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FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK U.S. Bank National Association as trustee for SUMMONS CSFB Adjustable Rate Mortgage Trust 2005-10, INDEX NO.: Plaintiff, MORTGAGED PREMISES: vs. 400 E 54th Street, Unit 7F Anthony Ricciardi a/k/a Anthony Riccardi; New York, New York 10022 Limore D. Ricciardi; Board of Managers of The Revere Condominium; Board of Managers of the Block: 1365 Lot: 1349 East 54th Street Condominium; New York State Department of Taxation and Finance; New York City Transit Adjudication Bureau; John Doe #1 through #6, and Jane Doe #1 through #6, the last twelve names being fictitious, itbeing the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants. THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in the above captioned action and to serve a copy of your Answer on the Plaintiff's attorney within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after completion of service where service is made in any other manner than by personal delivery within the State. The United States of America, if designated as a Defendant in this action, may answer or appear within sixty (60) days of service hereof. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. [THIS SPACE IS 1NTENTIONALLY LEFT BLANK] 9926-5875 1 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 New York County is designated as the place of trial. The basis of venue is the location of the mortgaged premises foreclosed herein. Date: By: Kyle Jacobs, s . McCalla R m r Leibert Pierce, LLC 420 Lexington Avenue, Suite 840 New York, New York 10170 Phone: 347-286-7409 Fax: 347-286-7414 Attorneys for Plaintiff U.S. Bank National Association as trustee for CSFB Adjustable Rate Mortgage Trust 2005-10 File No. 9926-5875 9926-5875 2 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 Special Summons Requirement Pursuant to RPAPL §1320 NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this Summons and Complaint by serving a copy of the Answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the Answer with the Court, a default judgment may be entered and you can lose your home. Speak to an attorney or go to the Court where your case is pending for further information on how to answer the Summons and protect your property. Sending a payment to your mortgage company will not stop this foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY1 AND FILING THE ANSWER WITH THE COURT. 9926-5875 3 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 HELP FOR HOMEOWNERS IN FORECLOSURE New York State Law requires that we send you this notice about the foreclosure process. Please read it carefully. SUMMONS AND COMPLAINT You are in danger of losing your home. If you fail to respond to the Summons and Complaint in this foreclosure action, you may lose your home. Please read the Summons and Complaint carefully. You should immediately contact an attorney or your local legal aid office to obtain advice on how to protect yourself. SOURCES OF INFORMATION AND ASSISTANCE The State encourages you to become informed about your options in foreclosure. In addition to seeking assistance from an attorney or legal aid office, there are government agencies and non-profit organizations that you may contact for information about possible options, including trying to work with your lender during this process. To locate an entity near you, you may call the toll-free helpline maintained by the New York State Department of Financial Services at 1-877-BANK-NYS (1-877-226- or visit the department's website at: http://www.dfs.ny.gov 5697) RIGHTS AND OBLIGATIONS YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the right to stay in your home during the foreclosure process. You are not required to leave your home unless and until your property is sold at auction pursuant to a judgment of foreclosure and sale. Regardless of whether you choose to remain in your home, YOU ARE REQUIRED TO TAKE CARE OF YOUR PROPERTY and pay property taxes in accordance with state and local law. FORECLOSURE RESCUE SCAMS "save" Be careful of people who approach you with offers to your home. There are individuals who watch for notices of foreclosure actions in order to unfairly profit from a homeowner's distress. You should be extremely careful about any such promises and any suggestions that you pay them a fee or sign over your deed. State law requires anyone such services for profit to enter into a contract which offering describes the services they will perform and fees they will charge, and which fully prohibits them from money from you until have completed all such taking any they promised services. 9926-5875 4 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 NOTICE TO TENANTS OF BUILDINGS IN FORECLOSURE New York State Law requires that we send you this notice about the foreclosure process. Please read it carefully. We, U.S. Bank National Association as trustee for CSFB Adjustable Rate Mortgage Trust 2005-10, c\o our servicer, JPMorgan Chase Bank, N.A., are the foreclosing party and are located at Chase Records Center, ATTN: Correspondence Mail, Mail Code LA4-5555, 700 Kansas Lane, Monroe, LA 71203. We can be reached at 1- 888-310-1506. The dwelling where your apartment is located is the subject of a foreclosure proceeding. If you have a lease, are not the owner of the residence, and the lease requires payment of rent that at the time it was entered into was not substantially less than the fair market rent for the property, you may be entitled to remain in your home until 90 days after any person or entity who acquires title to the property provides you with a notice as required by section 1305 of the Real Property Actions and Proceedings Law. The notice shall provide information regarding the name and address of the new owner and your rights to remain in your home. These rights are in addition to any others you may have if you are a subsidized tenant under federal, state or local law or if you are a tenant subject to rent control, rent stabilization or a federal statutory scheme. ALL RENT-STABILIZED_TENANTS AND RENT-CONTROLLED TENANTS ARE PROTECTED UNDER THE RENT REGULATIONS WITH RESPECT TO EVICTION AND LEASE RENEWALS. THESE RIGHTS_ARE UNAFFECTE_D BY A BUILDING ENTERING FORECLOSURE STATUS. THE TENANTS IN RENT-STABILIZED AND RENT-CONTROLLED BUILDINGS CONTINUE TO B_E AFFORDED THE SAME LEVEL OF PROTECTION EVEN THOUGH THE BUILDING IS THE SUBJECT OF FORECLOSURE. EVICTIONS CAN ONLY OCCUR IN NE_W YORK STATE PURSUANT TO A COURT ORDER AND AFTER A FULL HEARING IN COURT. If you need further information, please call the New York State Department of Financial Services toll-free helpline at 1-877-BANK-NYS (1-877-226-5697) or visit the Department's website at http://www.dfs.ny.m. 9926-5875 5 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK U.S. Bank National Association as trustee for COMPLAINT FOR MORTGAGE CSFB Adjustable Rate Mortgage Trust 2005-10, FORECLOSURE Plaintiff' INDEX NO.: MORTGAGED PREMISES: Anthony Ricciardi a/k/a Anthony Riccardi; 400 E 54th Street, Unit 7F Limore D. Ricciardi; Board of Managers of The New York, New York 10022 Revere Condominium; Board of Managers of the East 54th Street Condominium; New York State Block: 1365 Lot: 1349 Department of Taxation and Finance; New York City Transit Adjudication Bureau; John Doe #1 through #6, and Jane Doe #1 through #6, the last twelve names being fictitious, itbeing the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, ifany, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants. Plaintiff, U.S. Bank National Association as trustee for CSFB Adjustable Rate Mortgage Trust 2005-10 ("Plaintiff"), by its Counsel, McCalla Raymer Leibert Pierce, LLC, and for its Complaint against the above named Defendants, alleges as follows: 1. Plaintiff, a corporate trustee, having an address c/o its servicer, JPMorgan Chase Bank, N.A, 3415 Vision Drive, Columbus, OH 43219, is the owner and holder of the note and mortgage to be foreclosed in this action, or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject note and mortgage. Plaintiff is duly licensed and/or organized under the laws of the United States of America or a state therein. 2. On or about August 8, 2005, Defendants Anthony Riccardi and Limore D. Ricciardi executed and delivered to Washington Mutual Bank, FA a certain note (the "Note") whereby they bound themselves in the amount of $525,000.00, together with accrued interest on the unpaid principal 9926-5875 6 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 balance and such other amounts until paid, pursuant to the terms of the Note. The Note bears an initial interest rate of 5.000%. A copy of the Note is attached hereto as Exhibit "A". 