Complaint Filed - Docketed On: 05/06/2024 May 05, 2024 (2024)

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Ruling

VISTA LAND LLC, A NEVADA LIMITED LIABILITY COMPANY VS EIJ, INC

Aug 15, 2024 |20STCV47123

Case Number: 20STCV47123 Hearing Date: August 15, 2024 Dept: 49 Vista Land, LLC v. EIJ, Inc. et al. DEFENDANTS MOTION TO ENFORCE AUTOMATIC STAY MOVING PARTY: Defendants David Robinson, Raymond G. Robinson, and R&R Real Properties, LLC (The Robinson Defendants) RESPONDING PARTY(S): Defendant/Cross-Complainant Frank Sillman STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This action arises out of the sale of real property located at 5529 Vanalden Street in Tarzana, California. Plaintiff Vista Land (Vista) alleges it purchased the real property after being the highest bidder at a Trustees foreclosure sale on September 8, 2020, where it purchased the Second Deed of Trust on the property. Thereafter, Plaintiff alleges Defendants, who owned the First Deed of Trust on the property, engaged in a conspiracy to defraud Plaintiff. Plaintiff obtained a TRO on January 7, 2021, enjoining any non-judicial foreclosure action against the property. It is further alleged that on October 6, 2021, Defendant AWBCO recorded a notice of Assignment of the Deed of Trust to R&R Real Properties, LLC (R&R.) Plaintiff alleges Defendant AWCBOs attorney of record, Raymond Robinson (Robinson) is the Managing Member of R&R and incorporated the company. R&R allegedly conducted a nonjudicial foreclosure of the property on October 21, 2021, and then entered into a Purchase and Sale Agreement with Frank Sillman (Sillman.) Accordingly, Plaintiff filed a Supplemental Complaint on February 23, 2022, containing an eleventh cause of action for Embezzlement against EIJ, a twelfth cause of action for wrongful foreclosure against Robinson and eighteen other Defendants, and a thirteenth cause of action for Criminal extortion against Robinson and four other defendants. That operative pleading is now the Verified Third Amended Complaint and Second Amended Supplemental Complaint. On May 31, 2023, this court awarded Plaintiffs former counsel, Vip Bhola, attorneys fees in the amount of $61,875.00 against Defendants Greg Royston and Raymond Robinson, jointly and severally. This award arose from a proceeding finding these Defendants guilty of contempt. Then, in a related lawsuit, 23STCV25484, Vipan Kant Bhola v. Gregory T. Royston, et al., Bhola alleged that Defendant Royston had made a fraudulent transfer in attempts to avoid action on the attorneys fee award and obtained a lis pendens on Roystons property. Upon motion by Royston to extinguish the lis pendens, this court found Bhola could not establish the probable validity of the claim. Thereafter, this court awarded Defendant Royston $16,500 in attorneys fees and $1,223.12 in costs for successfully moving to extinguish the lis pendens. The Robinson Defendants now move for an application to enforce an automatic stay of the case pending completion of Defendant David Robinsons appeal of the denial of his special motion to strike. Defendant and Cross-Complainant Sillman filed an opposition. No other parties filed a formal response thereto. TENTATIVE RULING: The Robinson Defendants Motion to Enforce Automatic Stay is GRANTED. The case is ordered STAYED in its entirety, pending further order of this Court. The FSC and Trial dates are ADVANCED and VACATED. The pending MSJ hearing date is also ADVANCED AND VACATED. Those dates will be rescheduled upon the lifting of the stay in this case. Moving party is ordered to give notice to all interested parties. DISCUSSION: Motion to Enforce Automatic Stay A. Background On September 29, 2022, Plaintiff Vista Land filed its Verified Second Amended Complaint and First Amended Supplemental Complaint (SAC). Defendant Robinson was named in all ten causes of action of the SAC except for the Seventh Cause of Action for negligence and the Eighth Cause of Action for forcible detainer. (See SAC.) On January 31, 2023, Defendant David Robinson filed a special motion to strike the eight causes of action in which he was named from the then operative SAC. (See 01/31/2023 Special Motion to Strike; see also 09/29/2022 Verified Second Amended Complaint.) On May 31, 2023, this court denied Defendant Robinsons special motion to strike in full. (See 05/31/2023 Final Ruling and Minute Order.) Thereafter, Robinson appealed that ruling, which remains pending. B. Analysis The Robinson Defendants move for an order enforcing the automatic stay of the trial court proceedings. [FN 1] Generally, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order. (CCP § 916(a).) The automatic stay does not suspend trial court proceedings on the remaining components of the litigation, for example, claims against other parties&not resolved by the judgment or order under appeal. (Hedwall v. PCMV, LLC (2018) 22 Cal. App. 5th 564, 580, fn. 11.) Thus, the perfecting of an appeal from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion. (Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal. 4th 180, 186.) The Robinson Defendants explain that discovery has been proceeding among other parties in this matter. They also assert that its exclusion from the discovery is deeply prejudicial and thus, all discovery should be stayed while the anti-SLAPP appeal is pending. The only party to file a response to the motion was Defendant/Cross-Complainant Sillman. The substance of Sillmans brief stated the following: Sillman takes no position on the legal issue of whether a stay is appropriate, but if the Court has any discretion in the determination of whether to grant or deny the stay, Sillman respectfully requests that the Court deny the stay and that the trial proceed on October 28, 2024. (Sillman Brief Re Defendants Motion to Enforce Automatic Stay, 2: 1-3.) Here, there is an overlap among the factual allegations affected by the special motion to strike that makes it difficult to separate any one Defendant from another. Thus, all Defendants are in some way affected by the special motion to strike and resulting appeal. Additionally, the only cause of action in the operative Third Amended Complaint not directly subject to appeal is the seventh cause of action for negligence, because Defendant Robinson is not named in that cause of action. (See 06/30/2023 TAC.) However, because of the overlap in that cause of action and the ones subject to appeal, it too is affected by the motion. Therefore, the entire Complaint can be considered affected by the special motion to strike now under appeal. Moreover, Because no party has filed an opposition demonstrating any authorities against imposing a stay, nor how they would be prejudiced by a stay, the court concludes a stay is appropriate. Accordingly, the Robinson Defendants Motion to Enforce Automatic Stay is GRANTED. IT IS SO ORDERED. Dated: August 15, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior CourtFN 1 - The Robinson Defendants initially filed this motion ex parte. At the July 5, 2024 hearing on the ex parte, the court set the motion for hearing with a briefing schedule. (See July 5, 2024 Minute Order.) Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Ruling

NENA MAYNEZ, AN INDIVIDUAL VS CRISTINA CRUZ-MADRID, AS TRUSTEE OF THE CRISTINA CRUZ-MADRID REVOCABLE FAMILY TRUST DATED JULY 29, 2019

