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Aug 15, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716858/2024
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Aug 15, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716864/2024
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Aug 16, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716957/2024
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Aug 13, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716692/2024
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Pennymac Loan Services, Llc v. Abigain Gonzalez'S Unknown Heirs-At-Law, Next-Of-Kin, Distributees, Executors, Administrators, Trustees, Devises, Legatees, Assignees, Lienors, Creditors, And Successors In Interest, And Generally All Persons having or claiming, under, by or through said defendant, who may be deceased, by purchase, inheritance, lien or otherwise, any right, title or interest in and to the premises described in the complaint herein, Marisa Gonzalez as Heir to the Estate of Abigain Gonzalez, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, New York State Department Of Taxation And Finance, United States Of America - Internal Revenue Service, John Doe #1 Through John Doe #10, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person Or Parties Intended Being The Persons Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The Complaint
Aug 13, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716657/2024
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Deutsche Bank National Trust Company, As Trustee For Greenpoint Mortgage Funding Trust 2005-Hy1, Asset Backed Certificates, Series 2005-Hy1, v. Joseph Salvio, Criminal Court Of The City Of New York, John Doe, Jane Doe
Aug 13, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716620/2024
Ruling
SIRAK MINASYAN VS PUERTO LORETO LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Aug 14, 2024 |24STCV08040
Case Number: 24STCV08040 Hearing Date: August 14, 2024 Dept: 32 SIRAK MINASYAN, Plaintiff, v. PUERTO LORETO LLC, et al., Defendants. Case No.: 24STCV08040 Hearing Date: August 14, 2024 [TENTATIVE] order RE: defendant puerto loreto llcs demurrer to complaint BACKGROUND On March 29, 2024, Plaintiff Sirak Minasyan filed this action against Defendants Puerto Loreto LLC (Puerto) and California TD Specialists (Cal TD), asserting causes of action for (1) declaratory relief, (2) cancellation of written instruments, (3) wrongful foreclosure, (4) unfair business practices, and (5) injunctive relief. The complaint alleges the following facts. On July 19, 2021, Plaintiff purchased a residential real property in Glendale, California (the Property). (Compl. ¶ 7.) At the time of purchase, Plaintiff obtained a $1.65 million loan from Puerto, secured by a deed of trust against the Property. (Id., ¶ 8.) The loan called for interest-only payments of $12,356.46 per month, with all principal and interest due in one year. (Ibid.) Plaintiff made monthly interest payments from July 29, 2021 to July 10, 2022, at which time the remainder became due. (Id., ¶ 9.) Due to financial issues caused by the Covid pandemic, Plaintiff requested an extension on the loan. (Ibid.) Jim Metheson, who Plaintiff understood to be Puertos owner or authorized representative, told Plaintiff that the loan could be extended if Plaintiff paid the loan down by $200,000. (Ibid.) On October 28, 2022, Puerto, through its trustee Cal TD, recorded a Notice of Default and Election to Sell under the deed of trust, identifying the amount due as $1.7 million. (Compl. ¶ 10.) On February 2, 2023, Puerto, through Cal TD, recorded a Notice of Trustee sale, though the sale did not take place. (Id. ¶ 11.) In March and May 2023, Plaintiff wired $100,000 and $180,000 to Puerto. (Id., ¶ 12.) Plaintiff believed that the default had been cured and that the foreclosure would be rescinded based on his transmittal of more than $200,000. (Id., ¶ 13.) Plaintiff requested Matheson to rescind the foreclosure but received no response. (Ibid.) On August 22, 2023, Plaintiff filed for bankruptcy, which stayed foreclosure proceedings. (Compl. ¶ 14.) Although the bankruptcy was dismissed on March 1, 2024, all foreclosure proceedings were stayed until March 9, 2024. (Ibid.) However, on March 8, 2024, Puerto, through Cal TD, recorded a Notice of Trustee Sale, which was a violation of the bankruptcy stay. (Id., ¶ 15.) On July 10, 2024, Puerto filed the instant demurrer to the complaint. Plaintiff filed his opposition on August 1, 2024. Puerto filed its reply on August 7, 2024. LEGAL STANDARD A demurrer for sufficiency tests whether a pleading states a cause of action or defense. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the pleading, as it stands, unconnected with extraneous matters, states a cause of action or defense. (Hahn, supra, 147 Cal.App.4th at 747.) MEET AND CONFER Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Hubbard Decl.) REQUEST FOR JUDICIAL NOTICE Defendant requests judicial notice of (i) records in the County Recorder (Ex. A, B, D, E) and (ii) a bankruptcy court order (Ex. C). Defendants request is granted. (See Evid. Code, § 452(c), (h); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-65.) DISCUSSION I. Declaratory Relief Any person interested under a written instrument . . . or under a contract . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties . . . arising under the instrument or contract. (Code Civ. Proc., § 1060.) Declaratory relief operates prospectively to declare future rights, rather than to redress past wrongs. (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497.) In the foreclosure context, if the property has been sold, there remain no prospective claims appropriate for declaratory relief. (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 820.) Moreover, the declaratory relief would be duplicative of [the] cause of action for wrongful foreclosure. (Ibid.) Here, the Property was sold on April 2, 2024. (Def.s RJN, Ex. E.) Therefore, the declaratory relief claim is moot to the extent Plaintiff alleges a controversy over the validity of Puertos foreclosure of the Property. However, a dispute remains as to the validity of the written instruments Notice of Default and Notice of Sale, as discussed further below. Thus, Plaintiff may maintain a declaratory relief claim. The demurrer is OVERRULED as to the first cause of action. II. Cancellation of Written Instruments A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. (Civ. Code, § 3412.) To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud, and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193-94.) Plaintiffs second cause of action alleges that The Notices of Default and Notice of Trustee's Sale should be cancelled because they are of record but are legally invalid. (Compl. ¶ 19.) For support, Plaintiff incorporates the allegations in paragraph 16 of the complaint. (Id., ¶ 18.) Paragraph 16 alleges that: Puerto was not a licensed lender; Plaintiff cured the default by paying $280,000; and Puerto defrauded Plaintiff by promising to rescind the foreclosure if Plaintiff paid down the loan by $200,000. (Id., ¶ 16.) Puerto argues that Plaintiff has failed to set forth any facts in support of his bare allegation suggesting that the Notice of Default