3. To secure payment of the Note, Defendants Anthony Ricciardi a/k/a Anthony Riccardi and Limore D. Ricciardi granted a mortgage (the "Mortgage") against the property owned by them located at 400 E 54th Street, Unit 7F, New York, New York 10022 (the "Mortgaged Premises") to Washington Mutual Bank, FA in the amount of $525,000.00 on August 8, 2005. The Mortgage was recorded in the New York County Clerk's Office on April 17, 2006, as CRFN No. 2006000211850 at which time the mortgage recording tax was duly paid. A copy of the Mortgage is attached hereto as Exhibit "B". 4. The Mortgage has been assigned as follows: (a) From The Federal Deposit Insurance Corporation, a corporation organized and existing under an Act of Congress and acting in its receivership capacity as Receiver of Washington Mutual Bank f/k/a Washington Mutual Bank, FA to JPMorgan Chase Bank, National Association by Assignment of Mortgage dated July 26, 2018 and recorded in the New York County Clerk's Office on August 7, 2018 as CRFN No. 2018000264069. A copy of the assignment is attached hereto as part of Exhibit "B". (b) From JPMorgan Chase Bank, National Association to U.S. Bank National Association as Trustee for CSFB Adjustable Rate Mortgage Trust 2005-10 by Assignmêñt of Mortgage dated July 26, 2018 and recorded in the New York County Clerk's Office on August 7, 2018 as CRFN No. 2018000264070. A copy of the assignment is attached hereto as part of Exhibit "B". 5. The terms of the Note and Mortgage have been modified as follows: 9926-5875 7 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 a) By a Loan Modification Agreement executed by Anthony Riccardi and Limore D. Ricciardi on June 27, 2017, effective August 1, 2017 and providing for firstnew monthly payment due on August 1, 2017, which modified the principal bahma of the Note to modified the $247,179.06, payment schedule, and further modified the interest rate to 3.500% annually for the remainder of the term (the "Modification Agreement I"). The Modification Agreement I has not been recorded but, ifnecessary, plaintiff will record same and/or pay any applicable mortgage tax. A copy of the Modification Agreement I is attached hereto as part of Exhibit "B". b) By a Loan Modificatioñ Agreement executed by Anthony Riccardi and Limore D. Ricciardi on January 4, 2018, effective February 1, 2018 and providing for first new monthly payment due on February 1, 2018, which modified the principal balance of the Note to $126,753.60, modified the payment schedule, and further modified the interest rate to 4.000% until October 1, 2018, after which the interest rate is governed by the terms of the original note (the "Modification Agreemeñt II"). The Modification Agreement II has not been recorded but, if necessary, plaintiff will record same and/or pay any applicable mortgage tax. A copy of the Modification Agreemcat II is attached hereto as part of Exhibit "B". 6. The tax map designation of the Mortgaged Premises is known as or part of Block: 1365 Lot: 1349. The full legal description of the Mortgaged Premises is attached hereto as Exhibit "C". 7. The Defendants referenced in paragraphs 2 and 3 above have failed to comply with the terms of the Note and/or Mortgage by failing to pay the monthly paymeñt amount due on May 1, 2018 and each subsequent payment that has come due thereafter, together with any other amounts for taxes, assecemants, water rates, escrow, insurance premiums and/or any other charges that have come due and are payable under the terms of the Note and Mortgage since the date of default set forth above. 8. The requisite contractual notice, if applicable, was sent by Plaintiffs servicer in accordance with the terms of the Mortgage notifying the borrower(s) of the default, advising of the actions 9926-5875 8 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 necessary to cure said default, the date by which to cure being at least thirty (30) days from the date of borrower(s)' said notice, and advising of the right to present a defense to the lawsuit. Despite the written demands, the default has not been cured. As a result, Plaintif T hereby elects and demands that the entire principal sum due on the Note, along with all unpaid interest, advances, fees and costs are accelerated and are now due and payable. 9. As of the date of default, the principal balance due and owing pursuant to the terms of the Note and/or Mortgage is $125,512.64, together with accrued interest, taxes, assessments, water rates, attorneys' maintenance, late fees, insurance premiums, escrow advances, reasonable fees, and any other charges that are validly due and owing pursuant to the terms of the Note and/or Mortgage, to be calculated and established at the time Plaintiff applies for Judgment of Foreclosure or Sale. 10. In order to protect its security, Plaintiff (directly and/or through its servicer or agent) has made advances, or may be obligated during the pendency of this action to make advances, for the payment of taxes, insurance premiums and other necessary charges affecting the Mortgaged Premises. Any such sums advanced under the terms of the Note, together with interest (to the extent allowed), are to be added to the sum otherwise due on and be deemed secured by the Mortgage. 11. All Defeñdâñts herein may have, or claim to have, some interest in, or lien upon the Mortgaged Premises or some part thereof, which interest or lien, if any, has accrued subsequent and/or subject to the lien of Plaintiff s Mortgage. "D" 12. The Defendants identified more fully in Exhibit are made parties solely for the reasons set forth in said Exhibit. "E" 13. The Defendants identified more fully in Exhibit are governmental entities made parties solely by reason of the facts set forth in said Exhibit. 9926-5875 9 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 14. Defendants, John Doe #1 through 6 and Jane Doe #1 through 6, are unknown occupants, if any exist, of the Mortgaged Premises being foreclosed or may be any persons or entities of any kind otherwise claiming a lien or interest in or against the Mortgaged Premises. 15. Plaintiff has complied with the applicable provisions of RPAPL §1304 and the Law, Banking specifically §§595-a, 6-1 and/or 6-m if applicable, in that the requisite notice was sent by its servicer, in at least fourteen point type, and containing a current listof at least five housing counseling agencies serving the county where the property is located from the most recent listing available from department of financial services to the borrowers by registered or certified mail and also by first class mail to the last known address of the borrowers and to the residence that is the subject of the Mortgage. Further, Plaintiff has complied with the applicable provisions of RPAPL §1306 in that the notice required by RPAPL §1304, if necessary, was filed with the superintendent of banks within three business days of mailing. If applicable, copies of the notices and registration(s) are collectively attached hereto as Exhibit "F". 16. In the event this action proceeds to a judgment in foreclosure and sale of the Mortgaged Premises, Plaintiff requests that the Mortgaged Premises be sold subject to any statement of facts an inspection of the Mortgaged Premises would disclose or an accurate would show; covenants survey restrictions, easem*nts and public utility agreements of record, if any; building and zoning ordiñañees and possible violations of same; any rights of tenants or persons in possession of the Mortgaged Premises; any equity/right of redemption of the United States of America within 120 days of the sale; and, any prior mortgages and liens. 17. If the Mortgage secures more than one property, Plaintiff requests the judgment in foreclosure provide for the sale of the properties in a particülm order to the extent necessary to satisfy the amounts due as determined by this Court. 9926-5875 10 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 attorneys' 18. Pursuant to the terms of the Mortgage, Plaintiff is entitled to recover fees and costs incurred in connection with this action. 19. All Exhibits attached hereto are expressly incorporated and made part of the Complaint with the same force and effect as if they were set forth herein. 20. There are no other pending proceedings to enforce the referenced Note and Mortgage. To the extent there are any prior proceedings, it is the intention of the Plaintiff that any such action be discontinued and the instant action be the only pending action. WHEREFORE, Plaintiff U.S. Bank National Association as trustee for CSFB Adjustable Rate Mortgage Trust 2005-10, demands judgment: 1. Adjudging and decreeing that any advances Plaintiff or itsservicer or agent made or will make pursuant to the terms of the Note and/or Mortgage for the payment of taxes, insurance premiums and other necessary charges affecting the Mortgaged Premises, together with interest (to the extent allowed), are valid liens against the Mortgaged Premises. 