Aug 20, 2024 |22LBCV01046

Case Number: 22LBCV01046 Hearing Date: August 20, 2024 Dept: S27 1. Background Facts Plaintiff, Nena Maynez filed this action against Defendant, Cristina Cruz-Madrid for partition of the parties jointly owned real property. 2. Prior Motion to Enforce Settlement The Court has held three prior hearings on Defendants motions to enforce settlement. The first hearing occurred on 2/29/24. Prior to the hearing, the Court issued a tentative ruling including the following language: The Court was originally scheduled to hear this motion on 2/29/24. Prior to the hearing, the Court issued the following tentative ruling: The parties entered into a settlement agreement pursuant to which Defendant would pay Plaintiff $305,000 and, upon completion of all payments, Plaintiff would quitclaim title to the subject property to Defendant. Defendant has made all payments to Plaintiff, but Plaintiff has not quitclaimed title to the property to Defendant. Defendant seeks an order enforcing the settlement pursuant to CCP §664.6; specifically, Defendant seeks an order requiring the Court to act as excelsior and sign the quitclaim deed on behalf of Plaintiff. CCP §664.6 clearly permits the Court to reduce the parties settlement to a legal judgment when one party is in breach of the settlement agreement. Specifically, §664.6(a) provides, in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. Defendant fails, however, to cite any specific authority permitting the Court to act as excelsior and sign the quitclaim deed itself on behalf of Plaintiff. The Court knows of no such authority. Absent such authority, the Court is not inclined to fashion this unique remedy. If Defendant submits a proper proposed judgment reflecting the terms of the parties settlement, the Court will process the judgment. If Plaintiff continues to fail to comply with the terms of the settlement, once entered as a judgment, Defendant may pursue any remedies for violation of the terms of the judgment, including but not limited to contempt of court. The second hearing was held on 4/04/24. Defendant had not submitted additional argument, but had submitted a proposed judgment. The Court indicated it would permit Plaintiff time to oppose the proposed judgment. On 6/20/24, the Court held a status conference. The Court noted that the proposed judgment was contested, and set a hearing on the issue for 7/25/24. However, no party filed any papers concerning the proposed judgment prior to 7/25/24, and therefore, on 7/25/24, the Court continued the hearing to 8/20/24. 3. Motion to Enforce Settlement On 7/31/24, Defendant filed papers in support of her request to enforce the settlement. Defendants motion seeks issuance of a judgment making clear that Defendant is the sole owner of the subject property. In the alternative, Defendant seeks an order requiring Plaintiff to return the $305,000 cash payment already made back to Defendant and restoring the case to the civil active list. On 8/09/24, Plaintiff filed a response to the motion. Plaintiff indicates she does not object to signing the quit claim deed, but she needs Defendant to obtain a new loan on the property and take her off the loan or, alternatively, sign something clarifying that she will indemnify Plaintiff in the event the mortgagor ultimately seeks recovery of funds from Plaintiff on the loan. The Court has not received any response from Defendant to Plaintiffs response. That said, Defendant addressed this argument in the moving papers. Defendant indicates, in the moving papers, that there is only one loan on the subject property, and ONLY Defendant, not Plaintiff, is on the loan. Specifically, Defendant points to her own declaration, filed on 4/18/24, that includes a copy of the only Note on the subject property, which is solely in her own name. Absent any showing that there is any loan with Plaintiff as a borrower, the Court finds Plaintiffs objections spurious. That said, the Court is not clear that the proposed judgment is the correct mechanism for enforcement of the settlement agreement. The proposed judgment includes the following language: The Court finds that Defendant Cristina Cruz-Madrid, as Trustee of the Cristina Cruz-Madrid Revocable Family Trust dated July 29, 2019 has acquired full, complete, and undivided fee-simple ownership of 472 West 18th Street, San Pedro, California 90731 [APN: 7456-028-021] from Plaintiff Nena Maynez. First, it is not clear what the effect of this judgment would be. Could the judgment be recorded in order to clarify ownership? Second, as the Court has previously indicated, would it not be better to have the judgment simply reflect the terms of the parties settlement agreement? The judgment can simply say that Plaintiff is ordered to quit claim the property to Defendant immediately. The Court understands this is more in line with a typical order than a typical judgment, but it is not clear that the Court can sign a judgment including a term not specifically provided for in the parties settlement agreement. In the event Plaintiff fails to comply with the terms of the judgment, Defendant would have the opportunity to proceed by way of contempt proceedings to ensure compliance. The Court wishes to hear from the parties, at the time of the hearing, concerning exactly how the judgment should be crafted to ensure Defendant ultimately obtains ownership of the subject property. The Court asks Counsel to make arrangements to appear remotely at the hearing on the motion to enforce settlement.

Ruling

PEOPLE OF THE STATE OF CALIFORNIA EX REL. WILLIAM WYNDER, CITY ATTORNEY FOR THE CITY OF RANCHO PALOS VERDES, ET AL. VS JOHN STEPHEN RICO

Aug 12, 2024 |23TRCV03110

Case Number: 23TRCV03110 Hearing Date: August 12, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B PEOPLE OF THE STATE OF CALIFORNIA FOR CITY OF RANCHO PALOS VERDES, et al., Plaintiffs, Case No.: 23TRCV03110 vs. [Tentative] RULING JOHN STEPHEN RICO, Defendant. Hearing Date: August 12, 2024 Moving Parties: Proposed intervenor Federal Housing Finance Agency Responding Party: None Motion for Order Granting Pro Hac Vice Application of Michael A.F. Johnson to Appear as Counsel in this Action The Court considered the moving papers. RULING The application is GRANTED. The Court ORDERS that Michael A.F. Johnson appear as counsel pro hac vice for proposed intervenor Federal Housing Finance Agency. BACKGROUND On September 20, 2023, People of the State of California ex rel. William Wynder and City of Rancho Palos Verdes filed a complaint against John Stephen Rico for (1) public nuisance per se, (2) public nuisance, and (3) violation of state housing law receivership. Community Mortgage Funding, LLC, County of Los Angeles Department of Child Support Services, and State of California EDD were named as real parties in interest. On April 17, 2024, the Court granted City of Rancho Palos Verdes petition for appointment of receiver and requiring reimbursem*nts. DISCUSSION Attorney Michael A.F. Johnson requests leave to appear as counsel pro hac vice for proposed intervenor Federal Housing Finance Agency. CRC Rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear as counsel pro hac vice in the State of California by filing a verified application together with proof of service by mail of a copy of the application and notice of hearing on all parties who have appeared in the case and on the State Bar of California at its San Francisco office, with payment of a $50.00 fee, so long as that attorney is not a resident of the State of California, and is not regularly engaged in substantial business, professional, or other activities in the State of California. The application must state: (1) the applicants residence and office address; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member in good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (5) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record in the local action. CRC Rule 9.40(d). The Court finds that the attorneys application complies with the requirements of Rule 9.40. The applicant has paid the required $50.00 fee to the State Bar of California. CRC Rule 9.40(e). The application is GRANTED. ORDER The application is GRANTED. The Court ORDERS that Michael A.F. Johnson appear as counsel pro hac vice for proposed intervenor Federal Housing Finance Agency. Moving party is to give notice of this ruling.