and/or the Notice of Sale are invalid. (Dem. 8:10-11.) However, the second cause of action incorporates prior allegations, which do contain facts explaining why the Notices are invalid. In particular, the court in Thompson, supra, 11 Cal.App.5th at pp. 1193-94 acknowledged that an instrument may be void due to fraud, and Plaintiff alleges fraud, among other reasons. The allegations also support an inference that the Notices will result in pecuniary loss or prejudice to Plaintiff. (Ibid.) Therefore, Plaintiff has adequately alleged a claim for cancellation. The demurrer is OVERRULED as to the second cause of action. III. Wrongful Foreclosure The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale. They are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408, quoting Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.) Plaintiffs wrongful foreclosure claim again incorporates paragraph 16 of the complaint and also specifically alleges that Plaintiff relied on Defendant PUERTO LORETO'S representations to Plaintiff in that Defendant PUERTO LORETO would rescind the foreclosure and extend the loan if Plaintiff would pay down the loan by $200,000.00 which was made fraudulently because Defendant PUERTO LORETEO did not record a rescission of the foreclosure even though Plaintiff paid the loan down by $280,040.00. (Id., ¶¶ 20-22.) For pleading purposes, these facts sufficiently show that the sale was procured by illegal, fraudulent, or willfully oppressive conduct and that Plaintiff was prejudiced or harmed. (See Miles, supra, 236 Cal.App.4th at p. 408.) Puerto argues that the foreclosure was proper as a matter of law because Plaintiff indisputably defaulted on the loan. However, Plaintiff alleges that he cured the default by paying $280,000 based on Puertos representations. This is a factual matter which cannot be resolved on a demurrer. The demurrer is OVERRULED as to the third cause of action. IV. Unfair Competition Business and Professions Code section 17200 prohibits unlawful, unfair, or fraudulent business acts or practices. Each of the three prongs is an independent basis for relief. (Smith v. State Farm Mutual Automobile Insurance Co. (2001) 93 Cal.App.4th 700, 718.) Unlawful conduct is defined as any practice forbidden by law. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.) UCL actions alleging unlawful conduct borrow from other statutes or common law causes of action outside Section 17200. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.) As discussed above, Plaintiff has adequately pled a cause of action for wrongful foreclosure. [W]rongful foreclosure is a tort (Miles, supra, 236 Cal.App.4th at p. 409), which would make it unlawful within the meaning of the UCL. Thus, Plaintiff has pled a UCL claim. The demurrer is OVERRULED as to the fourth cause of action. V. Injunctive Relief [I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1266.) Plaintiffs fifth cause of action seeks to enjoin Defendants from foreclosing on the Property. (Compl. ¶ 29.) However, as discussed above, the foreclosure has already occurred. Therefore, there is nothing to enjoin. The demurrer is SUSTAINED without leave to amend as to the fifth cause of action. CONCLUSION Defendant Puerto Loreto LLCs demurrer is SUSTAINED as to the fifth cause of action without leave to amend and OVERRULED in all other respects.
Ruling
MONTANO INVESTMENTS, INC. VS USA REAL ESTATE INVESTMENT SERVICES, INC, ET AL.
Aug 15, 2024 |22STCV04061
Case Number: 22STCV04061 Hearing Date: August 15, 2024 Dept: 78 Superior Court of California County of Los Angeles Department 78 ¿ MONTANO INVESTMENTS, INC., Plaintiff(s), vs. USA REAL ESTATE INVESTMENT SERVICES, INC., et al., Defendant(s). Case No.: 22STCV04061 (C/W 22STUD00257, 22STUD00250) Hearing Date: August 15, 2024 [TENTATIVE] ORDER GRANTING UNOPPOSED MOTION TO QUASH SERVICE OF SUMMONS I. BACKGROUND Plaintiff Montano Investments, Inc. (Plaintiff) filed its First Amended Complaint (FAC) against defendants USA Real Estate Investment Services, Inc., et al. alleging that defendant Marc Mendez aka Marcus Mendez (Mendez) defrauded Plaintiff of its property by forging its presidents signature on a promissory note and fraudulently foreclosing on the subject property. The complaint sets forth eleven causes of action for (1) Malicious Prosecution, (2) Quiet Title, (3) Fraud, (4) Civil Conspiracy to Commit Fraud, (5) Aiding and Abetting Fraud, (6) Rescission (7) Equitable Set Aside of Foreclosure, (8) Wrongful Foreclosure, (9) Abuse of Process, (10) Violation of Civil Code § 2943, (11) Promissory Estoppel. Defendant Mendez moves to quash service of summons and FAC. Any opposition was due on or before August 2, 2024; none has been filed to date. II. PROCEDURAL HISTORY On August 4, 2022, Plaintiff filed a First Amended Complaint. On August 31, 2022, the Court consolidated this case with cases 22STUD00257 and 22STUD00250. On February 1, 2023, Plaintiff filed its proof of service as to Defendant Mendez. On July 20, 2023, Mendez filed his first motion to quash service of summons. On August 16, 2023, Mendezs motion to quash service of summons was granted. On March 31, 2024, Plaintiffs application for an order for publication was granted to serve Mendez via Plano Star Courier, a newspaper published in Plano, Texas. On April 2, 2024, Plaintiffs application for an order for publication was granted to serve Mendez via the Metropolitan News-Enterprise, a newspaper published in Los Angeles, California. On May 3, 2024, Plaintiff filed proof of publication of service via the Metropolitan News-Enterprise in Los Angeles, California. On June 3, 2024, Mendez filed his second motion to quash service of summons. III. LEGAL STANDARD [C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)¿¿ When a defendant challenges the courts personal jurisdiction on the ground of improper service of process, the burden is on the plaintiff to prove the existence of jurisdiction by proving the facts requisite to an effective service. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 790.)¿ On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts. [Citation.] (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203.) IV. DISCUSSION Mendez argues Plaintiff failed to effectuate valid service of process by publication, because the proof of publication provides he was served in California when Plaintiff is not a resident of California. Mendez declares that he is a resident of the State of Texas. (Decl. Mendez ¶ 2.) Mendez further argues that despite the Hon. Juge Mark E. Windham signing an Order for Publication for Plaintiff on March 31, 2024 to serve Mendez by publication in Plano, Texas, Plaintiff has still failed to effectuate valid service on Mendez. There is no proof of service by publication in Texas to date. Here, Mendez has rebutted the presumption that service was proper. (Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.].)¿Because Plaintiff did not oppose the motion, Plaintiff necessarily fails to prove that proper service had been effectuated. V. CONCLUSION Mendezs motion to quash service of summons is GRANTED Moving Party is ordered to give notice. DATED: August 14, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
NOAH, LLC VS ZARRABIAN FAMILY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.
