (Defendants’ Ex Parte App. - Ex. D.) Defendants argue the Property does not qualify as a homestead because Plaintiffs have not continuously lived there after May 30, 2023, when the Sonoma County Permit and Resource Management Office (“County”) placed a “red tag” on it declaring it unsafe and prohibiting occupation or entrance. (CCP § 704.710(c); Defendants’ Ex Parte App. – Ex. G; Decl. of Tyra Harrington (“Harrington Decl.”) – Ex. 2.) The Court agrees. Plaintiffs’ arguments that the Judgment is void was discussed above, and the Court’s findings also apply in full to this analysis. In terms of the homestead exemption, Plaintiffs acknowledge that they are not currently living at the Property and have not done so since May 30, 2023. (Plaintiff’s Opp. at 3:10-14; Decl. of Thomas Pochari at ¶2.) Though the Property is not their permanent residence, Plaintiffs represent that they intend to return to it. “‘The question whether a person has changed his residence from one place to another must depend largely upon his intention.’” (Michelman v. Frye (1965) 238 Cal.App.2d 698, 704; Moss v. Warner (1858) 10 Cal. 296.) Even if a person does not physically occupy the residence, the homestead exemption may nonetheless apply if the person demonstrates an intent to return. (Ibid.) However, bare statements regarding an intent to return are not sufficient to establish intent in this circumstance. (In re McKee (9th Cir. 2024) 90 F.4th 1244, 1248.) “Moss and Michelman merely stand for the unremarkable proposition that a debtor may claim California's homestead exemption even when it is impossible for her to return home.” (Id. at 1249.) “But neither case shows that ‘impossibility’ alone entitles her to the exemption, regardless of intent to return to the home.” (Ibid. Emphasis in original.) In contrast, both Moss and Michelman noted objective evidence reflecting the claimant's intent to return to the homestead. Mrs. Warner established “no permanent place of residence,” and instead lived an itinerant lifestyle, drifting through San Diego. [Citation.] Mrs. Frye “left most of her clothing and furnishings and all of the furniture at the family home” and “at no time changed her voting address.” [Citation.] These are the same indicia that courts have looked to in other cases to determine the debtor's entitlement to homestead: for example, whether the debtor (1) left his personal belongings at the homestead, [citation]; (2) retained the homestead's address on his driver's license, [citation]; or (3) regularly visited the property, [citation]. In short, whenever debtors claim California's automatic homestead exemption—in circumstances of “impossibility” or not—we assess “whether the debtors demonstrated, rather than merely claimed, their intent to return to their home after the absence.” (In re McKee, supra, at 1249.) The Court first notes that the Property has been “red tagged” as uninhabitable since May 30, 2023. Second, on June 20, 2023, the County informed Plaintiffs that electrical services to the Property would be disconnected due to the hazards from exposed energized electrical conductors. Plaintiffs were also informed that to reoccupy the Property they must (1) secure the building permit to address the hazardous electrical conditions, (2) submit construction drawings for the electrical work, and (3) cease all other work until this issue is addressed. (Defendants’ Ex Parte App. – Harrington Decl. - Ex. 4.) On August 8, 2023, County issued a “Notice of Abatement” to Plaintiffs informing that they must correct all prior violations outlined in County’s Notices of May 25, 2023, and May 31, 2023. (Defendants’ Ex Parte App. – Harrington Decl. - Ex. 5.) On August 14, 2023, the County issued a “Notice of Abatement Proceedings” against Plaintiffs and the Property. (Defendants’ Ex Parte App. – Harrington Decl. - Ex. 6.) Plaintiffs originally submitted bare statement of an intent to return to Property, unsupported by conduct evidencing such an intent. Plaintiffs filed their second opposition to Defendants’ motion on May 13, 2024 in which Plaintiffs represent that they have submitted electrical plans to the County to start the process of obtaining a building permit. While this demonstrates that the Plaintiffs are taking steps to make the property habitable, it is not sufficient to establish their intent the return to the property. Plaintiffs have not provided any information regarding their current living situation such as whether they are renting in a month-to-month lease or living in a home they own, they have not explained what happened to their personal property and furnishings after leaving or how often they visit the property. They have not explained where they are registered to vote, where their vehicle is registered, what address is listed with the DMV, nor any other information that would show their intent to keep the property as their residence. Besides Plaintiffs’ own statements, there is no evidence provided to suggest that Plaintiffs are not simply fixing the issues with the property to sell it or rent it. The Court finds that Plaintiffs have not established that they intend to return to the property and that a homestead exemption applies to the Property. In seeking the sale, Defendants obtained a report from First American Title Company that indicates there are no liens or encumbrances on the Property other than the Judgment. (Defendants’ Ex Parte App. – Ex. E.) Defendants also have obtained a “drive-by” appraisal of the Property indicating that the Property is worth $825,000. (Defendants’ Ex Parte App. – Ex. F.) For their part, Plaintiffs provided their own evidence based on appraisal provided by Rocket Homes, an online real estate website. Since the Court has determined that the homestead exemption does not apply, the proper procedure for sale is governed by CCP § 701.510 et. seq. (see also CCP § 704.708 (b).) First, the Court will appoint a qualified appraiser to