Ruling

HSIANG CHI ?LISA" HUANG VS WELLS FARGO BANK, N.A., ET AL.

Aug 15, 2024 |23STCV30760

Case Number: 23STCV30760 Hearing Date: August 15, 2024 Dept: 54 Superior Court of California County of Los Angeles Hsiang Chi Lisa Huang, Plaintiff, Case No.: 23STCV30760 vs. Tentative Ruling Wells Fargo Bank, N.A., etc., et al., Defendants. Hearing Date: August 15, 2024 Department 54, Judge Maurice Leiter Demurrer to First Amended Complaint; Motions to Strike Moving Party: Defendant US Bank Trust National Association, as Trustee of FW-BKPL Series I Trust; Defendant Wells Fargo Bank, N.A. Responding Party: Plaintiff Hsiang Chi Lisa Huang T/R: DEFENDANT US BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE OF FW-BKPL SERIES I TRUSTS DEMURRER IS SUSTAINED WITH 30 DAYS LEAVE TO AMEND AS TO THE FIRST, SECOND, AND EIGHTH CAUSES OF ACTION AND OVERRULED AS TO THE FIFTH CAUSE OF ACTION. THE MOTIONS TO STRIKE FILED BY DEFENDANT US BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE OF FW-BKPL SERIES I TRUST AND DEFENDANT WELLS FARGO BANK, N.A. ARE BOTH GRANTED WITH 30 DAYS LEAVE TO AMEND. DEFENDANT WELLS FARGO BANK, N.A. TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers, opposition, and reply. BACKGROUND This is an action arising from the alleged wrongful foreclosure of real property located at 1806 Camden Avenue, South Pasadena, CA 91030. On December 18, 2023, Plaintiff Hsiang Chi Lisa Huang sued Defendants Wells Fargo Bank, N.A., U.S. Bank Trust National Association, as Trustee of FW-BKPL Series I Trust, Clear Recon Corp., Massis Tarbinian, and Houry Kelian. On March 14, 2024, Plaintiff filed the operative First Amended Complaint (FAC) alleging causes of action for (1) wrongful foreclosure; (2) breach of contract; (3) breach of contract; (4) negligence; (5) negligence; (6) cancellation of instruments; (7) quiet title; and (8) violation of Bus. and Prof. Code § 17200, et seq. On May 13, 2024, Plaintiff dismissed the fourth cause of action against Wells Fargo. The second and eighth causes of action are the only ones asserted against Wells Fargo. On May 22, 2024, Plaintiff filed a Substitution of Attorney Form indicating that she was now self-represented. Before the Court are Wells Fargos Motion to Strike, and US Banks demurrer to the first, second, fifth, and eighth causes of action in the FAC, and its motion to strike. Plaintiffs opposition to US Banks demurrer indicates that she is now represented by Adam Apollo, Esq. Mr. Apollo has not substituted into this action through a substitution of attorney form. The Court will consider Plaintiffs opposition to the demurrer. Plaintiff is advised to comply with the requirements of the Code of Civil Procedure and California Rules of Court. JUDICIAL NOTICE The Court GRANTS Defendant US Banks request for judicial notice. (Evid. Code §§ 452, 453.) ANALYSIS A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) [T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) In ruling on a demurrer, [t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court also may strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) A. First Cause of Action for Wrongful Foreclosure The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause o faction to set aside a foreclosure sale. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.) They are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale . . . was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. (Ibid.) [M]ere technical violations of the foreclosure process will not give rise to a tort claim; the foreclosure must have been entirely unauthorized on the facts of the case. (Id. at p. 409.) A plaintiff is required to allege tender of the amount of . . . indebtedness in order to maintain any cause of action for irregularity in the sale procedure . . . . (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109.) Plaintiffs allegations that she fully performed under the Loan Agreement by paying the loan continuously and regularly and was not in default either under the Loan or the conditions within the Deed of Trust conflict with US Banks Request for Judicial Notice. (FAC, ¶ 29.) The Court disregard[s] any allegations of [a] complaint that conflict with judicially noticed documents as well as those that represent bare legal conclusions. (York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1193.) As of April 29, 2022, Plaintiff was in default in the amount of $23,310.63 as to the Deed of Trust. (RJN at Ex. 16.) Plaintiff failed to cure the default pursuant to the Deed of Trust. (RJN at Ex. 17.) Plaintiff makes no allegation that she tendered the amount of indebtedness. (FAC, ¶ 32.) Plaintiffs allegation that she was not in default conflicts with Defendant US Banks request for judicial notice. Plaintiff has failed to allege that she tendered the amount of indebtedness; the first cause of action is insufficient. The Court SUSTAINS the demurrer of US Bank to the first cause of action in the FAC with 30 days leave to amend. B. Second Cause of Action for Breach of Contract To state a cause of action for breach of contract, a party must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circ*mstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) The second cause of action for breach of contract is insufficiently alleged. (FAC, ¶¶ 37-42.) Plaintiff has failed to set forth the verbatim language of the Loan Agreement and Deed of Trust or to attach a copy of the documents to the FAC. Plaintiff merely alleges that [u]nder the Loan Agreement and Deed of Trust, Plaintiff . . . agreed to pay the total loan amount of $166,200. The Loan owner, Defendant [Wells Fargo] has a duty to accept Plaintiffs . . . monthly repayment if Plaintiff . . . tenders the payment in a way that complies with the agreement. (FAC, ¶ 38.) Plaintiff has not stated the terms of repayment or the payment instructions. The demurrer of US Bank to the second cause of action is SUSTAINED with 30 days leave to amend. C. Fifth Cause of Action for Negligence To state a cause of action for negligence, a plaintiff must allege the following: (1) a legal duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Whether a duty of care exists is a question of law to be determined on a case-by-case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) Lenders and borrowers operate at arms length. (Lueras v. BAC Home Loans Servicing (2013) 221 Cal.App.4th 49, 64.) [A]s a general rule, a financial institution owes no duty of care to a borrower when the institutions involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money. (Ibid.) Liability to a borrower for negligence arises only when the lender actively participates in the financed enterprise beyond the domain of the usual money lender. (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) In general, there is not recovery in tort for negligently inflicted purely economic losses, meaning financial harm unaccompanied by physical or property damage. (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922.) This economic loss rule also functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties. (Ibid.) The economic loss rule does not bar Plaintiffs cause of action for negligence because Plaintiff has alleged she lost her ownership interest in the Property. (FAC, ¶ 57.) Plaintiff has not alleged only economic losses. Plaintiff alleges that US Bank did not provide proper notice of prior alleged defaults or of the subsequent foreclosure sale. (FAC, ¶ 55.) Plaintiff alleges that Defendant US Bank breached its duty to provide possible foreclosure alternatives to Plaintiff. (FAC, ¶¶ 52-53.) The demurrer to the fifth cause of action for negligence in the FAC is OVERRULED. D. Eighth Cause of Action for Violation of Bus. and Prof. Code § 17200, et seq. California Business and Professions Code section 17200 prohibits any unlawful, unfair or fraudulent business act or practice. (Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.)¿As for fraud, to establish a fraudulent practice under the UCL, the plaintiff must show that members of the public are likely to be deceived. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 806.)¿Lastly, [a] business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.) A cause of action for violation of Bus. & Prof. Code § 17200 must be directed at a minimum, ongoing conduct. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1156.) The eighth cause of action is insufficiently alleged. Plaintiff alleges only past conduct but does not allege any ongoing conduct by US Bank. (FAC, ¶¶ 68-77.) The Court SUSTAINS the demurrer of US Bank to the eighth cause of action in the FAC with 30 days leave to amend. E. Motions to Strike US Bank and Wells Fargo each filed motions to strike. Plaintiff failed to oppose either one. Plaintiff has conceded to the arguments in the motions to strike; [c]ontentions are waived when a party fails to support them with reasoned argument and citations to authority. (Moulton Niguel Water Dist v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) The Court has sustained the demurrers to the first, second, and eighth causes of action. The Court GRANTS the motions to strike with 30 days leave to amend.

