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Ruling

WHITRED HOLDINGS,LLC, et al. vs. THE MCCONNELL FOUNDATION

Aug 06, 2024 |CVCV21-0197415

WHITRED HOLDINGS, LLC ET AL. VS. THE MCCONNELL FOUNDATIONCase Number: CVCV21-0197415This matter was placed on calendar due to a letter received from Plaintiffs’ counsel on July 30, 2024, in whichcounsel raised concerns regarding the trial schedule. The Court intends to discuss these concerns with the partiesto come to a mutually agreeable resolution of the schedule. An appearance is necessary on today’s calendar.

Ruling

763 Las Olas Drive, LLC, et al vs John Voris, et al

Aug 11, 2024 |22CV01609

22CV01609763 LAS OLAS DRIVE LLC v. JOHN VORIS, et al. SUPPLEMENT BRIEFING RE EQUITABLE SERVITUDE - DEFENDANTS VORIS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION SUPPLEMENT BRIEFING RE EQUITABLE SERVITUDE - PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION I. SUMMARY OF PREVIOUS RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION: On 3/28/24, the parties’ cross-motions for summary judgment/adjudication were heard.The court’s summary ruling on those motions was: Defendants’ motion for summary judgment/adjudication is denied on the grounds there are material facts in dispute as to all four issues presented in the motion: (1) if the Elworthy Deed adequately describes the dominant tenement to be benefited by its deed restrictions; (2) if the Elworthy Deed states any obligation of the grantor to impose restrictions on any portion of the Beach Land for the benefit of the Voris Property; (3) if plaintiffs’ have a real property right to protected views; and (4) if the Vorises acted or failed to act in any manner that substantially interferes with plaintiffs’ real property interests. Plaintiffs’ motion for summary adjudication as to its first cause of action for breach of equitable servitude is denied on the grounds there are material facts in dispute as to if there are applicable deed restrictions that are enforceable as equitable servitudes. As to defendants’ laches defense, the motion for summary adjudication is also denied; a trier of fact could determine based upon admissible evidence presented by defendants that plaintiffs did unreasonably delay in bringing the action and they were prejudiced. Following the court’s denial of both motions, the parties stipulated to vacate the trial dateand submit the equitable servitude issue to the court for determination. The question before thecourt in the parties’ supplemental briefing is whether an equitable servitude restricting buildingbeyond a particular point on the seaward side of the parcel burdens defendants’ property. As explained below, the court finds that all elements of an equitable servitude regarding abuilding setback are met and therefore grants plaintiffs’ motion for summary adjudication as totheir first cause of action. Page 5 of 14 II. EQUITABLE SERVITUDE ISSUE BEFORE THE COURT Is defendants’ property burdened by an equitable servitude that restricts building past aspecific seaward setback line? Defendants say no and argue that an expired seaward setbackrestriction in a prior grant deed is unenforceable. Since the parties’ renewed separate statements rely on their respective requests forjudicial notice and historical documents related to the properties at issue (763 Las Olas Drive and761 Las Olas Drive), and since the parties’ seek the court’s final determination on this issue, thecourt is able to determine the issue as a matter of law. A. Plaintiffs’ evidence supporting that Las Olas Drive homes are burdened by an equitable servitude restricting building past a seaward setback Plaintiffs provide the following undisputed facts: Plaintiffs and defendants ownresidential properties adjacent to each other on Las Olas Drive, in Aptos. (UMF 1.) Theseproperties are two of 29 residential parcels in a subdivision located on Las Olas Drive, whichextends west from Seacliff State Beach. (UMF 2.) SCLTC was the common grantor of the parcels in the subdivision. (UMF 3.)1 A recorded1927 SCLTC agreement (the “1927 Agreement”) shows that SCLTC intended a general plan forthe subdivision. The 1927 Agreement, related to the sale of land on Seacliff Beach, provides that“certain portions of the above described land” … “known as the ‘westerly portion’, being about2400 feet in length…” could be subdivided and sold. (UMF 4.) It further provides that the deedsrecording the sales of any such subdivided property must be substantially similar to the oneattached to the agreement as Exhibit B. (UMF 5.) That model deed called for several restrictionslimiting the owners’ use of the property, and states that the restrictions are “part of a general planfor the benefit of the whole of its so-called ‘Beach Land’.” (UMF 6.) Between 1927 and 1944, SCLTC or its officers recorded deeds transferring the lots onwhich 28 of the 29 current residential properties are located. (UMF 7.) Each of the deeds forthese 28 properties reference numbered lots on an “unrecorded map” either “of Beach LandsSubdivision, Seacliff Park” or “Seacliff Beach Subdivision” to refer to the land being conveyed.(UMF 8). The County keeps an unrecorded map, numbered A80-474, dated May 1928, drawn bythe County surveyor, titled “Beach Lands Subdivision, Seacliff Park” (the “1928 Map”) availableon the County surveyor’s website. (UMF 9.) The 1928 Map depicts lots numbered 1-48. (UMF10). Defendants’ surveyor mapped the deeds referring to all 29 residential properties on Las Olas1 Defendants attempt to dispute several of plaintiffs’ UMFs: “Disputed insofar as Plaintiffs’ UMF is an inaccurate,incomplete, argumentative characterization. The deeds speak for themselves.” (See UMFs 3-8, 11, 13, 16, 17.) Thecourt agrees that the deeds speak for themselves and finds that these facts are not truly disputed. Defendants’responses are not sufficiently unequivocal as required by California Rules of Court, rule 3.1350(h). Page 6 of 14Drive and uniformly showed they correspond with the numbered lots 14-48 on the 1928 Map.(UMF 11.) Defendants’ preliminary title report, prepared when they purchased their property,included the County Tax Assessor’s Map, which depicts the “Beachlands Sub,” and refers toproperties with lot numbers consistent with the 1928 Map. (UMF 12.) Several recorded maps citethe 1928 Map by number (A80-474) in reference to the “Beach Lands,” and the County’s April19, 2024 agenda for the Zoning Administrator referred to the property at 753 Las Olas Drive as“located in ‘Beach Lands’, a gated beach community lying at the base of a steep, coastal bluffthat is located to the west of Seacliff State Park.” (UMF 13 & 15.) Defendants’ surveyor alsomapped “the ‘westerly portion’, being about 2400 feet in length” that the 1927 Agreement calledto subdivide and showed that it is consistent with the area of land depicted on the 1928 Map.(UMF 14.) Each of the original deeds for the 28 Las Olas Drive properties (dating from 1927-1944),including the deeds conveying plaintiffs’ and defendants’ properties, are substantially consistentwith the model deed attached as Exhibit B to the 1927 Agreement and contain property userestrictions, including the setback restriction that is the subject of this lawsuit: “It is expresslyconditioned…that no portion of any building on said property shall extend further towards theBay of Monterey than a line described as follows: [description].” (UMF 16.) Each of the deeds also state: The Grantor hereby declares that the foregoing are part of a general plan for the benefit of the whole of its so-called ‘Beach Land[s]’; that the same are not covenants, but conditions subsequent running with the land; that they intend hereby to convey a conditional estate; and that on breach of any such conditions they reserve the right to re- enter said property, and without notice to remove any such prohibited structure, animal or person and to institute and prosecute an action to cancel this deed and to quiet title to said property. Provided that no such breach no re-entry, nor anything herein contained, shall defeat the lien of any mortgage, or any deed of trust to secure a debt, but said conditions shall remain in force as against any owner of said property acquiring same under foreclosure of mortgage or sale under deed of trust. (UMF 17.) The original deed conveying defendants’ property (Elworthy Deed) from November 1944includes language appearing to restrict building past a particular seaward point: “…that noportion of any building on said property shall extend further towards the Bay of Monterey than aline described as follows: [metes and bounds].” (Plaintiffs’ RJN Ex. 1 (Appendix of Evidence inSupport of Plaintiffs’ Motion for Summary Adjudication, filed 1/4/24).) Defendants purchasedtheir property in late 2019; the deed related to this transfer contains language identifying the Page 7 of 14unrecorded map of the Beach Lands Subdivision in the legal description, but no otherrestrictions. (Plaintiffs’ RJN Ex. 30.) B. Defendants’ facts supporting no equitable servitude Defendants’ primary contention is that the original grantor, Santa Cruz Land TitleCompany (“SCLTC”), entered into a three-year installment contract in 1927 permitting thesubdivision of the area known as the Seacliff Beach Subdivision. During that three-year period,any lots sold were to use one of two form deeds, both of which included language limitingbuilding beyond a line parallel with and 70 feet southerly from the northern lot boundary.Following that three-year period in the 1940’s, some of the lots – including plaintiffs’ anddefendants’ – were transferred back to SCLTC following a probate order and the title to thoselots were transferred by four separate deeds, one of which is the 1944 Elworthy Deed(defendants’ parcel). Defendants insist that the restrictions were only for the benefit of SCLTCwhile it held title and following the three-year period, parcels could be and were transferredwithout restrictions. (Defendants’ Exs. 41, 42, 50, 53, and 61.) They opine that the restrictionsexpired by the terms of the original grant installment contract. Noteworthy is that the Elworthy Deed conforms to the model deed and contains languagelimiting building beyond a particular point towards the ocean, the setback at issue. (Defendants’RJN 1.) Despite this, defendants argue the deed fails to create an equitable servitude because itonly describes that its restrictions are for the benefit of the “Beach Lands,” which they claim istoo vague to describe the dominant tenement, and that it does not apply the restrictions for thebenefit of all other parcels and those other parcels are subject to a like restriction for the benefitof defendants. III. LEGAL STANDARDS A. Deed interpretation "[A]ll presumptions are in favor of the validity of a deed when it is regular on its face andrecorded or acknowledged…. these presumptions are not conclusive but the burden ofovercoming them is on the one who disputes them." (Du Bois v. Larke (1959) 175 Cal.App.2d737, 745.) Extrinsic evidence is only admissible to aid in the interpretation of a deed where theambiguity appears on the face of the deed. (See, e.g., Baker v. Ramirez (1987) 190 Cal.App.3d1123, 1133.) B. Equitable servitudes A covenant that does not run with the land “may be enforceable in equity against atransferee of the covenantor who takes with knowledge of its terms under circ*mstances which Page 8 of 14would make it inequitable to permit him to avoid the restriction.” (Marra v. Aetna Const. Co.(1940) 15 Cal.2d 375, 378 (Marra).) An equitable servitude does not require that the property to be benefitted be identified inthe deed to be enforceable, and does not require a written agreement between plaintiff anddefendants. (MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693,699-700; Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 354 (Citizens);Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 375-381.)“[B]urdensome covenants which do not run with the land may be enforced on behalf of theoriginal grantor or his assigns as equitable servitudes against transferees acquiring property withactual or constructive notice of the restrictions, when failure to enforce the restrictions wouldproduce an inequitable result. [Citations.]” (MacDonald Properties, Inc., supra, 72 Cal.App.3dat 700.) The doctrine of equitable servitudes makes enforceable at equity a covenant appurtenantto other benefited property that might be otherwise unenforceable. (Marra, supra, 15 Cal.2d at378-379; Committee to Save Beverly Highlands Homes Ass'n v. Beverly Highlands HomesAss'n (2001) 92 Cal.App.4th 1247, 1269; Citizens, supra, 12 Cal.4th at 354-355.) Equitableservitudes are enforceable “although they benefit or restrict only a single parcel of land.” (Marra,supra, 15 Cal.2d at 378; see also S. California Sch. of Theology v. Claremont GraduateUniv. (2021) 60 Cal.App.5th 1, 8.) Equitable servitudes are enforceable provided the person bound by the restrictions hadnotice of their existence, and such notice is necessarily accomplished by the recording of adeed. (Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 507; Nahrstedt v.Lakeside Vill. Condo. Assn. (1994) 8 Cal.4th 361, 375; Citizens, supra, 12 Cal.4th at 355.) “Case law has established several requirements for the creation of an enforceableequitable servitude. Generally, equitable servitudes must be created by a recorded deed orwritten agreement between landowners; the dominant tenement to be benefited by the restrictionsmust be described; the intent of both parties (the common grantor and the initial grantee) tocreate a common general plan of restrictions must be demonstrated; and a subsequent granteemust have record or actual notice of the restriction when he receives title to the property. (Miller& Starr, Current Law of Cal. Real Estate, Covenants and Restrictions, § 22.7 to 22.12, pp. 546-557.) Equitable servitudes are also required to be strictly construed. (Wing v. Forest LawnCemetery Assn. (1940) 15 Cal.2d 472, 479 [Citation.].)” (Soman Properties v. Rikuo Corp.