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FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ---------------------- ----------- ---x WELLS FARGO BANK, N.A. SUCCESSOR BY Index No.: 031849/2017 MERGER TO WACHOVIA BANK, N.A., Plaintiff, AFFIDAVIT OF -against- DENISE DICKMAN DAVID I. SCHEICHET; M.ORTGAGE Mortgaged Premises: ELECTRONIC REGISTRATION SYSTEMS, 61 South Mountain Road INC., AS NOMINEE FOR CITIBANK, N.A.: Clarkstown a/k/a New City, NY 10956 MORTGAGE ELECTRONIC REGlSTRATION SYSTEMS, INC., AS NOMINEE FOR CITIMORTGAGE, INC.; UNITED STATES OF AMERICA - INTERNAL REVENUE SERVICE; DOES" "JOHN and "JANE DOES", said names being fictitious, itbeing the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendant. - --- - - -- ----------------- - x ) ss: COUNTY OF ERIE ) Denise Dickman being duly sworn, deposes and says: 1. I am a Consent Order/Default Servicing Specialist for HSBC Bank USA, N.A. ("HSBC Bank") and Assistant Vice President for HSBC Mortgage Corporation (USA) Mortgage," ("HSBC and collectively with HSBC Bank "HSBC"). HSBC Bank is the master servicer of the loan underlying this mortgage foreclosure action (the "Loan") for plaintiff Wells Fargo Bank, N.A., successor by merger to Wachovia Bank, N.A. ("Plaintiff"). I am over the age of eighteen years, and I am authorized to make this affidavit on behalf of HSBC. If sworn as a witness, I can competently testify to the matters stated herein. The statements set forth in this affidavit are true and correct to the best of my knowledge and belief. E3.276123 FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 2. I make this affidavit in support of Plaintiff's motion, pursuant to CPLR 3212, for an Order granting Plaintiff summary judgment on itsaction for foreclosure against defendant David I. Scheichet ("Defendant") and an Order of Reference to appoint a referee to calculate the amounts due and owning under the Consolidated Note and Consolidated Mortgage (as each term is defined infi-a). 3. In the regular performance of my job functions, I have access to and am familiar with business records maintained by HSBC for the purpose of servicing mortgage loans. I have personal knowledge of the manner in which these business records are created and maintained. These records (which include data compilations, electronically imaged documents, and other business records) are: (a) made at or near the time of the occurrence of the matters set forth by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records; and (b) kept as a regular practice and in the ordinary course of business conducted by HSBC. It isthe regular practice of HSBC to make such records. To the extent records related to the Loan come from another entity, those records were received by HSBC in the ordinary course of its business, have been incorporated into and maintained as part of HSBC's business records, and have been routinely relied on by HSBC as part of its regular course of business. In connection with making this affidavit, I reviewed and relied on those business records concerning Defendant's Loan maintained by HSBC in the ordinary course of its business. 4. On or about June 2, 2003, Defendant borrower $500,000.00 from HSBC Mortgage and executed, acknowledged, and delivered a consolidated note in that amount to HSBC Mortgage (the "Consolidated Note"). E3.276123 FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 5. The Consolidated Note consolidated, and was given in substitution for, the balances due on certain prior notes through which Defendant borrowed various amounts as follows: a. Note dated February 27, 1991 in the amount of $420,000.00 ("First Note"), which was modified pursuant to a Loan Modification Agreement dated June 1, 1992 to a new amount of $417,180.00 ("Loan Modification Agreement")1; and b. Note dated June 2, 2003 in the amount of $143,110.76 ("Second Note"). True copies of the Consolidated Note, endorsed in blank, together with the First Note and Second Note are attached hereto as Exhibit A. 6. Simultaneously with his execution of the Consolidated Note, Defendant executed, acknowledged, and delivered a Mortgage and a Consolidation, Extension and Modification Agreement in the amount of $500,000.00 to HSBC Mortgage (the "Consolidated Mortgage"). The Consolidated Mortgage consolidated, and was given in substitution for,the balances due on certain prior mortgages through which Defendant borrowed various amounts: a. Mortgage dated February 27, 1991 in the amount of $420,000.00 and recorded Rockland County Clerk's Office on March 6, 1991 ("First Mortgage"), which was modified by the Loan Modification Agreement that was recorded in the Rockland County Clerk's Office on June 18, 1992; and c. Mortgage dated June 2, 2003 in the amount of $143,110.76 and and recorded in the Rockland County Clerk's Office on August 6, 2003 ("Second Mortgage"). 1 The First Note and Loan Modification Agreement were executed in favor of Manhattan Savings Bank. HSBC Bank is thesuccessor to Manhattan Savings Bank by virtueof itsacquisitionand merger with Republic Bank of New York, which was thesuccessor by merger to Manhattan Savings Bank. E3.276123 FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 True copies of the Consolidated Mortgage, together with the First Mortgage, Second Mortgage and Loan Modification Agreement, with proof of recording in the Rockland County Clerk's Office, are attached as Exhibit B. 7. By the Consolidated Mortgage, Defendant gave HSBC Mortgage a mortgage on the property commonly known as 61 South Mountain Road, Clarkstown a/k/a New City, New York 10956 ("Premises"), thereby securing Defendant's indebtedness under the Consolidated Note. 8. In June 2003, shortly following itsorigination of the Loan, HSBC Mortgage received the original Consolidated Note, saved an image of the original Consolidated Note to HSBC's records database and then placed the original Consolidated Note in the HSBC vault for safekeeping. That same month, HSBC Mortgage sold the Loan to Deutsche Mortgage Securities Inc. ("Deutsche") and physically delivered the original Consolidated Note, endorsed in blank, to Deutsche's document custodian, Wells Fargo Bank, N.A. ("Wells Fargo"). HSBC Mortgage continued to service the Loan. 9. On or about August 15, 2003, Deutsche sold the Loan to Wachovia Bank, N.A. ("Wachovia") and the original Consolidated Note, endorsed in blank, was shipped to Wachovia. Thereafter, Wachovia sold the Loan to Plaintiff and, on or about December 30, 2005, the original Consolidated Note, endorsed in blank, was physically delivered to Plaintiff's custodian, U.S. Bank Corporation ("U.S. Bank"), 1133 Rankin Street, Suite 100, St. Paul, Minnesota 55116. The original Consolidated Note, endorsed in blank, remained with Plaintiff's custodian until on or about November 15, 2012 when itwas delivered to HSBC for inspection. On or about July 16, 2013, Plaintiff's custodian, U.S. Bank, received the original Consolidated E3.276123 FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 Note, endorsed in blank, and ithas remained with Plaintiff's custodian at that location since that time. 10. Accordingly, Plaintiff held the original Consolidated Note and Consolidate Mortgage at the time this action was commenced, holds them now, and has held them at alltimes in between. 