Ruling

HILDA BENNETT, AN INDIVIDUAL, ET AL. VS HUGO RODRIGUEZ, AN INDIVIDUAL

Aug 14, 2024 |23STCV24386

Case Number: 23STCV24386 Hearing Date: August 14, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 HILDA BENNETT, et al., Plaintiffs, vs. HUGO RODRIGUEZ, et al., Defendants. Case No.: 23STCV24386 Hearing Date: August 14, 2024 Hearing Time: 10:00 a.m. ORDER RE: MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND REQUEST FOR SANCTIONS AGAINST PLAINTIFFS AND PLAINTIFFS ATTORNEYS AND RELATED CROSS-ACTION Defendant Hugo Rodriguez (Defendant) moves for an order compelling Plaintiffs Hilda Bennett, Yolanda Tellez, and Gustavo Rodriguez to provide proper and complete responses to Defendants interrogatories, and for sanctions against Plaintiffs and Plaintiffs attorneys for their failure to comply with their discovery obligations. (Mot. at p. 2:2-5.) As an initial matter, the Court notes that the proof of service attached to Defendants motion is not signed or dated. Thus, it is unclear if Defendants instant motion was served. In addition, Defendants motion will be continued to a new date as set forth below. NO HEARING WILL TAKE PLACE ON AUGUST 14, 2024. Pursuant to the Courts power to amend and control its process and orders so as to make them conform to law and justice (Code Civ. Proc., § 128, subd. (a)(8)), the Court orders the parties in this case to participate in a meet and confer with the Court (Informal Discovery Conference or IDC). Lead or other designated counsel for the parties with full authority and any self-represented parties are ordered to participate in person in an IDC. It appears Defendant reserved an IDC for August 16, 2024 that pertains to the discovery that is the subject of the instant motion. On July 1, 2024, Defendant filed an IDC Statement providing, inter alia, that [i]nterrogatories were served upon Plaintiffs whom responded vaguely, evasively and incompletely. Defendant on 6/3/24[1] served and prematurely filed a motion to compel and sanctions on those interrogatories responses prior to filing this IDC. The scheduled hearing on that motion is set for 8/14/24. The Court notes that the responding parties may file an IDC form in Department 50 setting forth a response to Defendants IDC Statement three days prior to the IDC. Defendant must use the Courts online reservation system to continue the motion to a post-IDC discovery hearing date. The parties are ordered to have with them whatever materials are needed to make the IDC session productive and successful. Prior to the IDC date, lead or other designated counsel for the parties with full authority, and any self-represented parties are to meet and confer, in person or via telephone in a further attempt to resolve as many of the issues as possible before the IDC. (See CRC Rule 3.670, subd. (f)(2).) If the parties resolve their discovery disputes before the IDC date, Defendant is ordered to take both the August 16, 2024 IDC and the motion off calendar as soon as possible. Defendant is ordered to provide notice of this Order. DATED: August 14, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court [1]It appears that the date 6/3/24 is a typo. Defendant filed the instant motion on June 10, 2024, which is set for hearing on August 14, 2024.

Ruling

FITNESS INTERNATIONAL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS ANDREWS RANCHO DEL SUR, A CALIFORNIA CORPORATION