Aug 16, 2024 |23BBCV01317
Case Number: 23BBCV01317 Hearing Date: August 16, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A AUGUST 16, 2024 CONTINUANCE LAW AND MOTION MATTERS Los Angeles Superior Court Case # 21GDCV00283 23BBCV01317 23BBCV02519 Due to an unexpected urgent matter that arose this week, additional time is necessary to hear this matter and issue a Tentative Ruling. On the Courts own motion, the matters are continued to AUGUST 20, 2024 at 10:00 a.m., or any date thereafter upon stipulation of counsel. ORDER The law and motion matters set for August 16, 2024 for cases 21GDCV00283, 23BBCV01317 and 23BBCV02519 came on for hearing on August 16, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: THE LAW AND MOTION MATTERS FOR 21GDCV00283, 23BBCV01317 and 23BBCV02519 ARE CONTINUED TO AUGUST 20, 2024, AT 10:00 AM, OR ANY DATE THEREAFTER UPON STIPULATION OF COUNSEL. PLAINTIFFS IN EACH MATTER ARE TO GIVE NOTICE. IT IS SO ORDERED.
Ruling
MEKHAIL vs BASKARON
Aug 14, 2024 |CVRI2402281
MOTION FOR CHANGE OF VENUEON COMPLAINT FOR OTHER REALPROPERTY (OVER $35,000) OFCVRI2402281 MEKHAIL VS BASKARON ANDREW MEKHAIL BY PAULBASKARON, MONA BASKARON, ST.PAUL INVESTMENTS LLC,SUNNYMEAD FUEL INC.Tentative Ruling:GRANTDefendant’s Request for Judicial Notice is granted.Plaintiff does not dispute that this action is for the determination of an interest in real propertylocated wholly within San Diego County. Each of Plaintiff’s causes of action relate to the recoveryof Plaintiff’s purported possessory interest in the property. The Complaint seeks to have the courtadjudicate Plaintiff’s purported interest in title to the property and his purported possessoryinterest in the property. CCP § 392(a)(1) provides in pertinent part: “…[t]he superior court in thecounty where the real property that is the subject of the action, or some part thereof, is situated,is the proper court for the trial of the following actions: (1) For the recovery of real property, or anestate or interest therein, or for the determination in any form, of that right or interest, and forinjuries to real property. Accordingly, per CCP § 392(a)(1), venue is proper in San Diego Countywhere the property is located. This matter is ordered transferred to San Diego Superior Courtwithin 45 days with Plaintiff to pay all transfer fees.In addition, the prevailing party in a motion to transfer venue is entitled to an award of its attorney’sfees and costs associated with the making of the motion. Defendant sought to stipulate to transfervenue but Plaintiff rejected the stipulation. The court will award reasonable attorney’s fees andcosts of $5,560 (Defense counsel’s requested hourly fees of $800 per hr. are excessive for theRiverside geographical area. The court will award hourly fees of $550 x 10 hours, plus the $60filing fee), payable to Defense counsel within 30 days.4.MOTION TO EXPUNGE LISPENDENS BY PAUL BASKARON,CVRI2402281 MEKHAIL VS BASKARON MONA BASKARON, ST. PAULINVESTMENTS LLC, SUNNYMEADFUEL INC.Tentative Ruling:DECLINE to rule. Motion is ordered transferred to San Diego County.Once the court has granted the motion for change of venue, the transferor court is divested ofjurisdiction to resolve any other issues in the action. (Moore v. Powell (1977) 70 Cal.App.3d 583,587.) The transferring court only retains the power to modify the order granting the transfer, or todismiss the action for failure to pay transfer fees. (Id. at 587-588.) Nor does this court havejurisdiction to hear a motion pending the transfer of the case. (South Sutter, LLC v LJ SutterPartners (2011) 193 Cal.App.4th 634,655.)
Ruling
JOHN LE NGUYEN VS MINH LE NGUYEN
Aug 16, 2024 |22AHCV00822
Case Number: 22AHCV00822 Hearing Date: August 16, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT JOHN LE NGUYEN, Plaintiff(s), vs. MINH LE NGUYEN, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22AHCV00822 [TENTATIVE] ORDER RE: MOTION TO APPOINT PARTITION REFEREE Dept. 3 8:30 a.m. August 16, 2024 ) On February 27, 2024, plaintiff John Le Nguyen (Plaintiff) filed this motion requesting the Court appoint a referee to carry out the sale of the property located at 2070 Meridian Avenue, South Pasadena, California 91030 (the South Pasadena Property) and order that the costs of the sale and fees of the referee be paid from the sale proceeds. At the previous hearing on July 12, 2024, the Court continued the hearing on this motion and ordered the parties to meet and confer on selecting a referee. The parties were also ordered to submit a joint statement in which they would nominate up to 3 individuals who are willing to serve as a referee in this matter and include each individuals curricula vitae, fee schedules, and any other information. The joint statement was also supposed to include a description of efforts made to reach an agreement on who the referee should be. The Court informed the parties that if the parties were unable to reach an agreement, the Court would choose one of the nominees identified in the report and appoint them as a referee for the sale of the South Pasadena Property. No joint statement has been filed since the last hearing. Accordingly, the Court has no nominees for reference to choose from and the motion to appoint a referee is DENIED without prejudice. Dated this 16th day of August, 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
PACIFIC PANORAMA LLC, A NEVADA LIMITED LIABILITY COMPANY VS KWALA LLC, A NEVADA LIMITED LIABILITY COMPANY, ET AL.