2. Fixing the amounts due the Plaintiff for all amounts due under the Note and/or Mortgage, including, but not limited to principal, interest, costs, late charges, expenses of sale, allowances and disbursem*nts, reasonable attorney's fees (to the extent allowed under the Note and/or Mortgage) and all other monies advanced and paid which are secured by the Mortgage; 3. That the Defêñdañts and allparties claiming by, through or under them and every other person or entity whose right, title, conveyance or encumbrance is subsequent to or subsequently recorded, or whose lien is being challenged by being a Defendant in this action, be barred and foreclosed of and from all right, claim, lien, interest or equity of redemption in and to said Mortgaged Premises; 4. That said Mortgaged Premises, or such part thereof as may be necessary to raise the amounts due herein, be decreed to be sold according to law subject to any statement of facts an inspection of the Mortgaged Premises would disclose or an accurate survey of the Mortgaged Premises would show; as 9926-5875 11 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 further discussed in the Complaint above; 5. That out of the mnniec from the sale of the Mortgaged the Plaintiff be arising Premises, may paid the amounts due on the Note and Mortgage, plus all other amounts provided for and allowed under attorneys' the judgmeñt, including fees and costs to be incurred in connection with this action, together with any sums expeñded as aforesaid, with interest as allowed by law upon any advances from the dates of the respective advance payments, to the extent allowed; 6. That any Defendants referenced in paragraph 2 of this Complaint (and any original or subsequent obligors so named in this action) may be adjudged to pay any deficiency that may remaiñ after applying all of said monies so applicable thereto, unless the debt has been listed and discharged in a bankruptcy proceeding with respect to said Defendant; 7. That either or any of the parties to this action may become a purchaser upon such sale; 8. That this Court, if requested, forthwith appoint a receiver of rents and profits of said Mortgaged Premises with the usual powers and duties; 9. In the event Plaintiff possesses any other liens against the Mortgaged Premises, they shall not be merged with the sa1ñe/instant matter. Plaintiff specifically reserves its right to share in any surplus monies from the sale of the Mortgaged Premises by virtue of its position as a judgment or other arising lien creditor, excluding the mortgage being foreclosed herein. [THIS SPACE IS INTENTIONALLY LEFT BLANK] 9926-5875 12 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 10. That the plaintiff be granted such other and further relief as may be just, equitable and proper. Date: Ý Ó O( By: | Kyle Jac s, sq. McCalla Ra mer Leibert Pierce, LLC 420 Lexington Avenue, Suite 840 New York, New York 10170 Phone: 347-286-7409 Fax: 347-286-7414 Attorneys for Plaintiff U.S. Bank National Association as trustee for CSFB Adjustable Rate Mortgage Trust 2005-10 File No. 9926-5875 9926-5875 13 of 275 FILED: NEW YORK COUNTY CLERK 01/10/2019 03:33 PM INDEX NO. 850005/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/10/2019 VALIDATION OF DEBT PURSUANT TO 15 U.S.C. 1692G (The Fair Debt Collection Practices Act) 1. The letter to which this Validation of Debt is attached relates to a debt owed to U.S. Bank National Association as trustee for CSFB Adjustable Rate Mortgage Trust 2005-10 which is serviced by JPMorgan Chase Bank, N.A. The amount due on the debt as of September 30, 2018 is $129,413.67. This amount does not include any payments or advances made, or expenses incurred, after that date. 2. Unless the consumer disputes the validity of the debt, or any portion of the debt, within thirty (30) days after receiving this notice, the law firm of McCalla Raymer Leibert Pierce, LLC will assume the debt to be valid. 3. If the consumer notifies McCalla Raymer Leibert Pierce, LLC within the thirty (30) day period that the debt or any portion of the debt is disputed, McCalla Raymer Leibert Pierce, LLC will obtain verification of the debt and mail a copy of the verification to the consumer.
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Aug 23, 2024 |23STCV00233
Case Number: 23STCV00233 Hearing Date: August 23, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 ALEX YUTKOVSKY, Trustee of the Alex Yutkovsky Living Trust, Plaintiff, v. NOHO 10 LLC, a California limited liability company; ARTUR NESTERENKO, an individual; GERMAN NESTERENKO, an individual; GERMAN SIMAKOVSKI, aka Greg Simakovski, an individual; BRONZETREE TERRACES, LLC, a Colorado limited liability company; and DOES 3 through 50, inclusive. Defendants. Case No.: 23STCV00233 Hearing Date: August 23, 2024 Trial Date: January 14, 2025 [TENTATIVE] RULING RE: Motion for Order that Requests for Admissions Served on Defendant German Simakovski be Deemed Admitted and Request for Monetary Sanctions [CCP § 2033.280(b)(c)]. Motion to Compel Discovery Responses of Defendant German Simakovski (Requests for Production of Documents, Set One) and Request for Sanctions [CCP § 2031.300(c)]. Background Plaintiff Alex Yutkovsky, Trustee of the Alex Yutkovsky Living Trust, (Yutkovsky) sues Defendants NOHO 10 LLC (NOHO), Artur Nesterenko, German Nesterenko, German Simakovski a/k/a Greg Simakovski (Simakovski), Bronzetree Terraces, LLC (Bronzetree), and Does 3 through 50 (collectively Defendants) pursuant to a July 21, 2023 Second Amended Complaint (SAC) alleging claims of (1) Fraud, (2) Theft by False Pretenses, (3) Aiding and Abetting Theft by False Pretenses, (4) Breach of Written Contract, (5) Breach of the Implied Covenant of Good Faith and Fair Dealing, (6) Intentional Interference with Contractual Relations, (7) Cancellation of Instrument, and (8) Declaratory Relief. The claims are based on allegations that Plaintiff Yutkovsky is a victim of a complex fraud carried out by Defendants German and Artur Nesterenko, managers of NOHO. According to the allegations, with assistance from the other Defendants, including Simakovski, Yutkovsky was persuaded to loan $1,056,000 to the Defendants. This loan was secured by a deed of trust on real property, with Yutkovsky's security interest being second in priority among secured lenders. The Defendants are accused of forging documents to fraudulently record a Substitution of Trustee and Full Reconveyance (the Reconveyance) of Yutkovskys deed of trust. This action extinguished Yutkovskys lien, allowing the Defendants to abscond with Yutkovskys funds. The original Complaint in this action was filed on January 5, 2023. On February 3, 2023, Yutkovsky filed his First Amended Complaint. On July 21, 2023 Yutkovsky filed the Second Amended Complaint. Defendant Greg Simakovski answered the SAC on September 1, 2023. On March 18, 2024, Yutkovsky served Simakovski with Requests for Admission (Set One), Requests for Production of Documents (Set One), Form Interrogatories (Set One), and Special Interrogatories (Set One). On May 6, 2024, Yutkovsky filed a motion to deem the requests for admissions served on Simakovski be admitted and for monetary sanctions of $3,912.95. The hearing was originally scheduled for July 26, 2024. The Court continued the hearing to August 23, 2024 (Min. Order at p.1, July 17, 2024.) On June 11, 2024, Yutkovsky filed three motions to compel the discovery responses of Simakovski for the requests for production of documents, form interrogatories and special interrogatories. On August 20, 2024, Simakovski in propria persona opposed the motion to deem the requests for admissions admitted, explaining that he did not respond to the discovery requests on time because his attorney did not communicate the requests to him. (Opp. at p. 2, lines 10-13; Decl. at p. 5, lines 4-7.) As a result, he did not receive actual notice of the requests until after the deadline had passed. (Opp. at p. 2, lines 14-15.) Simakovski has since submitted responses to all the discovery requests in question. (Opp. at p. 2, 20-24, Exh 3.) The filed does not reflect any Reply as of the date of this ruling. Motions Timeliness There is no deadline for making a motion to deem requests (RFA) admitted, but the discovering party should make the motion as soon as possible after the deadline to respond and before the cutoff for discovery motions. (See Code Civ. Proc., § 2024.020 [cutoff for discovery motions], 2033.280 [no deadline provided for motion to deem RFAs admitted]; Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584 [no time specified for bringing motion to deem RFAs admitted], disapproved on other grounds, Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 974.) A motion to compel an initial response should be filed and served at least 16 court days before the date set for the hearing plus any additional days for method of service. (Code Civ. Proc., 1005, subd. (b).) Legal Standard - Motion to Deem the Truth of Matters Alleged Admitted Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. CCP § 2033.010. Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared . . . . CCP § 2033.250(a). If a party to whom request for admissions are served fails to provide a timely response, the party to whom the request was directed waives any objections, including based on privilege or the work product doctrine. CCP § 2033.280(a). The requesting party can move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for monetary sanctions. CCP § 2033.280(b). The court shall issue this order unless the party to whom the request was made serves a response in substantial compliance prior to the hearing on the motion. CCP § 2033.280(c). No meet and confer is required on a motion to deem RFAs admitted. (See Code Civ. Proc., § 2033.280 [No meet and confer mentioned for motion to deem RFAs admitted]; cf. Code Civ. Proc., 2033.290, subd. (b)(1) [meet and confer required to compel further RFA responses]; People v. Trevino (2001) 26 Cal.4th 237, 242 [When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning].) A separate statement is not required when no response has been provided to requests for admission. (See Cal. Rules of Court, rule 3.1345, subd. (b).) Discussion Here, Yutkovsky served Simakovski with Requests for Admission (Set One), Requests for Production of Documents (Set One), Form Interrogatories (Set One), and Special Interrogatories (Set One) on March 18, 2024. Responses were due by April 19, 2024. CCP §§ 1013(a), 2033.250(a). Yutkovsky received no responses from Simakovski and subsequently filed this motion to deem the matters admitted. On May 28, 2024, after the motion was filed but prior to the hearing on the motion, Simakovski submitted his responses to the Requests for Admission (Set One) (Opp. Ex. 3). He also submitted his responses to the Requests for Production of Documents (Set One) on July 14, 2024 (Opp. Ex. 3); He submitted his responses to the Form Interrogatories (Set One) on June 23, 2024 (Opp. Ex. 3) [The Proof of Service for the Form Interrogatories mistakenly refers to Special Interrogatories]; and he submitted his responses to the Special Interrogatories (Set One) on August 20, 2024. (Opp. Ex. 3). Simakovski has now served responses in substantial compliance and without objections prior to the hearing on the motion. The Court also finds that his failure to timely serve the responses was the result of mistake, inadvertence, or excusable neglect. Accordingly, the Court cannot deem RFAs Set One as admitted. CCP § 2033.280(c); St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776 (a responding partys service, prior to the hearing on the deemed admitted motion, of substantially compliant responses, will defeat a propounding partys attempt under section 2033.280 to have the RFAs deemed admitted). Accordingly, Plaintiff Yutkovskys request to deem as admitted RFAs Set One is DENIED AS MOOT. Sanctions Sanctions are mandatory against the party, the attorney, or both whose failure to serve a timely response to the request necessitated the motion to deem request for admissions as admitted. CCP § 2033.280(c); see also Cal. Rules of Court R. 3.1348(a) (the court can award sanctions under the Discovery Act in favor of a party seeking to compel discovery even though no opposition was filed, the opposition was withdrawn, or the requested discovery was provided to the moving party after the motion was filed). Yutkovsky requests sanctions in the total amount of $3,912.95 based upon counsels rate of $450.00/hour for (1) 4.0 hours to prepare the motion; (2) 3 hours to review any opposition and prepare a reply; (3) $61.65 reservation fee; (4) $26.30 in filing fees; and (4) $675.00 appearance fee. (Cohen Decl. ¶ 6.) Here, sanctions are mandatory because Simakovski failed to provide a timely response to a request for admissions. (CCP § 2033.280(c).) There is no exception if the partys conduct was substantially justified or if the imposition of sanctions would be unjust. Yutkovsky requests 3 hours to review any opposition and file a reply. Since Yutkovsky did not file a reply, the Court finds that 1 hour is an appropriate amount of time for item (2) above. Accordingly, Plaintiff Yutkovskys request for sanctions against Defendant Simakovski is GRANTED in the reduced total amount of $3,012.95. Sanctions are payable within 30 days of service of this order. Legal Standard - Motion to Compel Discovery Responses (Requests for Production of Documents) A motion to compel an initial response can be made on the ground that a party did not serve a timely response to interrogatories or a demand to produce. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [demand to produce]; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 (Sinaiko).) Failing to respond to a demand within the time permitted waives all objections to the demandincluding claims of privilege and work product. (CCP § 2031.300(a)) However, the court may grant relief from such waiver. To obtain such relief, the party to whom the demand is directed must have: (1) belatedly served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280; and (2) filed a noticed motion supported by declarations showing that the delay resulted from mistake, inadvertence or excusable neglect. (CCP § 2031.300(a)) Discussion Here, Yutkovsky served Simakovski with Requests for Production of Documents (Set One) on March 18, 2024. Responses were due by April 19, 2024. CCP §§ 1013(a), 2033.250(a). Yutkovsky received no responses from Simakovski and subsequently filed this motion to compel the production of documents. On July 14, 2024, prior to the hearing on the motion, Simakovski submitted his responses to Requests for Production of Documents (Set One) (Opp. to Mot. to Deem RFAs Admitted, Ex. 3). Yutkovsky argues that his response was not timely because his attorney did not communicate the requests to him and he did not receive actual notice of the requests until after the deadline had passed. (Opp. to Mot. to Deem RFAs Admitted, at p. 2, lines 14-15.) Although Simakovski did not timely file his response to the request for production of documents, he has subsequently submitted his responses and explained that the delay was due to an error by his attorney. Therefore, in accordance with Code of Civil Procedure section 2031.300 subdivision (a), he has belatedly served a response and shown that the delay resulted from mistake or inadvertence. Thus, the Court can grant relief from the waiver of all objections to the demand. Accordingly, Plaintiff Yutkovskys motion to compel discovery responses for production of documents is DENIED AS MOOT and the Court grants Defendant Simakovski relief from waiver. Sanctions If a motion to compel is granted and the moving party properly asks for monetary sanctions, the court shall order the party to whom the discovery was directed to pay the propounding party's reasonable expenses, including attorney fees, in enforcing discovery unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (CCP § 2023.030(a).) Even after a party provides discovery responses, a party may keep its motion on calendar and the court has authority to grant such sanctions, even if it denies the motion to compel responses as essentially unnecessary, in whole or in part. (Sinaiko, supra, at p. 409.) Yutkovsky requests sanctions in the total amount of $3,237.95 based upon counsels rate of $450.00/hour for (1) 3.0 hours to prepare the motion; (2) 2.5 hours to review any opposition and prepare a reply; (3) $61.65 reservation fee; (4) $26.30 in filing fees; and (4) $675.00 appearance fee. (Cohen Decl. ¶ 16.) Yutkovsky requests 3 hours to review any opposition and file a reply. However, there was no opposition, and thus no need to reply. Accordingly, Plaintiff Yutkovskys request for sanctions against Defendant Simakovski is GRANTED in the reduced total amount of $2,112.95. Sanctions are payable within 30 days of service of this order. Conclusion The Motion for Order that Requests for Admissions be Deemed Admitted is DENIED AS MOOT. The request for sanctions is GRANTED in the amount of $3,012.95. The Motion to Compel Discovery Responses (Requests for Production of Documents) is DENIED AS MOOT. The request for sanctions is GRANTED in the amount of $2,112.95.
Ruling
EKO SUBSTANCE THREE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS MICHAEL KASABA, ET AL.