Aug 15, 2024 |20STCV43366

Case Number: 20STCV43366 Hearing Date: August 15, 2024 Dept: 73 08/15/24 Dept. 73 Hon. Rolf Treu, Judge presiding FITNESS INTERNATIONAL, LLC v. ANDREWS RANCHO DEL SUR (20STCV43366) Counsel for Plaintiff: Dawn Eyerly (Saul Ewing LLP) Counsel for Defendant/moving party: Gregory Ferruzzo (Ferruzzo & Ferruzzo, LLP) DEFENDANTS MOTION FOR ATTORNEYS FEES (filed 07/02/2024) TENTATIVE RULING Defendants Motion for Attorneys Fees is GRANTED. The Court awards Defendant a reduced amount of attorneys fees totaling $59,510.96 in attorney fees and costs. I. BACKGROUND On November 12, 2020, Plaintiff Fitness International, LLC (Plaintiff) filed this action against Defendant Andrews Rancho Del Sur (Defendant) and Does 1 through 10. Plaintiffs Complaint alleges the following causes of action: (1) Breach of Contract (Representations, Warranties, and Covenants); (2) Breach of Contract (Credit); (3) Breach of Contract (Failure to Abate Rent); (4) Common Count (Money Had and Received); (5) Common Count (Money Paid by Mistake); and (6) Declaratory Judgment. The Complaint alleges the following. Plaintiff is a nationwide operator of health and fitness centers. Defendant is the owner of the real commercial property located at 7230 Firestone Boulevard in Downey, California (Subject Property). On December 13, 1999, Plaintiff and Defendant entered into a Lease Agreement (Lease), whereby Defendant agreed to rent the Subject Premises to Plaintiff for the purposes of operating a health and fitness center, in exchange for the monthly payment of rent. Pursuant to the Lease, Defendant agreed to deliver to Plaintiff use of the Subject Premises and, further agreed Plaintiff would be provided with peaceful and quiet possession and enjoyment of the Subject Premises. In exchange for the peaceful and quiet provision and possession of the Subject Property, Plaintiff agreed to pay monetary rent on a monthly basis. On March 19, 2020, California Governor Gavin Newsom issued Executive Order N-33-20, directing all individuals in California to stay at home due to the COVID-19 pandemic, and further directed all non-essential businesses, including gyms and fitness centers, to immediately cease operating to prevent further spread of COVID-19. Due to Executive Order N-33-20, as well as corresponding Federal and State Stay-At-Home Orders, Defendant was unable to provide Plaintiff with possession of the Subject Premises from approximately March 17, 2020 to June 11, 2020, and thereafter, from July 13, 2020 to the present. However, despite Defendants inability to perform under the governing Lease, Defendant required Plaintiffs performance and demanded Plaintiffs payment of monthly rent. Pursuant to Defendants demand, Plaintiff paid monthly rent, totaling approximately $460,412.69, from approximately March 17, 2020 through March 31, 2020, and April 1, 2020 through October 31, 2020. Plaintiff maintains Defendants demand for payment of rent constitutes a breach of the Lease as Defendant was unable to perform under the Lease by providing Plaintiff with peaceful and quiet possession of the Subject Property during the COVID-19 pandemic. Plaintiff, additionally, maintains that Plaintiff was excused from paying rent under the Lease as the purpose of the Lease was frustrated due to the COVID-19 pandemic, and performance under the Lease was impracticable. On October 25, 2022, the Court granted Defendants motion for summary judgment. Plaintiff appealed the Courts judgment on December 12, 2022. On January 9, 2023, Defendant filed its first Motion for Attorneys Fees and Costs. On July 18, 2023, the Court granted Defendants motion and awarded Defendant the total amount of $300,109.64. On February 16, 2024, the Court of Appeal affirmed this Courts judgment. The Court of Appeal also ordered that Defendant is entitled to its costs. (2/16/24 Court of Appeals Order.) On March 27, 2024, Plaintiff filed a Petition for Review by the California Supreme Court. The California Supreme Court denied Fitness Petition for Review on May 15, 2024. On May 20, 2024, following the Supreme Courts denial of Plaintiffs Petition for Review, the Court of Appeal issued its Remittitur stating that its Opinion had become final. On July 2, 2024, Defendant filed the instant motion for attorneys fees against Plaintiff, arguing: · Defendant is entitled to recover its reasonable attorneys fees and costs on appeal by contract. · Defendant moves for entry of an award of their Attorneys Fees and Costs incurred in the total amount of $62,275.96 No opposition has been filed. On August 8, 2024, Defendant filed a Notice of Non-Opposition requesting the Court grant Defendants unopposed Motion for Attorneys Fees and Costs. II. ANALYSIS A. Legal Standard CCP §§ 1032 and 1033.5 provide that a prevailing party may recover its costs as a matter of right, and that those costs may include attorneys fees when authorized by statute or contract. [A]bsent circ*mstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee. We explained that the purpose behind statutory fee authorizationsi.e., encouraging attorneys to act as private attorneys general and to vindicate important rights affecting the public interestwill often be frustrated, sometimes nullified, if awards are diluted or dissipated by lengthy, uncompensated proceedings to fix or defend a rightful fee claim. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133-34 (emphasis in original).) The fee setting inquiry in California ordinarily begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.... The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id. at 1134.) Other factors to consider in fixing the reasonableness of fees to be considered beyond the fee agreement alone include, but are not limited to (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in this locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the circ*mstances; and (6) the experience, reputation, and ability of the lawyer or lawyers performing the services. (Glendora Community Redevelopment Agency v. Demeter (1984) 155 Cal.App.3d 465, 470.) B. Defendant is entitled to recover attorneys fees In any action on a contract that provides for the prevailing partys recovery of attorneys fees, the prevailing party shall be entitled to [an award of] reasonable attorneys fees.¿(Civ. Code, § 1717.) The contractual entitlement to an attorneys fee award in favor of the prevailing party applies to both trial and appellate court proceedings. (Serrano v Unruh (Serrano) (1982) 32 Cal.3d 621, 637 (it is established that fees, if recoverable at all -- pursuant either to statute or parties agreement are available for services at trial and on appeal)). An award of costs on appeal does not preclude a party from seeking attorneys fees under California Rule of Court, rule 3.1702. The prevailing party is to file a motion for attorneys fees on appeal with the trial court within 40 days of the issuance of the remittitur. (CRC, Rule 3.1702(c); 8.278(c)(1)). Here, the Court of Appeal issued its Remittitur stating that its Opinion had become final on May 20, 2024. Defendant timely filed this motion on July 2, 2024. The Court of Appeal ordered Defendant Andrews Rancho Del Sur is entitled to costs, following the California Supreme Courts denial of Plaintiffs Petition for Review. (Ferruzzo Decl. at ¶¶ 15-18.) Defendant is a prevailing party in this action. The provision in the lease provided that the unsuccessful party shall reimburse the successful party for its reasonable attorneys fees, costs and any attorneys fees incurred in any post-judgment proceeding. (Ferruzzo Decl., Ex. A, Section 22.7.) Thus, the Court finds that Defendant is entitled to its reasonable attorneys fees and costs. C. Hourly Rate The reasonable hourly rate is that prevailing in the community for similar work. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The experienced trial judge is the best judge of the value of professional services rendered in [her] court. (Ibid.) An attorneys own billing rates carry a presumption of reasonableness. (Mandel v. Lackner (1979) 92 Cal.App.3d 747, 761) Defendant seeks to recover a total of $59,515.00 in attorneys fees for work completed by several attorneys and paralegals with varying hourly rates. Defendant asserts that the appellate team for this case was composed of Senior Partner Gregory J. Ferruzzo as Trial Counsel; Senior Associate Sean E. Morrissey as Handling Attorney; Partner Gordon D. Scholte; Associate Alex C. Verdegem; and several paralegals/legal staff. Counsel states that the hourly rates of $550/hour for a senior partner, $495/hour for a partner, $350/hour to $395/hour for associates, and $175/hour to $250/hour are well within the range of current market rates in Orange County for highly skilled and experienced litigators who regularly handle matters of similar complexity. (Ferruzzo Decl., ¶ 38.) The Court finds that the rates requested by Defendant are reasonable and not higher than rates charged by attorneys with comparable skill and expertise. Counsels declaration attests to their experience and the reasonableness of the rates. (Ferruzzo Decl., ¶ 38.) Based on the evidence before it, the Court is not inclined to reduce the hourly rates requested. D. Reasonable Hours Incurred and Costs A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) While not per se objectionable, block billing can exacerbate the vagueness of an attorney fee request and support a courts finding that time entries were inflated and non-compensable. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325-1326.) Defendants counsel states that the appellate team expended 145 hours defending this case on appeal which represents a reasonable number of hours in light of the complexity, duration and nature of the claims, and the successful result obtained by counsel. Defendant submitted its billing invoices to support its requested attorneys fees. (Ferruzzo Decl., Ex. L.) The Court has considered the sought attorney fees based on the stated tasks and does not find them unreasonable in light of the work completed by counsel in this case. Further, verified cost bills are prima facie evidence the costs, expenses and services listed were necessarily incurred& (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682). In light of the uncontroverted evidence in support and its own experience, the Court finds the hourly rates and work billed by counsel reasonable. (See Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41, as modified (Oct. 11, 2019), review denied (Jan. 2, 2020).) Defendant anticipated additional attorneys fees to review Plaintiffs Opposition, prepare Defendants Reply, and to prepare for and attend the motion hearing, at a rate of $395 an hour for 8 hours, totaling $3,160. (Ferruzzo Decl., ¶ 40.) Since the motion is unopposed, the Court will only include an hour of these anticipated fees for Defendant to prepare for and attend the motion hearing. Defendant also filed a Memorandum of Costs seeking the recovery of its filing and service costs in connection with this matter. The prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b).) Thus, the Court further awards Defendants requested costs for $2,760.96. In sum, this Court grants Defendant a reduced amount of attorneys fees totaling $56,750.00 and costs totaling $2,760.96. The Court awards Defendant a total amount of $59,510.96 in attorneys fees and costs. III. DISPOSITION Defendants Motion for Attorneys Fees is GRANTED. The Court awards Defendant a reduced amount of attorneys fees totaling $59,510.96 in attorney fees and costs.