assist in determining the fair market value of the Property. (CCP § 704.708(d).) Defendants as judgment creditors are also ordered to comply with all notice, advertisement, and sale requirements outlined in CCP § 701.520 through CCP § 701.680 involving the sale of the Property. ii. Attorney’s Fees and Costs Code of Civil Procedure § 685.040 provides in relevant part: The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5. The underlying judgment granted Defendants attorney’s fees pursuant to Civil Code § 5975(c), which provides, “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” Furthermore, Civil Code § 704.840 provides, (a) Except as provided in subdivision (b), the judgment creditor is entitled to recover reasonable costs incurred in a proceeding under this article.” Since the Court has found that the homestead exemption does not apply, subdivision (b) is inapplicable. Accordingly, Defendants are entitled to recover attorney’s fees and costs. Defendants originally requested $15,695.00 and provided foundation for this request in the December 14, 2024 Declaration of Joyce J. Kapsal, paragraphs 18-24. Ms. Kapsal represents that the amount requested is based on $350 per hour for attorneys and $150 per hour for paralegals. It is submitted that attorneys spent 23 hours on the motion and paralegals spent 31 hours. This equates to $12,980. It is also submitted that Defendants incurred costs in the amount of $2,715. Defendants subsequently amended their request for fees in their March 1, 2024 reply brief, seeking $31,245.08 based on additional work and costs incurred on the opposition. The March 1, 2024 Declaration of Joyce J. Kapsal provides foundation for the additional fees requested, including billing records. The increase is based on the same hourly rates. However, the evidence supporting the increased fees request was submitted for the first time in reply. The general rule of motion practice is that new evidence is not permitted with reply papers. The inclusion of additional evidentiary matters with the reply should only be allowed in the exceptional case and if permitted, the other party should be given the opportunity to respond. Although this principle is most prominent in the context of summary judgment motions, which is not surprising given the evidentiary nature of such motions, the same rule has been recognized and noted in other contexts as well. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1536–1537; Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.) Nevertheless, where “supplemental” evidence submitted for the first time with a reply brief raises no new theories or arguments, it is within the court’s discretion to consider it. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 431 [exception to the general rule where new evidence offered on reply was supplemental to evidence submitted in the moving papers and not “brand new”].) Although the Court would normally decline to consider additional evidence submitted in reply, this case presents an unusual circumstance where Plaintiffs filed an additional opposition brief after the motion was fully briefed. Therefore, Plaintiffs had an opportunity to respond to the new evidence regarding fees that was submitted for the first time in reply by Defendants. Accordingly, the Court will consider the evidence presented in support of Defendants’ March 1, 2024 reply. However, on May 17, 2024, Defendants submitted a second reply in response to Plaintiffs’ second opposition, in which Defendants submit even further evidence requesting an additional increase in the fees and costs. Because Plaintiffs have not had an opportunity to respond to that new evidence, the Court will not consider the evidence submitted regarding fees and costs in Defendants’ May 17, 2024 reply. Accordingly, Defendants have provided foundation for $31,245.08 in fees and costs. The Court finds the hourly rates and the number of hours incurred on this motion to be reasonable. The Court finds the amount of costs requested to be reasonable. Accordingly, $31,245.08 shall be awarded for attorney’s fees and costs. 8-10. SCV-269767, Ravioli LLC v. Master Bango Inc Defendants’ requests to present oral testimony are DENIED. If Defendants contest that aspect of this tentative ruling and persuade the Court to grant the requests, the Court will continue the hearing to a later date to take the testimony. The Court’s rulings on Defendant’s evidentiary objections are as set forth below. Both parties’ requests for judicial notice are GRANTED. Defendants’ motions to set aside the attachment orders are DENIED. I. Background In this breach of contract action, three cannabis growers, Ravioli LLC, Spaghetti LLC, and Tortellini LLC (respectively “Ravioli,” “Spaghetti,” and “Tortellini”; collectively “Plaintiffs” or “Cross- defendants”) are suing a buyer, Master Bango Inc. (“Bango”) and its principal Ronald Ferraro (collectively “Defendants” or “Cross-complainants”) for breach of a Bulk Flower Purchase Agreement (“Agreement”) entered into on February 16, 2021. (Exh. A to RJN Exh. 2.) The Agreement identifies Bango as the buyer of 6,702 pounds of assorted strains of cannabis flowers. It identifies the seller as “Pasta Farm.” Plaintiffs are identified as the “Entit[ies]” associated with several cannabis strains; the principal question raised by the instant motion is whether they are parties to the Agreement. The operative First Amended Complaint (“FAC”), filed on June 15, 2023, alleges three individual causes of action, one on behalf of each plaintiff, for breach of contract; three more, again one per plaintiff, for common counts (goods sold and delivered); and causes of action on behalf of all plaintiffs for unfair competition under Business and Professions Code § 17200 et seq., and promissory fraud. On October 11, 2022, Defendants filed a cross-complaint against Plaintiffs alleging breach of contract, breach of warranties, tortious