(1994) 24 Cal.App.4th 471, 484.) "For such a servitude to exist, the three requirements under Werner are: (1) that the deedsevidence an intention on the part of both the grantor and the grantee that the land conveyed is tobe restricted pursuant to a general plan; (2) that the deeds show that the parcel conveyed issubject to the restriction at issue in accordance with the plan for the benefit of all the other Page 9 of 14parcels in the subdivision and such other parcels are subject to like restriction for its benefit; and(3) that the dominant and servient tenements be adequately shown." (Greater Middleton Assn. v.Holmes Lumber Co. (1990) 222 Cal.App.3d 980, 991, referring to Werner v. Graham (1919) 181Cal. 174.) “If these conditions are met, the grantee of the first deed from the developer as well assubsequent grantees are entitled to enforce the covenants as to all the remaining area placedunder equitable servitude.” (McCaffrey v. Preston (1984) 154 Cal.App.3d 422, 437.) “If a declaration establishing a common plan for the ownership of property in asubdivision and containing restrictions upon the use of the property as part of the common plan,is recorded before the execution of the contract of sale, describes the property it is to govern, andstates that it is to bind all purchasers and their successors, subsequent purchasers who haveconstructive notice of the recorded declaration are deemed to intend and agree to be bound by,and to accept the benefits of, the common plan; the restrictions, therefore, are not unenforceablemerely because they are not additionally cited in a deed or other document at the time of thesale.” (Citizens, supra, 12 Cal.4th at 349, emphasis in original.) C. Constructive notice “Civil Code section 1213 provides that every ‘conveyance’ of real property recorded asprescribed by law provides ‘constructive notice’ of its contents to subsequent purchasers. Theterm ‘conveyance’ is broadly defined to include ‘every instrument in writing … by which thetitle to any real property may be affected....’ [Citation.] Constructive notice ‘is the equivalent ofactual knowledge; i.e., knowledge of its contents is conclusively presumed.’ [Citation.]”(Citizens, supra, 12 Cal.4th at 355.) “[I]t is reasonable to conclude that property conveyed after the restrictions are recorded issubject to those restrictions even without further mention in the deed. ‘The issue in these cases isthe intent of the grantors and grantees at the time of the conveyance.’ (Fig Garden Park etc.Assn. v. Assemi Corp., supra, 233 Cal. App. 3d at p. 1709.) This intent can be inferred from therecorded uniform plan. It is express on the part of the seller, implied on the part of thepurchaser. The law may readily conclude that a purchaser who has constructive notice, andtherefore knowledge, of the restrictions, takes the property with the understanding that it, as wellas all other lots in the tract, is subject to the restrictions, and intends and agrees to accept theirburdens and benefits, even if there is no additional documentation evidencing the intent at thetime of the conveyance. ‘If future takers purchase a piece of property with notice of arestriction made by a predecessor, then, in the absence of duress or fraud, they may ordinarily bethought to have bargained for the property with the restriction in mind, and to have shownthemselves willing to abide by it.’ (Rose, Servitudes, Security, and Assent: Some Comments onProfessors French and Reichman (1982) 55 So.Cal.L.Rev. 1403, 1405.)” (Citizens, supra, 12Ca1.4th at 365-366.) Page 10 of 14 IV. DISCUSSION The parties agree that Werner and Greater Middleton establish the factors needed tocreate an equitable servitude. (Werner, supra, 181 Cal. At 180-181; Greater Middleton, supra,222 Cal.App.3d at 991.) Applying those factors here, the court finds that an equitable servituderestricting building past a particular seaward boundary does exist and applies to the Las OlasDrive subdivision which includes plaintiffs’ and defendants’ properties. A. Mutual intent to restrict pursuant to a general plan Here, a general plan and mutual intent is evidenced by the plain language of the deeds. The general plan is the Beach Lands Subdivision or “Beach Lands,” which is described indefendants’ deed/Elworthy Deed and the other 27 deeds for parcels on Las Olas Drive. Thosedeeds also contain the same restriction on building past a particular seaward point. Defendantsargue the deeds only describe the grantor’s intent but concede that their deed is the finalexpression of the grantor (SCLTC) and grantee (Elworthy). (See Defendants’ SupplementalMemorandum, p. 9.) Deeds constitute “the final and exclusive memorial of their [grantor andgrantee’s] joint intent.” (Werner, supra, 181 Cal. at 182.) The deeds also plainly bind successors by including the following language: • “conditions subsequent running with the land” (Monterey/Santa Cruz etc. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, 1519 [“‘run with the land’ is a term of art used ‘to express an intent to bind successors’”]; Civil Code § 1460 [covenants that run with the land bind the assigns of the covenantor]; • “conditions shall remain in force as against any owner of said property” • “shall never be constructed” indicating an intent to bind future grantees Where deeds in a common tract contain similar restrictions, courts have found equitableservitudes even where the restrictions were not explicitly made in every single deed. (SeeGamble v. Fierman (1927) 82 Cal.App. 180, 182-187; Robertson v. Nichols (1949) 92 Cal.Ap.2d201, 203, 206; Mock v. Shulman (1964) 226 Cal.App.2d 263, 267; and Greater Middleton, supra,222 Cal.App.3d at 992 [despite 14 of 77 deeds failing to reference the general plan and 13 of 77deeds failing to include the restriction, the court found that the “general scheme of restrictionsmust be uniform in character to indicate unmistakably a designated and adopted plan…somevariety is to be expected….”].) Page 11 of 14 B. Like restrictions The deeds must also show that the parcels conveyed are subject to the restriction inaccordance with the plan for the benefit of all the other parcels, and such other parcels aresubject to like restriction for its benefit. Each deed, including the Elworthy Deed, plainly identifies the setback restriction andstates “that the foregoing [restrictions] are part of a general plan for the benefit of the whole ofits so called ‘Beach Land.’” Deeds for 27 of the other 28 properties in the subdivision, whichinclude these restrictions and the common statement that they are “part of a general plan for thebenefit of the whole,” confirm that the other parcels are subject to the same restriction. While thecourt finds the 28 deeds and their restrictions uniform enough, even if there was more variety inthe restriction or general plan language, Greater Middleton instructs that equitable servitudesmay still be found. “The general scheme of restrictions must be sufficiently uniform in characterto indicate unmistakably a designated and adopted plan throughout common to all purchasers oflots…[,] [but] some variety is to be expected inasmuch as it is common to plan for thedevelopment of some parcels in a manner different from but complementary to the majority ofthe parcels.” (Greater Middleton, supra, 222 Cal.App.3d at 992 (citations omitted).) While the court need not rely on extrinsic evidence for this finding, it notes that thehomeowners’ association for the Las Olas Drive properties (the Sea Cliff Beach Association) hasacknowledged and enforced an approximate 75-foot setback from the ocean for years anddefendants’ architect, surveyor and previous attorney all understood a setback existed. (BeachDeclaration, Exs. F, R, S, T, Y, AA, BB, CC, FF, HH.) C. Dominant and servient tenements Finally, both the dominant and servient tenements must be shown in the deeds. Here,defendants’ deed, and its original predecessor the Elworthy Deed, both identify the parcel by lotnumber, the same metes and bounds, and reference to the unrecorded 1928 map of the BeachLands Subdivision. (UMF 1, 8.) This adequately describes the burdened property, i.e. theservient tenement. The deed also describes the dominant tenement – “the foregoing are part of a general planfor the benefit of the whole of its so-called “Beach Land.” Naming the benefited tract of land orsubdivision alone is sufficient to identify it. (Robertson v. Nichols (1949) 92 Cal.App.2d 201,206; Ames v. Prodon (1967) 252 Cal.App.2d 94, 100 (“where land has a descriptive name, it maybe adequately described by its name alone”); Anderson Cottonwood Irr. Dist. v. Zinzer (1942) 51Cal.App.2d 587, 590 (where no “other parcel of land in [the county] answers to” the same name,merely using the name is enough).) Page 12 of 14 Defendants’ argument that “Beach Lands” is ambiguous and therefore cannot describethe dominant tenement is not supported by the evidence. They argue that the Elworthy Deed failsto define or describe with any certainty the real property that comprises the Beach Lands and sotherefore fails to define the dominant tenement. However, even with variation and withoutspecific metes and bounds or legal descriptions, dominant tenements can be established. “Considering the uniformity and consistency in the vast majority of the deeds relative to the statement of the general plan and the restrictive covenants restricting the use of the land conveyed therein; considering the fact that the first 17 deeds which contain statements of the general plan in conjunction with the restrictive covenants, uniformly describe the dominant tenement in terms of the entire Middleton Tract; considering the significant variation in the description of the dominant tenement in the deeds thereafter and such obvious and blatant errors in these descriptions as the designation of township 8 as township 3; considering the number of deeds wherein it is erroneously stated following a description of the dominant tenement that the property "herein conveyed" is a part of the tract described; and, finally, considering the aforementioned extrinsic evidence, it is clear that the dominant tenement which both the grantor and grantee had in mind, in each and every instance, was and had to be -- Middleton Tract.” (Greater Middleton, supra, 222 Cal.App.3d at 994-995.) Here, the deeds all refer to an unrecorded 1928 map labeled either the “Beach LandsSubdivision” or “Seacliff Beach Subdivision.” (UMF 17.) The 1928 map fits this description.“When a lot conveyed by a deed is described by reference to a map, such map becomes a part ofthe deed.” (Danielson v. Sykes (1910) 157 Cal. 686, 690.) Plaintiffs also point out thatDefendants’ own surveyor mapped the properties on Las Olas Drive and showed that thenumbered parcels in the deeds match the numbered parcels on the 1928 map, and that thesubdivided area in the 1927 SCLTC agreement matches the 1928 map. (UMF 11, 14.) Severalrecorded maps, including the County Tax Assessor’s map, refer to the 1928 map as the mapdescribing Beach Lands. (UMF 13.) This evidence is sufficient to describe the dominanttenement – that of the Beach Lands, now identified as Las Olas Drive. Since all elements of finding an equitable servitude are met here, the court grantssummary adjudication for plaintiffs as to their first cause of action. V. REQUESTS FOR JUDICIAL NOTICE Plaintiffs’ Supplemental Request for Judicial Notice: 1. Articles of Incorporation, Santa Cruz Land Title Company, 6/6/1923: Granted. 2. Grant deed, Santa Cruz Land Title Company to Foote, 1/9/1933: Granted. Page 13 of 14 3. County of Santa Cruz Planning Dept., Staff Report re Sea For Yourself LLC, APN 038-461-18, 753 Las Olas Drive, Aptos, 4/19/24: Deny; unrelated to the properties at issue. The court incorporates its rulings on the parties’ respective requests for judicial noticefrom their original motions for summary judgment/adjudication.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 14 of 14