Ruling

NOAH, LLC VS ZARRABIAN FAMILY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.

Aug 20, 2024 |23BBCV01317

Case Number: 23BBCV01317 Hearing Date: August 20, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A TENTATIVE RULING AUGUST 20, 2024 DEMURRER Los Angeles Superior Court Case # 23BBCV01317 MP: Pirooz Zarrabian (Defendant) RP: Noah, LLC (Plaintiff) NOTICE: The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received. Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. ALLEGATIONS: Noah, LLC (Plaintiff) brings this action against the Zarrabian Family Limited Partnership (ZFLP), Pirooz Zarrabian, (Pirooz), Simin Zarrabian (Simin), individually and in her capacity as trustee of the Zarrabian Family 2015 Revocable Living Trust, Behrooz Zarrabian (Behrooz), individually and in his capacity as trustee of the Zarrabian Family 2015 Revocable Living Trust (Zarrabian Trust), Shahin Zarrabian, Mahin Zarrabian, and Parvin Zarrabian. Plaintiff alleges that it was defrauded of a portion of its property interest by virtue of an unauthorized transfer of property to Pirooz. Plaintiffs First Amended Complaint (FAC) states five causes of action for (1) Declaratory Relief (as against all Defendants), (2) Breach of Fiduciary Duty (as against ZFLP and Zarrabian Trust), (3) Conspiracy to Defraud and Fraudulent Concealment (as against all Defendants), (4) Constructive Trust (as against all Defendants), and (5) Promissory Estoppel (as against all Defendants). Before the Court is a demurrer brought by Pirooz as to the first, third, fourth, and fifth causes of action. Plaintiff opposes and Pirooz replies. ANALYSIS: I. LEGAL STANDARDS Demurrer The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.) A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiffs allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318.) Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.) II. MERITS Meet and Confer C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Campain Decl. ¶ 3.) Judicial Notice Pirooz requests judicial notice of the following: 1. Verified Complaint in the matter captioned Simin Zarrabian, Trustee of the Zarrabian Family 2015 Revocable Living Trust, et al v. Pirooz Zarrabian, et al. Case No. 20STCV30310. 2. December 2, 2022 final ruling of Judge Upinder Kalra in the above matter. 3. February 8, 2023 judgment in the above matter. The Court finds the above as capable of judicial notice under Cal. Evid. Code § 452(d) as records of a Court of the State of California. Further, Plaintiff does not object to judicial notice. Accordingly, Piroozs request is GRANTED. Facts Plaintiff is a California limited liability company. In June 2006, Plaintiff entered into an agreement with Ahmad Zarrabian (Ahmad) to form Nozar, LLC (Nozar). (FAC ¶ 14, Exh. H.) Ahmad entered into the agreement on behalf of the Ahmad Zarrabian Living Trust (the Ahmad Trust). (Id.) Pursuant to the Operating Agreement for Nozar, Plaintiff and the Ahmad Trust each owned 50% of Nozar. (FAC ¶ 16.) Neither side was permitted to sell any asset of Nozar without the others approval. (FAC ¶¶ 21-24.) This action centers around a piece of real property, the Embassy Plaza Shopping Center, held in fee simple by Nozar (hereinafter the Property). (FAC ¶ 12.) It is alleged that on May 15, 2012, Ahmad conveyed a 10% interest in the Property to his son Pirooz Zarrabian (Pirooz). (FAC ¶ 27.) This transfer was purportedly on behalf of the Ahmad Trust and on behalf of Nozar. (Id.) Plaintiff alleges that it was entirely unaware of this transfer at the time it occurred. At some point in 2015, Ahmad created the Zarrabian Trust. (FAC ¶ 5.) The Zarrabian Trust was then named successor to the Ahmad Trust. (Id.) Ahmads children Behrooz Zarrabian (Behrooz) and Simin Zarrabian (Simin) are the current trustees of the Zarrabian Trust. On July 31, 2016, the Ahmad Trust transferred its 50% ownership in Nozar to ZFLP. (FAC ¶ 17.) Plaintiff was aware of and consented to this transfer. (Id.) Plaintiff alleges that Nozar is presently owned 50% by ZFLP and 50% by Plaintiff, Noah, LLC. (FAC ¶ 18.) In May 2020, Ahmad died. (FAC ¶ 3.) Plaintiff alleges it was only then that Pirooz revealed the 10% transfer of the Property and recorded the deed. (FAC ¶ 30.) Plaintiff alleges this caused significant conflict between Pirooz and his siblings Behrooz and Simin. (FAC ¶ 31.) Plaintiff alleges they communicated with Pirooz, Behrooz, and Simin and they assured Plaintiff that Plaintiffs interest in the Property was secure. (FAC ¶¶ 31-32.) On August 10, 2020, the Zarrabian Trust brought an action for quiet title to the Property against Pirooz. (RJN Exh. 1.) This action was identified as LASC Case No. 20STCV30310. (Id.) On February 8, 2023, judgment was entered in this matter in favor of Pirooz. (FAC ¶ 33.) The basis of Piroozs demurrer is that Plaintiffs claims against him are precluded by the aforementioned judgment. Estoppel Though he does not mention it by name or analyze any of its elements, the majority of Piroozs demurrer is grounded in the principle of collateral estoppel (also known as issue preclusion). Pirooz argues that the judgment in the prior Superior Court case precludes any claim by Plaintiff that the transfer to Pirooz affects Plaintiffs property rights. The rule of collateral estoppel requires that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (People v. Zavala, (2008) 168 Cal.App4th 772, 776-777.) "A party who asserts claim or issue preclusion as a bar to further litigation bears the burden of proving that the requirements of the doctrine are satisfied." (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 489 [citing to Vella v. Hudgins (1977) 20 Cal.3d 251, 257].) Collateral estoppel requires three elements: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding." (Zevnik v. Superior Court, (2008) 159 Cal.App.4th 76, 82-83.) In order for Pirooz to prevail on his demurrer, he must demonstrate that the issue of Plaintiffs ownership was definitively litigated and settled by the judicially noticed prior judgment. Pirooz cites to the following section of the judgment: Judgment is entered in favor of Defendant Pirooz Zarrabian, and against Plaintiff Simin Zarrabian, Trustee of The Zarrabian Family 2015 Revocable Living Trust and Behrooz Zarrabian, Trustee of The Zarrabian Family 2015 Revocable Living Trust on the first case of action for quiet title of the Complaint. Pirooz argues that this determination serves to invalidate Plaintiffs claim that their property interest has been diminished by five percent. Pirooz reasons that