11. True copies of the assignment instruments concerning the Consolidated Mortgage that were executed and recorded are attached as Exhibit C. There have been no further assignments. 12. True copies of various documents concerning the origination of the Loan are attached hereto as Exhibit D. 13. Defendant failed to make the monthly installment payment required by the Consolidated Note and Consolidated Mortgage as of January 1, 2013. 14. Based upon my personal knowledge of HSBC's mailing practices and 2013,2 procedures regarding the creation and mailing of notices of default in such notices were created and addressed to the parties identified on the note and mortgage from the electronic data and information included in HSBC's internal servicing system. Those notices of default were then deposited with the United States Postal Service for mailing by First Class to the mailing address associated with the loan at issue. After the notices were mailed, PDF images of the individual notices that were presented for mailing were simultaneously incorporated into HSBC's business records via its internal servicing system, which places a comment indicating the date(s) that the letter(s) were sent. A PDF image of the individual notice mailed is stored on the internal servicing system. 2 HSBC Mortgage was the servicer of theConsolidated Note and Consolidated Mortgage at thetime these notices were mailed. E3.276123 FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 15. Based upon my review of the business records associated with Defendant's Loan created, maintained and routinely relied on by HSBC as part of itsregular course of business and my knowledge of HSBC's mailing practice and procedures regarding the creation and mailing of notices of default, a notice of default dated March 12, 2013 was mailed to Defendant in accordance with HSBC's mailing practices and procedures as follows: (1) the notice of default was created at least 30 days after Defendant's default on his Loan; (2) the notice of default was properly addressed to all borrowers on the subject Consolidated Note and Consolidated Mortgage; and (3) the notice of default was mailed by First Class mailing to Defendant at the mailing address associated with Defendant's Loan. 16. Specifically, the notice of default was mailed as follows: First Class Mail David I Scheichet 61 South Mountain Road Clarkstown, NY 10956 A true and correct copy of the notice (showing its content, format, and the address to which it File," was sent) is attached hereto as Exhibit E. A copy of HSBC's "Letter Log History itbeing HSBC's regular practice to maintain such a log, made at or near the time of mailing indicating when Defendant was mailed the notice of is attached as Exhibit F.2 default, 17. Effective May 1, 2013, HSBC engaged PHH Mortgage Corporation to sub-service Defendant's Loan. 18. At no time has Defendant tendered the total amount necessary to reinstate or fully satisfy the Consolidated Note and Consolidated Mortgage. Based upon my understanding of how entriesto the Letter Log are made and the terminology used by "demand" HSBC with respect to such entries,the log indicatesthat on March 13, 2013 HSBC mailed a to borrower "Demand" notice." via First-Classmail. refersto "30 day default E3.276123 FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 19. There is currently a principal balance due and owing under the Consolidated Note and Consolidated Mortgage in the amount of $423,244.63, upon which interest and other charges have accrued, and continue to accrue. Denise Dickman Sworn to before me his 19th day of April 2019 Notary Put 1c BEVERLY A. WELLS In Edo e-me...mma E3.276123 FILED: ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 "A" EXHIBIT 04/25/2017 u.i.: a v rre 25 / 2 017 INDEX : NO. NYSCEF 04 / 031849/2017 FILED: ROCKLAND COUNTY UNTY CLERK CLERK 04/24/2019 05:28 PM PECE-EVED NYSCEF DOC. NO.1 39 RECEIVED NYSCEF: 04/24/2019NYSCEF DOC. NO . I his Note amenth and restates m their asid 4 entirety, givenin s=N±± m 2.xmue: A us ine sor, ine Notes cescribets New York Consolidailon,Extensionand Modification Agreement dated the same date as this Note. NOTE June 0 2, 2003 Waw 1rork NEW YORK IDmel (Ciry) Islatel 61 BOUTE MO1DITAIN ROAD, CLARESTOWN, NY 1o956 IPropenyAddfas) 1. BORROWER'S PROMISE TO PAY In retumfor I promise to pay U.S. a loan that I have received, 5500, 000.o0 (this amount is called "Principar). plus interest. to the order of The Lander is KSBC the Lender. Mortgage Corporation (USA) make all payments under this Note in the form of cash. check or money order. I will I un,tertimad Lender that the may innsferthisNote.The Lander or anyone Note by transfer who takes this and who is Holder." entitled payments under this Noic to receive is called the "Note 2. INTEREST Interest will principal be charged on unpaid the full until amount of Principal has heen paid. pay interest 1 will at a yeady rate of 5.876o ‰ The interest rate required is dic rate 1 will by this Section t pay bothbefore in Section 6(B) and after any default described of this Note. 3. PAYMElils (A) Time and Place ofPayments I will pay principal and interest by making a payrnent every month. I will make my monthly payment on theist: day of each month beginningon August o1, 2003 . I will make these payments every monthuntil1 have paid all of the principal belowthat I and interest and any other charges described may owe under thisNote.Each monthly payment willbe applied as ofits scheduled be applied due date and will to interest before Principal.on auly If, o1, 2033 . I still owe amounts under this Note. pay those amounts I will on In full Date." that date, which is called the "Maturity I will make my inonthlypayments at 2929 WALDEN AV8NU8, DBPBL NY 14043 or at a different Note place if required by the Holder. (B)Amount of Monthly Payments My monthly payment willbe in the amount of U.S. $ 2,95*/.69 . 