Complaint Filed - Docketed On: 05/28/2024 May 26, 2024 (2024)

Case

Wilmington Trust, National Association, as Trustee, for the Benefit of the Holders of Corevest American Finance 2022-1 Trust Mortgage Pass-Through Certificates v. 2608 BOWEN RD SE DE LLC, a Delaware limited liability company

Aug 29, 2024 |Dayson, Danya A |Real Property |2024-CAB-005552

Case

May 17, 2024 |Pipe, Judith |Landlord & Tenant - Residential |2024-LTB-005312

Case

TCB Fairlawn Marshall Housing LP v. Kenneth House

May 17, 2024 |Pipe, Judith |Landlord & Tenant - Residential |2024-LTB-005313

Case

Enterprise Residential, LLC v. Mekaeel Abdallah

May 26, 2024 |Landlord & Tenant, Judge |Landlord & Tenant - Residential |2024-LTB-005506

Case

May 17, 2024 |Landlord & Tenant, Judge |Landlord & Tenant - Residential |2024-LTB-005304

Case

GREYSTAR MANAGEMENT SERVICES, L.P. v. Angela Bryant

May 20, 2024 |Pipe, Judith |Landlord & Tenant - Residential |2024-LTB-005373

Case

JMP Apartments LLC v. Moussa Sall et al.

May 23, 2024 |Landlord & Tenant, Judge |Landlord & Tenant - Residential |2024-LTB-005441

Case

Truist Bank v. Edward Joseph Chrzanowski

Aug 23, 2024 |Mortgage Foreclosure Mediation, Judge |Mortgage Foreclosure |2024-CAB-005419

Case

H.E.L.P. Washington DC LP v. Ronald Demille

May 22, 2024 |Pipe, Judith |Landlord & Tenant - Residential |2024-LTB-005407

Ruling

THOMPSON, SHELDON L vs JAI JALARAM INVESTMENT LLC

Aug 31, 2024 |CV-23-006532

CV-23-006532 – THOMPSON, SHELDON L vs JAI JALARAM INVESTMENT LLC – Plaintiffs’ Motion to Appoint Receiver and for Related Preliminary Injunction – DENIED.The Court finds Defendant Jai Jalaram Investment LLC (JJI) acquired their 50% ownership interest in the real property at issue on December 21, 2021, prior to the expiry of JJI’s said lease on December 31, 2021. Thus, both leasehold and fee simple interests merged on December 21, 2021, and said leasehold interest was thereby extinguished. (Bailey v. Citibank, N.A., (2021) 66 Cal. App. 5th 335). D JJI is therefore not a holdover tenant herein.The Court also finds that Defendant JJI’s admitted refusal to grant Plaintiff’s, co -owners of the real property at issue access to same to operate their proposed housing venture constitutes “the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession by notice in the most open, notorious and unequivocal character” and amounts to an ouster of Plaintiffs. (Hacienda Ranch Homes, Inc. v. Superior Ct., 198 Cal. App. 4th 1122, (2011), as modified on denial of reh'g (Sept. 28, 2011); Miller v. Meyers, (1873) 46 Cal. 538 at 539).The Court additionally finds that a receiver may be appointed herein based on said ouster to preserve Plaintiffs’ rights in said property. (Civ. Proc. Code § 564(b)(9)).However, the appointment of a receiver is based on the facts of the case and lies within the Court’s controlled discretion. It also a very drastic, harsh and costly remedy, that is to be exercised sparingly and with caution (Medipro Medical Staffing LLC v. Certified Nursing Registry (2021) 60 Cal.App. 5th 622; Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869).Furthermore, the appointment of a receiver for a going concern such as JJI’s motel is a drastic remedy.  (McRae v. Superior Court for Los Angeles County (1963) 221 Cal.App.2d 166).  Therefore, in light of the foregoing, and given that JJI is operating a going concern on said premises, has acknowledged Plaintiff’s 50% ownership of the real property at issue and that the parties have reached an agreement regarding including Plaintiff’s as loss payees to JJI’s insurance on said property, the Court is of the view that appointing a receiver herein would be an unduly drastic measure pending the resolution of Plaintiffs’ substantive claims herein.Therefore, Plaintiff’s motion is hereby denied.

Ruling

HY-NETHA SCOTT, AN INDIVIDUAL, ET AL. VS MP OPPORTUNITY PARTNERS I, LP, ET AL.