interference with prospective business relations, and unjust enrichment (the “Cross- complaint”). On October 2, 2023, Plaintiffs jointly filed a single application for a prejudgment Writ of Attachment and Right to Attach Order (hereafter “attachment order”) against Bango to secure their ability to collect on an eventual judgment. On November 30, the Court denied the application without prejudice on procedural grounds: because it was unaccompanied by supporting affidavits, and because the omnibus application on behalf of all three Plaintiffs was “inapposite to CCP § 483.015(a)(1) and procedural due process principles.” On December 11, 2023, each Plaintiff moved individually ex parte for an attachment order. The Court granted the orders the same day. (They were subsequently revised to correct a clerical error.) On December 18, Defendants moved ex parte to set aside the orders; the motion was denied the same day. This matter is on calendar for Defendants’ three separate motions to set aside the attachment orders granted to each Plaintiff. II. Governing law “Attachment is an ancillary or provisional remedy to aid in the collection of a money demand by seizure of property in advance of trial and judgment.” (Kemp Brothers Construction Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1476.) “California’s Attachment Law . . . is purely statutory and is strictly construed.” (Ibid.) The court “shall issue a right to attach order” if it finds that “(1) the claim upon which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero.” (CCP § 484.090(a).) A claim is one upon which an attachment may issue if it is: (1) a claim for money based upon a contract, express or implied; (2) of a fixed or readily ascertainable amount not less than $500; (3) either unsecured or secured by personal property, not real property (including fixtures); and (4) a commercial claim. (CCP §483.010.) “A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (CCP § 481.190; see also Santa Clara Waste Water Co. v. Allied World Nat’l Assur. Co. (2017) 18 Cal.App.5th 881, 885.) In determining probable validity, the court “must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.” (Loeb & Loeb v. Beverly Glen Music (1985) 166 Cal.App.3d 1110, 1120; see also Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 852-853.) Claims must be for a “fixed or readily ascertainable amount not less than $500.” (CCP § 483.010.) To demonstrate that a claim is readily ascertainable, “the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof.” (Force v. Hart (1928) 205 Cal. 670, 673.) The damages sought need not be liquidated, but must be measurable by reference to the contract itself. (Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1481, n. 5.) However, “[i]t is not necessary that the amount for which the defendant may be liable should appear on the face of the contract by or from which liability is to be determined. It often happens that the amount due under a contract does not appear from the contract itself.” (Bringas v. Sullivan (1954) 126 Cal.App.2d 693, 699.) The amount may be shown by affidavit. (Dunn v. Mackey (1889) 80 Cal. 104, 107.) A party may move for relief from an attachment order by requesting either that it be set aside or that the amount to be secured be reduced. (CCP § 485.240(a).) “[A]lthough in a motion under section 485.240 the defendant is the moving party, the plaintiff nevertheless continues to have the burden of proving (1) that his claim is one upon which an attachment may be issued and (2) the probable validity of such claim, the same burden he must meet under section 484.090.” (Loeb & Loeb, supra, 166 Cal.App.3d at p. 1116.) “The court’s determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of such additional evidence or points and authorities.” (CCP § 485.240(d).) III. Evidentiary objections The Court rules as follows on Defendant’s objections to various declarations submitted by Plaintiffs. These rulings are confined to the Court’s consideration of the instant motions. In that context only, the Court will not consider any evidence to which it sustains an objection. A. Declaration of Henry Johnson re. leave to amend Objections 1-2: OVERRULED. Objections 3-5: SUSTAINED on the basis of irrelevance. B. Declaration of Samual Edwards re. leave to amend Objections 1-5: OVERRULED. Objection 6: Sustained on the basis that it is an improper conclusion. Objections 7-8: OVERRULED. Objection 9-10: SUSTAINED on the basis of irrelevance. C. Declarations of Henry Johnson re. attachment orders Objections 1-3: OVERRULED. Objection 4: SUSTAINED on the basis of irrelevance. IV. Judicial notice Plaintiffs’ requests for judicial notice of documents in the Court’s file in this matter are GRANTED pursuant to Evid. Code § 452(d)(1). Defendants’ requests for judicial notice of the articles of organization and statements of information filed with the California Secretary of State regarding Plaintiffs and other related corporate entities are GRANTED pursuant to Evid. Code § 452(c). V. Analysis Because the Court required Plaintiffs to apply individually for the attachment orders, Defendants have addressed them in three separate motions. However, the papers for those motions are nearly identical in all respects, and therefore the legal analysis is the same. The lone distinction raised as to Ravioli will be addressed separately. A. CCP § 1008 is in inapplicable. Plaintiffs’ argument that the instant motion is effectively a motion for reconsideration under CCP § 1008 is unavailing. In its November 30, 2023 order, the Court denied Plaintiffs’ omnibus motion for attachment orders on the basis of procedural deficiencies in the application. Contrary to Plaintiffs’ position, this did not constitute a ruling on the merits that can be reconsidered under CCP § 1008. Even if it did, the Court is not persuaded that a generalized statute such as CCP § 1008 overrides the specific statutory provisions