EXHIBIT(S) - 1 EXHIBITS TO SUMMONS AND COMPLAINT - EXHIBITS TO SUMMONS AND COMPLAINT Redacted September 01, 2023 (2024)

Case

BANK OF AMERICA, N.A. v. EAST 68 PH LLC et al

Oct 10, 2023 |Kahn, III, Hon. Francis A. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |850567/2023

Case

U.S. Bank National Association, v. 1569 Lexington LLC et al

Jun 03, 2024 |Francis A |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |850184/2024

Case

HILTON RESORTS CORPORATION v. MOMPOINT, CYNTHIA LOUISE et al

Jun 05, 2023 |Kahn, III, Hon. Francis A. |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |850404/2023

Case

HILTON RESORTS CORPORATION v. JANIS, MELVIN S et al

Aug 03, 2021 |Kahn, III, Hon. Francis A. |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |850185/2021

Case

U.S. Bank National Association, v. 421 East 114 LLC et al

Jun 05, 2024 |Kahn, III, Hon. Francis A. |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |850185/2024

Case

Trevor Moran v. The Bank Of New York Mellon Fka The Bank Of New York, As Trustee (Cwalt 2006-13t1)

Aug 25, 2024 |Real Property - Other (RPAPL 1501(4)) |Real Property - Other (RPAPL 1501(4)) |157844/2024

Case

HILTON RESORTS CORPORATION v. DONOVAN, JOSEPH G et al

Sep 13, 2021 |Kahn, III, Hon. Francis A. |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |850217/2021

Case

HILTON RESORTS CORPORATION v. EDISON, LACHEL M.

Dec 19, 2022 |Kahn, III, Hon. Francis A. |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |850267/2022

Case

TD BANK, N.A. v. 205 WEST 107TH STREET LLC et al

Jul 15, 2024 |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |850242/2024

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 29, 2024 |23CV-0203590

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203590This matter is on calendar for review regarding status of default judgment. The Court notes that Plaintiff’s Requestto Enter Default Judgment was denied without prejudice on June 22, 2024. It appears that no further attemptshave been made to resolve the matter. An appearance is necessary on today’s calendar.