Aug 30, 2024 |24STCV03675

Case Number: 24STCV03675 Hearing Date: August 30, 2024 Dept: 57 Plaintiffs Hy-Netha Scott, La Fuanja Call, and minors Emperor Martin and Legend Pree, by and through their guardian ad litem Hy-Netha Scott (collectively, Plaintiffs), sued Defendants MP Opportunity Partners I, LP and Bridge Management Inc. also known as Bridge Management XIII (collectively, Defendants) about the habitability of residential property located at 2140 Belle St., Unit 0001, San Bernardino, California 92404 (the Property) that Plaintiffs leased and that Defendants owned or managed. Plaintiffs allege, inter alia, that they suffered personal injuries as a result of the conditions of the Property.Plaintiffs move the Court for preference in setting a trial date pursuant to Code of Civil Procedure Section 36(b) on the grounds that minor plaintiffs Emperor Martin and Legend Pree (collectively, Minor Plaintiffs) are under the age of 14, have suffered personal injuries, and have a substantial interest as plaintiffs in the pending action. The Court is granting the Plaintiffs'' motion.A civil action for wrongful death or personal injury shall be entitled to preference upon motion of any party to the action who is under 14 years of age who has a substantial interest in the case as a whole. (Code Civ. Proc, § 36(b).) This is a mandatory provision for priority; the trial court has no discretion to refuse the minors request for early setting. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 223-224.) If the trial court grants the motion for trial preference, the court must set the case for trial not more than 120 days from the date the motion was granted. (Code Civ. Proc, § 36(f).) In support of their motion for trial preference, Plaintiffs submitted the declaration of Plaintiff Hy-Netha Scott, guardian ad litem for Minor Plaintiffs and their biological mother. (Scott Decl.) Scott declares under penalty of perjury that Martin and Pree are ages thirteen and two, respectively, and provides their dates of birth. (Id., ¶ 2.) Plaintiffs attorney also attaches copies of the Applications for Appointment of Guardian Ad Litem declaring the same. (Ohn Decl., ¶ 2, Ex. A.) Scott's declaration describes the uninhabitable conditions as alleged in the Complaint and states that her children have resided at the Property since 2020. ( Scott Decl. ¶¶ 3-4.) Due to the uninhabitable conditions, Scott declares, Minor Plaintiffs have suffered personal injuries, including coughing, sneezing and runny nose. (Id., ¶ 5.)Defendants counter that Plaintiffs fail to establish that Minor Plaintiffs are under fourteen. In so arguing, Defendants pay short shrift to the Scott Declaration which establishes the Minor Plaintiffs ages as two and thirteen. Defendants fail to provide evidence to the contrary. Defendants also contest that Minor Plaintiffs have a substantial interest in this action, this time discounting Scotts declaration as by a non-expert. Defendants do not cite any precedent, however, that says that parties seeking a trial preference based on the presence of minors under the age of 14 in the case must prove the minors have a substantial interest in the case through an expert declaration. The non-expert declarations that Plaitiffs submitted are sufficient. As children who are alleged to have lived in substandard conditions, Minor Plaintiffs may be able to recover substantial personal injury and general damages. (See Ohn Decl., ¶¶ 5-6.) They have a substantial interest in this case. Because the Minor Plaintiffs are under the age of fourteen and have a substantial interest in this action as a whole, the Court is granting the Plaintiffs' motion for trial preference and sets the trial date for December 16, 2024 at 9:30 a.m. The final status conference is set for December 6, 2024 at 9:00 a.m. The Court is not granting Defendants' request, made through their opposition to the motion for trial preference, for an order extending certain deadlines and shortening others. Defendants need to seek that relief through a properly noticed-motion of their own or an ex parte application.