regarding set-asides of attachment orders. (CCP § 485.240; see, e.g., Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310 [“more specific provisions take precedence over more general ones”].) B. Spaghetti and Tortellini have shown that they are likely to succeed on the merits. Defendants do not attempt to refute the factual circumstances underlying the attachment orders, for example by proffering evidence of lack of indebtedness. Rather, Defendants posit that Ravioli, Spaghetti, and Tortellini have failed to show a probability of prevailing on their causes of action. Defendants argue that the Agreement proves that Plaintiffs’ breach of contract causes of action will fail because they are not alleged against the party identified as “Seller” in the Agreement, “Pasta Farms,” and that the common count causes of action will therefore also fail. 1. Plaintiffs have shown that the contract causes of action may be sustainable. The Court takes judicial notice that the Secretary of State’s corporation lookup website shows Pasta Farm, LLC to be a duly constituted business entity. Defendants’ core argument is that that is the “Seller” party to the Agreement. However, in his Declaration in Opposition to the Motion for Leave to Amend, Samual Edwards states that “Pasta Farms” was also a colloquialism used to refer generically to Ravioli, Spaghetti, and Tortellini and other associated cannabis-selling entities with pasta-themed names. That is evidence Plaintiffs can elicit in support of their breach of contract claims. Based on that evidence, a jury would be entitled to conclude that the identification of the “Seller” party to the Agreement as “Pasta Farm” was intended by everyone concerned to indicate that the individual LLCs identified in the Agreement as the sources of the various strains of cannabis were parties to it. The Court is not presently sitting as a trier of fact, and is not prepared to rule that a trier of fact is so unlikely to be persuaded that Plaintiffs were contracting parties that the attachment orders are unjustified. In addition, Plaintiffs argue that Defendants’ Cross-complaint effectively admits that Plaintiffs are parties to the Agreement. The Cross-complaint names Ravioli, Spaghetti, and Tortellini as cross- defendants and alleges that “Pursuant to the parties’ agreement, Cross-Complainant agreed to purchase 6,702 pounds of cannabis from Cross-Defendants.” (Cross-complaint, ¶ 11.) As the Agreement specifies precisely that amount of cannabis, Plaintiffs interpret this as a judicial admission that Defendants entered into the Agreement with the three Cross-defendants, i.e. with Plaintiffs. Defendants explain that “as the Agreement itself reveals, that allegation was a mistake – a mistake Master Bango seeks to remedy by means of the motion for leave to file a first amended cross-complaint filed concurrently herewith.” Defendants presumably refer to their motion for leave to file an amended cross-complaint filed on April 9, 2024, but Defendants withdrew that motion on June 24. “A judicial admission is a party’s unequivocal concession of the truth of a matter, and removes the matter as an issue in the case. [Citations.] This principle has particular force when the admission hurts the conceder’s case.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48.) The fact that Defendants have treated Plaintiffs as parties to the Agreement in documents filed with the Court could very well persuade a trier of fact that Defendants intended the Agreement to be between Bango and Plaintiffs. Even if, arguendo, the claims were invalid due to being alleged against “Pasta Farms,” “[a] motion to discharge an attachment on the ground that the complaint does not state a cause of action should be granted only if the complaint shows on its face both that the pleader has no cause of action and that the defect cannot be cured by amendment.” (Peninsula Properties Co. v. Santa Cruz County (1950) 34 Cal.2d 626, 629.) Defendants have not shown that the purported defects in the FAC cannot be remedied by amendment. 2. Plaintiffs’ common counts causes of action are likely to succeed on the merits. More importantly, Plaintiffs, in addition to their contract causes of action, have alleged common counts causes of action. That is, they have alleged that they have delivered goods to Defendants and that defendants have not paid for them. “The common count is a general pleading that seeks recovery of money without specifying the nature of the claim.” (5 Witkin, Cal. Procedure, Pleading § 1115.) It “alleges in substance that the defendant became indebted to the plaintiff in a certain stated sum, for some consideration such as money had and received by the defendant for the use of the plaintiff, or for goods, wares and merchandise sold and delivered by plaintiff to defendant, or for work and labor performed by plaintiff; and that no part of the sum has been paid.” (Id., § 565, internal quotation marks omitted.) “[T]he only essential allegations are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Ibid.) The existence of an enforceable contract between the parties is not an element of the cause of action; the plaintiff need only establish “that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.) Defendants argue that because the contract claims are doomed to failure, the common count causes of action must inevitably also fail because they are “nothing more than an alternative way of seeking the same recovery” as the contract claims. The first problem with that argument is that Defendants do not identify any problems specific to the common counts causes of action themselves that would render them unsustainable in the absence of the contract claims. Again, an attachment order should be set aside on the grounds that the complaint does not state a cause of action only if the defect cannot be cured by amendment. (Peninsula Properties, supra, 34 Cal.2d at p. 629.) If the only defect