Ruling

Aug 07, 2024 |24STCV00507

Case Number: 24STCV00507 Hearing Date: August 7, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 7, 2024 TRIAL DATE: N/A CASE: Enterprise Bank & Trust v. 1427 15th Street, LLC, et al. CASE NO.: 24STCV00507 APPLICATIONS FOR DEFAULT JUDGMENT MOTION FOR APPOINTMENT OF RECEIVER MOVING PARTY: Plaintiff Enterprise Bank & Trust RESPONDING PARTY: No opposition I. INTRODUCTION On January 8, 2024, Plaintiff, Enterprise Bank & Trust, filed a Verified Complaint against 1427 15th Street, LLC; Adam Shekhter; Alan Shekhter; Alexander Shekhter; Adam 3S Generational Trust dated December 3, 2018; Adam GTS 2018, LLC; Alan 3S Generational Turst dated December 3, 2018; Alan GTS 2018, LLC; Alexander 3S Generational Trust dated December 3, 2018; and Alexander GTS 2018, LLC, for (1) Judgment on Note, (2) Judgment on Guarantees, (3) Specific Performance, (4) Appointment of Receiver, and (5) Injunctive Relief. As alleged, Defendant 1427 15th Street LLC and First Choice Bank[1] entered into a Business Loan Agreement for a loan in the amount of $2,400,000. Plaintiff seeks to recover an unpaid balance on a construction loan owed by Defendants. To secure the loan, Defendant executed and delivered to First Choice Bank the following: (a) Promissory Note to pay First Choice Bank the principal sum of $2,400,000, plus interest, (b) Deed of Trust to the real property at 1427 15th Street, Santa Monica, CA 90404 (the Property), and (c) Assignment of Rents, granting First Choice Bank a continuing security interest in right, title, and interest in and to the Rents from the Property (collectively, the Collateral). To further secure the loan obligations, Defendants Adam Shekhter, Alan Shekhter, Alexander Shekhter, Adam 3S Generational Trust, Adam GTS 2018, Alan 3S Generational Turst[2], Alan GTS 2018, Alexander 3S Generational Trust, and Alexander GTS 2018 (Guarantors) delivered to First Choice Bank a written Commercial Guaranty (the Guarantees) guaranteeing the performance and payment of Borrowers obligations under the Loan Agreement and Note. In September 2019, First Choice Bank fully funded the loan. In December 2023, Defendant 1427 15th Street, LLC defaulted on the loan. Before the court are ten (10) applications for default judgment and Plaintiffs Motion for Appointment of a Receiver (the Motion). The court proceeds by addressing Plaintiffs default judgment applications followed by the Motion. II. APPLICATIONS FOR DEFAULT JUDGMENT A. Relevant Background On March 15, 2024, the clerk of the court entered default against Defendants, 1427 15th Street, LLC; Adam GTS 2018, LLC; Alan GTS 2018; Alexander GTS 2018, LLC; Alexander Shekhter; Alexander 3S Generational Trust; Alan Shekhter; Adam Shekhter; and Adam 3S Generational Trust. On April 15, 2024, the clerk of the court entered default against Defendant, Alan 3S Generational Turst. On April 29, 2024, Plaintiff filed an Application for Separate Default Judgment Pursuant to C.C.P. § 579 Against All Defendants and concurrently filed ten (10 ) separate proposed judgments. As indicated by the proposed judgments, Plaintiff seeks default judgment against each defendant in the sum of $ 2,296,041.44, consisting of $2,204,309.07 in damages, $83,890.25 in prejudgment interest at the annual rate of 5.17%, $2,079,40 in costs, and $5,762.72 in late fees. B. Analysis 1. Application for Separate Default Judgment Plaintiffs request for separate default judgment lacks merit. Code of Civil Procedure section 579 states: In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper. (Code Civ. Proc., § 579, emphasis added.) The question of whether the court should render a judgment against a defaulting defendant when there are several defendants is one that is entrusted to the discretion of the court by the provisions of section 579 of the Code of Civil Procedure. (Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 852.) Thus, where one defendant defaults his default may be entered and a judgment rendered against him, leaving the action to proceed as to the other defendants until the injured party has received satisfaction, even though this results in different judgments as to several defendants. (Winzler & Kelly v. Superior Court (1975) 48 Cal.App.3d 385, 393.) Here, default has been entered against all named defendants. Accordingly, the present procedural posture is not one contemplated by Section 579, where default has been entered against one or more defendants, and the plaintiff proceeds to trial against other defendants. (See, e.g., Morehouse, supra, 266 Cal.App.2d at pp.848-49.) In other words, because all defendants have defaulted, this action is not proceeding against any other non-defaulted defendants. The request for separate default judgments is DENIED. 2. Applications for Default Judgment Upon review, Plaintiffs applications for default judgment are defective for the following reasons: - As discussed above, the court has denied Plaintiffs request for separate default judgments. Accordingly, Plaintiff is ordered to serve and file one proposed judgment naming all defaulted defendants and indicating that defendants are jointly and severally liable. - Plaintiff has not filed a Request for Court Judgment on Form CIV-100. - Doe defendants have not been dismissed from this action. - Plaintiff seeks recovery of unspecified attorneys fees. Plaintiff is directed to include its attorneys fees request in its application for default judgment. The attorneys fees must be calculated pursuant to LASC Local Rule 3.214. C. Conclusion The request for separate default judgments is DENIED. The applications for default judgment are DENIED without prejudice. III. MOTION FOR APPOINTMENT OF RECEIVER A. Relevant Background On April 18, 2024, Plaintiff filed this Motion for Appointment of a Receiver. Plaintiff seeks an order to appoint a receiver over Defendant 1427 15th Street LLCs assets (the Collateral). The motion is unopposed. B. Legal Standard The trial court is authorized to appoint a receiver in an action by a secured lender for specific performance of an assignment of rents provision in a deed of trust, mortgage or separate assignment document; in a case brought by an assignee under an assignment of leases, rents, issues or profits; and in all other cases where necessary to preserve the property or rights of any party. (Code Civ. Proc., § 564, subd. (b)(9), (11), (12).) C. Application Plaintiff requests that the Court appoint a receiver to mitigate loss in value and harm to the Property. As explained by Plaintiff in its motion, the Property was appraised to have an as is market value of $3,400,000.00 as of July 23, 2019, with an appraised prospective market value of $3,600,000.00 upon completion of renovation to no less than three of ten units in the Property. Based on its current condition, the owner set the Propertys asking price at $2,675,000. Due to the lack of activity/interest in the Property, the owner dropped the asking price to $2,300,00.00 over the past couple of weeks. Six of the ten units are currently vacant, such that the Property is not producing a significant amount in rent only $3,592 of a possible $14,361 in rents is currently being collected per month. Additionally, there is currently no adequate management overseeing the Property, putting the Property at risk of further loss in value, of remaining vacant, of failing to produce rents, and falling into disrepair for lack of proper oversight on needed repairs, replacements, and maintenance necessary to preserve the value of the Property. In support, Plaintiff submits the Loan Documents to establish Defendant 1427 15th Street, LLCs obligations under the Loan and Plaintiffs rights to the Collateral, including the Property and the rents to be derived from the Property, (Complaint, ¶¶ 16-26, Exs. 1-13), and the current state of the Property (Hustedt Decl., ¶¶ 20-22, Exs. B, C.) Given that Defendant 1427 15th Street, LLC has defaulted on their obligations on the loan, and indeed, have defaulted in this action, the Court finds that the appointment of a receiver on the Property is warranted. D. Conclusion The unopposed motion is GRANTED. Pursuant to Plaintiffs request, Stephen J. Donell is appointed the receiver for the Collateral. IV. DISPOSITIONS 1. Plaintiffs Request for Default Judgment is Denied. Plaintiffs Applications for Default Judgment are Denied Without Prejudice. The Status Conference re: Default Judgment is Continued to October 4, 2024. Plaintiff is to file an amended application for default judgment consistent with this order. 2. Plaintiffs Motion for Appointment of Receiver is Granted. Pursuant to Plaintiffs request, Stephen J. Donell is appointed the receiver for the Collateral. Plaintiff to give notice. Dated: August 7, 2024 Kerry Bensinger Judge of the Superior Court [1] First Choice Bank and Plaintiff merged on January 22, 2021. Plaintiff is therefore the holder, owner, and beneficiary of the loan with Defendant. [2] This apparent defect appears in the face of the Complaint and remains unchanged.