Ruling

Gordon Panzak vs. City of Fowler

Aug 29, 2024 |22CECG01769

Re: Panzak v. City of Fowler, et al. Case No. 22CECG01769Hearing Date: August 29, 2024 (Dept. 502)Motion: Defendants City of Fowler, et al.’s, Special Motion to Strike the First Amended Complaint Pursuant to Code of Civil Procedure Section 425.16 Defendant Gregory Myers’ Special Motion to Strike the First Amended Complaint Pursuant to Code of Civil Procedure Section 425.16 Defendant City of Fowler, et al.’s, Motion to Strike Punitive DamagesTentative Ruling: To grant the special motion to strike filed by the City of Fowler defendants, as tothe entire first amended complaint, without leave to amend. To grant the special motion to strike filed by defendant Gregory Myers as to theentire first amended complaint, without leave to amend. To grant attorney’s fees to Mr.Myers in the amount of $2,580. Plaintiff shall pay sanctions to Mr. Myers within 30 days ofthe date of service of this order. To deny the City’s motion to strike the prayer for punitive damages from the firstamended complaint as moot in light of the court’s ruling on the special motions to strike.Defendants shall submit proposed judgments consistent with the language of the court’sorder within 10 days of the date of service of this order.Explanation: General Principles Regarding Special Motions to Strike: Under Code of CivilProcedure section 425.16, “[a] cause of action against a person arising from any act ofthat person in furtherance of the person's right of petition or free speech under the UnitedStates Constitution or the California Constitution in connection with a public issue shall besubject to a special motion to strike, unless the court determines that the plaintiff hasestablished that there is a probability that the plaintiff will prevail on the claim.” (CodeCiv. Proc., § 425.16, subd. (b)(1).) “In making its determination, the court shall consider the pleadings, andsupporting and opposing affidavits stating the facts upon which the liability or defense isbased.” (Code Civ. Proc., § 425.16, subd. (b)(2).) “As used in this section, ‘act in furtherance of a person's right of petition or freespeech under the United States or California Constitution in connection with a publicissue’ includes: (1) any written or oral statement or writing made before a legislative,executive, or judicial proceeding, or any other official proceeding authorized by law, (2)any written or oral statement or writing made in connection with an issue underconsideration or review by a legislative, executive, or judicial body, or any other officialproceeding authorized by law, (3) any written or oral statement or writing made in aplace open to the public or a public forum in connection with an issue of public interest,or (4) any other conduct in furtherance of the exercise of the constitutional right ofpetition or the constitutional right of free speech in connection with a public issue or anissue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).) Also, “in any action subject to subdivision (b), a prevailing defendant on a specialmotion to strike shall be entitled to recover that defendant's attorney's fees and costs. Ifthe court finds that a special motion to strike is frivolous or is solely intended to causeunnecessary delay, the court shall award costs and reasonable attorney's fees to aplaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16,subd. (c)(1).) “Resolution of an anti-SLAPP motion involves two steps. First, the defendant mustestablish that the challenged claim arises from activity protected by section 425.16. Ifthe defendant makes the required showing, the burden shifts to the plaintiff todemonstrate the merit of the claim by establishing a probability of success. We havedescribed this second step as a ‘summary-judgment-like procedure.’ The court does notweigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether theplaintiff has stated a legally sufficient claim and made a prima facie factual showingsufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, andevaluates the defendant's showing only to determine if it defeats the plaintiff's claim asa matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Baral v.Schnitt (2016) 1 Cal.5th 376, 384–385, citations and footnotes omitted.) “Thus, inevaluating anti-SLAPP motions, ‘courts should consider the elements of the challengedclaim and what actions by the defendant supply those elements and consequently formthe basis for liability.’” (Wong v. Wong (2019) 43 Cal.App.5th 358, 364, quoting Park, supra,at p. 1063.) Timeliness of the Motions and Plaintiff’s Other Procedural Objections: Plaintiff hasargued in his opposition that the City of Fowler defendants’ motion is untimely as it shouldhave been filed within 30 days, and that defendant Myers waived his right to bring themotions because he filed his answer before filing the special motion to strike. However,plaintiff’s objections are misplaced. Under Code of Civil Procedure section 425.16, subdivision (f), “The special motionmay be filed within 60 days of the service of the complaint or, in the court's discretion, atany later time upon terms it deems proper.” (Code Civ. Proc., § 425.16, subd. (f).) Here,the defendants filed their motions within 60 days1 of the date they were served with thecomplaint, so the motions are timely. There is no requirement that the special motion to1 Plaintiff served defendants on April 16, 2024 by personal delivery, so 60 days from the date ofservice was June 15, 2024. However, June 15, 2024 was a Saturday, so the last day to file themotion was Monday, June 17, 2024. Myers filed his special motion to strike on June 14, 2024, andthe City of Fowler filed its motion on June 17, 2024.strike be filed before or concurrently with the defendant’s answer. Therefore, plaintiff’scontention that the motions are untimely or that defendants waived their right to bringthe motions is simply incorrect. In addition, to the extent that plaintiff objects that the defendants failed to meetand confer or discuss filing the special motions to strike with him before filing them, thereis no meet and confer requirement in section 425.16. The moving party simply needs tobring the motion within 60 days of service of the complaint or pleading that it seeks tostrike. (Code Civ. Proc., § 425.16, subd. (f).) Likewise, there is no requirement that themoving party state that the motion is being brought in “good faith” or that it is not broughtfor the purpose of delay or harassment. Also, to the extent that plaintiff objects to the City’s motion on the ground that itfails to specify the items in the first amended complaint that the City is objecting to,plaintiff appears to be confusing a special motion to strike under section 425.16 with a“standard” motion to strike under section 435 or 436. Unlike a standard motion to strike,which targets specific allegations or prayers for relief that are improperly alleged, aspecial motion to strike seeks to strike out whole causes of action or entire complaints onthe ground that they are improper SLAPP actions. (Code Civ. Proc., § 425.16, subd.