in the common count claims is that there are also contract claims, it can be easily cured by amending the complaint to remove the latter. Defendants cite several cases for the proposition that “if a common count is nothing more than an alternative way of seeking the same recovery, based on the same facts, as is sought under a specific cause of action, then, if the specific cause of action cannot be established, the common count necessarily fails.” (Reply memo at pp. 6-7.) For example, McBride v. Boughton (2004) 123 Cal.App.4th 379 holds that “[w]hen a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Id. at p. 394.) Here, however, the common count claims are not based on the same facts as the contract claims. The contract claims rest on the allegation that the Agreement is a legally enforceable express written contract between Plaintiffs and Bango. (See CACI no. 302 [elements of contract formation], 303 [elements of breach].) The common count claims are based on the allegations that when Plaintiffs delivered cannabis flowers to Defendants, they were acting pursuant to Defendants’ implied request for them to do so, and that Defendants benefitted from having the flowers. (Ochs, supra, 115 Cal.App.4th at p. 794; see CACI no. 371 [elements of common count for goods and services rendered].) That is, the common count claims are based on the allegation that “a contract that is either ‘implied in fact’ or ‘implied in law’” existed between Plaintiffs and Bango. (Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 109.) The existence of an express contract is a different fact from the existence of an implied one. None of the authorities cited by Defendant is to the contrary because none of them addresses the situation where an implied contract is alleged as a theory of recovery alternative to an express one. For example, McBride, supra, concerns a putative father who, after paying substantial amounts in child support, learned that he was not the child’s biological father. (McBride, supra, 123 Cal.App.4th at pp. 382-385.) He sued the mother and her husband under theories of unjust enrichment and common counts. (Id. at p. 384.) The reviewing court held that the unjust enrichment count failed as a matter of public policy. (Id. at pp. 389-390.) It also held that the common count claim failed because the unjust enrichment one did. (Id. at p. 394.) But the reason both counts failed was that because public policy favors “sending the message to unmarried putative fathers that they should verify their paternity at an early stage if there is any doubt about the matter,” the defendant was simply not indebted to the plaintiff at all under any theory of recovery. (Id. at p. 391.) McBride holds that “in the present case, McBride’s common count must stand or fall with his first cause of action” (id. at p. 394), but it does not stand for the far more general proposition for which Defendant cites it, that in every case a common count must stand or fall with any other cause of action seeking the same damages. The other authorities cited by Defendant are also distinguishable on their facts. In Fruns v. Albertsworth (1945) 71 Cal.App.2d 318, neither the contract nor the common count cause of action was viable because the defendants had not received anything of value from the plaintiff. (Id. at p. 321.) Similarly, Hays v. Temple (1937) 23 Cal.App.2d 690 holds that the plaintiff (a Hollywood producer) could not recover funds paid to the defendants (Shirley Temple’s parents) by Twentieth Century Fox under either his written contract with the defendants, to which Fox was not a party, or under a common count theory. Again, the rationale is that the defendants were not indebted to the plaintiff at all because they had received nothing of value from him. Neither Fruns nor Hays addresses the situation where the defendant has undeniably received something of value from the plaintiff but has not paid for it. Defendants appear to be simultaneously arguing that the conduct constituting the “requested, by words or conduct” element of the common count claims was Plaintiffs entering into the Agreement, and that Plaintiffs never entered into the Agreement. Defendants cannot have it both ways. If Plaintiffs were parties to the Agreement, the contract causes of action are sustainable. If they were not, they nevertheless did deliver cannabis flowers to Defendants, unquestionably in the expectation of getting paid for them. Those facts imply the existence of an implied-in-fact contract, separate from the Agreement, which in turn supports the common count claims. (See Lloyd v. Williams (1964) 227 Cal.App.2d 646, 649 [existence of implied contract “essential to an action on a common count”].) The question presently before the Court is not whether Plaintiffs have proven their claims; all that is required at this stage is “a sufficient prima facie showing of facts to sustain a favorable judgment.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) Plaintiffs have supported their contract and common count claims with allegations sufficient to meet that standard. Defendants’ arguments do not persuade the Court that Plaintiffs’ likelihood of success on the merits is too low to justify the attachment orders. Accordingly, set-aside of the orders is improper. C. Ravioli has shown that it is likely to succeed on the merits. In its application for the attachment order, Ravioli stated that under its bulk cannabis purchase contract with Bango, “Ravioli sold 600 pounds of finished cannabis flower in the strain known as ‘Alien OG’” to Bango, and that “long after accepting the product, Bango refused to pay.” However, Defendants note that the Agreement at the heart of this action does not provide that Bango will buy Alien OG from Ravioli. Rather, it specifies that 600 pounds of Alien OG will be sold by a different entity, Fettucine LLC, for $570,000. Therefore, Defendants argue, Ravioli cannot show that