Ruling

Aug 31, 2024 |CVPS2200696

DONALD G. FRIEDRICHSEN, II ASTRUSTEES OF THE D&L FRIEDRICHSEN Motion: Referee's FinalCVPS2200696TRUST, ESTABLISHED NOVEMBER Accounting Motion13,2020 vs RENDATentative Ruling: Granted as to recommendation by referee Singer in his May 17, 2024 report.Court to provide notice.This is a real estate partition action by Plaintiffs Donald G. Friedrichsen II and Lois Freidrichsen, asTrustees of the Don and Lois Freidrichsen Trust against Defendant Craig Renda. On September 13,2023, the parties stipulated to partition by sale pursuant to CCP §872.820. The stipulation included theagreement that a referee from Receivership Specialists would be appointed as referee with full powerto sell the real property as soon as possible for the highest available price that the market will bear, andto deposit the proceeds from sale with the court, less reasonable expenses incurred by referee, so thatthe court can then adjudicate the allocation of attorneys’ fees and costs between the respective parties,and in all respects to do those things necessary to carry out the orders of this court that have beenpreviously entered and those yet to be entered, and to make a report of his or her proceedings to thecourt.Based on the parties ‘stipulation the court entered an interlocutory judgment of partition on September15, 2023. On September 20, 2023, Kevin Singer took his oath as referee. Thereafter, on September25, 2023, the parties entered into a stipulation for an order further clarifying the partition referee KevinSinger’s duties. The stipulation, signed into order by the court, provides the following:1. Except as modified herein, the Appointing Order shall remain in full force and effect.2. Pursuant to Code of Civil Procedure section 873.010, et seq., the Referee shall have fullauthority to manage and partition by sale the Property.3. The Referee shall immediately execute and file a Referee's oath, and file the undertaking orbond required by Code of Civil Procedure section 873.0l0(b)(l) in the amount of $10,000.4. The Referee may immediately take control of the Property, together with all relateddocuments, books, records, papers, and accounts of the Parties relating to the Property, andshall manage the Property until such time as it is sold, or further order of this Court.5. Pursuant to Code of Civil procedure Section 873.510, the Referee is directed to submit areport to the Court recommending his proposed method of sale for the Property, taking intoaccount what method will be the most beneficial to the Parties (the "Sale Report"). The SaleReport shall be filed with the Court and served on the Parties. Any Party objecting to the SaleReport shall file such objections with Court and serve them on the Referee and the Parties withinten ( 10) days of service of the Sale Report. If no objections are filed, then the Referee shallproceed with partitioning the Property according to the Sale Report. If a Party objects to the SaleReport and the Referee cannot reach a mutually agreeable resolution with the Parties, then theReferee shall file a noticed motion seeking instructions from the Court as to how to proceedwith the partition.6. The Referee shall also include in the Sale Report an estimated operating budget to carry outthe partition of the Property. The Referee will consult with the Parties regarding funding theReferee Estate and provide the Parties an opportunity to provide or advance funding, ifnecessary. The Parties will be given the opportunity to fund the Referee Estate and be paid tenpercent (10%) simple interest with three (3) points for their loan. If the Parties decline to advancefunds, then the Referee may borrow funds for the Referee Estate and pay ten percent (10%)simple interest and three (3) points on the loan. This loan shall be secured by a priority Referee'sCertificate which can be recorded on the title of the Property and paid through close of escrowfor the sale of the Property.7. The Referee shall operate, manage, hire and/or terminate employees or contractors, andcontrol the Property and incur the expenses necessary in such operation, management, andcontrol in the ordinary and usual course of business, and shall do all things and incur the risksand14 obligations ordinarily incurred by owners, managers, and operators of similar properties, andno such risks or obligations so incurred shall be the personal risk or obligation of the Referee,but shall be a risk or obligation of the Property. The Referee may seek recommendations fromthe Parties regarding contractors and/or other licensed professionals who may provide servicesrelating to the Property.8. The Referee shall have the authority to enter the Property upon providing proper notice toany occupants and to evict any tenant or occupant of the Property to facilitate the sale of theProperty. Upon ex parte application and showing of good cause, including the refusal or failureof any tenant or occupant of the Property to cooperate with the Referee, a Writ of Possessionfor the Property shall be issued in favor of the Referee.9. If there is a financial hardship, the Referee is authorized, but not required, to advance fundsto relocate any Party or tenant that may be residing on the Property. Any such advance(s) willbe reimbursed through the closing of the sale.10. The Referee is authorized to place the Property for sale on the market, engage brokers andreal estate professionals, retain any marketing analysis or advertisers, and undertake any andall other duties associated with selling the Property, including executing documents