Ruling

Phillips vs. Murphy, et al.

Aug 06, 2024 |22CV-0201197

PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197Tentative Ruling on Motion for Court Order Appointing Real Estate Appraiser: KathrynPhillips, as successor trustee of the Ronald Leroy Smith Living Trust, seeks an order appointing areal estate appraiser pursuant to CCP § 874.311 et seq. Phillips, in her capacity as Trustee of theTrust, has a 50% interest in real property commonly known as 9786 Old Oregon Trail (“Property”)in Redding. The remaining 50% interest is held by Darlene Clark, who is deceased. Clark’s knownheirs are her four sons: Jim Murphy, Johnny Murphy, Terry Murphy, and Roger Murphy. Thefour sons as well as the unknown testate and intestate successors, as well as any other unknownparties claiming any interest in the property, have been served notice of this suit either personallyor by publication, pursuant to this Court’s order. Default was entered as to all Defendants on April29, 2024.The Court finds that the appropriate manner to determine the value of the real property under thecirc*mstances presented is to order an appraisal by a “disinterested real estate appraiser.” CCP §874.316(a) & (d). The Court appoints Sprenkel Appraisals as proposed by the Plaintiff.The motion is GRANTED. A proposed order was lodged with the Court and will be executed.This matter is set for Monday, September 9, 2024, at 9:00 a.m. in Department 64 forconfirmation of filing of the Appraisal.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************