Aug 15, 2024 |24SMCV02338
Case Number: 24SMCV02338 Hearing Date: August 15, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 PACIFIC PANORAMA, LLC, Plaintiff, v. KWALA, LLC, et al., Defendants. Case No.: 24SMCV02338 Hearing Date: August 15, 2024 [TENTATIVE] ORDER RE: DEFENDANT KWALA, LLCS MOTION FOR JUDGMENT ON THE PLEADINGS BACKGROUND This case arises from protracted litigation relating to the foreclosure of a residential property located at 17000 W Sunset Blvd in Pacific Palisades (the Property). The relevant facts are as follows. Gregg Corlyn (Corlyn) acquired title to the Property pursuant to a Grant Deed recorded on June 29, 2001 (the Grant Deed). (Request for Judicial Notice (RJN) No. 1; Dicecca Decl. ¶ 5, Ex. 1). The Grant Deed did not grant an easem*nt to Corlyn. (RJN No. 2). In 2007, Corlyn borrowed and promised to repay the amount of $3,697,500 pursuant to a note dated April 6, 2007 (the Note) secured by a Deed of Trust dated April 6, 2007 (the 1st Deed of Trust) against the Property. (RJN Nos. 3-5; Dicecca Decl. ¶ 6, Ex. 2; Compl. ¶ 14.a, Ex. 3). He also entered into a revolving credit agreement secured by a Deed of Trust and Assignment of Rents dated April 6, 2007 (the 2nd Deed of Trust). (RJN No. 9; Compl. ¶ 14.b, Exh. 4). The Deeds of Trust have the same legal description as the Grant Deed. (RJN Nos. 6 & 9). In 2009, the 1st Deed of Trust was assigned to Wells Fargo Bank. (RJN No. 10; Dicecca Decl. ¶ 7, Ex. 3; Compl. ¶ 15). Corlyn quitclaimed title of the Property to Plaintiff Pacific Panorama LLC on October 10, 2008 by way of a Quitclaim Deed that was not recorded until January 27, 2010 and sets forth the same exact legal description as the Grant Deed. (RJN No. 11; Dicecca Decl. ¶ 8, Ex. 4; Compl. ¶ 11, Ex. 1). The Quitclaim Deed identifies that title was quitclaimed to Pacific as a GIFT. The Quitclaim Deed did not include any provision for the assumption of the Note or 1st Deed of Trust by Pacific. (RJN No. 12). Two days after recording the Quitclaim Deed, on January 29, 2010, Pacific filed its first Chapter 11 bankruptcy in Nevada, with Case No. BK-S-10-11464-MKN, to delay WF Banks foreclosure. In that case, the court granted Wells Fargo Banks motion for relief from the automatic stay. The court eventually dismissed the case on April 19, 2012. (RJN No. 13; Dicecca Decl. ¶ 35, Ex. 30 (Memorandum Decision, at p. 3)). On June 12, 2014, a notice of default and then, on October 3, 2014, a notice of trustees sale, each identifying only Corlyn as the borrower, were recorded against the Property based on the 1st Deed of Trust. (RJN Nos. 14-15; Dicecca Decl. ¶¶ 9-10, Exs. 5-6). On October 17, 2014, Corlyn filed a lawsuit against Wells Fargo Bank and its loan servicer, Select Portfolio Servicing, Inc. (SPS), with Case No. SC123281, to enjoin the foreclosure. (RJN No. 16; Dicecca Decl. ¶ 11, Exh. 7). Corlyns complaint asserted claims based on the borrower-protection statutes and alleged he submitted several loan modification applications between February 2013 and July 2014, but they were repeatedly denied or ignored by Wells Fargo Bank and SPS. (RJN No. 17; Dicecca Decl. ¶ 11, Exh. 7 (Corlyns 2014 Compl. ¶¶ 17-50)). Then, on June 28, 2019, Corlyn filed another lawsuit against WF Bank and SPS, with Case No. 19SMCV01180, to again enjoin the foreclosure, in which he asserted: Gregg Corlyn was and is an individual and the borrower on all liens on the property and Mr. Corlyn has standing to sue because, though he does not live at the subject property, he is still the borrower on the loan. (RJN Nos. 18-19; Dicecca Decl. ¶ 12, Ex. 8 (Corlyns FAC ¶¶ 1 & 36)). After another notice of default and sale were published, Pacific filed its second Chapter 11 bankruptcy on June 28, 2021, with Case No. 2:21-bk-15239, to again stop the foreclosure. The U.S. Trustee moved to dismiss the case for bad faith, as evidenced by the filing on the eve of a foreclosure sale and Pacific having only one asset and no income. The court granted the lenders motion for relief from stay and the U.S. Trustees motion to dismiss, with a 180-day bar to refiling, finding the case was filed in bad faith just to delay the secured creditor from enforcing its rights. (RJN Nos. 21-23; Dicecca Decl. ¶¶ 13-14 & 35, Exs. 9-10 & 30 (Memorandum Decision, at p. 5)). On April 4, 2022, the 1st and 2nd Deeds of Trust were assigned to Defendant KWALA LLC (Kwala). (RJN Nos. 24-26; Dicecca Decl. ¶¶ 15-16, Exhs. 11-12; Compl. ¶ 16, Exh. 7). Five months later, in September 2022, Plaintiff and Corlyn sought Kwalas consent for Pacific to assume Corlyns loans. (Doss Decl. ¶¶ 4-5). Kwala denied the request. (Doss Decl. ¶ 5, Exh. A). Thus, Corlyn remained the sole borrower on the loans. On October 3, 2022, a notice of default (NOD) is recorded against the Property based on the 1st Deed of Trust. (RJN No. 28; Dicecca Decl. ¶ 18, Exh. 14; Compl. ¶ 18, Exh. 9 [NOD]). On December 2, 2022, Pacific files an action against Kwala entitled Pacific Panorama, LLC v. Kwala LLC et al., with Case No. 22STCV37755 (the Prior Action), seeking to enjoin foreclosure, despite that Pacific had never assumed the loan. (RJN No. 29; Dicecca Decl. ¶¶ 19-20, Exhs. 15-16). That complaint asserted the same legal description for the Property as set forth in the Grant Deed and Quitclaim Deed. (RJN No. 30; Dicecca Decl. ¶ 20, Exh. 16). In response to a demurrer, Pacific filed a first amended complaint (FAC) alleging the NOD falsely represents that as of September 30, 2022 there were unpaid payments due Defendants and each of them in the sum of $208,394.55, when in fact that representation was materially false and misleading and was burdened with claims which were not due and not supported. (RJN No. 32; Dicecca Decl. ¶ 22, Ex. 18; see Compl. ¶ 25.b, at 10:6-9). On or about