Aug 22, 2024 |22SMCV00709
Case Number: 22SMCV00709 Hearing Date: August 22, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 EKO SUBSTANCE THREE LLC, Plaintiff, v. MICHAEL KASABA, et al., Defendants. Case No.: 22SMVC00709 Hearing Date: August 22, 2024 [TENTATIVE] ORDER RE: DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS BACKGROUND This action arises from a dispute over easem*nts. Plaintiff Eko Substance, LLC bought a property located at 27835 Borna Drive, Malibu, California (Plaintiffs Property). Defendants Michael Kasaba and Michael E. Kasaba LLCs (MEK) own the property located at 2210 Mar Vista Ridge Drive, Malibu, California (MEK Property). Plaintiff claims that there are two recorded 40 foot wide easem*nts, across the MEK Property, that benefit Plaintiffs Property and provide Plaintiffs Property with unfettered ingress and egress for roadway and public utilities over Defendants land (Easem*nts). (Compl. ¶ 3.) Plaintiff further alleges that an improved paved road runs within the geographical limitations of the Easem*nts (Improved Road). (Compl. ¶ 6.) Plaintiff identifies as the first easem*nt benefitting Plaintiffs land a document which is recorded as document no. 07-2646335 O.R., Rec. December 03, 2007 (First Easem*nt). (Compl. ¶ 7.iii at 5:26-27.) Plaintiff identifies as the second easem*nt benefitting Plaintiffs land a document which is recorded as document no. 07-2646336 O.R., Rec. December 03, 2007 (Second Easem*nt) (Compl., ¶ 7.iii at 6:1-3.) Plaintiff alleges that Defendants have engaged in wrongful, deceptive, unauthorized and illegal conduct concerning Plaintiffs land, the Easem*nts and the Improved Road (Compl. ¶ 7.) The alleged misconduct includes (1) submitting proposed plans to government agencies in which Defendants failed to disclose that their planned development on the MEK Property encroaches not only on the existing Improved Road but seriously and materially encroaches upon the Easem*nts (Compl. ¶ 7.i at 4:19-20), and (2) placing yard improvements and plantings, and engaging in illegal grading, over both Easem*nts (Compl. ¶ 7.iii.). The operative complaint alleges claims for (1) continuing nuisance, (2) permanent nuisance, (3) trespass, (4) slander of title, (5) intentional interference with prospective economic relations, (6) declaratory relief, and (7) negligence. Each of Plaintiffs alleged causes of action is based on Plaintiffs purported rights to the Easem*nts and Improved Road across the MEK Property. The First Cause of Action for Continuing Nuisance, and the alternative Second Cause of Action for Permanent Nuisance, allege Defendants owed Plaintiff a duty to refrain from doing acts that interfere with or obstruct the free use of the Easem*nts and Improved Road. (Compl., ¶¶ 14, 18.) The Third Cause of Action for Trespass and/or Interference with Property Rights is based on the assertion that Defendants entered upon the Easem*nts and performed the actions as described above. (Compl., ¶ 23.) The Fourth Cause of Action for Slander of Title charges Defendants with publishing, misrepresenting and deceiving, as above described, to the land use authorities the rights of Plaintiff to the Easem*nts and Improved Road through Defendants land and casting doubt on plaintiffs title and rights to the Easem*nts and Improved road. (Compl., ¶¶ 27, 30.) To support its Fifth Cause of Action for Quiet Title and Cancellation of Cloud on Title, Plaintiff alleges that Defendants have no right, title, estate, lien, or interest whatsoever in the lands adverse to Plaintiffs title to the Easem*nts and the Improved Road. (Compl., ¶ 37.) The Sixth Cause of Action for Intentional Interference with Prospective Economic Advantage is based on the submission of false and deceptive land use applications, and the encroachments and injury to property as above described. (Compl., ¶ 40.) In the Seventh Cause of Action for Declaratory Relief, Plaintiff seeks to ascertain its rights and duties concerning the Easem*nts and Improved Road. (Compl., ¶ 48.) Finally, in its Eighth Cause of Action for Negligence, without specifying any other conduct, Plaintiff alleges that defendants in acting as set forth above owed Plaintiff a duty of care and said defendants acted negligently in performing the actions alleged herein. (Compl., ¶ 50.) Plaintiffs prayer for relief likewise is based on the Easem*nts. Among other things, Plaintiff seeks (i) injunctive relief requiring the removal of the offensive [encroachments and] improvements, foliage and trees from the Easem*nts and correction of the land use applications of Defendants containing the false and deceptive representations concerning the Easem*nts and Improved Road (Compl. at 16:8-11, 16:24-27), and (ii) an order that the Easem*nts and Improved Road thereon are valid and enforceable (Compl. at 17:4-5.) This hearing is on Defendants motion for judgment on the pleadings. Defendants argue that each of Plaintiffs causes of action fails because they are premised on purported easem*nt rights that were extinguished upon a prior foreclosure sale of the MEK property. LEGAL STANDARD A defendant may move for judgment on the pleadings when the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc. §438(b)(1) and (c)(1)(B)(ii).) A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.] (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citations omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Like a demurrer, a motion for judgment on the pleadings may be addressed to the pleading as a whole or to separate counts. If addressed to the pleading as a whole, the motion must be denied if even one count is good. (Lora v. Garland (1946) 27 Cal.2d 840, 850; Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1358.) If addressed to separate counts, the motion may be granted as to some counts and denied as to others. (Steiner v. Rowley (1950) 35 Cal.2d 713, 720; Heredia, 228 Cal.App.3d at 1358.) MEET AND CONFER A party moving for¿judgment on the pleadings must¿meet and confer in person or telephonically with the party who filed the pleading that is subject to the motion to determine if an agreement can be reached regarding the claims raised in the motion. (Code Civ. Proc., § 439, subd. (a).) The moving party must file a declaration detailing the¿meet and confer efforts. (Code Civ. Proc. § 439, subd. (a)(3).) Defendants submit the Declaration of Mak Hurwitz which attests the parties met and conferred by telephone. This satisfies the meet and confer requirements of § 439. REQUEST FOR JUDICIAL NOTICE Defendants request judicial notice of the following documents recorded in the Official Records of the Los Angeles County Recorders Office: (1) a Deed of Trust, recorded with the County Recorder on January 25, 2005 as Instrument No. 05 0174612, executed by Raymond Munro in favor of Washington Mutual Bank FA; (2) a Grant of Road and Utility Easem*nt, recorded with the County Recorder on December 3, 2007 as Instrument No. 20072646335; (3) a Grant of Road and Utility Easem*nt, recorded with the County Recorder on December 3, 2007 as Instrument No. 20072646336; (4) a Notice of Trustees Sale dated July 23, 2008, and recorded with the County Recorder on July 25, 2008 as Instrument No. 20081332370; (5) A Trustees Deed Upon Sale dated January 28, 2009, and recorded with the County Recorder on January 30, 2009 as Instrument No. 20090127166; (6) a Grant Deed, recorded with the County Recorder on October 15, 2019 as Instrument No. 20191095187. In addition, Defendants request that the Court take judicial notice of the (a) the Complaint filed on May 22, 2018, (b) the Answer filed on February 22, 2023, and (c) the Amended Answer filed on July 12, 2023. Defendants¿request for judicial notice is not made in a¿separate document in violation of California Rules of Court, Rule 3.113. (Cal. Rules Ct. 3.1113(l)¿(Any¿request for judicial notice must be made in a¿separate document listing the specific items for which notice is requested&.).) Nonetheless, in the interest of moving the case forward, the Court will take judicial notice of (1)-(6) pursuant to Cal. Evid. Code §§ 452(c), 452(h), and 453, although it admonishes Defendant to familiarize itself, and comply, with the rules of Court. The Court denies the request to take judicial notice of the pleadings filed in this action as it is unnecessary. Defendants need only call the Courts attention to such pleadings. Plaintiff also seeks judicial notice of (1) the Deed Restriction recorded on August 30, 2002 in the Official Records of Los Angeles County as Document Number 02 2047545, and (2) the Amendment to Deed Restriction recorded on November 6, 2022 in the Official Records of Los Angeles County as Document Number 02 02657968. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(h), and 453. DISCUSSION Defendants argue that the easem*nts upon which Plaintiffs claims are based were extinguished in a foreclosure sale, and accordingly, there is no basis for any of Plaintiffs claims. The Court agrees. In January 2005, a prior owner of the MEK Property, Raymond Munro (Munro), executed a Deed of Trust to the MEK Property in favor of Washington Mutual Bank, FA. (Request for Judicial Notice (RJN), Ex. A.) The Deed of Trust was recorded nearly three years before the Easem*nts were recorded on December 3, 2007. (RJN, Exs. B & C.) On July 25, 2008, after the Easem*nts were recorded, the Trustee under the Deed of Trust recorded a Notice of Trustees Sale (Notice) of the MEK Property. (RJN, Ex. D.) As reflected by the Trustees Deed Upon Sale (Sale Deed) recorded on January 30, 2009, the Trustee sold the MEK Property to the foreclosing beneficiary under the Deed of Trust on January 28, 2009. (RJN, Ex. E.) The Sale Deed, among other things, expressly identifies (i) the Deed of Trust by recording date and instrument number, (ii) Munro as the Trustor, and (iii) the APN and legal description of the MEK Property. (Id.) Under well settled California law, the Sale Deed conveyed by the Trustee in January 2009 pursuant to the foreclosure sale of the MEK Property extinguished all easem*nts or encumbrances recorded after the Deed of Trust, including but not limited to the alleged Easem*nts, recorded in December 2007, on which Plaintiff bases the entire Complaint. See, e.g., Perez v. 222 Sutter St. Partners (1990) 222 Cal. App. 3d 938, 942-943, 949 (affirming summary judgment on ground that foreclosure sale extinguished easem*nt rights); San Francisco Design Ctr. Assocs. v. Portman Cos. (1995) 41 Cal. App. 4th 29, 45 (when property is sold under a trust deed, the purchaser obtains title free and clear of all encumbrances subsequent to the deed of trust); R-Ranch Mkts. #2, Inc. v. Old Stone Bank (1993) 16 Cal. App. 4th 1323, 1328 (When property is sold under a trust deed, the purchasers acquire title free and clear of all encumbrances subsequent to the deed of trust); Dover Mobile Estates v. Fiber Form Prods. (1990) 220 Cal. App. 3d 1494, 1498 (Liens which attach after execution of the foreclosed trust deed are extinguished. The purchaser at the trustee sale therefore takes title free of those junior or subordinate liens.). As the leading treatise on California real property law confirms, the foreclosure sale terminates any easem*nts recorded after the deed of trust was recorded, and the purchasers title and possession are free and clear of the easem*nt. (4 Miller & Starr, California Real Estate (4th Ed.) § 10.100.) Accordingly, at the time Plaintiff acquired Plaintiffs Property in 2019, the Easem*nts had already been extinguished by operation of law, and Plaintiff does not have any right of access, ingress, or egress across the MEK Property. Plaintiff therefore cannot state any claim based on, or even seeking a determination of, its purported rights to the Easem*nts or any Improved Road thereon. Since each cause of action in the Complaint depends upon the Easem*nts, and the Easem*nts have been extinguished as matter of law, the entire Complaint does not and cannot state a cause of action against Defendants. Plaintiff argues that Defendants attack goes only to a portion of their Complaint, and even if the easem*nts were terminated, Plaintiff would still have certain rights in the easem*nt area by virtue of the legal description set forth in the grant deed vesting Plaintiffs Property to Plaintiff and/or an equitable easem*nt. But the Grant Deed merely contains a legal description of the extinguished Easem*nts. Plaintiff has cited no authority that, simply by a grantor including the description of the extinguished Easem*nts in a grant deed, the extinguished Easem*nts were somehow revived. Similarly, Plaintiffs references to purported deed restrictions from a permit application by a prior owner of the MEK Property in 2002 (Purported 2002 Restrictions) are entirely immaterial, as (a) the Complaint is not based on the Purported 2002 Restrictions, (b) the Purported 2002 Restrictions predate the Easem*nts on which Plaintiff bases its claims, (c) the Purported 2002 Restrictions concern the MEK Property, and the rights of the owner thereof, but do not grant easem*nt rights to any owner of Plaintiffs Property, and (d) Plaintiff has not shown that it somehow could have acquired easem*nt rights by the Purported 2002 Restrictions, between the California Coastal Commission and a prior owner of the MEK Property, to which neither Plaintiff nor any predecessor on Plaintiffs Property was a party. Plaintiff also cannot show that it can base any claim on Defendants alleged deception in their land use applications. Since the Easem*nts have been extinguished as a matter of law, and Plaintiff therefore cannot claim any rights on the MEK Property, MEKs use of its property is of no concern to, and certainly is not actionable by, Plaintiff. Plaintiff has no interest in the MEK Property, nor does Plaintiff have any right of access, ingress, or egress across the MEK Property. Accordingly, Plaintiff has no standing to pursue any purported claim thereon. CONCLUSION Based on the foregoing, the Court GRANTS Defendants motion for judgment on the pleadings without leave to amend. IT IS SO ORDERED. DATED: August 22, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Ruling
ROBERT M. ABER, AN INDIVIDUAL AND TRUSTEE OF ROBERT M. ABER REVOCABLE LIVING TRUST CREATED FEBRUARY 11, 2004 VS PHH MORTGAGE CORPORATION, ET AL.
Aug 19, 2024 |23STCV27937
Case Number: 23STCV27937 Hearing Date: August 19, 2024 Dept: 55 NATURE OF PROCEEDINGS: Demurrer without Motion to Strike The Court having read and considered the moving papers and oral argument, hereby rules as follows: The Court sustains the demurrer to the First Cause of Action, Eighth Cause of Action, Tenth Cause of Action with leave to amend. BACKGROUND On 03/26/24, ROBERT M. ABER, and individual and TRUSTEE OF ROBERT M. ABER REVOCABLE LIVING TRUST CREATED FEBRUARY 11, 2004 (Plaintiff) filed the operative First Amended Complaint (FAC) against PHH MORTGAGE CORPORATION, MORTGAGE ASSETS MANAGEMENT and other defendants (Defendants) related to defendants allegedly enabling Plaintiffs estranged sons to fraudulently sell Plaintiffs home, when they knew or should have known of the fraud. The causes of action are: 1) Violations of Welfare & Institutions Code §15600 et seq. (Elder Abuse); 2) Violations of Civil Code § 1798.93; 3) Violations of Civil Code § 2924.11; 4) Violations of Civil Code § 2924.17; 5) Violations of Civil Code § 3273.11; 6) Violations of the Home Equity Sales Contract Act (HESCA), Civil Code §1695; 7) Slander of Title; 8) Unfair Business Practices; 9) Violations of the Rosenthal Act; 10) Negligence; 11) Breach of Contract; 12) Breach of the Implied Covenant; 13) Fraud; 14) Negligent Misrepresentation; 15) Intentional Interference with Contract; 16) Quiet Title; and 17) Cancellation of Deed. Defendant Wilshire Escrow Company (Wilshire) demurs to the First, Eighth and Tenth causes of action on the grounds that the FAC fails to state facts sufficient to constitute a cause of action. LEGAL STANDARD The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) A demurrer tests the legal sufficiency of the factual allegations in a complaint. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (Id.) The Court does not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint as a whole and its parts in their context. [Citation.] (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Harris, supra, 56 Cal.4th p. 240.) The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.) First Cause of Action for Elder Abuse The cause of action for elder abuse fails to state a cause of action against Wilshire because Plaintiff has not alleged facts showing Wilshire actually assisted Plaintiffs children in their alleged elder abuse. Financial elder abuse requires that (1) the defendant took, obtained or retained a plaintiffs property (or assisted in that act), (2) that the plaintiff is 65 years of age or older, (3) that the defendant took, obtained or retained the plaintiffs property for a wrongful use or with the intent to defraud, (4) that the plaintiff was harmed, and (5) the defendant's conduct was a substantial factor in causing that harm. (Welf & Inst. Code section 15610.30.) Here the FAC fails to provide any allegations showing that Defendant Wilshire obtained or retained the Plaintiffs property for a wrongful use or with the intent to defraud. For instance, the FAC states, Moreover, at a bare minimum, Wilshire is committing elder abuse by continuing to retain the fees it charged the Plaintiff for facilitating this fraudulent transaction. On this point, Wilshire charged the Plaintiff for acting as an escrow holder, even though he never authorized same, and they have never returned these funds. (FAC ¶ 211.) The FAC further alleges, Wilshire Escrow also should have been aware of this fraud and facilitated its execution. (FAC ¶ 214.) The FAC also alleges, If Wilshire had exercised the basic due diligence of calling the number listed, or simply performing a web search of that number, it would have been apparent that the number does not belong to Dr. Morovati, but instead to Eugene J. Fay, who is not a doctor, and is an associate of Solange Meshay. (FAC ¶ 216.) The FAC further alleges, Wilshire also certainly knew of the Hatchett brothers fraud as they had the Hatchett brothers drivers license