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Ruling
MI YOUNG KIM, AN INDIVIDUAL VS HANNAM CHAIN, USA, INC., A CALIFORNIA CORPORATION
Aug 02, 2024 |22STCV28938
Case Number: 22STCV28938 Hearing Date: August 2, 2024 Dept: 17 Superior Court of California County of Los Angeles DEPARTMENT 17 TENTATIVE RULING MI YOUNG KIM vs. HANNAM CHAIN, USA, INC. Case No.: 22STCV28938 Hearing Date: August 2, 2024 Defendants motion for terminating sanctions is GRANTED. On 9/6/2021, Plaintiff Mi Young Kim (Plaintiff) filed suit against Hannam Chain USA, Inc., alleging: (1) breach of written contract; (2) breach of covenant of quiet enjoyment; (3) negligent infliction of emotional distress; and (4) constructive eviction. Now, Defendant moves for terminating sanctions. The motion is unopposed. Discussion Defendant argues that terminating sanctions are appropriate because Plaintiff has failed to litigate this action. Plaintiff failed to respond to any of Defendants discovery or correspondence regarding the same, Plaintiff did not oppose Defendants motions to compel discovery, and Plaintiff failed to comply with the Court order to provide discovery by 4/14/2024. Plaintiff did not oppose this motion and thus is considered to have conceded to the merits of the motion. In sum, the Court concludes that Plaintiff is either unwilling or unable to litigate this action. Terminating sanctions are therefore appropriate. Based on the foregoing, Defendants motion for terminating sanctions is granted. It is so ordered. Dated: August , 2024 Hon. Jon R. Takasugi Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. For more information, please contact the court clerk at (213) 633-0517.
Ruling
EJA ASSOCIATES, L.P., A CALIFORNIA LIMITED PARTNERSHIP VS MUHAMMAD ALI, ET AL.
Jul 30, 2024 |6/18/2022 |21SMCV01421
Case Number: 21SMCV01421 Hearing Date: July 30, 2024 Dept: I This issue was previously heard on May 21, 2024. At that hearing, the court issued a detailed tentative ruling, but the tentative was not adopted as the ruling of the court. The court allowed further briefing on the issues there discussed. Having considered the additional papers, the court remains convinced that its prior tentative was correct. That tentative ruling is therefore adopted today with the following additional explanation. The courts view is that unless the judgment is void, the motion will be denied. The fact is that for two years, defendant was aware of the problem and the default, but did nothing. In fact, counsel discussed the matter and defense counsel stated that a motion to vacate would be forthcoming, but it was still two years before it was brought. That is untimely and the court can only consider that the delay was intentional by the defendant, and not just counsel. It was a tactical move by the client; not one based on excusable neglect. That said, a void judgment is just that: void. It can be attacked at any time and it can be attacked collaterally. That is powerful stuff, depriving a plaintiff of all practical rights many years later. While the case can be reinstated, years have passed and it may be much harder to garner evidence. That is very prejudicial, but it remains the law. However, while the remedy is powerful, the doctrine is narrow. A judgment is not void unless the infirmity is apparent from the face of the judgment roll alone. No extrinsic evidence will be admitted in that regard. (There are other exceptions that might apply where there was extrinsic fraud and the defendant was truly unaware of the case, but that is not the situation here.) The judgment roll consists of: the complaint, the summons, the proof of service, the request for entry of default, and the default judgment itself. Those documents alone must tell the tale. (Of course, there are many other remedies for a voidable judgment, but all of them are time sensitive and require a showing of excusable neglect or the like.) Here, defendants contend that the summons was not properly served. That may or may not be true, but it is not clear from the judgment roll. The proof of service on its face appears valid. To know whether service was in fact proper, one would have to look at extrinsic evidence, such as the declarations. But that is beyond the scope of the courts inquiry as to void judgments. In other words, even if service was made at a place that the plaintiff knew was one where defendant did not reside, such cannot be determined by the judgment roll itself. Defendant also notes that the leasewhich is attached to the complainthas a particular address to which notices should be given, and that is not the address on the proof of service. That much is true and at least arguably within the judgment roll. But the notice address for the lease is not dispositive here. Service of process is not governed by the lease; only service of notices required under the lease are so governed. Service of process is governed by the Code of Civil Procedure. Here, those requirements were metat least on the face of the judgment roll. That would not be fatal if defendant could make the case that defendant was unaware of the lawsuit or the default until shortly before the motion was filed through no fault of its own. The court has tools at its disposal to deal with situations such as that. But the court cannot get around the fact that defendant was actually aware of the problem two years (or more) before filing this motion. All of that said, however, if the amount of the judgment is greater than the amount set forth in the complaint, the court will consider that issue. But only that issue. In all other respects, the motion is DENIED.