4. BORROWER'S RIGHT TO PREPAY to make payments of I have the right Principal st any time before theyare duc.A paysnem ofPrincipal only is knownas a "Prepayment." I will the NoteHolder in so. I maynot designme a When I make a Prepayment, tell writingthat I am doing if I have not inade all the monthly payment as a Prepayment payments due under the Note. I may make a futi Prepayment or partial Prepayments without payinga Prepaymentcharge. The Note Holderwiltuse my Prepaymentsto reduce the amouai of Principal thatI owe underthis Note. However. the NoteHolder may apply my Prepayment tothe accruedand unpaid interest on thePrepayment amount. beforeapplyingmy Prg,âymct,:to reducethe it' amount of the Note. Principal I make a partial Prepayment,there will amount be no changes in the due date or int the of my monthlypaytnent unless the Note Holder agrees in writing to those changes. sy •r926 REDACTED NEWVoRit FixED RATsiNOTE.SingtoFamliv.FanateManfFreddieatmeuNIFOnM INSTRtJMENT .aN(NY)ecosi foun3233 1f01 99 of 12 6 L..UUit.L I UidiKit U 4( 4b( A U.|.'f U.L : JU YM gr.m..ur..u FILED: s mm.sai1Nu ROCKLAND COUNTY CLERK 04/24/2019 05:28 PM INDEX NO. 031849/2017 RECEIVED NYSCEF: 04/25/2017 NYSCEF DOC. NO. 1 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/24/2019 S. LOAN CHARGES If a law, which applies to this loan and which sets mainm interpretcal so that the intere'st de ottler loan charges, is finally or loan charges collected in connection to be coliceted with this loan exceed the permitted then: (a) any such loamcharge limits, shallbe reduced by the amount n=«ny to seduce the charge to the permitted limit;and (b) collected any sums alreatly from ine whicheverestest permitted lirnits willbe refundedto me. The Note Holder may choose to make this refund by reducing the I owe under this Note on by making Principal a dmxt payment to rne. if a refund reduces Principal. qtill the reduction be treated as a partial Prepaymetit. 6. BORROWER'S FAILURE TO PAY AS REQUIRED 80RN( (A)LateCharge for OverditePayments Ifthe NoteHolderhas notreceivedthe full amount of any monthlypayment bythe end ofFifcean calendar days pay a late charge to the Note Holder.'The after the date it is due, I will annount of the charge will be a.co % of my overdue payment of principal and interest. pay this late charge promptly 1 will but onlyonce on each late payment. (B) Default If I do not pay the full amount of each momhlypayment on the date it is due, I will be in defauh. (C) Notice of Default If the Note I am in default, Holdermay send me a written notlee telling 1.do not me that if pay the overdue amonni by a cenalm date, the Note Holder may require the full me to pay immediately amount ofPrincipalwhichhas not been paid and all That date must be at least 30 days after the date on which the interest shat I owe on that amount. die notice is rnailed tome or delivered by other means. (D) No Walver By Note Holder Even if,at a limewhen ( am indefault,the NoteHolderdocs notrequireme to pay immediatelyinfullas described above, the Note Holder willstill have the rishi to do so if I am in defauh at a later time. (E) Payment ofNote Holder'sCosts andExpenses ffdie Note Holder me to pay has required as described above, in thil imrnediately the NoteHolderwillhave the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not pmhibitad by applicablolaw. Those attorneys' for exarnple, expenses include. reasonable fees. 7. GIVING OF NOTICES law Unless applicable requiresa different method, any notice that must be given to Inc under thisNote willbe given by &!hedag it or by mailing itby first tome class mail at the Property address if Address above or at a diffbrent 1 givethe Note Holdera notice of my different address. Any that must be given notice tothe Note Holderunder this Note will be given it or by delivering by mailingit by first class mail at the address sinted in Section to the Note Holder 3(A) above or at a different address if t am givena notice of that address. different 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE ifmore than one petson signs this and peg,o-.s"y Note, each person is fully obligated made in the promises to keep all of this Note, the promise including amount owed. to pay the full Any person who is a guarantor, of surety or endorserthis Note is also obligated to do these things. Any person who gakesover these obligations, includingthe obligations of a guaranter, surety or endorser of to keep all of is also obligated this Note, the prorniscs made in this Note. "the Note Holdermay enforce its rights under this Note against cach person individually us rnaybe required to or against all of us together. 'This means that any one of pay all of the amounts owed under this Note. 9. WAlVERS I and anyother personwho has obligations under thisNone waivethe rights of Presentrnent and Notice ofDishonor. "Presemment' Dishonor" means the right the Note Holder to require to demand payment of amounts due. "Noticeof means the right to give notice to other persons that arnounts due have not been paid. to require the Note Holder NY 7920 REDACTED Form 1 -5NtNY| tooosi psoe2el ;i wwi.•a 100 of 12 6 4 2 b (2017 U.L : J U rm; eFILED: ...-su . wasuw ROCKLAND av wuiN COUNTY .i. X CLERK U04/24/2019 U1d51% ( 05:28 PM RECEIVED INDEX NYSCEF: NO.04/25/2017 031849/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 139 RECEIVED NYSCEF: 04/24/2019 . . 10. LUNIFORM SECURED N(yrE ThisNote is a uniform instrument withlimitedvariations in some jurisdictions. given to the to the protections in addition Note Holderunder this Note. a Mortgage.Deed of Trust, or Sect:rity Deed (the instrumem"), "Security dated the same date as thisNote,psotects the Note Holderfrom possible losses which might xsultif I make in this I do not keep the promises which Note.1hat Security describes how and under Instrument what e-ditionsI may be required to make inunediate payment in full of Sorne of those conditions all amo6nts I owe under this Note. are described as follows: Lendermay requireimmediate payment in full of allSums Secured by eds Security insinunent or if all any pan of the Propeny,or if in the Propeny, any right is sold or transferred withoutLender's prior written permission.ifBorrower is nota natural person and a beneficial interest in Borroweris sold or transferred withoutLender'spriorwritten Lender also may require pemtission. immediatepayment in full. However,this optionshal) not be exercised by Londer if such exercise is prohibited Law. by Applicable ifLenderrequiresimmediatepayment in full underthis Section 18, Lenderwillgiveme a notice which states this requirement. *fhenoticewillgiveme at Icast 30 days payment. The go make the required 30-day periodwillbegin on the date the notice is given to me in the manner required by S
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Ruling
STEPHANIE GAUSS VS DAVID DE WISPELAERE, ET AL.