January 4, 2023, Kwala caused its foreclosure trustee California TD Specialists to record a notice of trustees sale and scheduled the sale for January 31, 2023. (RJN No. 31; Dicecca Decl. ¶ 21, Ex. 17). Following an ex parte application, the court issued a temporary restraining order (TRO) on January 23, 2023 enjoining the sale and setting an OSC Re Preliminary Injunction. On March 29, 2023, the preliminary injunction hearing went forward, and on April 17, 2023, the court denied Pacifics request for preliminary injunction and dissolved the TRO, finding that Pacific had no standing to challenge the amounts owed under the 1st Deed of Trust and that Kwalas accounting as to the default amount owed was otherwise accurate. (RJN No. 33; Dicecca Decl. ¶ 24, Ex. 19 (Order Denying Request for Preliminary Injunction, 04-17-23)). Specifically, the court found: Plaintiff lacks standing on both the contract related claims and the derivative declaratory relief claim. [Citations.] For this reason, Plaintiff also is not a borrower under title 12 of the Federal Regulations section 1024.41 and lacks standing to assert any violation of the regulation. The court concluded Plaintiff has not demonstrated its standing to assert various claims of the borrower on the loan. (RJN No. 34; Dicecca Decl. ¶ 24, Ex. 19, at pp. 7 & 9). Alternatively, the court held Defendants have provided Plaintiff with a reasonably accurate accounting of the default claimed. (RJN No. 35; Dicecca Decl. ¶ 24, Ex. 19, at pp. 7 & 9]). Kwala then filed a motion for judgment on the pleadings challenging that Pacific lacked standing to assert any cause of action in the FAC because it was not the borrower on the loans and had not assumed the loans in any writing approved by the lenders. (Dicecca Decl. ¶ 23). On April 25, 2023, the court granted Kwalas motion for judgment on the pleadings on Pacifics FAC with leave to amend, finding that Pacific has no standing to assert any of the contractual or statutory claims in the First Amended Complaint (FAC) because Pacific is not a borrower under the two security interests held by Kwala. (RJN Nos. 36-37; Dicecca Decl. ¶ 25, Ex. 20 (04-25-23 Minute Order, p. 1)). On May 12, 2023, Pacific filed its second amended complaint (SAC) and Kwala filed another demurrer challenging standing. (RJN Nos. 39-40; Dicecca Decl. ¶¶ 19 & 26, Ex. 15). Pacific did not file an opposition, and instead filed a notice of withdrawal of the SAC and then dismissed the action on June 8, 2023. (RJN Nos. 41-42; Dicecca Decl. ¶ 26, Exs. 21-22). The very next day after the court dissolved the TRO, on April 18, 2023, Pacific filed its third Chapter 11 bankruptcy, with Case No. 23-11599-MKN, seeking to stop the foreclosure. (RJN No. 38; Dicecca Decl. ¶¶ 27-28, Exs. 23-24). Then, the day after the voluntary dismissal of the Prior Action, on June 9, 2024, Pacific removed the Prior Action to the bankruptcy court. (RJN No. 43; Dicecca Decl. ¶¶ 19 & 27, Exs. 15 [Civil Docket, at p. 1] & 23 [BK Docket, Doc 35 at p. 5]). Kwala filed a motion for relief from stay and a motion to remand the Prior Action back to the state court, which were both granted. (RJN Nos. 44-48; Dicecca Decl. ¶¶ 29-31, Exs. 25-27). In its ruling on the motions, the bankruptcy court found that Pacific engaged in forum shopping to avoid the adverse rulings from the Prior Action and that Pacific would be unable to effect a reorganization with Kwalas loans because its not their debt and because they have no money. (RJN No. 46; Dicecca Decl. ¶ 29, Exh. 25 (Transcript at pp. 59-60 & 62-64, italics added)). The bankruptcy courts order granted Kwala leave to foreclose on the Property and to enforce the security under the First Deed of Trust. (RJN No. 47; Dicecca Decl. ¶ 30, Exh. 26). Kwalas trustee then scheduled the foreclosure sale for October 17, 2023. (Dicecca Decl. ¶ 32). The day before the sale, however, a notice of a new bankruptcy case filed by 17K West Sunset, LLC (17K West), with Case No. 23-15559-GS, was served on Kwalas counsel. (RJN No. 51; Dicecca Decl. ¶¶ 32 & 34, Ex. 29). 17K West was formed after Kwala was granted relief from stay and was assigned the junior deeds of trust before filing bankruptcy. (RJN Nos. 49-50; Dicecca Decl. ¶ 33, Ex. 28). In response, Kwala moved for in rem bar relief in the Pacific bankruptcy and to dismiss the 17K West bankruptcy. Both motions were granted, and the bankruptcies were dismissed. (RJN Nos. 52-58; Dicecca Decl. ¶¶ 35-39, Exs. 30-34). In granting in rem bar relief, the court found that Pacific and 17K West engaged in a scheme to hinder, delay or defraud Kwala and thwart its efforts to foreclose. (RJN No. 53; Dicecca Decl. ¶ 35, Ex. 30 (Memorandum Decision, at p. 16)). After this ruling, the foreclosure sale was scheduled for March 27, 2024 pursuant to a newly-issued Notice of Trustees Sale. (RJN No. 59; Dicecca Decl. ¶ 40, Ex. 35). On March 4, 2024, Pacific filed an appeal in the bankruptcy and, on March 18, 2024, filed an emergency motion to stay the foreclosure sale, which was denied on March 19, 2024. (RJN Nos. 60-61; Dicecca Decl. ¶¶ 41-42, Exs. 36-37). The next day, on March 20, 2024, Pacific filed another emergency motion for stay in the district court, and on March 26, 2024, the district court denied that motion and instructed the foreclosure sale that is set for tomorrow may proceed. (RJN No. 62; Lin Decl. ¶ 5, Ex. B (Transcript at p. 19:18-19)). In its ruling, the court noted: It is, Ill say, troubling to this Court that this proceeding is being held here today after what appears to be over 12 years of abuse of process and an attempt to manipulate court proceedings. (RJN No. 63; Lin Decl. ¶ 5, Ex. B (Transcript at p. 18:17-25)). The foreclosure sale took place the next day on March 27, 2024. The opening bid amount was $5,403,655.84. Kwala made a full credit bid for that amount plus an additional $1,174,577.24 for the highest bid of $6,578,233.08. No one for Pacific appeared at the sale or bid. No one other than Kwala bid at the sale. Kwala was the winning bidder. (RJN No. 64; Snyder Decl. ¶ 8; Dicecca Decl. ¶ 43, Ex. 38). After the sale, the trustee received notices of intent to bid pursuant to Civil Code § 2924m. Pacific did not submit a notice. Ultimately, no bids were received, and the sale became final on May 13, 2024. (Snyder Decl. ¶ 8). A Trustees Deed Upon Sale was recorded on May 20, 2024 in favor of Kwala. (RJN No. 68; Snyder Decl. ¶ 8; Dicecca Decl. ¶ 44, Ex. 39). On April 17, 2024, 17K West filed a civil action with Case No. 24SMCV01839, which alleged that Kwala had rejected its tender of all amounts due and owing under the 1st Deed of Trust. On April 30, 2024, the court denied 17K Wests ex parte application for a TRO to enjoin the recording of the Trustees Deed Upon Sale, and on May 14, 2024, 17K West dismissed the action. (RJN Nos. 65-67; Dicecca Decl. ¶¶ 46-49, Exs. 41-44). Two days later, on May 16, 2024, Pacific filed the present action, asserting wrongful foreclosure and related causes of action based on the same alleged statutory violations as the Prior Action. The operative complaint alleges eight claims for (1) wrongful foreclosure, (2) quiet title, (3) removal of cloud on title, (4) voiding/invalidating deed to real property, (5) slander of title, (6) injunctive relief - equitable, (7) injunctive relief statutory, and (8) declaratory relief. This hearing is on Kwalas motion for judgment on the pleadings. Kwala argues that the present action is nothing more than a collateral attack on the Prior Action, in which the Court found that Plaintiff had no standing because Plaintiff was not the borrower and never assumed the loan and alternatively that the default amount claimed by Defendant was accurate. There was no opposition filed as of the posting of this tentative ruling. LEGAL STANDARD A defendant may move for judgment on the pleadings when the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc. §438(b)(1) and (c)(1)(B)(ii).) A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.] (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citations omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Like a demurrer, a motion for judgment on the pleadings may be addressed to the pleading as a whole or to separate counts. If addressed to the pleading as a whole, the motion must be denied if even one count is good. (Lora v. Garland (1946) 27 Cal.2d 840, 850; Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1358.) If addressed to separate counts, the motion may be granted as to some counts and denied as to others. (Steiner v. Rowley (1950) 35 Cal.2d 713, 720; Heredia, 228 Cal.App.3d at 1358.) MEET AND CONFER A party moving for¿judgment on the pleadings must¿meet and confer in person or telephonically with the party who filed the pleading that is subject to the motion to determine if an agreement can be reached regarding the claims raised in the motion. (Code Civ. Proc., § 439, subd. (a).) The moving party must file a declaration detailing the¿meet and confer efforts. (Code Civ. Proc. § 439, subd. (a)(3).) Kwala submits the Declaration of Michael Dicecca which shows that despite repeated requests, Plaintiffs counsel would not provide dates for a meet and confer by telephone. This satisfies the meet and confer requirements of § 439. Plaintiff is admonished to comply with requests to meet and confer. REQUEST FOR JUDICIAL NOTICE Kwala requests judicial notice of recorded instruments, facts that can be adduced from the recorded instruments, and orders, findings of fact and conclusions of law in court records. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(d), 452(h), and 453. DISCUSSION Defendants argue that Pacifics first claim for violation of Cal. Bus. & Prof. Code §§ 10130 and 10131.1 fails because Wells Fargo Bank is expressly exempt from the licensing requirements of the statute. The Court agrees. Bus. & Prof. Code § 10130 provides that It is unlawful for any person to engage in the business of . . . a real estate broker . . . within this state without first obtaining a real estate license from the department . . . . Section 10131.1(a) defines real estate broker to include a person in the business of . . . selling to, or exchanging with the public, . . . promissory notes secured directly or collaterally by liens on real property. The Complaint alleges Corylns loan was sold in violation of those provisions because WF Bank did not have a real estate broker license. (Compl. ¶¶ 16 & 25.a). As a result, the Complaint alleges the assignment should be declared void pursuant to Finance Code § 22750(b). (Compl. ¶ 25.a). Under Bus. & Prof. Code § 10133.1(a)(1), Wells Fargo Bank is expressly exempt from the licensing requirements of Section 10130. (Bus. & Prof. Code § 10133.1(a) (Subdivisions (d) and (e) of Section 10131 . . . do not apply to any of the following: (1) Any person or employee thereof doing business under any law of this state . . . relating to banks.) & § 10006 (Person includes corporation, company or firm.); see also Arzamedi v. Wells Fargo Bank, N.A., (E.D. Cal. March 8, 2018) 2018 WL 1210978, at *4 (Federal banks are explicitly excluded from the definition of real estate licensee . . . . (citing Section 10133.1(a)(1))). And if Wells Fargo Bank was not exempt, then the claim would be preempted by federal law, which governs a banks rights to sell mortgages. (See 12 U.S.C. § 371(a) (Any national banking association may make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate.); 12 C.F.R. § 34.4(a) (A national bank may make real estate loans under 12 U.S.C. § 371 and § 