(b)(1).) Therefore, when a defendant brings a special motion to strike, it is not requiredto specify each allegation or prayer that is being challenged, and instead they shouldmove to dismiss the entire complaint or one or more causes of action within thecomplaint. As a result, plaintiff’s objection here is misplaced. Plaintiff also raises a number of other evidentiary or procedural objections to theCity’s motion, but the objections are not well taken and the court intends to overrulethem. (See Plaintiff’s Objections to the City’s Motion, p. 2.) The City of Fowler Defendants’ Motion: The court intends to grant the City of Fowlerdefendants’ special motion to strike the entire first amended complaint. The City has metit* burden of showing that the entire FAC is based on protected conduct by the City. In particular, plaintiff has alleged that he had previously filed an action againstthe City of Fowler, which placed the City on notice that plaintiff suffered from healthissues and physical vulnerability. (FAC, p. 2, seventh to twelfth paragraphs.) Defendantswere also aware of the fact that plaintiff’s property rights were “grandfathered in” undera California Supreme Court ruling and the 1977 Fowler City Code. (FAC, p. 2, lastparagraph.) The parties had agreed to submit the dispute over whether there was apublic right of way on plaintiff’s property to the Superior Court in the underlying casenumber 17CECG02635. (FAC, p. 3, second paragraph.) Nevertheless, “On or about June 14, 2021, under the guise of doing a waterimprovement on Adams Ave, City of Fowler, the Defendants, entered and excavatedthe Plaintiff's property and placed 2 large handicap sidewalk ramps on the propertylocated at 405 E. Adams Ave.” (FAC, p. 3, third paragraph.) “Despite the fact that theissue of the Public Right of Way's existence and other related issues were before theFresno County Superior Court, the Defendant's [sic] gave no advanced notice of theiraction to the Plaintiff, nor did the Defendants seek permission of the Superior Court toobtain permission to do the entry, excavation, and placement of the concrete ramps onPlaintiff’s property.” (FAC, p. 3, fourth paragraph.) After plaintiff called the City’s attorneyand the contractor to complain about the intrusion on his property, no further work tookplace for another four days. However, on the fifth day, the defendants returned with apolice escort and “recommenced their trespass and vandalism on the Plaintiff’sproperty.” (FAC, p. 3, fifth to seventh paragraphs.) Plaintiff then contacted attorney Gregory Myers to discuss a settlement of theunderlying case. (FAC, p. 3, last paragraph.) Myers asked plaintiff to call him and discussthe matter. (Ibid.) However, during the phone conversation, Myers allegedly stated thathe was recording the conversation. (Ibid.) Plaintiff contends that the recording wasmade without his prior knowledge and consent, which violated the Penal Code. He thenimmediately terminated the conversation. (FAC, p. 4, first paragraph.) Plaintiff’s offerwas rejected, and then then filed his current complaint. (FAC, p. 4, second paragraph.) However, plaintiff’s entire first amended complaint is based on protected conductby the City of Fowler and its councilmembers, officers, and staff. As discussed above,section 426.16 states that “‘act in furtherance of a person's right of petition or free speechunder the United States or California Constitution in connection with a public issue’includes: (1) any written or oral statement or writing made before a legislative, executive,or judicial proceeding, or any other official proceeding authorized by law, (2) any writtenor oral statement or writing made in connection with an issue under consideration orreview by a legislative, executive, or judicial body, or any other official proceedingauthorized by law, (3) any written or oral statement or writing made in a place open tothe public or a public forum in connection with an issue of public interest, or (4) any otherconduct in furtherance of the exercise of the constitutional right of petition or theconstitutional right of free speech in connection with a public issue or an issue of publicinterest.” (Code Civ. Proc., § 425.16, subd. (e).) Here, the City Council’s decision to approve the project to install sidewalks andhandicap ramps on plaintiff’s property was an act in furtherance of the right to petitionor free speech, as the City Council conducted a public hearing and debated whetherto approve the public works project, and then granted its approval of the project. (SeeCity’s Request for Judicial Notice, Walls decl., Exhibits A, B, C, D, E. The court intends totake judicial notice of the documents as official acts of the City.) The City caused aRecord of Survey to be conducted with regard to the property lines surrounding plaintiff’sproperty, which indicated that there was a public right of way next to the property.(Exhibit A to Walls decl.) The City then conducted a hearing2 and approved theconstruction project for reconstruction of Adams Avenue, which was awarded to DonBerry Construction. (Exhibit B to Walls decl., p. 2, ¶ 8 (C).) City Manager Wilma Quansigned the contract with Don Berry Construction shortly after the City Council approvedthe project. (Exhibit C to Walls decl., p. 5.) Deputy City Clerk Angela Vasquez witnessedthe execution of the agreement. (Ibid.) Thus, it is apparent from the allegations of the first amended complaint thatplaintiff is suing the City of Fowler, the City Council members, and the City’s staff basedon their decision to approve the project to install sidewalks and handicap ramps on ornear his property. Yet such conduct is clearly “an act in furtherance of the right of freespeech of petition” under section 425.16, so the burden shifts to plaintiff to show by2Due to the ongoing Covid pandemic, the public was not allowed to attend the hearing inperson. However, the public was allowed to access the meeting via teleconference. (Exhibit B,p. 1, first paragraph.)admissible evidence that he has a probability of prevailing on his claims against the City.(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Here, plaintiff has not met his burden of showing that he has a probability ofprevailing on his claims. Plaintiff has not submitted any admissible evidence that wouldtend to show that he can prevail on any of his claims. Most of his opposition consists ofprocedural legal arguments, which are without merit as discussed above. He argues inconclusory fashion that “the acts related to enforcement, of Legislative Acts are notProtected Acts.” (Opposition, p. 2, ¶ 11.) However, this argument is unsupported by anyevidence or legal authority, and the court intends to disregard it. Plaintiff also submits his own declaration, in which he repeats the same factualallegations that form the basis for his complaint. (Panzak decl., ¶¶ 4-13.) He claims thatthe City and the other defendants were aware of the pending litigation against them incase number 17CECG02635, but they decided to use “self-help” against his property. (Id.at ¶ 5.) The City’s attorney, Mr. Velez, also allegedly told plaintiff that he had advised theCity to refrain from any actions against plaintiff’s property while the litigation waspending, but the defendants did not heed his advice. (Id. at ¶¶ 6-8.) The defendantssubmitted the boundary dispute to the court in the underlying case, and they did notgive plaintiff any notice or an opportunity to be heard before they went forward with theproject. (Id. at ¶¶ 9, 10.) “The City employees, contractors, and other unknown partiesentered into a criminal conspiracy to violate Penal Code section 182.