Jul 18, 2024 |23TRCV03015
Case Number: 23TRCV03015 Hearing Date: July 18, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Thursday, July 18, 2024 Department M Calendar No. 18 PROCEEDINGS Stephanie Gauss v. David De Wispelaere, et al. 23TRCV03015 1. David De Wispelaere (Wispelaere), Annie Maes (Maes) and Maes Capitals Demurrer to First Amended Complaint 2. David De Wispelaere (Wispelaere), Annie Maes (Maes) and Maes Capitals Motion to Strike Portions of First Amended Complaint 3. David De Wispelaere (Wispelaere), Annie Maes (Maes) and Maes Capitals Motion to Augment Bond TENTATIVE RULING David De Wispelaere (Wispelaere), Annie Maes (Maes) and Maes Capitals Demurrer to First Amended Complaint is sustained with 20 days leave to amend, sustained without leave to amend, in part, and overruled, in part. David De Wispelaere (Wispelaere), Annie Maes (Maes) and Maes Capitals Motion to Strike Portions of First Amended Complaint is deemed moot. David De Wispelaere (Wispelaere), Annie Maes (Maes) and Maes Capitals Motion to Augment Bond is continued to August 26, 2024. Background Plaintiffs Complaint was filed on September 12, 2023. Plaintiff alleges the following facts. In September 2020, Plaintiff purchased real property commonly known as 8301 Wiley Post Ave., Los Angeles, CA 90045 (8301 Wiley Post). Plaintiff made a down payment of 25% of the purchasing price and obtained a loan for the balance with FCI Lender Services, Inc. Plaintiff decided to build a duplex. Plaintiff obtained a loan from David De Wispelaere for $1,500,000.00. The duplex has common addresses: 8303 and 8305 Wiley Post Ave., Los Angeles, CA 90045. As part of the loan, De Wispelaere was to pay off the existing FCI loan. Unbeknownst to Plaintiff, De Wispelaere changed the lender from himself to Defendant Annie Maes (Maes). The loan amount was also changed. DeWispelaere and Maes are not licensed to accept consumer loans. During the loan origination process, Plaintiff was never asked to complete a 1003 Loan Application or provide a copy of her credit report, or income or asset verification. Plaintiff alleges that the loan is in violation of federal lending laws and that the loan charges usurious interest. In the original Complaint, Plaintiff alleged the following causes of action: 1. Violations of the Truth in Lending Act; 2. Violations of the Real Estate Settlement Procedures Act; 3. Violations of the Equal Credit Opportunity Act; 4. Usury; 5. Violations of Cal. Business & Professions Code § 17200, et seq; 6. Financial Abuse of Elder; 7. Injunctive Relief; 8. Negligence. On March 14, 2024, Defendants demurrer was overruled in part and sustained with leave to amend in part. On April 9, 2024, Plaintiffs filed a First Amended Complaint. The FAC included the first six causes of action, omitted the seventh and eighth causes of action, and added new causes of action for Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, Fraud, and IIED. Meet and Confer Defendants set forth a meet and confer declaration in sufficient compliance with CCP § 430.41. (Decl. Jacoby Perez.) Demurrer A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.) Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is uncertain. Uncertainty exists where a complaints factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Defendants demur to the second, third, sixth, and seventh through tenth causes of action for failure to state facts sufficient to constitute a cause of action. CCP § 430.10(e). As to the demurrer brought by Defendants David De Wispelaere and Maes Capital, the demurrer is sustained with 20 days leave to amend, in part, and without leave to amend, in part. Plaintiff has not alleged sufficient factual allegations against these Defendants. The factual allegations are related to alleged aspects and wrongdoing concerning the subject loan. Plaintiff has specifically alleged that these demurring Defendants were not the lenders, but that only Defendant Annie Maes was the lender. Thus, Defendants David De Wispelaere and Maes Capitals demurrer is sustained with 20 days leave to amend as to the second, third, sixth, and eighth causes of action. The demurrer to the seventh, ninth, and tenth causes of action is sustained without leave to amend. As to Defendant Annie Maes, the Court makes the following ruling. Second Cause of Action for Violations of the Real Estate Settlement Procedures Act (RESPA) The demurrer to the second cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action. Defendants argue that RESPA applies only to federally related mortgage loans as defined in 12 U.S.C. § 2602. For purposes of RESPA, a federally related mortgage loan is one involving any loan that is secured by a mortgage on residential real estate where the proceeds are used to pay an existing loan secured by the same property and the loan is made by a federally-insured lender or another agency of the federal government through an housing or urban development program. 12 U.S.C.A. § 2602(1)(A),(B). Miller & Starr § 6:15. The Real Estate Settlement Procedures Act (RESPA), 2 Cal. Real Est. § 6:15 (4th ed.) Here, Plaintiff has not alleged specific facts to demonstrate that this particular loan would, in fact, qualify as a federally related loan. Curiously, in Plaintiffs opposition, Plaintiff refers to allegations set forth in paragraphs 61 to 63 which are allegations set forth in the first cause of action, and not the second cause of action. Plaintiff also states that allegations to support the conclusion of federally related mortgage loan was set forth in paragraph 87. However, that section refers to TILA not RESPA. PLAINTIFF is informed and believes, and thereon alleges, that both the Loan and DEFENDANTS are subject to TILA[. . .] (FAC, ¶ 87). In any event, if that was a typographical error, the allegation is made on information and belief. [P]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true and thus a pleading made on information and belief is insufficient if it merely assert[s] the facts so alleged without alleging such information that lead[s] [the plaintiff] to believe that the allegations are true. Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 11581159 (internal citations and quotations are omitted; emphasis in original.) As to the allegation made on information and belief, Plaintiff has failed to allege sufficient facts that would support the contention that the belief is true. Defendants demurrer to the second cause of action is sustained with 20 days leave to amend. Third Cause of Action for Violations of the Equal Credit Opportunity Act (ECOA) The demurrer to the third cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to constitute a cause of action. The ECOA makes it unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction [] on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract) 15 U.S.C. § 1691(a). In the original Complaint, Plaintiff failed to allege any facts to show that she was discriminated against due to any protected class as defined in the statute. In the FAC, Plaintiff has now alleged that she is female, of Asian ancestry, born in Korea, uses English as a second language, and was over 62 years of age at the time in question. (FAC, 92.) However, Plaintiff alleged no facts that she was discriminated against due to these protected categories. The allegations are sheer conclusions without any supporting facts. Defendants demurrer to the third cause of action is sustained with 20 days leave to amend. Sixth Cause of Action for Financial Abuse of Elder Defendants demurrer is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action. Welf. & Inst. Code, § 15610.30 states, in relevant part: (a) Financial abuse of an elder or dependent adult occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70. Pleading a claim for elder abuse requires specific facts of intentional or, at a minimum, reckless conduct. See, Worsham v. OConnor Hospital (2014) 226 Cal.App.4th 331, 338. To state the statutory cause of action for Financial Elder Abuse, Plaintiff must plead specific facts. See, Covenant Care v. Superior Court (2004) 32 Cal.4th 771, 790. Plaintiff has failed to state the requisite specific facts to state a cause of action. Plaintiff attempts to allege an elder abuse cause of action based on financial abuse. However, there are no facts to show that demurring Defendant herein took, secreted, appropriated, obtained, or retained real or personal property, or assisted in doing so. Plaintiff attempts to satisfy the taking requirement by alleging that Defendant withheld loan proceeds, charged interest on loans, clouded title, and destroyed Plaintiffs credit. (FAC, ¶¶ 116-118.) None of these facts demonstrate an actual taking of Plaintiffs personal property. Eighth Cause of Action for Breach of Contract Defendants demurrer is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action. The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. Coles v. Glaser (2016) 2 Cal.App.5th 384, 391(internal quotations omitted). [T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct. [...] If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 45859. Plaintiffs must either: (a) set forth the terms of the contract verbatim, (b) attach a copy of the contract and incorporate it by reference, or (c) plead its legal effect. McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489. First, Plaintiff has failed to specify the contract. Plaintiff makes reference to the Agreement and Loan Documents. (FAC, 132.) The Agreement was previously defined as the loan agreement. It appears that the Agreement was attached as Exhibit 2. It is unclear what other document or documents that Plaintiff also considers to be a contract. Plaintiff alleges a series of breaches, but it is unclear how these activities are to be considered a breach of the contract. Again, as to the loan agreement that was attached as Exhibit 2, none of these allegations appear to be encompassed within the written agreement. Plaintiff has failed to allege her own performance or excuse for non-performance. Plaintiff has failed to allege resulting damages. Seventh Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing Ninth Cause of Action for Fraud Tenth Cause of Action for IIED The demurrer to the seventh, ninth, and tenth causes of action is sustained without leave to amend. Generally, upon the sustaining of the demurrer, the scope of leave to amend is to amend the existing causes of action and not to add new causes of action. See, People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785. Addition of a new cause of action may be proper, however, when it directly responds to the court's reason for sustaining the earlier demurrer. Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. The Court notes that these causes of action for Constructive Fraud and Breach of Fiduciary Duty were not set forth in the First Amended Complaint. The scope of leave to amend, upon the sustaining of the demurrer, was not to add new causes of action that were not previously raised. In the prior demurrer, the Court noted in sustaining the demurrer to the negligence cause of action that upon amendment Plaintiff may add a new cause of action for Breach of Contract. However, the seventh, ninth, and tenth causes of action were not mentioned as causes of action that could be added in the amended pleading. Motion to Strike The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437. Defendants move to strike the following: 1. Paragraphs 123-130 in their entirety, constituting the seventh cause of action for Breach of the Implied Covenant of Good Faith and Fair Dealing; 2. Paragraphs 133-137, in their entirety, constituting the ninth cause of action for Fraud; 3. Paragraph 138-143, in their entirety, constituting the tenth cause of action for Intentional Infliction of Emotional Distress; 4. The prayer for relief pertaining to the seventh cause of action, located on Page 29, lines 11-15 of the FAC; 5. The prayer for relief pertaining to the ninth cause of action for Fraud, located on Page 28, lines 20-25, of the FAC. 6. The prayer for relief pertaining to the tenth cause of action for Intentional Infliction of Emotional Distress, located on Page 29 of the FAC, lines 26-28, and continuing through lines 1 through 5 of page 30 of the FAC. The motion to strike is moot upon the sustaining of the demurrer without leave to amend as to the seventh, ninth, and tenth causes of action. Motion to Augment Bond Code Civ. Proc., § 996.010 states: (a) If a bond is given in an action or proceeding, the court may determine that the bond is or has from any cause become insufficient because the sureties are insufficient or