34.3 without regard to state law limitations concerning: (1) Licensing . . . (10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.); see also Akopyan v. Wells Fargo Home Mortg., Inc. (2013) 215 Cal. App. 4th 120, 151-158 (state law claims against Wells Fargo Bank based on violations of Bus. & Prof. Code were preempted by the National Bank Act, 12 U.S.C. § 21 et seq.).) Moreover, no authority supports that the sale or assignment is void because it was made by a non-licensed party in violation of Section 10130. Rather, the consequences for violating Section 10130 simply subject the non-licensed party to fines or citations (Sections 10139 & 10080.9) and bars that party from recovering compensation from the transaction (Section 10136). The Complaint alleges the assignment should be declared void under Finance Code § 22750(b), which provides that a willful violation of the Finance Code in the making or collection of a loan renders the loan contract void. But no violation of the Finance Code is alleged based on the assignment, and in any event, Wells Fargo Bank is expressly exempt from the Finance Codes requirements pursuant to Finance Code § 22050(a). In relevant part, § 22050(a) states this division [Finance Code §§ 22000-22780.1] does not apply to any person doing business under¿any law of any state . . . relating to banks. Aside from the claim that the assignment is void, the Complaints eight causes of action are all based on alleged statutory violations relating to the Note and 1st Deed of Trust. However, as the court in the Prior Action already found, Plaintiff lacks standing to assert those claims because it is not the borrower and never assumed the loan in any writing approved by the lender, as required by the 1st Deed of Trust. (RJN Nos. 3-5; Doss Decl. ¶ 5, Ex. A.) Even though Plaintiff acquired title to the Property, obtaining title did not automatically make Plaintiff a successor borrower. (Wolfert v. Guadagno (1933) 130 Cal.App.661, 663 (It is settled law that a purchaser of real property who buys under a writing which makes his purchase subject to a mortgage or deed of trust does not thereby assume or agree to pay the obligation so secured.)) Rather, Plaintiff had to expressly assume the obligations in writing and obtain lender approval. Paragraph 13 of the 1st Deed of Trust provides that any Successor in Interest of Borrower who assumes Borrowers obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrowers rights and benefits under this Security Instrument. (RJN No. 8); see Green v. Cent. Mortg. Co. (N.D. Cal. Sept. 2, 2015) 2015 WL 5157479, at *5 ([A] successor in interest does not assume a borrowers obligations simply upon obtaining title to property when the deed of trust requires an assumption be made in writing and approved by the lender.); Anolik v. Bank of Am. Loans (E.D. Cal. Apr. 21, 2011) 2011 WL 1549291, at *1, *3 (property owner lacked standing as he was not the borrower on the loan and had not assumed the obligations under the loan in writing and with lenders consent, as required by the Deed of Trust).) Also, under the statute of frauds, any agreement to assume a secured loan or to modify a deed of trust had to be in writing and signed by the lender. (See Civ. Code §§ 1624(a)(6) & 2922 (mortgage must be in a writing); Secrest v. Sec. Natl Mortg. Loan Trust 2002-2 (2008) 167 Cal. App. 4th 544, 553 (An agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds.); Rossberg v. Bank of Am., N.A. (2013) 219 Cal. App. 4th 1481, 1502 (2013) (statute of frauds barred cause of action against lender under deed of trust for breach of purported loan modification agreement). As such, Pacific lacks standing, and its claims are subject to demurrer. (See Green, 2015 WL 5157479, at *4 (Courts thus have dismissed foreclosure-based claimslike Ms. Greens negligent misrepresentation, fraud, wrongful foreclosure, UCL, cancellation of deed, and declaratory relief claimsby persons who were not parties to mortgage loans.).) Moreover, even if Pacific has standing, its claims must otherwise fail based on the tender rule. In a wrongful foreclosure action, the plaintiff must plead and prove that it tendered the amount of the secured indebtedness or was excused from tendering. (Chavez v. Indymac Mortg. Servs. (2013) 219 Cal. App. 4th 1052, 1062.) [T]he rationale behind the tender rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the [borrower]. (Turner v. Seterus, Inc. (2018) 27 Cal. App. 5th 516, 528.) While no tender is required as to a challenge that an assignment is void, the rule applies to challenges based on other alleged irregularities, as here. (See Yvanova v. New Century Morg. Corp. (2016) 62 Cal.4th 919, 929 n.4.) The Complaint seeks an equitable declaration that the foreclosure sale is void as a result of a number of alleged irregularities beyond the claim that the alleged assignment is void, and as to each of those claims, the tender rule applies. (Compl. ¶ 25.b-f). But the Complaint does not allege that Pacific tendered the total indebtedness or that it was excused from doing so based on a recognized exception to the rule. Pacific never tendered, or offered to tender, any amount to Kwala prior to the sale. (Dicecca Decl. ¶ 50). Thus, even assuming Pacific has standing, its claims otherwise fail based on the tender rule. Because the above bases alone support dismissing the Complaint, the Court declines to consider other grounds raised in Kwalas motion for judgment on the pleadings. CONCLUSION Based on the foregoing, the Court GRANTS Defendant Kwala LLCs motion for judgment on the pleadings. IT IS SO ORDERED. DATED: August 15, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Ruling
CAFE ON LEMON, INC., A CALIFORNIA CORPORATION VS LOUIS PETRIE SEPARATE PROPERTY TRUST, ET AL.