(5), conspiracy topervert or obstruct justice or the due Administration of the Law.” (Id. at ¶ 11.) “Criminalconduct is not protected by SLAPP or any other Provision of Law.” (Id. at ¶ 12.) “Thedefendants were aware that the 1977 City of Fowler Municipal Code ‘grandfathered’the property use of the Plaintiff no later than 1978.” (Id. at ¶ 13.)3 None of plaintiff’s allegations in his declaration constitute evidence that tends toshow that he has a probability of prevailing on his claims. Plaintiff’s primary contentionseems to be that the City and its councilmembers and staff ignored the fact that therewas a pending case regarding the property boundary dispute, and that they hadallegedly agreed to submit the dispute to the court in the underlying action rather thanengage in “self-help” by going forward with the project to improve Adams Avenue.Plaintiff claims that the City engaged in a criminal conspiracy to obstruct justice bymoving forward with the project without notice to plaintiff or approval from the court.Yet plaintiff never alleges that there was any binding court order or stipulation in effectin the underlying case that forbade the City from moving forward with the project.Without a court order or binding stipulation that barred the City from going forward withthe project, the fact that the City approved the project and hired a contractor toconstruct the improvements does not appear to support any type of claim against theCity or its agents or employees. Nor does plaintiff’s evidence show that the City engagedin a criminal conspiracy to obstruct justice, as again there was no court order or bindingagreement that the City violated by approving and moving forward with the project.Plaintiff’s unsupported arguments and legal conclusions are not sufficient to meet hisburden of showing that he has a likelihood of prevailing on his claims.3 The City has objected to plaintiff’s declaration, and the court intends to sustain most of theobjections as they lack foundation and appear to be largely based on hearsay, are improperlegal opinions, and lack personal knowledge. The court will sustain all objections except objections2 and 7, which are overruled. Therefore, since the plaintiff has not met his burden of showing by admissibleevidence that he has a probability of prevailing on his claims, the court intends to grantthe City’s special motion to strike the entire FAC against it, without leave to amend. Myers’ Special Motion to Strike: The court also intends to grant Mr. Myers’ specialmotion to strike the entire first amended complaint against him. The plaintiff’s first amended complaint does not clearly state which causes ofaction are being brought against which defendants. Instead, most of the causes ofaction only vaguely allege that “defendants” committed various acts against him.However, to the extent that plaintiff seeks to state claims against Mr. Myers for the allegedtrespass onto his property and taking of a portion of his property for the purpose ofconstructing a public works project, namely installing a sidewalk and handicap ramps,the first amended complaint is subject to being stricken for the same reasons discussedabove with regard to the City defendants. Plaintiff’s claims against Myers appear to be based on his role as attorney for theCity, but plaintiff has not alleged any facts showing that Mr. Myers was involved in thedecision to approve the project, or that he participated in the project in any way. Evenif he had alleged such facts, Myers’ conduct was protected activity for the same reasonsthat the other City employees’ conduct was protected. Nor has plaintiff presented anyadmissible evidence that Myers did anything to violate his property rights, so he has notmet his burden under the second prong of the anti-SLAPP statute. Myers himself deniesthat he ever entered plaintiff’s property, and plaintiff has not presented any evidence torebut Myers’ denial. (Myers decl., ¶ 5.) Therefore, the court intends to grant the motionto strike the first seven causes of action against Myers. However, the eighth and ninth causes of action are specifically alleged againstMr. Myers. The eight cause of action, which alleges a claim for invasion of privacy, statesthat “The Defendant Gregory Myers did repeatedly and continuously recordconversations with the Plaintiff wherein the Plaintiff had reasonable expectation that theconversation was private and Myers did admit that he had recorded a discussionregarding an offer in settlement and compromise, in violation of the California PenalCode and the right of privacy enjoyed by the Plaintiff.” The ninth cause of action alleges a claim for fraud and deceit. Plaintiff allegesthat “The defendant Gregory Myers did in Bad Faith and in derogation of his duties as anofficer of the court filed unsuccessfully, 2 Demurrers, 21 Motions to Compel Discovery,and a Summary Judgement action. All of the motions were denied by the Court and aspart of the Summary Judgement Proceedings Myers asked the Superior Court to applyBad Faith Sanctions to the Plaintiff to the extent of $20,000. The Sanctions were notauthorized by Law and this was a Bad Faith attempt to discredit the Plaintiff with theCalifornia State Bar and to unlawfully seek an order to have the Plaintiff pay the claimed$20,000 cost directly to defendants. There was no provision in the applicable statute andcases to authorize such action. Thereby attempting and perpetrating a Fraud and Deceiton the Fresno County Superior Court and the Plaintiff’s rights under statute and case law,and his clients who paid his fees, causing the Plaintiff to spend time and effort to respondto frivolous allegations and frivolous motions of the Defendant Myers.” Again, however, Myers has met his burden of showing that the alleged acts andstatements that form the basis for plaintiff’s claims against him were protected speech orpetitioning activity. Plaintiff admits that Myers was acting as the attorney for the City ofFowler and its councilmembers and staff when he filed the motions and engaged insettlement discussions with plaintiff. Filing motions, requesting sanctions, and engagingin settlement negotiations in a pending civil case are an integral part of an attorney’srepresentation of his or her clients, and are therefore “protected activity” under section425.16. Under section 425.16, subdivision (e), “protected activity” includes “any written ororal statement or writing made before a … judicial proceeding…”, as well as “any writtenor oral statement or writing made in connection with an issue under consideration orreview by a …. judicial body...” “‘Any act’ includes communicative conduct such as thefiling, funding, and prosecution of a civil action. This includes qualifying acts committedby attorneys in representing clients in litigation.” (Rusheen v. Cohen (2006) 37 Cal.4th1048, 1056, citations omitted.) Here, Myers’ filings were clearly made in a judicial proceeding and were made inconnection with issues under consideration by a judicial body, as he was representingthe City and its officers, agents and employees in the pending civil action plaintiff hadfiled against them. Also, any statements he made during the settlement negotiationswere made in connection with the pending case, and thus were protected speech. While plaintiff argues in his opposition that Myers’ acts were negligent orfraudulent, and thus were not “protected activity”, he cites to no authorities in support ofhis position. He claims that Myers engaged in various incompetent conduct, includingfiling unsuccessful motions, seeking sanctions without any legal support, and failing topresent settlement offers to his clients. He also contends that Myers made fraudulentstatements and failed to disclose facts that he was under a duty to disclose, includingfailing to convey plaintiff’s settlement offers to his clients. He also points out that the court“chastised” him several times in its tentative rulings on the various motions that he broughtin the underlying action for failing to meet and confer before bringing motions, and forrequesting sanctions without legal support. However, even assuming that plaintiff is correct and that Myers engaged inincompetent representation of his clients, plaintiff has no standing to bring a claimagainst Myers for malpractice, as