Ruling

Aug 08, 2024 |CVPS2202192

FIRST CITIZENS BANK & Plaintiff’s Motion for Summary Judgment orCVPS2202192 TRUST COMPANY, in the Alternative Summary Adjudication onSUCCESSOR BY MERGER TO 2nd Amended ComplaintCIT BANK, N.A. F/K/A ONEWESTBANK, FSB vs EDER, ANINDIVIDUALTentative Ruling: Deny.This case concerns a lot line adjustment, approved by Defendant City of Rancho Mirage, thatencumbered neighboring land upon which Plaintiff First-Citizens holds a deed of trust. The operativecomplaint alleges causes of action for reformation of deed of trust, declaratory relief, and quiet title.First-Citizens seeks summary judgment or, alternatively, summary adjudication as to each thesecauses of action as against Defendants Frank, 70 Royal St. Georges LLC, and Eiger Companies. Thedispute arises from changes in the property description caused by construction of a single familyresidence and a lot line adjustment between neighboring properties (Lots 15 and 16 of Tract No.25361) that occurred after the first trust deed loan was originated. Those events changed the streetaddress, the legal description, and the assessor’s parcel number. The property description in the deedof trust was correct when the loan was made but was never modified to reflect the subsequentchanges, despite 70 Royal’s agreement and certification to City of Rancho Mirage officials that itwould undertake the responsibility to modify existing security instruments as a condition of approvingthe lot line adjustment. As explained below, First-Citizen’s has failed to meet its initial burden todemonstrate entitlement to judgment as a matter of law.Summary judgment is granted when a moving party establishes the right to entry of judgment as amatter of law. (Code Civ. Proc., § 437c(c).) A plaintiff moving for summary judgment or adjudicationbears the burden to produce admissible evidence on each element of a cause of action entitling themto judgment. (Code Civ. Proc., § 437c(p)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,851 (“Aguilar”).) This means that “a plaintiff who would bear the burden of proof by a preponderanceof evidence at trial moves for summary judgment, he must present evidence that would require areasonable trier of fact to find any underlying material fact more likely than not – otherwise, he wouldnot be entitled to judgment as a matter of law, but would have to present his evidence to a trier offact.” (Aguilar, supra, 25 Cal.4th at p. 851.) Once the plaintiff has made such a showing, the burdenshifts to the defendant to produce admissible evidence showing that a triable issue of one or morematerial facts exists as to that cause of action or a defense thereto. (Code Civ. Proc., § 437c(o),(p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 72, 78.) If the defendant does not makesuch a showing, summary judgment in favor of the plaintiff is appropriate. Although summaryjudgment is no longer considered a “disfavored” procedure, the moving party’s evidence must bestrictly construed, while the opposing party’s evidence must be liberally construed. (Binder v. AetnaLife Ins. Co. (1999) 75 Cal.App.4th 832, 838.) Under Code of Civil Procedure section 437c,subdivision (f)(1), a party may move for summary adjudication as to one or more causes of action,affirmative defenses, claims for damages or issues of duty, including adjudication of a contract duty.(See Linden Partners v. Wilshire Linden Assocs. (1968) 62 Cal.Aallpp.4th 508, 518.) A motion forsummary adjudication shall be granted only if it completely disposes of a cause of action that has nomerit. (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal. App. 4th 1463, 1472.)“On motion for summary judgment, the issues are framed by the pleadings since it is those allegationsto which the motion must respond.” (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640, citing 9 (1986)179 Cal.App.3d 1061, 1064.) In addition, “material facts” that preclude the entry of summary judgmentor summary adjudication are those that relate to the issues in the case as framed by the pleadings.(Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, referencing Juge v. County ofSacramento (1993) 12 Cal.App.4th 59, 67.) “‘To create a triable issue of material fact, the oppositionevidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party'sevidence would show some factual assertion, legal theory, defense or claim not yet pleaded, thatparty should seek leave to amend the pleadings before the hearing on the summary judgment motion.[Citations]” (Vulk v. State Farm General Insurance Company (2021) 69 Cal.App.5th 243, 255 (cleanedup).)The Second Amended Complaint alleges in pertinent part:• On or about June 21, 2007, Frank A. Eder encumbered the Property at issue in this case witha mortgage loan, evidenced by a Note in the sum of $3,120,000.00 and secured by a Deed of Trustrecorded on June 26, 2007 as Instrument No. 2007- 0415505 in the Office of the Riverside CountyRecorder• Plaintiff is the current holder of the Note and record beneficiary of the Deed of Trust whichdescribes the encumbered Property as Lot 16 of Tract No. 25361• This action arises from a lot line adjustment affecting two contiguous parcels of land (i.e., Lots15 and 16 of Tract No. 25361) approved by Defendant City of Rancho Mirage as Lot Line Adjustment08-04 ("LLA"), as more fully described and depicted by a Certificate of Compliance recorded onAugust 18, 2008 as Instrument No. 2008-0455450.• The LLA relocated the common boundary between the parcels, thereby enlarging the squarefootage of Lot 16, reducing the square footage of Lot 15, and changing the legal descriptions of bothparcels. The LLA also caused a change in the county tax assessor's identification numbers for bothparcels.• First-Citizens holds a first trust deed loan against Lot 16, including the portion of Lot 15 thatwas added by the LLA.• Defendant 70 Royal is owned and controlled by Defendant Frank A. Eder, who obtained theLLA while he owned Lots 15 and 16. He then conveyed both lots to Defendant 70 Royal, which losttitle to Lot 15 in a foreclosure sale held in August 2010.• First-Citizens is informed and believes that Defendant 70 Royal still owns Lot 16.• Defendant Eiger Companies, LLC claims title to a portion of Lot 15 under a Trustee's DeedUpon Sale recorded on March 15, 2022 as Instrument No. 2022-0126004. This claim is derived fromits foreclosure under a deed of trust recorded on July 29, 2010, which was subordinate to First-Citizen’s first trust deed loan. The portion of Lot 15 in the TDUS is the same area of land that enlargedLot 16 under the LLA, is a constituent and integral part of the land encumbered by plaintiff's first trustdeed loan and was not a legally distinct parcel that could be separately alienated, encumbered or solddespite the TDUS and the underlying encumbrance, both of which constitute illegal lot splits.• Defendant Eiger Companies, LLC also holds multiple liens against Lot 16, including threedeeds of trust recorded on September 26, 2008 as Instrument No. 2008-0526130, on July 30, 2009 asInstrument No. 2009-0396612, and on July 30, 2009 as Instrument No. 2009- 0396614 in the Office ofthe Riverside County Recorder. Each of those liens is subordinate to plaintiff's rights under its firsttrust deed loan.• This is a title curative action to amend the properly description in a first priority Deed of Trustheld by plaintiff and in other recorded instruments in the title chain for the real property commonlyknown as 68 Royal St. Georges Way, Rancho Mirage, California 92270• When the loan was made, the Property was a vacant parcel of land with no street address andwas known generally as Lot 16 of Tract No. 25361. The loan proceeds were used, in part, to developand improve the land with a single-family residence, now known as 68 Royal St. Georges Way,Rancho Mirage, California 92270. The Deed of Trust identifies the Property as "Lot 16 Royal St.Georges Way, Rancho Mirage, California 92270" and includes an old legal description and assessor'sparcel number that were changed and superseded by the LLA.• The Deed of Trust grants a security interest in the property, including "all the improvementsnow or hereafter erected on the property, and all easem*nts, appurtenances, and fixtures now orhereafter a part of the property." Moreover, "[a]ll replacements and additions shall also be covered bythis Security Instrument."• The property description in the Deed of Trust has never been formally modified to reflect thestreet address of the later constructed improvements, the True Legal Description, and the newassessor's tax identification number, all of which were changed by LLA.• While examining title, First-Citizen’s discovered additional scrivener's errors in other recordedinstruments in the title chain for the Property, including the following:o A. The Certificate of Compliance inadvertently omits symbols and dashes fromcertain directional calls in the legal description, and there are minor inconsistencies inhow the non-tangent curves are identified; ando B. The Quitclaim Deed by Defendant Eder to Defendant 70 Royal recorded onAugust 18, 2008 as Instrument No. 2008-0455448 in the Office of the Riverside CountyRecorder uses an obsolete assessor's parcel number and incomplete legal descriptionwhich do not reflect the changes made by the LLA and does not match the True LegalDescription.