because the amount of the bond is insufficient. (b) The court determination shall be upon motion supported by affidavit or upon the court's own motion. The motion shall be deemed to be an objection to the bond. The motion shall be heard and notice of motion shall be given in the same manner as an objection to the bond. (c) Upon the determination the court shall order that a sufficient new, additional, or supplemental bond be given within a reasonable time not less than five days. The court order is subject to any limitations in the statute providing for the bond. (d) If a sufficient bond is not given within the time required by the court order, all rights obtained by giving the original bond immediately cease and the court shall upon ex parte motion so order. Defendants move to increase the amount of the undertaking from $25,000 to $570,510.23. Defendants contend that, at the time of the original preliminary injunction hearing, the Court relied upon an appraisal evaluation of the property of $2.9 million. Defendants argue that the Court should, instead, utilize its own appraisal of $2.4 million. In addition, Defendants state that their anticipated costs and fees that were evaluated at the original hearing were too low and that this amount exceeds $240,000. Defendants motion to augment bond is continued to August 26, 2024. Defendants submitted additional evidence, in the form of the supplemental declarations of David De Wispelaere and Olivier J. Labarre, with the Reply. The Court has discretion to consider new evidence in reply papers in ruling on a motion provided the other party has notice and an opportunity to respond. See, Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449-50. Plaintiff is provided the opportunity to respond to the new evidence. Any supplemental opposition and reply are to solely address the new evidence submitted by moving party and any issues that arise therefrom. Any supplemental opposition is to be filed and served under the time requirements of CCP § 1005(b). The supplemental opposition shall be no more than 5 pages in length. The supplemental reply shall be no more than 3 pages in length and no new evidence is authorized with the Reply. Defendants are ordered to give notice of this ruling.
Ruling
ISA J. MUHAWIEH VS. YOHALMA MARTINEZ ET AL
Jul 18, 2024 |CUD24674516
Real Property/Housing Court Law and Motion Calendar for July 18, 2024 line 10. PLAINTIFF ISA MUAWIEH MOTION FOR SUMMARY JUDGMENT Hearing Required to address service. Proof of Service on file indicates service at a location that is not Defendant's address of record. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
Ruling
GAETANI REAL ESTATE VS. ZACHARY HOWITT ET AL
Jul 15, 2024 |CUD23672769
Real Property/Housing Court Law and Motion Calendar for July 15, 2024 line 7. DEFENDANT ZACHARY HOWITT Notice Of Motion And Motion To Compel Plaintiffs Attendance At Deposition And Request For Sanctions Hearing Required to address the status of the deposition. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
Ruling
THE PICO PLACE LLC VS FREDDIE LEWIS
Jul 16, 2024 |24STCV01908
Case Number: 24STCV01908 Hearing Date: July 16, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING THE PICO PLACE LLC, vs. FREDDIE LEWIS. Case No.: 24STCV01908 Hearing Date: July 16, 2024 Plaintiff The Pico Place LLCs unopposed motion for summary judgment is granted. Plaintiff The Pico Place LLC (Pico Place) (Plaintiff) moves unopposed for summary judgment against Defendant Freddie Lewis (Lewis) (Defendant). (Notice of Motion, pg. 2; C.C.P. §§437c, 1107.7.) Plaintiff moves on the grounds there is no material disputed facts rendering summary judgment appropriate regarding possession of the property commonly known as 6565 S Western Ave., #3, Los Angeles, CA 90047. (Notice of Motion, pg. 2.) Procedural Background On January 12, 2024, Plaintiff had Defendant served with a Three-Day Notice to Pay Rent or Quit for rent owed for the rental period of March 2023 through January 2024 in the amount of $40,100.00. (Decl. of Saghian ¶6, Exhs. 2, 3.) On January 25, 2024, Plaintiff filed the operative Complaint against Defendant for unlawful detainer. On or about February 7, 2024, Defendant filed an Answer. On or about April 3, 2024, Defendant filed for Voluntary Chapter 13 Bankruptcy through the California Central Bankruptcy Court, Case No. 2:24-bk-12573-VZ. The case was automatically dismissed on April 25, 2024, for Defendants failure to file schedules, statements and/or plan. (5/31/24 Notice of Lodging.) On May 30, 2024, Plaintiff filed the instant motion for summary judgment. As of the date of this hearing Defendant has not filed an opposition. Summary of Allegations Plaintiff alleges it is the owner of 6565 S Western Ave., #3, Los Angeles, CA 90047, Los Angeles County (Premises). (Complaint ¶¶3-4.) Plaintiff alleges on or about February 1, 2023, Defendant agreed to rent the premises as a month-to-month tenancy and agreed to pay monthly rent of $4,000.00 on the first of the month. (Complaint ¶6a.) Plaintiff alleges this oral agreement was made with Plaintiff, and a copy of the written agreement is not attached to the Complaint because the written agreement is no tin the possession of the landlord or the landlords employees and agents, and because this action is solely for nonpayment of rent. (Complaint ¶¶6b, f.) Plaintiff alleges the tenancy is not subject to the Tenant Protection Act of 2019 because the tenancy is commercial in nature. (Complaint ¶7a.) Plaintiff alleges the tenancy was terminated for at-fault just cause, under §1946.2(b)(1). (Complaint ¶8a.) Plaintiff alleges Defendant and all unknown occupants were served a 3-day notice to pay rent or quit. (Complaint ¶¶9a(1), e, Exh. 2.) Plaintiff alleges the notice was served on Defendant by personally handing a copy to Defendant on January 12, 2024. (Complaint ¶¶10a(1).) Plaintiff alleges on January 18, 2024, the period stated in the notice expired at the end of the day and Defendant failed to comply with the requirements of the notice by that date. (Complaint ¶9b.) Plaintiff requests possession of the premises, costs incurred in this proceeding, including past-due rent of $40,100.00, reasonable attorney fees, forfeiture of the agreement, and damages at the rate of $133.33 per day for fair rental value of the premises from January 