he was not one of Myers’ clients. In fact, he was theperson who was suing Myers’ clients in the underlying action. Therefore, the alleged factthat Myers may have been incompetent in his representation of his clients does not meanthat his statements and actions in representing them was not “protected activity” undersection 425.16. Likewise, while plaintiff contends that Myers engaged in fraud and therefore hisconduct is not protected, he has not cited to any authorities that hold that allegationsthat an attorney committed fraud during his representation of a client in a civil actionremove the claim from the scope of the anti-SLAPP statute. Simply alleging that anattorney committed fraud during the course of his representation of his clients in apending case is not enough to escape the protections of the anti-SLAPP statute.Otherwise, a plaintiff could always allege that an attorney committed fraud and therebyavoid having his case against the attorney dismissed as a SLAPP action. In any event, here plaintiff has not even alleged the basic elements of a fraudcause of action, including a false statement made by the defendant with knowledge ofits falsity, intent to deceive, justifiable reliance on the statement by the plaintiff, andresulting harm to the plaintiff. (Lim v. The. TV Corp. Internat. (2002) 99 Cal.App.4th 684,694.) Plaintiff does not allege that Myers made intentionally false statements, that heintended to deceive plaintiff, that plaintiff actually and reasonably relied on anystatements made by Myers, or that he was harmed as a result of his reliance. It appearsthat plaintiff is alleging that Myers made statements that were false to the court, butplaintiff himself was not deceived and did not rely on those statements to his detriment.Therefore, plaintiff’s fraud claim is insufficiently alleged as well as being based entirely onMyers’ protected conduct. As a result, the burden shifts to plaintiff to show by admissible evidence that he hasa probability of prevailing on his claims for fraud and invasion of privacy. However,plaintiff has not presented any evidence to support his opposition to Myers’ motion. Heonly submits legal arguments, not separate evidence to show that he may be able toprevail on his claims. He has therefore failed to meet his burden of showing by admissibleevidence that he has a likelihood of prevailing. Nor does it appear that plaintiff could prevail on his claims against Myers, sincethe claims are based on conduct that is protected under the litigation privilege set forthin Civil Code section 47(2). “The principal purpose of section 47(2) is to afford litigantsand witnesses the utmost freedom of access to the courts without fear of being harassedsubsequently by derivative tort actions.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 213,citations omitted.) “To effectuate its vital purposes, the litigation privilege is held to be absolute innature. In Albertson, Justice Traynor, speaking for the court, reasoned that the policy ofencouraging free access to the courts was so important as to require application of theprivilege to torts other than defamation. Accordingly, in the years since Albertson,section 47(2) has been held to immunize defendants from tort liability based on theoriesof abuse of process, intentional infliction of emotional distress, intentional inducement ofbreach of contract, intentional interference with prospective economic advantage, andfraud. The only exception to application of section 47(2) to tort suits has been formalicious prosecution actions. Malicious prosecution actions are permitted because‘[t]he policy of encouraging free access to the courts ... is outweighed by the policy ofaffording redress for individual wrongs when the requirements of favorable termination,lack of probable cause, and malice are satisfied.’” (Id. at pp. 215–216, citations omitted.) “The usual formulation is that the privilege applies to any communication (1) madein judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized bylaw; (3) to achieve the objects of the litigation; and (4) that have some connection orlogical relation to the action.” (Id. at p. 212.) Where the litigation privilege applies, it can show that the plaintiff has noprobability of prevailing on his claims as part of the second prong of the anti-SLAPPmotion analysis. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) In the present case, the litigation privilege clearly applies to the claims againstMyers, as any communications that he made while he was representing the City and itsofficers and employees were privileged. Again, plaintiff’s claims are based on Myers’filing of motions, requests for sanctions, and statements made during settlementnegotiations with plaintiff as part of his representation of the City in the underlying case.Thus, the statements, filings, or other communications were made by Myers as part of theunderlying civil action against the City, they were made by Myers on behalf of his clients,they were made to achieve the objects of the litigation, and they were clearlyconnected to the litigation. Consequently, the communications were absolutelyprivileged under Civil Code section 47(2), and there is no possibility that plaintiff canprevail on his claims based on the communications. As a result, the court intends to grantMyers’ special motion to strike the entire FAC against him. Finally, the court intends to grant Myers’ request for an award of attorney’s feesagainst plaintiff. Under section 425.16, subdivision (c)(1), “Except as provided inparagraph (2), in any action subject to subdivision (b), a prevailing defendant on aspecial motion to strike shall be entitled to recover that defendant's attorney's fees andcosts.” Here, Myers is the prevailing defendant on his special motion to strike, so he isentitled to an award of his fees and costs. Myers has submitted a declaration from his attorney, Laura Riparbelli, in which shestates that she spent 7.9 hours preparing the special motion to strike at a discountedinsurance rate of $300 per hour. (Riparbelli decl., ¶ 3.) Her standard hourly rate is $450.(Ibid.) Another attorney, Alison Buchanan, spent .4 hours evaluating and revising themotion. (Ibid.) Her discounted hourly rate is $400, so her total billing for the motion was$160. (Ibid.) Her standard hourly rate is $650. (Ibid.) In addition, counsel expects tospend another six hours evaluating plaintiff’s opposition, preparing a reply, andappearing at the hearing. (Ibid.) Therefore, counsel requests at least $4,930 in attorney’sfees for the cost of bringing the motion. (Ibid.) Plaintiff complains that the request for fees is excessive, but provides no argument,authorities, or evidence to support his contention. Nevertheless, it does appear thatspending over 14 hours of attorney time to draft and argue a nine-page special motionto strike is somewhat excessive. Although anti-SLAPP motions can be complex anddifficult to brief and argue, the motion in this case was relatively simple andstraightforward, and therefore should not have required over 14 hours to prepare andargue. As a result, the court intends to reduce the amount of fees to $2,580 based oneight hours of attorney time billed at $300 per hour and .4 hours of attorney time billed at$450 per hour. The City’s Motion to Strike Punitive Damages: Finally, since the court intends togrant the special motions to strike the entire FAC against the City and Myers, there is noneed to also grant the City’s motion to strike the prayer for punitive damages. Therefore,the court intends to deny the motion to strike as moot. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 08/28/24 . (Judge’s initials) (Date)