it breached its contractual duty to pay for the Alien OG shipment because it had no such contractual duty, and therefore it has an insufficient likelihood of prevailing in the litigation to justify the attachment order, and therefore the set- aside motion must be granted as to Ravioli. Ravioli has not addressed this argument in its opposition. In their Memorandum in Support of the Writ of Attachment, Defendants explain in a footnote that this was a clerical error: “Due to a drafting error in the Contract, a different Pasta Farm LLC was misidentified as the purveyor of Alien OG, but every subsequent document, including shipping manifests, invoices, and Master Bango’s communications, correctly refers to Ravioli LLC as the seller of the Alien OG product.” (Memorandum in Support of Writ of Attachment, pg. 1, fn. 1.) Unverified assertions in court memoranda are, of course, not evidence. However, the Court is persuaded of the footnote’s accuracy by several things that are evidence. The most important is Bango’s verified response to a request for admission propounded by Ravioli, served on Ravioli’s counsel on April 30, 2024: REQUEST FOR ADMISSION NO. 45 Admit that on March 16, 2021, in the California Cannabis Track and Trace account for YOUR License number . . . , YOU accepted . . . 600 pounds of Alien OG (flower) from Plaintiff Ravioli LLC . . . . RESPONSE TO REQUEST FOR ADMISSION NO. 45 Admit. (Johnson Dec., Exh. E, p. 3, emphasis supplied.) This admission establishes that Bango received 600 pounds of Alien OG from Ravioli, the exact amount of that strain specified in the Agreement, one month after the Agreement’s effective date. That strongly suggests that the delivery was made pursuant to either the Agreement or to an implied-in-fact contract between Bango and Ravioli made at the same time as the Agreement. The Court also notes an invoice attached to the declaration of Maureen Lynch, the accounting manager for Plaintiffs and presumably for other related pasta-denominated entities. (Oppo RJN, Exh. 6.) Page PF000704 of Exhibit A to that declaration is an invoice to Bango for a total amount of $570,000 for 600 pounds of “Alien OG Full Flower” shipped on March 26, 2021. The invoice number is “RAV031021”; the “RAV” prefix suggests that the selling entity was Ravioli. That supposition is confirmed by the invoice on page PF000705 for 100 pounds of Girl Scout Cookies shipped on the same day, numbered “SPA031021,” which is consistent with the provision of the Agreement regarding the sale of 600 pounds of Girl Scout Cookies by Spaghetti. The invoice on the following page, PF000706, is for 200 pounds of Kosher Kush and is numbered “TOR031021,” which is consistent with the provision in the Agreement that Tortellini will provide the Kosher Kush. Based on the “RAV” prefix on the invoice for the Alien OG and Bango’s unqualified verified admission that it received 600 pounds of Alien OG from Ravioli, the Court concludes that the fact that the Agreement says that Fettucine LLC, rather than Ravioli, was to supply the Alien OG does not significantly diminish Ravioli’s likelihood of prevailing, and is therefore not a basis for setting aside the attachment order applicable to Ravioli. In all other respects, the analysis regarding Ravioli is identical to the analysis regarding Spaghetti and Tortellini. D. Defendants’ arguments regarding procedural deficiencies The procedural deficiencies argued by Defendants as to the writ are immaterial. As Plaintiffs point out, the remedy for service defects in the attachment order does not “affect the attachment lien created by the levy.” (CCP § 488.120.) Defendants make several arguments about the undertaking, but the fact remains that the proper amount of the undertaking was deposited with the Court before the attachment orders were issued. While Defendants provide authority showing that Plaintiff’s execution of the attachment order did not comport with the applicable statutes, they provide none, and the Court is aware of none, holding that the appropriate remedy is to set aside the attachment order. VI. Oral testimony Defendants have requested that Samual Edwards, the Chief Operating Officer of the Pasta Farm Group, and Peter Simon, its CEO and also Plaintiffs’ lead counsel, give oral evidence at the hearing on the instant motion. The requests were timely filed on June 18. (Cal. Rules of Court, rule 3.1306(b).) Defendants estimate that the presentation of oral evidence will take two hours. CCP § 485.240(c) provides that at a hearing on a motion to set aside an attachment order, “upon good cause shown, the court may receive and consider . . . additional evidence, oral or documentary . . . .” Thus, the Court has the discretion to grant Defendants’ request, but must first find good cause for the oral testimony. The Court finds that good cause is lacking. The point of the proposed oral testimony, according to Defendants’ request, is to explore the issue of whether the Agreement was between Bango and Plaintiffs, as Plaintiffs contend, or between Bango and an entity called “Pasta Farm” that is different from any of the Plaintiffs, as Defendants contend. Defendants seemingly wish to provide the Court with a preview of the evidence they intend to present at trial. The Court does not need such a preview. Again, the Court is not presently sitting as a trier of fact, and evidence supporting the determination that a party is likely to prevail at trial does not need to rise to proof by a preponderance of the evidence of that party’s claim. (See, e.g., Gerbosi v. Gaims et al. (2011) 193 Cal.App.4th 435, 444 [“reasonable probability of prevailing” distinguished from “prevailing by a preponderance of the evidence”]; Mattson, supra, 40 Cal.App.4th at p. 548 [only prima facie showing required].) The factual underpinnings of all parties’ arguments are thoroughly established by the declarations filed with their moving papers. The Court has considered the parties’ filings and finds that they provide adequate support for the conclusions set forth above. VII. Conclusion All three Defendants’ motions to set aside the attachment orders are DENIED. Defendants’ requests for oral testimony are DENIED. 