Ruling
KINDLE CRIGLER, ET AL. VS BRECKENRIDGE PROPERTY FUND 2016, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Aug 01, 2024 |24PSCV00548
Case Number: 24PSCV00548 Hearing Date: August 1, 2024 Dept: G Defendant Breckenridge Property Fund 2016, LLCs Motion to Expunge Lis Pendens or in the Alternative, Require Plaintiff to Post a Bond Respondent: NO OPPOSITION Defendant Breckenridge Property Fund 2016, LLCs Demurrer to Plaintiffs First Amended Complaint Respondent: NO OPPOSITION Defendant PHH Mortgage Corporations Demurrer to Plaintiffs First Amended Complaint Respondent: NO OPPOSITION TENTATIVE RULING Defendant Breckenridge Property Fund 2016, LLCs Motion to Expunge Lis Pendens is GRANTED and costs are awarded in the amount of $397.50. Defendant Breckenridge Property Fund 2016, LLCs Demurrer to Plaintiffs First Amended Complaint and Defendant PHH Mortgage Corporations Demurrer to Plaintiffs First Amended Complaint are CONTINUED to a date to be determined at the hearing in Department G (Pomona). Defendants Counsel are also ordered to meet and confer with Plaintiffs regarding the present demurrers and to file a supplemental declaration describing such meet and confer efforts at least (9) court days before the next scheduled hearing. BACKGROUND This is an action to quiet title. In November 1987, Plaintiff Shelia Crigler and William Crigler purchased a property in Pomona. To finance their purchase, they obtained a secured loan and subsequently mortgaged the Pomona property for additional funds. In October 2018, they executed a quitclaim deed to convey their ownership to the Family Trust of William Robert Crigler and Shelia Vera Crigler. After William Crigler passed away in 2018, Plaintiff Kyndle Crigler assumed the mortgage payments. In 2022, the Criglers applied for and were placed on a payment plan by Defendant PHH Mortgage Corporation (PHH). In April 2023, PHH removed the Criglers from the repayment plan after they allegedly failed to pay timely property charge expenses. While the Criglers allege they attempted to make payment toward the amount demanded by PHH, PHH proceeded with nonjudicial foreclosure proceedings. On December 4, 2023, Defendant Breckenridge Property Fund 2016, LLC (Breckenridge) purchased the Pomona property at a foreclosure auction. On February 21, 2024, the Criglers filed a complaint against Breckenridge, First American Title Insurance Company (First American), PHH, and Does 1-20, alleging the following causes of action: (1) quiet title, (2) cancellation of written instrument, (3) wrongful foreclosure, (4) declaratory relief, (5) slander of title, and (6) negligent misrepresentation. On May 13, 2024, the Court sustained a demurrer to the Complaint by Breckenridge. On June 3, 2024, the Criglers filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On June 7, 2024, Breckenridge filed the present motion to expunge lis pendens. On June 17, 2024, Breckenridge filed the present demurrer. On July 3, 2024, PHH also filed a demurrer to the FAC. A hearing on the present motions is set for August 1, 2024, along with a case management conference. MOTION TO EXPUNGE LIS PENDENS Breckenridge moves to expunge a notice of lis pendens that has been recorded against 1615 California Place, Pomona, California 91768 (Pomona property). For the following reasons, the court GRANTS their motion. Legal Standard Pursuant to Code of Civil Procedure section 405.30, a party may move to expunge a notice of lis pendens and the burden of proof rests with the claimant. Code of Civil Procedure section 405.31 states the court must expunge a notice of lis pendens if the pleading on which the notice is based does not contain a real property claim. If the pleading does contain a real property claim, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., § 405.32.) Discussion In this case, the Criglers failed to file a timely opposition to the present motion. Because they have the burden of establishing the existence of a real property claim and that claims probable validity, the court GRANTS Breckenridges motion. Breckenridge also requests the award of attorney fees for making the present motion. Pursuant to Code of Civil Procedure section 405.38, a party prevailing on a motion to expunge a notice of lis pendens shall be awarded the reasonable attorneys fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circ*mstances make the imposition of attorney's fees and costs unjust. Utilizing the lodestar approach and in light of the totality of the circ*mstances, the court awards reasonable attorney fees and costs to Breckenridge in the amount of $397.50 ($337.50 for 1.5 hours drafting the motion and attending the hearing at an hourly rate of $225.00 plus $60.00 in filing fees). DEMURRERS Breckenridge demurs to the Criglers first cause of action (quiet title), second cause of action (cancellation of instruments), and fourth cause of action (declaratory relief). PHH demurs to the Criglers third cause of action (wrongful foreclosure), fourth cause of action (declaratory relief), fifth cause of action (slander of title), and sixth cause of action (negligent misrepresentation). For the following reasons, the court finds the parties did not adequately meet and confer. Legal Standard Pursuant to Code of Civil Procedure section 430.41, subdivision (a), prior to filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. This section further provides that the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 430.41, subd. (a)(1).) While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, courts are not required to ignore defects in the meet and confer process and if the court determines no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort. (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 & fn. 3.) Discussion In this case, Breckenridges counsel attempted to meet and confer by sending emails to the Criglers counsel. PHHs counsel also attempted to meet and confer by sending emails to the Criglers and their counsel. Because emails are not a code-compliant form of meeting and conferring and counsel has not described any attempt to contact counsel or the Criglers by telephone, the court finds a continuance to further meet and confer is appropriate. CONCLUSION Based on the foregoing, Breckenridges motion to expunge lis pendens is GRANTED and costs are awarded in the amount of $397.50. Furthermore, Breckenridges and PHHs demurrers are CONTINUED to a date to be determined at the hearing in Department G (Pomona). Breckenridges counsel and PHHs counsel are also ordered to meet and confer with the Criglers regarding the present demurrer and to file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing.
Ruling
MARTHA CONTRERAS VS OSBALDO CONTRERAS, ET AL.
Aug 05, 2024 |23STCV23415
Case Number: 23STCV23415 Hearing Date: August 5, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 5, 2024 Case Name: Contreras v. Contreras, et al. Case No.: 23STCV23415 Matter: Motion to Consolidate Moving Party: Plaintiff Martha Contreras Responding Party: Unopposed Notice: OK Ruling: The Motion to Consolidate is denied without prejudice. Moving party 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. Plaintiff Martha Conteras seeks to consolidate the instant action with an unlawful detainer matter, case no. 23LBUD03038. The Motion is denied, without prejudice, because the two cases at issue are not in the same department and there has been no attempt to relate the cases. (Local Rule 3.3(g)(1) [Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.].) Moving party 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
GARO MARDIROSSIAN VS FRED HOWARTH
Jul 30, 2024 |20SMCV01557
Case Number: 20SMCV01557 Hearing Date: July 30, 2024 Dept: P Tentative Ruling Mardirossian v. Howarth, Case No. 20SMCV01557 Hearing Date: July 30, 2023 Cross-complainant Howarths Motion for Reconsideration Via cross-complainant Howarths Third Amended Cross-Complaint, Howarth alleges his neighbor Mardirossian installed a fence encroaching on his property, built a tennis court violating a Coastal Development Permit and setback requirements, and failed to construct a noise-mitigating masonry wall as required. The court granted, in part, Mardirossians summary judgment/adjudication motion. Howarth moves for reconsideration. Evidentiary Rulings Howarths request for the court to take judicial notice of (1) Howarths Opposition to Plaintiff and Cross-Defendant Garo Mardirossians Motion for Summary Judgment, (2) Howarths Response to Plaintiff and Cross-Defendant Garo Mardirossians Separate Statement of Undisputed Material Facts in Support of Its Motion for Summary Judgment, (3) the Declaration of John LoVerde, and (4) the courts Ruling on Submitted Matter issued on 04/29/24, hereinafter referred to as Exhibits 1-4 respectively, are GRANTED under Evidence Code § 452(d) as the documents are records of the Los Angeles County Superior Court. To succeed on a motion for reconsideration, the moving party must present new facts, circ*mstances or law. CCP §1008(a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342. The party seeking reconsideration shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circ*mstances are claimed to be shown. CCP §1008(a). Further, . . . the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added]. The legislative intent was to restrict motions for reconsideration to circ*mstances where a party offers the court some fact or circ*mstance not previously considered and some valid reason for not offering it earlier. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. Howarth argues the court made a factual error, arguing that no wall was actually constructed on the relevant property line, or the evidence presented in the LoVerde declaration. Howarths counsel resubmits evidence previously provided to the court in connection with the motion for summary judgment. Neither the declaration and the accompanying documents provides the court with new facts, circ*mstances or law, as required under CCP §1008(a). Given this, the court cannot grant the motion for reconsideration. Relitigating the courts decision, arguing the court made an erroneous decision, does not meet moving partys burden. DENIED.