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 29, 2024 |23CV-0203591

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203591This matter is on calendar for review regarding status of default judgment. On June 5, 2024, thisCourt issued its Ruling after a June 3, 2024 Default Prove Up hearing. The Court denied therequest to enter default judgment without prejudice. Nothing further has been filed. Anappearance is necessary on today’s calendar to provide the Court with a status of defaultjudgment.

Ruling

STEEN SPROUFFSKE VS GEORGE MOA, ET AL.

Aug 27, 2024 |24CMCV00343

Case Number: 24CMCV00343 Hearing Date: August 27, 2024 Dept: A 24CMCV00343 Steen Sprouffske v. George Moa, et al. Tuesday, August 27, 2024, at 8:30 a.m. [TENTATIVE] ORDER GRANTINGT PLAINTIFFS MOTION TO COMPEL INITIAL RESPONSES TO WRITTEN DISCOVERY AND TO DEEM MATTERS ADMITTED; REQUEST FOR IMPOSITION OF SANCTIONS I. BACKGROUND This is a partition action between Plaintiff and Defendant, George Moa (Moa), each of whom own an undivided, one-half interest in real property. On February 15, 1999, Defendant, City of Lynwood (Lynwood) recorded liens against the property for nonpayment of water, sewer, and refuse collection. Plaintiff and Lynwood signed a stipulation acknowledging the superiority of Lynwoods liens and agreeing that Lynwoods participation in the action is not required. Lynwood agreed to be bound by a judgment subsequently obtained. (Stip. 6/20/24.) The complaint alleges that Defendant, Nova Casualty Company (Nova) recorded an abstract of judgment against Defendant Moa. The clerk entered default against Nova on July 16, 2024. II. DISCUSSION At the July 10, 2024, status conference, the court ordered the parties to meet and confer and file a Joint Status report no later than July 17, 2024, informing the court if the discovery motion would go forward. (M.O. 6/10/24.) In compliance with the courts order, Plaintiff and Moa filed a joint meet and confer declaration wherein Moa agreed to provide responses to discovery on or before August 12, 2024. (Jt. Decl. 7/17/24.) Plaintiff requested a continuance of the hearing until after that date in the event Moa did not serve verified responses. The court has since continued the hearing on Plaintiffs discovery motions to August 27, 2024. Moa did not file an opposition to Plaintiffs motion, nor is there any indication that Plaintiff agreed to take the motions off calendar. Plaintiff may propound interrogatories, request for production of documents, and requests for admission without leave of court at any time that is 10 days after service of summons or appearance by that party, whichever occurs first. (Code Civ. Proc., § 2030.020 subd. (b).; Code Civ. Proc., § 2031.020, subd. (b); Code Civ. Proc., § 2033.020 subd. (b).) On April 3, 2024, Plaintiff personally served Defendant Moa with summons and complaint and timely served written discovery on April 24, 2024, consisting of requests for admission, and first sets of form interrogatories, special interrogatories, and request for production of documents. Moa did not respond to the discovery but filed his answer on August 20, 2024. Where a party does not timely respond to interrogatories and a document request, the court has authority to compel a response. (Code Civ. Proc., §2030.290(b), §2031.300(b).). Untimely responses result in a waiver of objections. (Code Civ. Proc., § 2030.290(a), § 2031.300(a).) Where a party does not respond to requests for admission, the court can deem the requests admitted against the non-responding party unless it finds that the non-responding party has subsequently served, before the hearing, a proposed response to the requests that substantially complies with statutory requirements. (Code Civ. Proc., § 2033.280 subd. (c).) Imposition of sanctions is mandatory where a partys failure to respond to the requests necessitates the motion. (Code Civ. Proc., § 2033.280 subd. (c).) Plaintiff is entitled to an award of sanctions to prepare the motion and for appearance at the hearing (3 hours) and $60 for filing. Plaintiff did not file a reply, nor has Plaintiff established that the time for preparation of discovery is compensable. Plaintiff is entitled to reasonable expenses, including attorneys fees, incurred by anyone as a result of the failure to respond to discovery. (Code Civ. Proc., § 2023.030.) V. CONCLUSION Based on the foregoing, Plaintiffs motion is GRANTED. Defendant is ordered to serve verified, code-compliant responses to form and special interrogatories and request for production of documents without objection within 10 days. The requests for admission are deemed admitted against Defendant. The court imposes sanctions of $1,260 (3 x $400 +$60) against Defendant Moa, payable to Plaintiff within 10 days.

Ruling

DEAN E. THAYER, TRUSTEE OF THE DEAN E. THAYER TRUST DATED 5/24/2011 VS VINCENT FLAHERTY, AN INDIVIDUAL, AND AS SUCCESSOR TRUSTEE OF THE KHG TRUST, ET AL.