• Defendants Eder and 70 Royal defaulted under the Note causing Plaintiff to pursue anonjudicial foreclosure action against the Property. As part of that process, plaintiff obtained a currenttitle report ("TSG") to serve legally required notices on interested parties as required by law. Whilereviewing the TSG, plaintiff discovered the title impediments described herein and has placed itsforeclosure on hold until the title impediments are cured.• First-Citizen’s brings this action to amend the property description in the Deed of Trust, theCertificate of Compliance and the Quitclaim Deed. Unless corrected, these errors and omissions willcontinue to cloud title to the Property, casting doubt upon the validity, perfection and enforceability ofthe plaintiff's security interest and impeding any conveyance of marketable title after foreclosure.Reformation is also necessary to correct the public records in the Office of the Riverside CountyRecorder and to avoid potential future litigation.• An actual controversy has arisen and now exists among the parties concerning theirrespective rights and obligations with respect to the Property. Plaintiff contends thato (a) the LLA and Certificate of Compliance changed the legal description andassessor's parcel number for the real property and improvements thereon commonlyknown as 68 Royal St. Georges Way, Rancho Mirage, California 92270;o (b) the portion of land added to Lot 16 by the LLA and Certificate of Complianceis a constituent and integral part of the land encumbered by plaintiff's Deed of Trust,and was not a legally distinct parcel that could be separately alienated, encumbered orsold;o (c) plaintiff's Deed of Trust encumbers all improvements erected on theProperty and all additions to the Property resulting from the LLA and Certificate ofCompliance;o (d) plaintiff's Deed of Trust is a valid, perfected and enforceable first priority lienagainst the Property, as reflected by the True Legal Description;o (e) any right, title, estate, lien or other interest in the Property held by DefendantEiger Companies, LLC is subordinate to plaintiff's Deed of Trust;o (f) the property description in plaintiff's Deed of Trust should be reformed toreflect the street address of the later constructed improvements, the True LegalDescription, and the new assessor's parcel number, which were changed by the LLAand Certificate of Compliance;o (g) other instruments in the title chain for the Property should be reformed tocorrect scrivener's errors and match the True Legal Description, including theCertificate of Compliance and the Quitclaim Deed from Defendant Eder to Defendant70 Royal. Plaintiff is informed and believes and based thereon alleges that one or moreof the defendants dispute these contentions.• Plaintiff seeks to quiet title against such adverse claims as of August 18, 2008, the date thatthe LLA was approved by recording a Certificate of Compliance in the Office of the Riverside CountyRecorder.The evidence before the Court is as follows. Defendant Eder is the principal of Defendant 70 Royal St.Georges, LLC, the entity that currently holds title to the real property located at 68 Royal St. GeorgesWay, Rancho Mirage, California 92270. (UMF 1.) Plaintiff First-Citizens holds a Deed of Trust againstthe Property recorded June 26, 2007 as Instrument No. 2007-0415505, Official Records of RiversideCounty as security for a construction loan (“Loan”) in the original sum of $3,120,000.00. (UMF 2.) TheDeed of Trust irrevocably grants and conveys the property described therein as security for Loan“together with all improvements now or hereafter erected on the property, and all easem*nts,appurtenances, and fixtures now or hereafter a part of the property” and also includes “[a]llreplacements and additions.” (UMF 3.)The Deed of Trust identifies the street address of the Property as “Lot 16 Royal St. Georges Way.”(UMF 4.) The legal description in the Deed of Trust identifies the Property as Lot 16, Tract No. 25361,Map Book 360, Page(s) 18 through 28 excluding certain mineral, oil and gas rights reserved by earlierrecorded instruments.(UMF 5.) The Deed of Trust identifies the Assessor’s Parcel Number of theProperty as “673-800-007-7” (UMF 6.) The Deed of Trust irrevocably grants and conveys the propertydescribed therein as security for Loan “together with all improvements now or hereafter erected on theproperty, and all easem*nts, appurtenances, and fixtures now or hereafter a part of the property” andalso includes “[a]ll replacements and additions.” (UMF 35.)After the Loan was made, the City of Rancho Mirage approved a Lot Line Adjustment (“LLA”) betweenLots 15 and 16 of Tract No. 25361 as described and depicted by a Certificate of Completion recordedon August 18, 2008 as Instrument No. 2008-0455450, Official Records of Riverside County. (UMF 7.)The LLA moved a common boundary between Lots 15 and 16 and added a portion of Lot 15 to theexisting legal description of Lot 16, creating a new legal description of the Property. (Lyle Dec. ¶9, Ex.7; Treder Decl ¶3, Ex. 2. Eder Decl. ¶5; Galagher Decl. ¶6, Ex. 5.)The enlarged parcel resulting from the LLA (Lot 16 and a portion of Lot 15) is now taxed as oneunified parcel under a new assessor’s parcel no. 673-800-020. (UMF 10.) Further, The Property issurrounded by a perimeter block and stucco wall that encloses the entire Property and is situated onthe portion of Lot 15 that was added to Lot 16 by the LLA. (Treder Decl. ¶8.) Within the wall there is agated side entrance, a stone driveway and courtyard plus other permanent hardscape and landscapeimprovements, including palm trees, shrubs, a lawn, masonry sculptures and a water feature thatsurrounds the courtyard. (Treder Decl. ¶8.)The Deed of Trust has never been modified to reflect the new street address, legal description orassessor’s parcel number resulting from the LLA and construction of the residence. (UMF 12.)As a condition of obtaining approval for the LLA, Defendants Eder and 70 RSG agreed and certifiedthat they would undertake responsibility to modify existing real property security instruments toconform with the adjusted boundaries of the Property. (UMF 13.)The Certificate of Compliance omits the oil, gas and mineral exceptions reserved by earlier deeds andan easem*nt for ingress and egress and also references the old assessor’s parcel number for theProperty, which has become obsolete. (UMF 15.)By Quitclaim Deed dated March 28, 2008, Eder transferred title to the Property (Lot 16) to Defendant70 Royal, which deed was recorded with the Riverside County official records on August 18, 2008.(SUMF 50.) The Quitclaim Deed vesting title in Defendant 70 Royal uses an incomplete legaldescription that does not include the portion of Lot 15 added to Lot 16 by the LLA and also uses theold assessor’s parcel number for the Property. (UMF 14.)On July 29, 2010, 70 Royal executed a deed of trust in favor of Defendant Eiger Companies, LLCsecuring an indebtedness of $450,000; this Eiger Deed of Trust was recorded on August 23, 2013,and encumbered the “same area of land” that was earlier transferred from Lot 15 to Lot 16, i.e., the“Sliver”). (SUMF 52.) Each Deed of Trust that Defendant Eiger holds against the Property or anyportion thereof was recorded subsequent to the Deed of Trust held by First-Citizens. (Treder Decl. ¶5,Exs. 3-8; Eder Decl. ¶6; Gallagher Decl. ¶ 9, Ex. 8) On or about March 4, 2022, Eiger Companiesforeclosed via a Trustee’s Sale under the power of sale in the Eiger Deed of Trust and therebypurporting to acquire title to the subject Sliver. (SUMF 59.) Frank Eder, Sr., who was the principalmember and key decision maker for Eiger Companies, LLC at the time it took the Eiger Deed of Trustfrom 70 Royal, died on January 11, 2022. (SUMF 61.)The primary relief sought in the Second Amended Complaint is a declaration of First-Citizen’s rightsunder the Deed of Trust. First-Citizen’s also seeks a declaration as to the nature of its lien in all of Lot16, including the Sliver. The first (reformation of instruments) and second (quiet title) causes of actionare ancillary and dependent on the Court’s rulings on the declaratory relief cause of action.In its declaratory relief cause of action, First-Citizen’s seeks seven separate and distinct declarations.The motion at bench, however, failed to identify and address each declaration separately. Rather,First-Citizen’s moving papers assert that the undisputed facts here demonstrate that Plaintiff isentitled to a judicial declaration and determination of the parties’ respective rights and duties underthe first trust deed loan and with respect to the Property. The Court cannot find that Plaintiff met itsinitial burden as to each cause of action. First-Citizen’s failed to provide both factual and legal supportdemonstrating entitlement to judgment as a matter of law as to each of the seven declarations sought.Because the quiet title and reformation causes of action are ancillary to the declaratory relief cause ofaction, the Court cannot find that First-Citizen’s has met its burden with respect to any cause of actionor issue addressed in the motion.The Court sustains Defendants’ objections 1-4 to the Treder declaration, 5-6 of the Lyle declaration,and 8-11 to the Separate Statement, and otherwise overrules the objections. The Court GrantsDefendants’ Request for Judicial Notice.