this is because the effect of the judgment is to validate a 10 percent interest transfer from the Zarrabian Trust. Pirooz goes on to state that because his interest came from the Zarrabian Trust and not Plaintiff, Plaintiffs claims are without merit. Piroozs argument is flawed in several respects. First, Plaintiff was not a party to or in privity with any party to the prior litigation. Privity refers to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is sufficiently close so as to justify application of the doctrine of [res judicata]. This requirement of identity of parties or privity is a requirement of due process of law. Whether someone is in privity with the actual parties requires close examination of the circ*mstances of each case. The circ*mstances must also have been such that the nonparty should reasonably have expected to be bound by the prior adjudication. (Villarroel v. Recology, Inc. (2023) 97 Cal.App.5th 762, 782 [internal quotation marks and citations omitted].) Here, the circ*mstances do not indicate that Plaintiff was in privity with either party in the prior litigation. It is abundantly clear that Plaintiff was not made aware of the prior litigation such that they could reasonably have expected to be bound by it. Second, this argument completely sidesteps Plaintiffs allegation that Ahmad improperly deeded the property to Pirooz in violation of the Operating Agreement for Nozar. Pirooz is completely silent as to the allegation that Ahmad did not obtain the prior consent of Plaintiff before deeding part of the jointly held property to Pirooz. This is an issue central to Plaintiffs claims and one which was completely absent from the previous litigation. In short, Pirooz has not fulfilled his burden to show that the issue was previously litigated or that the parties were in privity such that collateral estoppel applies. This being established the Court will briefly analyze the demurrer to each cause of action. First COA Declaratory Relief Overruled To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the partys rights or obligations. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, [quotation marks and brackets omitted].) Piroozs only argument as to this cause of action is that there can be no actual controversy because the previous judgment settled the issues of ownership. As established above, the Court does not find the previous judgment to have any preclusive effect. Accordingly, the demurrer to this cause of action is OVERRULED. Third COA Fraudulent Concealment Overruled The basis of this claim is Plaintiffs allegation that Ahmad and Pirooz intentionally concealed the deed to Pirooz from Plaintiff with the intent to defraud them of its five-percent interest in the Property. (FAC ¶ 63.) Pirooz argues that this cause of action cannot be sustained because the issue as to whether Ahmads transfer deprived Plaintiff of its property interest is precluded. Having found issue preclusion does not apply here, Piroozs argument is without merit. Accordingly, the demurrer to this cause of action is OVERRULED. Fourth COA Constructive Trust Sustained with Leave to Amend In addition to collateral estoppel, Pirooz argues that this cause of action is improper because constructive trust is an equitable remedy and not its own cause of action. The Court agrees. A constructive trust is not a cause of action; it is a remedy. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 277, fn. 4; American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485 [constructive trust is not a substantive claim for relief].) The issue of whether to impose a constructive trust is an equitable issue for the court. (See Fowler v. Fowler (1964) 227 Cal.App.2d 741, 747 [it is for the trial court to decide whether the plaintiff has proven entitlement to a constructive trust].) The trial court erred by submitting the issue of whether to impose a constructive trust to the jury. (American Master Lease supra, 225 Cal.App.4th at 1485.) While a Constructive trust is indeed a form of remedy which the Court decides to apply or not apply under principles of equity, it requires the showing of factual elements, a complainant is required to adequately plead facts in the underlying complaint that would entitle the plaintiff to such a remedy. (Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 921-922.) Here, Pirooz argues that the underlying factual elements have not been pled by virtue of collateral estoppel, which the Court has denied. Given there is no dispute as to the underlying factual pleadings regarding a constructive trust, all that appears to be accomplished by this demurrer is to remove the heading of the fourth cause of action. Nothing precludes Plaintiff from including allegations of constructive trust as part of another cause of action or in their prayer for relief. Accordingly, the demurrer to this cause of action is SUSTAINED with 20 days leave to amend. Fifth COA - Promissory Estoppel Overruled Plaintiffs cause of action is predicated on their allegation that Pirooz, Simin, and Behrooz all promised Noah that its one-half interest in the Property would remain protected in the midst of the Zarrabian family dispute. 23 (FAC ¶ 75) Pirooz argues that this issue too fails because of collateral estoppel. Pirooz argues that because the prior judgment determined that his interest in the Property stems from the Zarrabian Trust, the promise to protect Plaintiffs interest has not been compromised. Given the Court has found collateral estoppel as to Plaintiffs interest does not apply, Piroozs argument on demurrer is without merit. Accordingly, the demurrer to this cause of action is OVERRULED. --- RULING: In the event the parties submit on this tentative ruling, or a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the Courts records. ORDER Pirooz Zarrabians Demurrer came on regularly for hearing on August 20, 2024 having been continued on the Courts own motion from August 16, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows: THE DEMURRER IS OVERRULED AS TO THE FIRST, THIRD, AND FIFTH CAUSES OF ACTION. THE DEMURRER IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND AS TO THE FOURTH CAUSE OF ACTION. CASE MANAGEMENT CONFERENCE SCHEDULE IS CONTINUED TO DECEMBER 19, 2024 AT 9:00 AM. OSC RE PROOF OF SERVICE ON BEHROOZ ZARRABIAN IS CONTINUED TO DECEMBER 19, 2024 AT 9:00 AM. UNLESS ALL PARTIES WAIVE NOTICE, PIROOZ TO GIVE NOTICE. IT IS SO ORDERED. DATE: August 20, 2024 _______________________________ F.M. Tavelman, Judge Superior Court of California County of Los Angeles