Aug 27, 2024 |6/18/2022 |23SMCV06010

Case Number: 23SMCV06010 Hearing Date: August 27, 2024 Dept: I The court has received the motion to quash. An untimely opposition was filed on August 22, 2024. Plaintiff claims that the opposition should be considered because the proof of service of the motion is false; in fact, the defense claims, the papers were never served. The court has considered the opposition, but will give defendant an opportunity to submit a reply, as defendants have requested. In the reply, defendant should be sure to consider (among other things) plaintiffs position that the motion is moot because defendant moved to disqualify Judge Young pursuant to CCP section 170.6. That challenge was made on April 22, 2024, and it was granted the next day. Plaintiff might or might not be right about service of the complaint in general, but the court thinks that plaintiff has a point about the 170.6 challenge. That act constituted a voluntary general appearance. Generally speaking, if a defendant makes a general appearance, all defects of service are waived and jurisdiction is established. The court also notes that on May 23, 2024, defendants prior motion to quash was denied for issues relating to service, but without prejudice to bringing a new motion to quash and set aside the default. The court notes that plaintiff offered to stipulate to set aside the default if defendant was willing (1) to agree that service was complete as of that date and (2) answer within five days (the amount of time permitted normally in a UD case). Defendant refused to accept that proposal. In light of those proceedings and issues, the court stayed the writ of possession, but only until August 1, 2024. Plaintiff moved for reconsideration of the courts order, but the motion for reconsideration was denied on July 3, 2024. On July 29, 2024, defendant moved again to quash the summons, which is the motion now before the court. From this point forward, all service will be either electronically to the address that the court will obtain from the parties today or, if the parties will not stipulate to electronic service, then there will be a courtesy copy served electronically. In the instant case, plaintiff contends that he did not receive the electronic service of defendants motion. With the reply, defendant will submit the metadata from the email application that shows when the email was sent and delivered to the defense. The nice thing about email is that there is an electronic metadata stamp that will prove when it was sent and delivered. The failure to be able to produce that information will be deemed conclusive evidence that the email was never sent and that there was no service. On the other hand, if that information is produced, then it would demonstrate conclusively to the court that plaintiff is being untruthful with the court regarding service. This endless fighting about something as straightforward as proper service will end, and it will end now. For now, this hearing is continued for one week to September 3, 2024, at 9 am. Defendant will have until Thursday, August 29, 2024, at noon to file and serve the reply. The current reply will therefore be superseded by the new reply and will not be considered further by the court. Defendant should provide the court with a courtesy hard copy at the same time so that the court can be sure it will see it in time to consider the document before ruling. The court will discuss the fee waiver issues in camera.

Ruling

FCS059299 - SHARMA, R V GOMEZ, LUIS R, ET AL (DMS)

Aug 31, 2024 |FCS059299

FCS059299SHARMA’s Demurrer to GOMEZ’s First Amended Cross-ComplaintTENTATIVE RULINGPlaintiff and Cross-Defendant RAJ SHARMA (“SHARMA”) demurs to Defendant andCross-Complainant LUIS R. GOMEZ’s (“GOMEZ”) first amended cross-complaint(“GOMEZ 1ACC”) asserting causes of action for indemnity under Labor Code section2802, failure to provide itemized wage statements under Labor Code section 226, andcommon law indemnity. Summarized, SHARMA’s first amended complaint in this casealleges that GOMEZ refuses to remove his construction equipment and debris presenton and damaging SHARMA’s agricultural land; the GOMEZ 1ACC alleges that GOMEZwas SHARMA’s employee by oral agreement and SHARMA committed labor lawviolations.Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency ofthe complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather thanevidentiary facts, but the plaintiff must set forth the essential facts of his or her case“with reasonable precision and with particularity sufficient to acquaint [the] defendantwith the nature, source and extent” of the plaintiff’s claim. (Doheny Park TerraceHomeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007)42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The court “assume[s] the truth ofthe allegations in the complaint, but do[es] not assume the truth of contentions,deductions, or conclusions of law.” (California Logistics, Inc. v. State of California(2008) 161 Cal.App.4th 242, 247.)Labor Code Section 2802 Indemnification. The GOMEZ 1ACC’s first cause of actionis for indemnification pursuant to Labor Code section 2802. The elements of such acause of action are (1) the employee made expenditures or suffered losses, (2) theexpenditures or losses were incurred in direct consequence of the employee’sdischarge of his duties or obedience to the directions of his employer, and (3) theexpenditures or losses were necessary. (Lab. Code, § 2802, subd. (a); Cassady v.Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 231.)GOMEZ does not sufficiently allege this cause of action. The GOMEZ 1ACC containsonly a conclusory allegation that he was SHARMA’s employee, without sufficient factualdetail to demonstrate in what way SHARMA functioned as an employer. (Martinez v.Combs (2010) 49 Cal.4th 35 [to employ for wage & hour purposes is to control work,permit to work, or engage for work].) Further, to maintain this cause of action anemployee must show that expenditures were incurred in consequence of work dutiesand/or directions and were necessary. Without information as to what GOMEZ’s workduties and/or directions were these elements are not sufficiently alleged. Nor doesGOMEZ clearly state expenditures or losses. He states only that he “suffered and/orwill suffer damages.” (GOMEZ 1ACC at ¶ 9.)Itemized Wage Statements. Labor Code section 226, subdivision (a) requiresemployers to furnish their employees with itemized wage statements showing details ofwages such as hours worked and pay rates for those hours. (Furry v. East BayPublishing, LLC (2018) 30 Cal.App.5th 1072, 1083.) As stated, GOMEZ’s allegations ofemployment under SHARMA are insufficient.Common Law Indemnification. The GOMEZ 1ACC states neither a loss to beindemnified against nor an agreement under which SHARMA must contractuallyindemnify GOMEZ or a situation wherein the two are joint tortfeasors entitled toequitable indemnity as regards each other. (Great Western Drywall, Inc. v. InterstateFire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1041 [requirements for indemnity].)Leave to Amend. Leave to amend is proper where identified defects are amenable tocure. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) It is the pleading party’sburden to show the trial court that a reasonable possibility exists that amendment cancure identified defects in that party’s pleading. (Murphy v. Twitter, Inc. (2018) 60Cal.App.5th 12, 42.) GOMEZ’s filings demonstrate a reasonable possibility thatamendment can cure the identified defects in the GOMEZ 1ACC.Conclusion. SHARMA’s demurrer is sustained with leave to amend. GOMEZ is to fileany amended pleading within thirty days of the date of this order.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)

Ruling

Juvencio Rios vs Griselda De Sousa

Aug 27, 2024 |21CV-02850

21CV-02850 Juvencio Rios v. Griselda De SousaOrder to Show Cause re: SettlementA Settlement Agreement and Release regarding the sole Defendant was filed April 18,2024. Absent an objection at the time of the hearing, this matter will be DISMISSED WITHPREJUDICE.

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