19, 2024, for each day Defendants remains in possession through entry of judgment. (Complaint ¶¶13, 19.) Legal Standard A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (C.C.P. §437c(c).) Unlawful Detainer (1st COA) To establish a claim for unlawful detainer, a plaintiff must prove the following elements: (1) plaintiff owns/leases the property; (2) plaintiff rented/subleased the property to defendant; (3) under the lease/rental agreement/sublease, defendant was required to pay rent in a specified amount per period; (4) plaintiff properly gave defendant three days written notice to pay the rent or vacate the property; (5) as of the date of the three-day notice, at least the amount stated in the three-day notice was due; (6) defendant did not pay the amount stated in the notice within three days after service/receipt of the notice; and (7) defendant is still occupying the property. (See C.C.P. §1161; CACI 4302.) Plaintiff submitted undisputed evidence that it owns the Premises leased to Defendant. (Decl. of Saghian ¶4, Exh. 1.) Plaintiff submitted undisputed evidence that it entered into an oral lease agreement for the Premises with Defendant on February 1, 2023, for the amount of $4,000.00 to be paid on the first day of each calendar month. (Decl. of Saghian ¶5.) Plaintiff submitted undisputed evidence that the three-day notice of pay rent or quit was personally served to Defendant. (Decl. of Saghian ¶6, Exhs. 2, 3.) Plaintiff submitted undisputed evidence that after the three-day notice of pay rent or quit, Defendant failed to pay or quit possession of the Premises, and Plaintiff has not received any rent from Defendant since March 2023 and Defendant is still in possession of the Premises. (Decl. of Saghian ¶8.) Plaintiff met its burden to demonstrate there is no triable issue of material fact and it is entitled to judgment as a matter of law. Ordinarily, Plaintiff would shift the burden to Defendant to raise a triable issue of material fact. However, this motion is unopposed, and no burden-shifting is applicable. Accordingly, Plaintiffs unopposed motion for summary judgement is granted. Conclusion Plaintiffs unopposed motion for summary judgment against Defendant is granted. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court
Ruling
LOCHRIDGE vs RUSHMORE SERVICING, LLC, A LIMITED LIABILITY COM...
Jul 18, 2024 |Civil Unlimited (Mortgage Foreclosure) |24CV066873
24CV066873: LOCHRIDGE vs RUSHMORE SERVICING, LLC, A LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Preliminary Injunction filed by LAUREN LOCHRIDGE (Plaintiff) in Department 24Tentative Ruling - 07/17/2024 Rebekah EvensonThe Motion for Preliminary Injunction filed by LAUREN LOCHRIDGE on 03/21/2024 isDenied.Plaintiff’s Motion for Preliminary Injunction is DENIED.In determining whether to issue a preliminary injunction, the Court considers (1) the likelihoodthe moving party will prevail on the merits of her claims, and (2) the interim harm to the partiesif an injunction is granted or denied. The moving party must prevail on both factors to obtain aninjunction. (Sahlolbei v. Providence Healthcare Inc. (2003) 112 Cal.App.4th 1137, 1145.)Plaintiff has failed to demonstrate a likelihood of prevailing on her claims for (1) Violation ofCivil Code § 2923.6, (2) Violation of Civil Code § 2923.7, and (3) Unfair Business Practices inViolation of Business & Professions Code § 17200 et seq.To prevail on a claim for violation of Civil Code § 2923.6, Plaintiff must demonstrate that shesubmitted a complete application for loan modification prior to the recording of the Notice ofTrustee’s Sale. (See Civil Code § 2923.6(c).) Plaintiff alleges she did so in paragraph 34 of herunverified Complaint, but her declaration dated March 20, 2024 does not expressly addresswhether the application she submitted on February 12, 2024 was complete. (See Plaintiff’sdeclaration, paragraph 17.) Plaintiff’s declaration dated June 12, 2024 (at paragraph 23) statesthat she was never informed prior to April 4, 2024 that Defendant needed any additionalinformation to review her application. Defendant submitted evidence showing that in February2024 Plaintiff was informed in writing that her application is incomplete, and that additionalinformation was required to process the application. Specifically, on February 15 and 17, 2024,Defendant requested that Plaintiff provide further information to verify her income and to verifythat Plaintiff is divorced from the co-borrower on the loan. (See the Supplemental Declaration ofEdward Hyne dated June 12, 2024, Exhibits 8 and 10; see also Exhibit 3, a noticed dated April 9,2024 explaining that Plaintiff’s application for loan modification could not be consideredbecause she failed to provide the previously requested documents.) Plaintiff provides noevidence that, to this date, she provided the requested information to Defendant.To prevail on a claim for violation of Civil Code § 2923.7, Plaintiff must demonstrate that shewas not provided with a single point of contact to communicate about foreclosure preventionalternatives. (See Civil Code § 2923.7(a).) Again, Plaintiff alleges that Defendant failed toprovide her with a single point of contact (see Complaint, paragraph 41), but her declarationsdated March 20, 2024 and June 12, 2024 do not expressly address that issue. Defendant’sevidence establishes that Plaintiff’s bankruptcy attorney was twice provided with a single pointof contact for Plaintiff to avoid foreclosure. (See Hyne’s declaration dated June 12, 2024 at SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV066873: LOCHRIDGE vs RUSHMORE SERVICING, LLC, A LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Preliminary Injunction filed by LAUREN LOCHRIDGE (Plaintiff) in Department 24paragraph 16 and Exhibit 5 thereto.) Plaintiff’s declaration does not address whether she everattempted to contact either of the two individuals designated as the single point of contact (one inthe letter dated September 19, 2023, the other in the letter dated January 5, 2024) about herapplication for loan modification.Plaintiff has not demonstrated a likelihood of prevailing on her claim for Unfair BusinessPractices, which is contingent on the violations of Civil Code §§ 2923.6 and 2923.7, for thereasons set forth above.Defendant’s Request for Judicial Notice is GRANTED.