necessaryfor consummation of a sale, with such sale being subject to overbid and court approval on propernotice. Based upon the Referee's evaluation of the market data, the Referee shall set an initiallisting price. The Referee shall be authorized to reduce the listing price for the Property as hedetermines is advisable to generate interest in the Property. The Property shall be sold on thebest terms and price.11. The Referee shall thereafter sell the Property in the form and manner approved by the Court,in accordance with Code of Civil Procedure Section 873.510 et seq., and shall seek Courtconfirmation of the sale. Notice of sale shall be given in the manner required for notice of saleof like properties on execution, pursuant to Code of Civil Procedure section 701.540, and shallbe given to the persons described in Code of Civil Procedure Section 873.640. In all otherrespects, notice of and procedure for sale shall be as provided in Code of Civil ProcedureSections 873.600-873.690.12. To receive the highest price for the Property, the Referee is hereby authorized to offer theProperty for sale vacant at closing by taking all actions necessary to deliver the Property clearof all occupants and/or tenants currently occupying the Property, including requesting a writ ofpossession from this Court to remove any occupants of the Property.13. On confirmation of the sale of the Property by this Court and the payment of the purchaseprice thereof, the Referee is hereby authorized and directed to execute and deliver a deed ofthe real property sold to the purchaser thereof.14. All reasonable expenses incurred in connection with the hiring and retention of authorizedpersonnel, professionals and/or counsel shall be expenses of the Property and shall be paidfrom the proceeds from the sale of the Property.15. Unless modified by subsequent order of this Court, the proceeds from the sale of theProperty shall be applied, after confirmation of the sale, as follows:a. To pay the expenses of the sale including the Referee's fees and costs.b. To pay all known lien holders, including Defendant PNC Bank, N.A., which holds a first-position lien on the Property based on a Deed of Trust recorded on September 24, 2023, in theCounty of Riverside, Instrument No. 2012-0455562, in the principal amount of $194,000.c. To pay other costs of partition incurred by either Party, to secure any cost of partition laterallowed, or to reimburse any Party for other expenses incurred relating to the Property or thepartition process, as appropriate.d. The residue shall be distributed between the Parties in proportion to their ownership interestsas follows: 50% to Plaintiff, 50% to Defendants.16. The Referee is authorized to hire, employ, retain, and terminate consultants, propertymanagers, brokers, professionals and any other personnel or employees who the Refereedeems necessary to assist him in discharging his duties. The Referee is authorized to enter intoand execute listing and brokerage agreements necessary for the management, listing, and saleof the Property.17. The Court hereby approves the following hourly billing rates: $350 for the services of KevinSinger as Referee and for principals of Receivership Specialists; $295 for Senior ProjectManagers; $250 for accountants; $185 for Project Managers; $95 for Bookkeepers; $85 forAdministrative Staff; and $55 for Messengers. In addition, the Referee shall be reimbursed forall expenses incurred by the Referee on behalf of the Property.18. The Referee, his consultants, agents, employees, and professionals may be paid from anyrents from the Property or upon closing of the sale of the Property. To be paid on such a basis,the Referee shall prepare a monthly report, beginning thirty (30) days after his appointment andfor so long as the Property shall remain in his possession or care, setting forth all receipts anddisbursem*nts, cash flows, changes in the assets in his charge, claims against the assets in hischarge, and other relevant operational issues that have occurred during the preceding month.This Referee's Report will be filed with the Court and served on all parties. Once the Referee'sReport has been filed and served, the Referee may pay his monthly invoice. Objections to eachof the Referee's statements of account, if any, shall be made within ten (10) days of notice ofthe statement. Any objection shall be made on a line-item basis with a statement of the reasonfor such objection. Failure of a Party to object within this 10-day period shall constitute a waiverof that party's objection(s) to the fees for that period.19. The Referee is authorized and empowered to use the Parties' tax identification numbers orsocial security numbers to establish a bank account at any bank the Referee deems appropriatefor the deposit of monies and funds collected and received in connection with his administrationof the Property, provided that all funds on deposit are insured by an agency of the United Statesgovernment. The Referee shall deposit any rental income from the Property into such account,and shall use the monies deposited therein to pay only those bills which are reasonable andnecessary for the operation of the Property, including the property taxes, utility bills andinsurance relating to the Property. The Referee shall obtain court approval prior to making anycapital expenditure or payment of any unsecured debt, or any payment other than thoseordinarily and necessarily incurred in the operation of the Property.20. The Referee may demand, collect, and receive any and all rents, revenues, and profits