Ruling

Andrew Muray et al vs Karen Lantz et al

For Plaintiffs and Cross-Defendants Andrew Muray and Kerri Marshall: Richard I. WidemanFor Defendants and Cross-Complainants Karen Lantz and Andrew Farkas: James B. Devine RULING:For the reasons set forth below, Defendants’ motion to strike portions of Plaintiffs’ complaint is granted in part and denied in part as follows:1. Defendants’ motion to strike the words “attorney fees” from paragraph No. 8 of the complaint is granted.2. Defendants’ motion to strike is denied in all other respects.3. Defendants shall file and serve their answer to the complaint, as amended to omit the words “attorney fees,” no later than August 28, 2024.BackgroundThis action commenced on May 29, 2024, by the filing of the complaint by Plaintiffs Andrew Muray and Kerri Marshall against Defendants Karen Lantz and Andrew Farkas. The complaint is for injunction and damages for forcible entry and trespass, self-help, and quiet title based on adverse possession.As alleged in the complaint:Plaintiffs are the owners of real property known as 922 Roble Lane in Santa Barbara. Defendants are the owners of real property known as 916 Roble Lane in Santa Barbara, adjacent to Plaintiffs’ property.On May 20, 2024, while Plaintiffs were away from their property, Defendants used bulldozers and other heavy construction equipment to remove a portion of Plaintiffs’ property, claiming that that portion of Plaintiffs’ property trespassed on Defendants’ property. Defendants removed a portion of the balcony, fencing, and foundation footings that had been present for approximately 40 years.Sometime between 1979 and 1982, the prior owners of Plaintiffs’ property had made permitted additions to the property including the portions removed by Defendants. Defendants plan to construct improvements on the property including the area formerly occupied by the portions of Plaintiffs’ property that was removed by Defendants.On July 5, 2024, Defendants filed a cross-complaint against Plaintiffs for: (1) trespass; (2) nuisance; and (3) declaratory relief.Also on July 5, 2024, Defendants filed the present motion to strike portions of Plaintiffs’ complaint. Specifically, Defendants move to strike the word “fencing” from paragraph 6 of the complaint, the words “attorney fees” from paragraph 8 of the complaint, and the words “For punitive and exemplary damages according to proof” from prayer B of the complaint.Plaintiffs oppose the motion to strike.Analysis“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) FencingDefendants argue that the word “fencing” should be stricken from the complaint because Plaintiffs “cannot establish exclusive use over the fence at issue necessary to establish adverse possession because the fence is a division fence within the meaning of Civil Code § 841.” (Motion, p. 5, ll. 14-17.) In so arguing, Defendants seek to introduce exhibits that were offered by Plaintiffs in support of a previous filing with the Court. The word “fencing” is included within a paragraph of the complaint that also mentions “a portion of the balcony” and “foundation footings.” It is simply a factual allegation that elaborates on Plaintiffs’ claims. The word is not irrelevant, false, or improper. To the extent that Defendants argue that Plaintiffs will not be able to establish exclusive use of the fence, that is of no concern in ruling on a motion to strike. A motion to strike is not the procedure by which factual disputes are resolved.The motion to strike the word “fencing” from paragraph 6 of the complaint will be denied. Attorney FeesDefendants argue that Plaintiffs’ request for attorneys’ fees, contained in their trespass cause of action, should be stricken because attorneys’ fees are not recoverable in a trespass action. In opposition, Plaintiffs do not directly address Defendants’ arguments. Instead, Plaintiffs cite cases that are significantly distinguishable from this action and inapplicable.“California follows the American rule regarding attorney’s fees. Under that rule, litigants are ordinarily responsible for paying their own attorney’s fees, unless a statute or agreement provides otherwise. [Citations.]” (Travis v. Brand (2023) 14 Cal.5th 411, 417.)Other than in an action for trespass “on lands either under cultivation or intended or used for the raising of livestock,” statutorily authorized by Code of Civil Procedure section 1021.9, the Court is unaware of any statute or rule that would permit a Plaintiff to recover attorney fees for the tort of trespass. Plaintiffs have not provided any statutory basis for a recovery of attorney fees, nor have they alleged any agreement that provides for attorney fees. As such, the motion to strike “attorney fees” from paragraph 8 will be granted without leave to amend.The striking of the request for attorney fees will be without prejudice should a legal basis, upon which a claim for recovery of attorney fees is proper, exist prior to, during, or following the time of trial. If such a situation presents itself, Plaintiffs may move to amend the complaint. It should be further noted that if circ*mstances reveal that attorneys’ fees are recoverable, the prayer for “damages according to proof” would encompass such recovery. Exemplary Damages“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice, the Plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the Defendant.” (Civ. Code § 3294, subd. (a).)Malice is defined as “conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294, subd. (c)(1).)“The question is whether Defendants’ conduct may be characterized as “ ‘despicable.’ ‘Despicable conduct’ has been described as conduct which is “ ‘ “. . . so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ ” [Citations.] “ ‘Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’ ” [Citation.] As well stated in Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149 . . .: “ ‘[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] . . . Punitive damages are appropriate if the Defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the Defendant does not justify the imposition of punitive damages. . .. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the Plaintiff’s rights, a level which decent citizens should not have to tolerate.” ’ ” [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.)Although punitive damages may not be pleaded generally: “The terms “ ‘willful,’ ” “ ‘fraudulent,’ ” “ ‘malicious’ ” and “ ‘oppressive’ ” are the statutory description of the type of conduct which can sustain a cause of action for punitive damages. . . . Pleading in the language of the statute is acceptable provided that sufficient facts are pleaded to support the allegations. [Citation.] The terms themselves are conclusory, however. Where, as here, the complaint pleads sufficient facts to apprise the Defendant of the basis upon which relief is sought, and to permit the drawing of appropriate legal conclusions at trial, absence of the labels “ ‘willful,’ ” “ ‘fraudulent,’ ” “ ‘malicious’ ” and “ ‘oppressive’ ” from the complaint, does not defeat the claim for punitive damages.” (Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.)The facts alleged by Plaintiffs include specific factual allegations and clearly apprise Defendants of the of the basis of the action. The facts, if taken as true (which they must be in deciding a motion to strike) could, should Plaintiffs prove their case, be found to constitute malice by a reasonable trier of fact.The motion to strike the punitive damages prayer for relief will be denied.

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