Ruling
Martensen VS Yu
Jul 16, 2024 |Civil Unlimited (Other Real Property (not emin...) |RG19045416
RG19045416: Martensen VS Yu 07/16/2024 Hearing on Motion to be Relieved as Counsel filed by Yung-Shung Yu (Defendant) in Department 517Tentative Ruling - 07/11/2024 Keith FongThe Court is inclined to grant attorneys Jessica Takano and Idea Schum of Donahue FitzgeraldLLP’s motion to be relieved as counsel. However, as both the declaration in support of themotion and Defendant Singh’s response to the motion have raised issues regarding the depositionof Yung Shung Yu contrary to prior submissions to this Court, the Court ORDERS the parties toappear at the hearing to address these concerns.ZOOM LOG-IN INFORMATION FOR DEPARTMENT 517 IS BELOW.Join ZoomGov Meetinghttps://www.zoomgov.com/j/16181989812Meeting ID: 161 8198 9812One tap mobile+16692545252,,16181989812# US (San Jose) 16692161590,,16181989812# US+(San Jose)Dial by your location+1 669 254 5252 US (San Jose)+1 669 216 1590 US (San Jose)+1 551 285 1373 US+1 646 828 7666 US (New York)833 568 8864 US Toll-freeMeeting ID: 161 8198 9812Find your local number: https://www.zoomgov.com/u/ad6x1ZH23dJoin by SIP16181989812@sip.zoomgov.comJoin by H.323161.199.138.10 (US West)161.199.136.10 (US East)Meeting ID: 161 8198 9812
Ruling
LANKSHERMAN PLAZA, LLC, ET AL. VS WEST AMERICAN INSURANCE COMPANY, AN INDIAN CORPORATION, ET AL.
Jul 22, 2024 |21STCV45782
Case Number: 21STCV45782 Hearing Date: July 22, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 22, 2024 Case Name: Lanksherman Plaza, LLC, et al. v. West American Insurance Company, et al. Case No.: 21STCV45782 Matter: Motions to Compel Further Responses (2x) Moving Party: Defendant West American Insurance Company Responding Party: Plaintiffs Lanksherman Plaza, LLC and Dannys Liquor & Market, Inc. Notice: OK Ruling: The Motions are granted. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. On December 14, 2021, Plaintiffs Lanksherman Plaza, LLC (Lanksherman) and Dannys Liquor & Market, Inc. (Dannys Liquor) filed the operative Complaint for (1) breach of contract (Lanksherman against Defendant West American Insurance Company (West)), (2) breach of contract (Dannys Liquor against Defendant Massachusetts Bay Insurance Company (Mass)), and (3) negligence/negligent entrustment (both Plaintiffs against Defendants Turcios Trucking, Inc., Francisco Aparicio, Romero Turcios). The allegations of the Complaint are as follows. Lanksherman owns certain commercial property located at 7202 Lankershim Boulevard, North Hollywood, California 91605. Dannys Liquor operates a business at this property. Francisco Aparicio negligently drove a tractor-trailer into the subject property, causing damage. Defendants Turcios Trucking, Inc. and Romero Turcios are the owners of the tractor-trailer and negligently entrusted Aparicio with such tractor-trailer. West provided property/commercial liability insurance to Lanksherman for the subject property and breached that policy by failing to pay all damages covered by the policy. Mass provided a businessowners policy to Dannys Liquor and breached that policy by failing to pay all damages covered under the policy. West now seeks to compel further responses to most of its requests for production, set one, nos. 1-87 from Plaintiffs Lanksherman and Dannys Liquor. The responses were all essentially as follows: Objection: attorney-client privilege, work product. Without waiving this objection, all responsive documents that can be located on a diligent search and reasonable inquiry will be produced. While nearly sufficient, Plaintiffs apparently failed to indicate what documents relate to what requests. (Code Civ. Proc. § 2031.280(a).) Further, Plaintiffs should remove their reference to documents that can be located, if any, or other similar phrases. If something cannot be found then a response should be provided pursuant to CCP § 2031.230. Finally, if documents are being withheld on the basis of a privilege, then the basis for that privilege must be explained or a privilege log must be provided. In sum, the Motions are granted. Further responses are to be provided within 30 days. The Court awards reduced sanctions in the total amount of $1,000. Plaintiffs are jointly and severally liable for this sum. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
LORAN SIMON VS. TODD BRABEC ET AL
Jul 17, 2024 |CGC22601268
Real Property/Housing Court Law and Motion Calendar for July 17, 2024 line 3. PLAINTIFF LORAN SIMON Notice And Plaintiff'S Motion To Compel Defendant 426 Fillmore Association'S Further Discovery Responses To Plaintiff'S Request For Production Of Documents, Set No. Two, And Request For Sanctions Hearing Required to address why a discovery referee should not be appointed in light of the number of pending discovery motions. Parties to meet and confer before 9:30 a.m. on July 17, 2024 regarding the appointment and selection of the referee. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
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