Ruling

GAYLORD WIOR BUILDING, A CALIFORNIA GENERAL PARTNERSHIP VS RUSSELL JOSEPH WARD, AN INDIVIDUAL, ET AL.

Aug 05, 2024 |23STCV25973

Case Number: 23STCV25973 Hearing Date: August 5, 2024 Dept: 58 Judge Bruce G. Iwasaki Department 58 Hearing Date: August 5, 2024 Case Name: Gaylord Wior Building v. Russell Joseph Ward, et al. Case No.: 23STCV25973 Motion: Motion to Set Aside Default; OSC re: Entry of Default Judgment Moving Party: Defendant Russell Ward Responding Party: Plaintiff Gaylord Wior Building Tentative Ruling: Defendant Russell Wards Motion to Set Aside Default is GRANTED; Plaintiffs Default Judgment Application is GRANTED as to Defendant The Confluence Media, LLC Background This is an action arising from the alleged breach of a lease agreement. On October 24, 2023, Plaintiff Gaylord Wior Building (Plaintiff) filed a complaint against Defendants Russell Joseph Ward (Ward), The Confluence Media, LLC (Confluence) (collectively, Defendants), and DOES 1-20, inclusive, alleging causes of action for: (1) breach of contract and (2) account stated. On February 15, 2024, Defendant Ward filed an answer to the complaint on behalf of himself and Defendant Confluence. On April 11, 2024, the Court held a Case Management Conference at which no appearance was made on behalf of Defendant Ward. (04/11/24 Minute Order.) The Court indicated that although Defendant Ward filed an answer on behalf of himself and Defendant Confluence, [i]t is required that defendant the Confluence Media, LLC be represented by counsel. (04/11/24 Minute Order.) The Court set a Case Management Conference for May 22, 2024. (04/11/24 Minute Order.) The Court also set an OSC re: Why Sanctions Should Not Be Imposed Against Defendant Ward for Failure to Appear on April 11, 2024, and such OSC was set for May 22, 2024. (04/11/24 Minute Order.) The Court also set an OSC re: Striking the Answer of Defendant Confluence for Failure to be Represented by Counsel for May 22, 2024. (04/11/24 Minute Order.) On May 22, 2024, the Court held a Case Management Conference and the respective OSC hearings. (05/22/24 Minute Order.) There was no appearance on behalf Defendants Ward and Confluence. (05/22/24 Minute Order.) Moreover, there was no attorney of record representing Defendant Confluence who is a corporate defendant. (05/22/24 Minute Order.) The Court struck the answer of Defendants and entered default against Defendants. (05/22/24 Minute Order.) Plaintiff provided Defendants with notice of the Courts April 11, 2024 and May 22, 2024 minute orders. On June 18, 2024, Plaintiff submitted a default judgment packet in which Plaintiff requests default judgment against Defendants in the sum of $136,598.80. On June 25, 2024, Defendant Ward filed and served the instant motion to set aside default, to which Plaintiff filed an opposition on June 28, 2024. No reply brief was filed. On June 28, 2024, pursuant to a request for dismissal filed by Plaintiff, DOES 1 to 20, inclusive, were dismissed from this action without prejudice. The Court will address the parties respective filings in this one ruling. First, the Court will address Defendant Wards motion to set aside default and then the Court will assess the sufficiency of Plaintiffs default judgment application. Legal Standard The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) Relief under CCP § 473(b) is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Ibid.) Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken. (Ibid.) It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525.) Whenever the court grants relief from default, default judgment, or dismissal based on any provision of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party . . . (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund . . . (C) Grant other relief as is appropriate. (Code Civ. Proc., § 473, subd. (c)(1)(A)-(C).) Motion to Set Aside Default A. Lack of Proper Notice of the Motion to Set Aside Default Plaintiff argues that Defendant Wards motion to set aside default should be denied because it was not filed and served with the required 16 court days notice. Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed with the court. (Code Civ. Proc., § 1005, subd. (b).) Here, Defendant Wards motion was filed and served on June 25, 2024, with a noticed hearing date of July 12, 2024. Thus, the motion to set aside default was only filed and served with 12 court days notice as July 4, 2024 was a court holiday. While the Court acknowledges that the motion was filed with less than 16 court days notice, Plaintiff does not indicate any prejudice it incurred. The Court will not deny the motion on such grounds. However, the Court reminds Defendant Ward to comply with the requirements of the California Code of Civil Procedure. B. Appropriateness of Setting Aside the Default of Defendant Ward In support of the motion to set aside default, Defendant Ward provides a declaration. Defendant Ward states that, because of an unavoidable medical condition, he was unable to attend the case management conference. (Ward Decl., ¶ 3.) Defendant Ward states that he was severely ill on May 22, 2024. (Ward Decl., ¶ 3.) Defendant Ward indicates that he has had continuous health problems over the past several months that prevented him from making the required appearance at the May 22, 2024 case management conference. (Ward Decl., ¶ 4.) Defendant Ward states that he had a negative reaction to new medications and sought medical attention on May 22, 2024, which interfered with his ability to attend the case management conference. (Ward Decl., ¶ 5.) While Plaintiff takes issue with the fact that Defendant Wards declaration does not indicate why he failed to appear at the April 11, 2024 CMC and argues that his declaration does not support his claim that he sought medical attention on the same day as the OSC that interfered with his ability to attend the hearing, the Court finds such contentions unpersuasive. While his failure to appear at the April 11, 2024 CMC led to the setting of the OSC, it was Defendant Wards failure to appear at the May 22, 2024 hearing that ultimately led to the entry of default against him. Thus, the Court finds that Defendant Ward has presented sufficient evidence that his failure to attend the May 22, 2024 hearing was due to a medical condition. Moreover, the Court reminds Plaintiff that the law prefers to resolve controversies on their merits. (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d 523, 525.) Plaintiff argues that if the Court is inclined to grant Defendant Ward relief from default, the Court should condition such relief on the payment of a penalty of $1,000.00 to Plaintiff pursuant to CCP § 473(c)(1)(A). The Court denies Plaintiffs request to impose a penalty against Defendant Ward as he has attested that his failure to attend the May 22, 2024 CMC was due to a medical condition. The Court GRANTS Defendant Wards motion to set aside default. Given that the Court has granted Defendant Wards motion to set aside default, the Court will address Plaintiffs default judgment application only as it concerns Defendant Confluence. Plaintiffs Default Judgment Application Plaintiff seeks default judgment against Defendant Confluence in the sum of $136,598.80. A. Applicable Law California Rules of Court, Rule 3.1800 sets forth the requirements for default judgments. In pertinent part, the rule dictates that a party must use form CIV-100 and file the following documents with the clerk: (1) except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) declarations or other admissible evidence in support of the judgment requested; (3)¿interest computations as necessary; (4) a memorandum of costs and disbursem*nts; (5)¿a declaration of nonmilitary status for each defendant against whom judgment is sought; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8)¿exhibits as necessary; and (9)¿a request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, Rule 3.1800(a)(1)-(9).) B. Analysis The Court has reviewed Plaintiffs default judgment application and finds that Plaintiff has met requirements of California Rules of Court, Rule 3.1800 to obtain entry of default judgment against Defendant Confluence. Conclusion Based on the foregoing, Defendant Wards Motion to Set Aside Default is GRANTED. The Court also GRANTS Plaintiffs Default Judgment Application as to Defendant Confluence.