and knew their age. (FAC ¶ 226.) The FAC states Wilshire was readily aware that the 2006 amend trust was fraudulent. As stated herein, the Hatchett Brothers would have been 15, and Wilshire had their identification cards and was aware of their age. Nonetheless, they pushed forward with the transaction in order to collect their fees and aided and abetted the Hatchett Brothers in their fraudulent scheme. On this score, Wilshire offered substantial encouragement and assistance to the Hatchett Brothers in completing their fraud. The Hatchett brothers would not have been able to accomplish their scheme without Wilshire's assistance. (FAC ¶ 227.) These allegations are conclusory and fail to show Wilshires intent to defraud. Therefore, the demurrer is sustained with leave to amend as to the first cause of action for elder abuse. Eighth Cause of Action for Unfair Business Practices Defendant argues that the cause of action for unlawful business practices fails as a matter of law. To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) An unlawful business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351.) The FAC alleges in a conclusory manner the unlawful acts and practices of Defendants alleged herein constitute unlawful, unfair or fraudulent business practices within the meaning of Business and Professions Code§ 17200. (FAC ¶414.) Plaintiff further alleges Wilshire is readily aware of the fraud exhibited herein, and was aware of said fraud before the transaction closed. Nonetheless, Wilshire has improperly charged the Plaintiff for its services to the tune of thousands of dollars and continues to refuse to refund said fees to Plaintiff. (FAC ¶415.) Moreover, Plaintiff alleges that Wilshires failure to speak to Mr. Aber or Maxine Aber ... certainly indicates they should have known of the fraud, and could have discovered it easily in the routine course of their work as escrow company professionals. (FAC ¶394.) As discussed above, the FAC fails to allege sufficient facts supporting that Wilshire knew the sale and/or payoff demand were fraudulent prior to its recordation of the Deed of Trust on May 8, 2023. Thus, a reasonable jury could not infer from the face of the FAC that Wilshire acted unlawfully, unfairly, or fraudulently towards Plaintiff in recording the Deed of Trust. Therefore, the demurrer is sustained with leave to amend as to the eighth cause of action for unfair business practices. Tenth Cause of Action for Negligence Defendant argues that the cause of action for negligence fails to state a claim against Wilshire because an escrow holders fiduciary duty is to strictly comply with the instructions of the parties. The elements for negligence cause of action are duty, breach, causation and damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿ Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are limits to the generality with which a plaintiff is permitted to state his cause of action, and the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendants negligence has caused him injury. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 [Internal quotations and ellipses omitted].) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 [internal brackets omitted].) The FAC alleges in a conclusory manner PHH and Wilshires utter failure to take any reasonable steps to prevent the fraudulent sale of the home after being informed that the parties who provided the payoff were not authorized thus constituted negligence by these parties. (FAC ¶ 463.) The FAC further states Moreover, Wilshire Escrow also breached their duty of care to the Plaintiff, a senior citizen and the trustee of the trust for which it was purporting to act as escrow agent. As an initial matter, as set forth herein, the forged 2006 Restatement of Trust contained a myriad of inconsistencies and outright illegalities, such as the status of the Hatchett brothers as minors while supposedly being appointed co-trustees. (FAC ¶ 444.) The FAC further alleges Wilshires failure to speak to Mr. Aber or Maxine Aber even once, solely based on Alvin Hatchetts request not to do so, certainly indicates they should have known of the fraud, and could have discovered it easily in the routine course of their work as escrow company professionals. (FAC ¶ 447.) Additionally, in Summit Financial Holdings Ltd. v. Continental Lawyers Title Co., the Supreme Court of California held that [a]n escrow holder has a fiduciary duty to comply strictly with the instructions of the parties but "has no general duty to police the affairs of its depositors". (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711.)"Absent clear evidence of fraud, an escrow holder's obligations are limited to compliance with the parties' instructions." (Id.) Notably, the FAC fails to provide any facts showing the duties of an Escrow Holder, such as Wilshire, are only owed if found in the escrow instruction or set forth in the statute alleged. Here, Plaintiff provides no basis, factually or legally, that supports its allegations that Wilshire negligently performed any duty it accepted in its escrow instructions. Therefore, the demurrer is sustained with leave to amend as to the tenth cause of action for negligence. Conclusion Therefore, the Court sustains the demurrer as to the First Cause of Action, Eighth Cause of Action, and Tenth Cause of Action with leave to amend. Plaintiff to notice.
Ruling
JEFFREY HARRIS, CO-TRUSTEES OF THE HARRIS FAMILY TRUST, ET AL. VS HELENE STAHL, ET AL.
Aug 21, 2024 |21CHCV00247
Case Number: 21CHCV00247 Hearing Date: August 21, 2024 Dept: F47 Dept. F47 Date: 8/21/24 Case #21CHCV00247 MOTION FOR ATTORNEY FEES Motion filed on 3/13/24. MOVING PARTY: Plaintiff Jeffrey Harris and Austin Harris, Co-Trustees of the Harris Family Trust RESPONDING PARTY: Defendants Helene Stahl and Extensions Plus, Inc. NOTICE: ok RELIEF REQUESTED: An order awarding Plaintiff attorneys fees and costs in the total amount of $73,118.75 comprised of $63,643.75 in attorney fees, $7,575.00 in expert fees and $1,900 in fees for the instant motion. RULING: The motion is granted, in part, and denied, in part, as set forth below. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arose out of the alleged breach of a commercial lease and guaranty of the lease. Plaintiff Jeffrey Harris and Austin Harris, Co-Trustees of the Harris Family Trust (Plaintiff) were the landlord and Defendant Extensions Plus (Extensions Plus) was the tenant and Defendant Helene Stahl (Stahl) was the guarantor (collectively, Defendants). Possession of the premises was not at issue as the tenant no longer occupied the premises. Plaintiffs contended that the commercial tenant made unpermitted alterations causing substantial damages to the property and then abandoned the premises with past due rent owing to set up their business in a new location. On 3/30/21, Plaintiffs filed this action for: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing and (3) Common Count. On 10/22/21, Defendants filed answers to the complaint. After a court trial, on 1/30/24, the Court entered judgment in favor of Plaintiff and against Defendants on Plaintiffs complaint. (See 1/30/24 Judgment). Plaintiff was awarded damages in the amount of $203,387.50, prejudgment interest in the amount of $50,036.50 for a total award of $253,424.00. Id. On 3/13/24, Plaintiff filed and served the instant motion seeking an order awarding Plaintiff attorneys fees and costs in the total amount of $73,118.75 comprised of $63,643.75 in attorney fees, $7,575.00 in expert fees and $1,900 in fees for the instant motion. The motion was originally set for hearing on 7/12/24. Defendants opposed the motion and Plaintiff filed a reply to the opposition. After the tentative ruling to grant the motion, in part, and deny the motion, in part had been posted, at the 7/12/24 hearing, Plaintiff requested a continuance to provide the Court with an amended exhibit to the declaration filed in support of the motion. The request was granted. (See 7/12/24 Minute Order). The Court ordered Plaintiff to submit an amended declaration which includes a complete copy of the exhibit and allowed Defendants to file an opposition. Id. There was no indication that Plaintiff was permitted to file a reply to the opposition. Id. On 7/17/24, Plaintiff filed an amended and supplemental declaration in support of the motion. On 8/8/24, Defendants filed an amended and supplemental opposition to the motion. On 8/13/24, Plaintiffs filed a reply to the amended and supplemental opposition. ANALYSIS Attorneys fees are recoverable as an item of costs when authorized by contract, statute or law. See CCP 1033.5(a)(10). Civil Code 1717 provides, in relevant part: (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract. Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void. (b)(1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. The lease agreement/contract which provided the basis for this action contained the following attorney fee provision: Attorney's Fees. If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule but shall be such as to fully reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be entitled to reasonable attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). (See Complaint, Ex.A; Cordero-Sacks Decl., Ex.1). Similarly, the Guaranty provides: In the event any action be brought by said Lessor against Guarantors hereunder to enforce the obligation of Guarantors hereunder, the unsuccessful party in such action shall pay to the prevailing party therein a reasonable attorneys fee. The attorneys fee award shall not be computed in accordance with any court fee schedule, but shall be such as to full reimburse all attorneys fees reasonably incurred. Id. Based on the 1/30/24 Judgment, Plaintiff is the prevailing party in this action. As such, Plaintiff is entitled to recover its reasonable attorneys fees, not unlimited legal fees as claimed in the motion. (See Motion, p.2:4). The amount of attorneys fees to be awarded is left to the sound discretion of the trial court. PLCM Group (2000) 22 C4th 1084, 1095-1096, internal citations omitted. Further, it has been held that experienced trial judges are the best judge of the value of professional services rendered in their courts and their judgment will only be disturbed on appeal if it is clearly wrong and an abuse of discretion. Id. A trial court may make its own determination of the value of the services without expert testimony. Id. In calculating a reasonably attorney fee award, the trial court begins with the lodestar (the number of hours reasonably spent multiplied by the reasonable hourly rate). Id. The reasonable hourly rate is the rate prevailing in the community for similar work. Id. Here, the Court finds that attorney Cordero-Sacks has provided sufficient support for the hourly rates she charged for her work in this action ($375-$475). (See 3/13/24 Cordero-Sacks Decl. ¶¶13-19). However, no information is offered to support the qualifications of the associate attorneys who worked on the case other than the conclusory statement that the $375 hourly rate charged is a comparable rate in the community for similar work. (3/13/24 Cordero-Sacks Decl. ¶22). In its initial tentative ruling, the Court noted that it found the amount of time claimed to have been spent to be excessive and that it found the billing entries to be extremely vague. (See 3/13/24 Cordero-Sacks Decl., Ex.2). As a result, as noted above, Plaintiffs counsel requested a continuance of the hearing to submit an amended/complete exhibit. (See 7/12/24 Minute Order). The Court notes that when it continued the motion to allow Plaintiff to submit a complete copy of the billing entries, it believed a page of the exhibit had been inadvertently omitted. While the amended and supplemental declaration of attorney Cordero-Sacks states that the initial print-out failed to include the Description column, it is unclear how a column in the middle of the chart was inadvertently omitted, if it was in fact in existence at the time, especially since the declaration specifies that the print-out totals only four pages (the new print-out is 12-pages). (Compare 3/13/24 Cordero-Sacks Decl. ¶10, Ex.2; 7/17/24 Cordero-Sacks Decl. ¶¶11-13, Ex.2). The continuance was not intended to allow Plaintiff to create additional evidence to support the motion. Regardless, the Court still finds the amount of time claimed to be excessive. For example, Plaintiff seeks to recover over $6,000.00 in attorneys fees for their failed motion for summary adjudication. (See 7/17/24 Cordero-Sacks Decl., Ex.2, Entries 65-58). Additionally, Plaintiff seeks to recover attorneys fees for motions to compel where the Court denied requests for sanctions (which were the attorneys fees incurred for the motions) for various reasons, including filing the motions before the deadlines to do so when Defendants indicated further responses would be served and because the motions were not entirely successful. Further, the Court finds that Plaintiffs counsels billing in quarter-hour (.25) increments, rather than one-tenth of an hour (.10) increments to be excessive. Based on the foregoing, the Court finds that a 25% reduction of the attorneys fees requested is warranted. In its initial tentative ruling, the Court indicated that Plaintiff had failed to support its request for an award of expert fees. The Court noted that in the motion, Plaintiff merely argues that Plaintiff is entitled to recover reasonable attorneys fees and costs as provided for in the Commercial Lease and Guaranty, which includes expert witness fees. (emphasis in original) (See Motion, p.5:28-p.6:3). The Court further noted that an award of contractual attorneys fees may not include expenses expressly denominated by statute as nonrecoverable cost items, such as expert fees not ordered by the court, postage, telephone and copying charges. See Carwash of America-PO LLC (2002) 97 CA4th 540, 544; Hsu (2005) 126 CA4th 1330, 1340-1342 (disapproving Bussey (1990) 225 CA3d 1162, 1166); Jones (2005) 127 CA4th 542, 550-551. The Court further noted that it has been held by some courts that a contract provision which allows the prevailing party to recover all necessary expenses, or similar broad language, may permit an award of expert fees not ordered by the court. However, the Court stated that here, it cannot be argued that the attorneys fee provisions in the lease and/or guaranty are so broad as to cover expert fees. (See Complaint, Ex.A; 3/13/24 Cordero-Sacks Decl., Ex.1). The Court noted that the only reference to recovering costs and expenses in the attorneys fee provision contained in the lease relates to costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). The amended and supplemental declaration of attorney Cordero-Sacks indicates that Plaintiff withdraws the expert witness costs of $7,575.00. (7/17/24 Cordero-Sacks Decl. ¶10). CONCLUSION Based on the foregoing, Plaintiff is awarded $49,157.81 in attorneys fees (($63,643.75 + $1,900.00) = $65,543.75 25% ($16,385.94) = $49,157.81). Plaintiffs request for expert fees is moot as the request has been withdrawn. Based on Plaintiffs withdrawal of the request for expert fees, the Court will strike that item (Item 8 - Witness Fees in the amount of $7,575.00) from Plaintiffs Memorandum of Costs filed on 2/13/24 and advance and vacate the Motion to Tax Costs (which concerns only that item) set for hearing on 9/12/24. (See Amended and Supplemental Opposition, p.2:21-28).
Ruling
LAURENCE F. NASEY VS. FELL HOLDINGS LLC, A DELAWARE LIMITED LIABILITY ET AL
Aug 21, 2024 |CGC23611378
Real Property/Housing Court Law and Motion Calendar for August 21, 2024 line 6. DEFENDANT FELL HOLDINGS LLC, STANYAN HOLDINGS LLC, MDF FACILITY LLC, 1215 FELL SF OWNER LLC, 624 STANYAN SF OWNER LLC NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS is OFF CALENDAR. The parties are ordered to comply with CCP 439 in good faith. The Court further notes that the Notice of Motion does not state any grounds for the motion. CRC 3.1110(a). In the future, declaration showing compliance with CCP 439 must accompany a motion for judgment on the pleadings. =(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
VICTOR GODALES VS MEI KUEN CHEUNG AND JIMMY TM CHEUNG AS TRUSTEES OF THE CHEUNG FAMILY TRUST DATED OCT 10, 1996
Aug 27, 2024 |24STCV01620
Case Number: 24STCV01620 Hearing Date: August 27, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT VICTOR GODALES, Plaintiff, vs. MEI KUEN CHEUNG AND JIMMY TM CHEUNG AS TRUSTEES OF THE CHEUNG FAMILY TRUST DATED OCT 10, 1996, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 24STCV01620 [TENTATIVE] ORDER GRANTING MOTIONS TO COMPEL RESPONSES AND MOTION TO DEEM RFAs ADMITTED Dept. 48 8:30 a.m. August 27, 2024 On January 22, 2024, Plaintiff Victor Godales filed this action against Defendant Mei Kuen Cheung and Jimmy Tm Cheung as Trustees of the Cheung Family Trust Dated Oct 10, 1996. On May 20, 2024, Defendant served Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admissions on Plaintiff. Plaintiff did not provide any responses. On August 1 and 2, 2024, Defendant filed motions to compel responses and to deem the RFAs admitted. Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) When a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the partys failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).) The court shall grant a motion to deem admitted requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc., § 2033.280, subd. (c).) Plaintiff filed no oppositions to these motions and did not serve timely responses. It does not appear that Plaintiff served substantially compliant responses prior to the hearing. Accordingly, the motions are GRANTED. Plaintiff is ordered to provide verified responses, without objections, to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents within 30 days. The Requests for Admission served on May 20, 2024 are deemed admitted by Plaintiff. The requests for sanctions are granted. Plaintiff is ordered to pay total sanctions of $3,400.00 ($850 each for 4 motions) to Defendant within 30 days. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 27th day of August 2024 Hon. Thomas D. Long Judge of the Superior Court
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