Aug 13, 2024 |22AHCV00668
Case Number: 22AHCV00668 Hearing Date: August 13, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT CAFÉ ON LEMON, INC., Plaintiff(s), vs. LOUIS PETRIE SEPARATE PROPERTY TRUST, et al., Defendant(s), ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22AHCV00688 [TENTATIVE] ORDER RE: DEFENDANT LOUIS PETRIE SEPARATE PROPERTY TRUSTS DEMURRER TO THIRD AMENDED COMPLAINT Dept. 3 8:30 a.m. August 13, 2024 I. INTRODUCTION On September 8, 2022, plaintiff Café on Lemon, Inc. (Plaintiff) filed this action against Gina Fanara (Fanara), Kevin Tang (Tang), and Dilys Jones (Jones), as Trustee of the Louis C. Petrie Separate Property Trust (LP Trust) (erroneously sued as Louis Petrie Separate Property Trust). On January 2, 2024, Plaintiff filed the operative Third Amended Complaint (TAC). On March 6, 2024, Jones, as the Trustee of LP Trust, filed a demurrer to the TACs second and third causes of action for intentional and negligent interference with prospective economic relations. Jones also filed a motion to strike the TACs prayer for punitive damages. Plaintiff belatedly served its opposition brief to the demurrer on July 19, 2024. Its opposition brief was due on July 11, 2024. On July 23, 2024, Defendant filed a reply brief in support of their demurrer. On July 24, 2024, Plaintiff filed the opposition brief that it previously served. Jones asks this Court to disregard the opposition brief as untimely and, in light of the lack of any explanation for the tardy filing, the Court exercises its discretion to disregard the untimely brief pursuant to CRC 3.1300, subd. (d).) The Court additionally notes that even if it considered the untimely brief, it does not address any of the arguments made in the demurrer. First, Plaintiff addresses a nonexistent demurrer to the breach of contract claim. (Opp., p. 5.) Second, Plaintiff relies on a wholly irrelevant quotation of the Courts previously-issued minute order. (Opp., pp. 5-6.) Therefore, regardless of whether the Court considers the untimely opposition brief, the arguments made are irrelevant. II. LEGAL STANDARD A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.] (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [the facts alleged in the pleading are deemed to be true, however improbable they may be].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) III. DISCUSSION Jones demurs to Plaintiffs second and third causes of action for intentional and negligent interference with prospective economic relations. The elements of a claim for interference with prospective economic relations include (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendants knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, citations, brackets, and quotation marks omitted.) The alleged interference must be unlawful by some measure beyond the fact of the interference itself. (Ibid.) This is Plaintiffs fourth attempt to plead claims for interference with prospective economic relations. The Court previously sustained Joness demurrer to these claims asserted in the Second Amended complaint and stated that Plaintiff had not adequately alleged wrongful conduct because there were no allegations that it relied on the alleged misrepresentations made by Jones to its detriment. In the TAC, Plaintiff remedied this issue by adding paragraphs 34 and 42 of the TAC, which allege a multitude of topics on which Jones made various misrepresentations without explaining how any of them were actually false or that they caused Plaintiff any harm. Jones points out that the Lease, which is attached as an exhibit to the TAC, states that an assignment does not relieve a tenant of its obligations under the lease. Therefore, even if Arakleyan had purchased the business, Plaintiff would not have been able to get[] out of the lease. (TAC, ¶¶ 34, 42.) Plaintiff also fails to allege what kind of misrepresentations were made by Jones regarding the type of information Arakleyan would need to provide or the amount Arakleyan would need to pay, nor does Plaintiff allege how Jones ratified any actions taken by Fanara. Plaintiff also does not allege facts supporting its claim that it relied on any of Joness unspecified misrepresentations to its detriment. Instead, Plaintiff only alleges that it did not attempt to find alternate buyers for its business without alleging that alternate buyers existed. Ultimately, Plaintiffs action is one which stems from an alleged breach of contract. The alleged interference is the same conduct underlying Plaintiffs allegation that Jones breached Paragraph 36 of the Lease by unreasonably withholding or delaying consent to an assignment of the Lease to Arakelyan. Therefore, the fundamental basis for the Second and Third Causes of Action sounds in contract, not tort. (See JRS Products, Inc. v. Matsush*ta Electric Corp. of America (2004) 115 Cal.App.4th 168, 183.) V. CONCLUSION Joness Demurrer is SUSTAINED as to the Second and Third Causes of Action. Because the Court sustains the demurrer, the motion to strike allegations of fraud, malice, and oppression and request for punitive damages in paragraph 34 is MOOT. Moving party to give notice. Dated this 13th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT CAFÉ ON LEMON, INC., Plaintiff(s), vs. LOUIS PETRIE SEPARATE PROPERTY TRUST, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22AHCV00668 [TENTATIVE] ORDER RE: DEFENDANT DILYS JONES MOTION TO COMPEL Dept. 3 8:30 a.m. August 13, 2024 On January 4, 2024, defendant Dilys Jones (Defendant), as trustee of the Louis Petrie Separate Property Trust, served Special Interrogatories, Set One, on plaintiff Café on Lemon, Inc. (Plaintiff). Plaintiff did not serve responses and Defendant filed this motion on April 2, 2024. The motion is unopposed. Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Plaintiff did not oppose the Motion and it is undisputed responses were not served. Defendants motion is GRANTED and Plaintiff is ordered to serve verified responses without objections to Special Interrogatories, Set One within 20 days of the date of this Order. No sanctions are imposed on Plaintiff as Defendant did not request them. Moving party to give notice. Dated this 13th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
Frances Semoes, et al. vs Josh Reingeisen, et al.
Aug 13, 2024 |20CV-03468
20CV-03468 Frances Semoes, et al. v.Josh Reingeisen, et al.Order to Show Cause re: Dismissal-Notice of SettlementDropped from Calendar, Order granting joint request for dismissal filed April 5, 2024.
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Aug 15, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716870/2024
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Lakeview Loan Servicing, Llc v. Johnny Asmal, Fanny Asmal, U.S. Department Of Housing And Urban Development F/K/A Secretary Of Housing And Urban Development, New York City Environmental Control Board, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, New York State Department Of Taxation And Finance, John Doe #1 Through John Doe #12, The Last Twelve Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The premises, described in the complaint,
Aug 16, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |716958/2024
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Cathay Bank v. Jianru Lin, Feng Gao
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Finance Of America Reverse Llc v. Roger H. Fletcher A/K/A Roger Fletcher, individually and as executor of the Estate of Constantine Fletcher A/K/A Constantine G. Fletcher A/K/A Constantine George Fletcher, Ulanda M. Fletcher-Thompson, Douglas D. Fletcher, New York City Transit Adjudication Board, New York State Department Of Taxation And Finance, United States Of America O/B/O Internal Revenue Service, Office Of The City Register Of The City Of New York, Queens County, John Doe #1 To John Doe #10, The Last 10 Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Persons Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The complaint
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