Ruling
MARTIN TOKICH VS ANDREW M. DANG, ET AL.
Aug 01, 2024 |22AHCV01417
Case Number: 22AHCV01417 Hearing Date: August 1, 2024 Dept: P [TENTATIVE] ORDER GRANTING DEFENDANT'S MOTION FOR TRIAL CONTINUANCE I. INTRODUCTION Procedural History & Factual Background This case arises from alleged uninhabitable housing conditions at 2841 W. Main St., Alhambra, California 91801 (the Premises). On December 29, 2022, Plaintiff Martin Tokich (Plaintiff) filed this action against Defendants Andrew M. Dang (Andrew), Melvin M. Dang (Melvin) and Northstar Real Estate Group, Inc. (Northstar, together Defendants). The initial Complaint alleged the following nine causes of action as against all Defendants: (1) breach of warranty of habitability under CCP §1941.1 and (2) CCP §1942.4, (3) breach of warranty of habitability under CCP §17920.3, (4) negligence premises liability, (5) nuisance, (6) intentional infliction of emotional distress, (7) breach of contract, (8) unfair business practices under B&P Code § 17200 et seq., and (9) fraudulent concealment. A First Amended Complaint (FAC) was filed on July 12, 2023. Defendants filed a Motion for Summary Judgment on June 26, 2024, which is scheduled to be heard on October 3, 2024. The motion now before the Court is Defendants Motion for an Order Continuing Trial and All Related Dates (the Motion). The Motion was filed on July 8, 2024, and on July 24, 2024 Defendants filed a Notice of Non-Opposition. II. DISCUSSION Legal Standard California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for good cause, which includes (without limitation): (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Id., Rule 3.1332(c).)¿¿¿ The court may also consider the following factors: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court 3.1332(d).) Continuances are granted only on an affirmative showing of good cause requiring a continuance. (In re Marriage of Falcone &¿Fyke¿(2008) 164 Cal.App.4th 814, 823.) Analysis Defendants primary contention is that the current trial date of October 15, 2024, and the current date for the hearing on summary judgment of October 3, 2024 violate Code Civ. Proc. §437c(a)(3) which provides that the motion for summary judgment shall be heard no later than 30 days before the date of trial. Defendants contend a timely motion for summary judgment was filed and served on June 26, 2024, more than the 75 days before the appointed hearing as articulated in Code Civ. Proc. §437c(a)(2). Defendants request a 90-day continuance to allow for the motion for summary judgment to be heard. As noted in Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529, Wells Fargo Bank, N.A. v. Superior Court (1988) 206 Cal.App.3d 918, and Polibrid Coatings, Inc., v. Superior Court (2003) 112 Cal.App.4th 920, 923, being heard on summary judgment is a statutory right, and the Court cannot violate such a right. Although the hearing is just prior to trial, Defendants are entitled to have the motion heard and any reasonable time that may be needed for additional briefing or arguments. The seven court days between the hearing for the motion and the trial are insufficient. As good cause exists, as no opposition has been filed, as no party will suffer prejudice for a continuance, and as the interests of justice are best served by a continuance, the instant motion to continue trial is granted. III. CONCLUSION Defendants' Motion for an Order Continuing Trial and All Related Dates is GRANTED. At the hearing on the motion, the Court will select a date at least 90 days from todays date which will accommodate counsels respective calendars. Defendants to give notice of this ruling. Dated: August 1, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT[TENTATIVE] ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION I. INTRODUCTION Procedural History & Factual Background This case arises from alleged uninhabitable housing conditions at 2841 W. Main St., Alhambra, California 91801 (the Premises). On December 29, 2022, Plaintiff Martin Tokich (Plaintiff) filed this action against Defendants Andrew M. Dang (Andrew), Melvin M. Dang (Melvin) and Northstar Real Estate Group, Inc. (Northstar, together Defendants). The initial Complaint alleged the following nine causes of action as against all Defendants: (1) breach of warranty of habitability under CCP §1941.1 and (2) CCP §1942.4, (3) breach of warranty of habitability under CCP §17920.3, (4) negligence premises liability, (5) nuisance, (6) intentional infliction of emotional distress, (7) breach of contract, (8) unfair business practices under B&P Code § 17200 et seq., and (9) fraudulent concealment. A First Amended Complaint (FAC) was filed on July 12, 2023. Plaintiff filed a Motion for Leave to file a Second Amended Complaint on May 13, 2024. On July 3, 2024, the Court denied leave to amend. The motion now before the Court is Plaintiffs Motion for Reconsideration of that denial (the Motion). Defendants oppose the Motion; no reply has been filed. II. DISCUSSION Legal Standard A motion for reconsideration may only be brought if the party moving for reconsideration can offer new or different facts, circ*mstances, or law which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion....A motion for reconsideration will be denied absent a strong showing of diligence." (Forrest v. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP §1008 tightened diligence requirements). [M]otions to reconsider allow the trial court to consider new facts or law relevant to its order&. (Morton v. Wagner (2007) 156 Cal. App. 4th 963, 973 (dictum). [Emphasis added.] Cf. also Wiz Tech., Inc. v. Coopers & Lybrand (2003) 106 Cal. App. 4th 1, 17-18 (no relevant basis for reconsideration shown). Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Analysis In their moving papers, Plaintiff correctly notes that the first-stated reason the Court denied the Motion for Leave to File the SAC was because in the proposed SAC, Plaintiff did not state whether the 9th cause of action for fraudulent concealment in the FAC is to be deleted and replaced with a proposed cause of action for violation of Government Code §§12921 and 12927 as required by CRC Rule 3.1324(a). Plaintiff brings to the Courts attention that the omission of this cause of action for fraudulent concealment was because of a prior ruling made on September 19, 2023 by the Honorable Judge Margaret Oldendorf on a demurrer and motion to strike, which sustained demurrer without leave to amend as to the cause of action for fraudulent concealment. Therefore, this procedural basis for the Courts ruling was in error. Bringing Judge Oldendorfs prior order to this Courts attention is the type of new fact or circ*mstance contemplated by Code of Civil Procedure section 1008(a). However, the Court also denied the motion for leave to file the SAC because (1) the motion was untimely and (2) there was prejudice to the Defendants. (July 3, 2024 Minute Order, pg. 3-4.) The motion for leave was filed on May 13, 2024, 16 months after the initial Complaint that initiated the case. Trial was scheduled for October 15, 2024. In their motion for leave, Plaintiff argued that the new information that prompted the SAC came to light during an April 10, 2024 deposition of Plaintiff. However, it took more than a month for the motion for leave to be filed. The law is well settled that a long-deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.'"]; Estate of Murphy (1978) 82 Cal.App.3d 304, 311, ["Where inexcusable delay and probable prejudice to the opposing party is indicated, the trial court's exercise of discretion in denying a proposed amendment should not be disturbed."] Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) In opposing the instant Motion to Reconsider, Defendants argue that (1) Plaintiff presents no new or different facts and (2) Defendants will suffer prejudice. Given that Defendants have moved this Court to continue the trial into 2025, which the Court has tentatively granted, the Court concludes that this continuance effectively resolves the timeliness issue and greatly reduces the possibility of prejudice to Defendants. Defendants may have to conduct additional discovery and incur additional costs. However, Plaintiff contends that prejudice can be mitigated by Plaintiff offering depositions at any time without statutory notice, agreeing to advance the motion for summary judgment, and agreeing to an amendment to the motion for summary judgment. The Court finds that these measures are sufficient and that the granting of Plaintiffs Motion for Reconsideration will be contingent upon Plaintiff following through on these offers. Failure to do so may result in the Court looking favorably upon a motion to strike the newly added causes of action. III. CONCLUSION Accordingly, Plaintiffs Motion for Reconsideration is GRANTED. Defendants to file their answer within 20 days. Dated: August 1, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT
Ruling
ANDREW KING VS. VAL-CHRIS INVESTMENTS, INC. ET AL
Aug 02, 2024 |CGC23608591
Real Property/Housing Court Law and Motion Calendar for August 2, 2024 line 6. Hearing Regarding Posting the Ordered Undertaking. In light of the July 11, 2024 Court of Appeal order, the return date for posting the previously ordered undertaking shall be September 3, 2024. =(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
Montezuma Lodge No. 172, I.O.O.F., of California, a California Public Benefit Corporation vs. Connie Jean Lewis, Trustee, Lewis Family Trust
Aug 03, 2024 |CU23-05966
CU23-05966Demurrer by Defendant CONNIE LEWIS, Trustee of the Lewis Family Trust, toComplaintTENTATIVE RULINGThe papers filed in support of this demurrer include a declaration by counsel as to meetand confer efforts preceding the filing. That declaration purported to attach as anexhibit a copy of the meet and confer letter counsel claimed to have mailed to opposingcounsel. But no letter was attached.More importantly, the request for judicial notice also claimed to be attaching copies ofthe two documents for which judicial notice was being requested. These documentswere to be a copy of a page of the Assessors Map Book, “showing the propertiesalleged to be at issue in this matter”; and a copy of a Google Map page showing certainaddresses. But again, no documents were attached.The request for judicial notice was intended to support the uncertainty basis for thisdemurrer to the entirety of the complaint, and thus the court cannot find the complaint isuncertain.The demurrer to the trespass, nuisance and negligence causes of action is alsooverruled. Page 2 of 4One of the elements of trespass is satisfied by a negligent act of the defendant causingentry onto the plaintiff’s property.The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2)the defendant's intentional, reckless, or negligent entry onto the property; (3) lack ofpermission for the entry or acts in excess of permission; (4) harm; and (5) thedefendant's conduct was a substantial factor in causing the harm. (See CACI No. 2000.)Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.Likewise, an element of nuisance is met by negligent conduct causing interference withanother’s real property. Lussier v. San Lorenzo Valley Water Dist. (1988) 206Cal.App.3d 92, 102 [“a nuisance requires some sort of conduct, i.e. intentional andunreasonable, reckless, negligent, or ultrahazardous, that unreasonably interferes withanother's use and enjoyment of his property”].The complaint alleged that the Demurring Party “without approval by or permits from theCity of Dixon, personally directed an individual to pave the entire Parking Area byadding a layer of tar and gravel, (commonly called “blacktop”) [Complaint, ¶24]; that“The added layer did not maintain the previously existing grading but instead directssurface waters towards and onto the Oddfellow Property where it gathers and pools . . .[Complaint, ¶25], and causes damage [Complaint, ¶¶26-29].The court finds that the complaint gives the defendant “fair notice” of the nature, scopeand extent of the claims, by implying that the decision to pave the parking lot causedrainwater to be diverted from its historical path, to therefore pool in greater quantitiesnear the Oddfellow property. Edmon & Karnow (Weil & Brown), Civil Procedure BeforeTrial, §§6:128 and 6:129, p. 6-44.The court therefore overrules in its entirety the demurrer to complaint, and directs theDemurring Party to file and serve an answer within 30 days, to avoid the possibility ofdefault thereafter being entered.The parties are reminded to appear for the case management conference concurrentlyset for July 31 at 8:30 a.m., and the court will also conduct the OSC as to sanctions atthat time.PETITION OF ARTEFFECT XD, LLCCU24-04410Petition for Approval of Transfer of Structured Settlement Payment RightsTENTATIVE RULINGThe payee and counsel for the petitioning proposed transferee are to appear for hearingas scheduled. Zoom appearance is approved. Page 3 of 4
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