11-12. SCV-265779, Bright v. Sutter Bay Hospitals Defendants’ Motion for Independent Medical Examination of Plaintiff Defendant Sutter Bay Hospitals’ (“Defendant”) motion to conduct an independent medical examination (“IME”) of Plaintiff is DENIED. I. Governing law A mental or physical examination, other than a defense physical examination in personal injury cases, may be conducted only upon a court order issued after notice and hearing, and for “good cause shown. (CCP § 2032.320(a); see Conservatorship of G.H. (2014) 227 Cal.App.4th 1435, 1441.) Notice and hearing are deemed essential to protect against unreasonable examinations and to safeguard the examinee's bodily and mental privacy and other constitutional rights. (Reuter v. Superior Court (1979) 93 CA3d 332, 343.) The notice of motion must “specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” (CCP § 2032.310(b).) II. Background This medical malpractice action arises out of complications of Plaintiff’s birth on June 18, 2016 at Sutter Santa Rosa Regional Hospital. Plaintiff allegedly suffered severe and permanent birth injuries, including cerebral palsy. The original complaint was filed in Alameda County on April 12, 2019 against Defendant, Dr. Matthew Pride, and Dr. Edna Prieto. Venue was changed to Sonoma County on November 7, 2019. On June 20, 2024, Defendant moved ex parte for an independent neuropsychological examination of Plaintiff. (The June 13 filing by Defendant was after the deadline for department 18 ex parte applications, so the matter was reviewed on June 20.) Defendant noted that “Neuropsychological testing was completed by plaintiff’s ‘treating’ provider, Dr. Natalie Wager on the following dates: March 12, March 17, April 13, and April 19, 2024,” and that their own neuropsychologial expert, Dr. Ubogy, “questioned the validity and nature of the battery of neuropsychological tests that were performed.” Plaintiff opposed the motion, primarily on the basis that “Dr. Wager is not a retained expert,” but rather “a neutral treater [whose] testing was not done for purposes of litigation but rather as part of [Plaintiff]’s treatment, diagnosis, and medical care.” The motion was heard on July 10, 2024. At that hearing, counsel for Plaintiff represented that he intended to use evidence from Dr. Wager’s examination at trial. Since Plaintiff intended to use the evidence of Dr. Wager’s examination at trial, the Court was receptive to Defendant’s request. The Court continued that matter to July 19. The minute order from the July 10 hearing indicates that the Court issued the following order: Counsel [for Defendant] shall submit a proposal to the plaintiffs’ counsel outlining specifically requested tests, testing dates, locations, and times. Counsel shall meet and confer re: examination proposal. Counsel shall outline any unresolved issues in a declaration no later than Tuesday, July 16, 2024, with courtesy copies provided by mail. Counsel shall contact the Court’s judicial assistant if all disputes are resolved by counsel; in that event, the hearing on Friday, July 19, 2024 will be dropped. III. Discussion On July 16, 2024, Plaintiff submitted a supplemental brief stating that “Defendants have still failed to provide any proposed dates to complete the neuropsych examination. This is in direct violation of the Court’s order to provide proposed testing and dates to complete testing by last Friday.” The Court agrees. As noted above, the Court specifically ordered Defendant’s counsel to identify “requested tests, testing dates, locations, and times.” The requirement of specific dates is not just the Court’s preference, it is also the law: “time, place, [and] manner” of the proposed IME are required by statute to be specified in the notice of motion. (CCP § 2032.310(b).) The Court has attempted to be flexible on this motion because of Plaintiff’s representation that they intend to use Dr. Wager’s findings at trial, its flexibility cannot extend to ordering an IME on an unspecified date two weeks before trial. Plaintiff also pointed out that Defendant has not “provided any declaration from its expert explaining why additional testing is warranted or necessary.” Absent such a declaration, the only rationale before the Court for Defendant’s request for an IME is the comment that its expert, Dr. Ubogy, “questioned the nature and validity” of the tests performed by Dr. Wager. Even if this statement had been made under penalty of perjury, which it was not, it would still be hearsay, and even if it were in a declaration by Dr. Ubogy and therefore not hearsay, it would still be too general to justify an IME order. Why does Dr. Ubogy question the nature and validity? Which specific tests does he believe were invalid? Is it the tests themselves that were invalid, the manner in which they were administered, or the interpretation of the results? In the latter case, could he simply re-interpret the results without re- administering the tests, and if not, why not? What additional tests does he propose to administer, and what information will they provide that was not provided by the tests Dr. Wager administered? These questions, and many more, remain unanswered by the bare assertion that Dr. Ubogy had some questions about the testing that has already been performed. The Court notes that Defendant first filed their ex parte request on June 13, 2024. Plaintiff filed their objection on June 20, 2024. It has been more than one month since Defendant first made their request for this IME and yet Defendant still has not provided the details required by the statute. An ”opposing party may not require [the plaintiff] to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) Defendant