Ruling

ELIZABETH QUINN ET AL VS. MARY R. COULTON ET AL

Aug 08, 2024 |CGC23606844

Matter on the Discovery Calendar for Thursday, Aug-08-2024, Line 6, APPLICATION FOR ORDER COMPELLING THE PRODUCTION OF EXPERT WITNESSES FOR DEPOSITION AND EXCLUDING THE TESTIMONY OF ANY EXPERT NOT PRODUCED. Pro Tem Judge Jeff Wohl, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: The application is granted. The tentative has been e-mailed to the parties. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 525 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 525. Any party who contests a tentative ruling must send an email to jeffwohl@paulhastings.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(525/JPT)

Ruling

KRISTEN MICHELLE LEE JOSEPH VS ANTHONY HOLGUIN, ET AL.

Aug 07, 2024 |23NWCV03216

Case Number: 23NWCV03216 Hearing Date: August 7, 2024 Dept: C JOSEPH v. HOLGUIN, et al. CASE NO.: 23NWCV03216 HEARING: 8/7/24 @ 10:30 A.M. #9 TENTATIVE RULING Defendants motion to strike is GRANTED in part and DENIED in part. Moving party to give notice. This motion is unopposed as of August 5, 2024. On September 19, 2023, Defendant Anthony Holguin prevailed in an unlawful detainer action against Plaintiff Kristen Michelle Lee Joseph regarding possession of the premises located at 5434 Premiere Avenue, Lakewood, California 90712. Plaintiff sues defendants Anthony Holguin, Claudia Holguin, and Louis Corrado for the following: (1) breach of contract; (2) breach of covenant of good faith and fair dealing; (3) breach of covenant of quiet enjoyment; (4) trespass; (5) nuisance; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) negligence; (9) wrongful eviction; (10) constructive eviction; (11) uncured building violations; (12) fraud; and (13) malicious prosecution regarding her possession of the premises located at 5434 Premiere Avenue, Lakewood, California 90712. Defendants move to strike the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action pursuant to Code of Civil Procedure section 425.16. They also move to strike the second to last paragraph on page 6; last paragraph on page 6; the last paragraph on page 8; and the retaliatory unlawful detainer action and lawsuit on page 10. Requests for Judicial Notice Defendants request judicial notice of the following: (1) complaint in case number 23NWCV03216; (2) complaint in case number 23NWUD00203; (3) September 19, 2023, minute order in case number 23NWUD00203; (4) notice of entry of judgment filed September 19, 2023 in case number 23NWUD00203; and (5) judgment in unlawful detainer filed on September 19, 2023 in case number 23NWUD00203. A court may take judicial notice that certain documents were filed in prior litigation, or that certain factual findings were made, but generally may not take judicial notice of the contents of those filings, or of the factual findings themselves. (See, e.g., Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App.4th 471, 483-484.) Thus, the Court grants the requests. Timeliness Code of Civil Procedure section 425.16 provides that a special motion to strike may be filed within 60 days of the service of the complaint, or, in the Courts discretion, at any later time upon terms it deems proper. Here, the motion was filed on October 30, 2023, while the complaint was filed on October 10, 2023. Thus, Defendants are timely. Defendants Burden of Proof The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) A defendant may meet this burden by showing that the act which forms the basis for the plaintiffs suit was (1) any written or oral statement made before a legislative, executive or judicial proceeding; (2) a statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law; (3) any written or oral statement made in a place 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 of petition or the constitutional right of free speech in connection with an issue of public interest. (Code Civ. Proc., § 425.16, subd. (e); Equilon Enterprises, supra, 29 Cal.4th at 66.) Whether the anti-SLAPP statute applies is determined by the principal thrust or gravamen of Plaintiffs claim. It cannot be invoked where allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metabolife Intl, Inc. (2003) 113 Cal.App.4th 181, 187.) Here, Defendants argue that all aspects of an unlawful detainer action arise from the right to petition and are therefore subject to the anti-SLAPP statute. (Mot., pg. 9.) Defendants also argue that the malicious prosecution action predicates on the service of notice and institution of the unlawful detainer action. (Mot., pg. 11.) The Court agrees. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 282; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735.) A landlords service of notice to terminate tenancy of tenants is an act in furtherance of the landlords free speech or petitioning rights under Code of Civil Procedure section 425.16. (Birkner v. Lam, supra, 156 Cal.App.4th at pg. 282.) An action for malicious prosecution based on a partys statements or writings in an earlier judicial proceeding is subject to being stricken as a SLAPP suit. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pgs. 734-735.) The Court determines that Defendants have made a prima facie showing that the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action arise from the right to petition. Defendants also do not argue why the other portions of the complaint should be stricken. A judge in a civil case is not "'obligated to seek out theories [a party] might have advanced, or to articulate & that which & [a party] has left unspoken.'" (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.) Plaintiffs Burden of Proof Plaintiff now has the burden of proof to establish a probability that he will prevail on whatever claims are asserted against Defendants. (Code Civ. Proc., § 425.16, subd. (b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Assn (2006) 136 Cal.App.4th 4464, 476.) Plaintiff has not opposed the motion. Thus, the motion to strike the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action is GRANTED. The motion to strike the second to last paragraph on page 6; last paragraph on page 6; the last paragraph on page 8; and the retaliatory unlawful detainer action and lawsuit on page 10 is DENIED. Request for Attorneys Fees As a prevailing defendant in this motion to strike, defendant is entitled to attorneys fees. (CCP § 425.16, subd. (c)(2).) Defendant requests attorneys fees in the amount of $3660.00. Because the motion is unopposed and non-complex compared to other anti-SLAPP motions, the Court awards attorneys fees in the amount of $1860.00.

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