has not provided any basis for the Court to find that the proposed IME is for any other purpose. Defendant may seek to elicit testimony from Dr. Ubogy at trial regarding his issues with Dr. Wager’s testing, but Defendant has not shown good cause for an order permitting additional testing at this late date. (CCP § 2032.320(a).) IV. Conclusion Defendant has failed to make a showing of good cause. The motion is DENIED. Defendant Sutter Bay Hospital’s Motion for Determination of Good Faith Settlement Defendant Sutter Bay Hospitals’ (“Defendant”) unopposed application for determination of good faith settlement is GRANTED. The Court will sign the proposed order lodged by Defendant, with an appropriate correction to the name of the judge. I. Governing law A “plaintiff or other claimant” can settle with one or more joint tortfeasors or co-obligors without releasing others, provided the settlement is in “good faith.” (CCP § 877.6.) A good-faith settlement discharges the settling defendant from liability to other parties for equitable contribution or comparative indemnity. The amount of the settlement and whether it is grossly disproportionate to potential liability is the “ultimate determinant of good faith.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262; see also River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 996.) The determination of good faith settlement is in the discretion of the trial court. (Tech-Bilt Inc. v. Woodward- Clyde & Associates (1985) 38 Cal.3d 488, 502.) There is no precise standard to determine good faith, but the court must harmonize public policy favoring settlements with public policy favoring equitable sharing of costs among tortfeasors. The settlement be within the “reasonable range of the settling tortfeasor’s proportional share of comparative liability for the plaintiff’s injuries,” taking into consideration the facts and circumstances of the particular case and evaluating the settlement on the basis of information available at the time of settlement. (Tech- Bilt, supra, 38 Cal.3d at p. 499) The factors include: 1) A rough approximation of the total recovery and settlor’s proportionate liability; 2) The amount paid in settlement; 3) The allocation of settlement proceeds; 4) A recognition that a settlor should pay less in settlement than if found liable after trial; 5) The allocation of the settlement proceeds among plaintiffs; 6) Settlor’s financial condition and insurance policy limits, if any; and 7) Evidence of any collusion, fraud or tortious conduct between the settlor and the plaintiffs aimed at making non-settling parties pay more than their fair share. (Ibid.) “Although an offer of settlement must bear some relationship to one’s proportionate liability, bad faith is not ‘established by a showing that a settling defendant paid less than his theoretical proportionate or fair share.’ [Citation.]’” (N. Cnty. Contractor’s Assn. v. Touchstone Ins. Servs. (1994) 27 Cal.App.4th 1085, 1090.) “In other words, “a ‘good faith’ settlement does not call for perfect or even nearly perfect apportionment of liability.” [Citation.] All that is necessary is that there be a ‘rough approximation’ between a settling tortfeasor’s offer of settlement and his proportionate liability.” (Id. at pp. 1090-1091.) “The challenger must prove ‘the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute.’” (Id. at p. 1091.) II. Background This medical malpractice action arises out of complications of Plaintiff’s birth on June 18, 2016, at Sutter Santa Rosa Regional Hospital. Plaintiff suffered severe and permanent birth injuries, including cerebral palsy. The original complaint was filed in Alameda County on April 12, 2019, against Defendant, Dr. Matthew Pride, and Dr. Edna Prieto. Venue was changed to Sonoma County on November 7, 2019. Dr. Richard Chang was added as a defendant by Doe substitution on October 21, 2020, but dismissed on October 10, 2022. Dr. Pride’s medical group, Sutter Medical Group of the Redwoods, was added by Doe substitution on June 30, 2021. On May 14, 2024, the Court approved a $200,000 settlement between Plaintiff and Defendant. This matter comes on calendar for Defendant’s motion for determination of good faith settlement. Trial is set for August 2, 2024. The only remaining defendants are Dr. Pride and Sutter Medical Group of the Redwoods. III. Analysis The settlement agreement provides, in summary, that Defendant will pay $200,000 to Plaintiff in exchange for dismissal with prejudice of both Defendant and Dr. Prieto. (Petition for Approval of Compromise of Claim (“Petition”), ¶ 10(c).) The agreement is contingent on this Court’s finding of good faith pursuant to CCP § 877.6(a)(2). (Seibert Dec., ¶ 22.) The parties understand that such a finding will preclude contribution or indemnity claims by the non-settling parties against Defendant. (CCP § 877.6(c).) (Seibert Dec., Exh. A, ¶ 4.) Defendant’s counsel declares that the settlement “was reached at arms-length and in good faith, and was not intended to injure any of the other parties involved in this lawsuit.” (Seibert Dec., ¶ 26.) The settlement was arrived at through negotiations conducted with mediator Craig Needham. (Seibert Dec., ¶ 15.) The amount, though considerably lower than Plaintiff’s claimed medical expenses of $660,962.25 (Petition, ¶ 12), is not “grossly disproportionate” to the liability a jury would likely have apportioned to Defendant at trial. There is no evidence that the settlement involves collusion or fraud aimed at making other defendants pay more than their fair share; that point is borne out by the fact that counsel for the only remaining defendants have stipulated to the good faith settlement. (Seibert Dec., Exh. A, p. 2.) The settlement appears to the Court to comport with the Tech-Bilt factors listed above. IV. Conclusion For the reason set forth above, the Court finds that the settlement was reached in good faith.