forthe Property or any part of it that are owed, unpaid, and uncollected as of the effective date ofthis order, or hereafter to become due. Any security or other deposits which any tenants havepaid to the Parties or their agents, and which are not paid to the Referee and over which theReferee has no control, shall be obligations of the Parties and may be refunded by the Refereewithout a prior order of the court if funds are available; however, the Referee is not responsiblefor refunding security deposits that are not in his possession21. The Referee shall be able to take control of all rents, deposits and funds that belong to theProperty at any bank or financial institution. If a bank or financial institution is presented with thisOrder, it shall turn over any funds to the Referee and not held liable for such actions.22. The Referee shall have no responsibility for filing federal and/or state income tax returns orfederal or state payroll tax returns and shall not be responsible for paying any unpaid federaland state payroll taxes and/or expenses of the Parties. The responsibility for such filings andpayments lies exclusively with the Parties and their agents, employees, and representatives.23. Subject to further order of this Court, the Referee may institute and prosecute all suits asmay be reasonably necessary in the Referee's judgment to protect the Property, and to defendall such suits and actions as may be instituted against the Referee.24. The Referee shall maintain adequate insurance coverage for the Property to the same extentand in the same manner as the Property has been insured, or as in the judgment of the Refereemay seem fit and proper, and to cause all presently existing policies to be amended by addingthe Referee as an additional insured within thirty (30) days of the entry of this Court Order. Ifthere is inadequate insurance, or insufficient funds to procure adequate insurance, the Refereeis directed to immediately take appropriate action to remedy the deficiency and to seek furtherinstructions from this Court regarding such deficiency. During the period in which the Propertyis uninsured or underinsured, the Referee shall not be personally responsible for any claimsarising therefrom.25. The Referee and any Party that has appeared in this action may from time to time, on an exparte basis or noticed motion on shortened time, petition this court for instructions in furtheranceof this Order and any further orders this Court may hereafter make.26. No individual or entity may sue the Referee without first obtaining the permission of 9 thisCourt. The Referee shall have judicial immunity to the fullest extent permitted under statutory10 and case law.27. The Referee shall hold the Property's net sale proceeds in his trust account. If the Partiescannot stipulate to the distribution of proceeds, the Referee shall file a regularly noticed motionwith his recommended distribution of proceeds. No later than sixty (60) days after the Referee'sduties hereunder terminate, the Referee shall file and serve the motion for approval of theReferee's final report and account and exoneration of the Referee's bond. The Referee shallgive notice of such motion to all persons known to the Referee who have potential claims againstthe Property. The motion to approve the final report and account and for discharge of theReferee shall contain a declaration or declarations:(i) stating what was done during the period of the Referee's appointment;(ii) certifying the accuracy of the final accounting;(iii) stating the basis for the termination of the Referee's appointment (such as sale of theProperty); and(iv) stating the basis for an order for the distribution of any surplus or payment of any deficit. Inaddition, the motion shall contain a summary of the accounting for the Property, which shallinclude (i) the total revenues received;(ii) the total expenditures identified and enumerated by major categories; (iii) the net amount ofany surplus or deficit; and(iv) evidence of necessary supporting facts.28. This Court's final order for distribution of the proceeds from the sale of the Property and themonies received by the Referee from the Parties and the Property during the Refereeappointment, shall include allowances for the costs of partition (including attorney's fees incurredby either Party) and for costs and attorney's fees necessarily incurred by a Party for the commonbenefit in prosecuting or defending other actions or other proceedings for the protection,confirmation, or perfection of title, setting the boundaries, or making a survey of the Property,with interest thereon from the date of making such expenditures.29. The Parties shall fully cooperate with the Referee including completing and executingdocuments as requested by the Referee.On October 6, 2023, Referee Singer filed a $10,000 bond with the court as an undertaking in this matter.On October 13, 2023, Referee Singer filed a report with the court recommending the method of sale forthe property. Thereafter, he filed reports with the court on October 26, 2023, November 29, 2023. OnDecember 14, 2023, the parties submitted a stipulation and order confirming sale of the property for$345,000, with a broker commission of 5% of $17,250 and terms and conditions of closing costs. Thestipulation was signed by the court and made an order on December 14, 2023.Thereafter, the referee filed reports on December 28, 2023, January 26, 2024, February 27, 2024 andMarch 28, 2024. On May 17, 2024, Referee Singer filed this motion for a final accounting, seekingapproval and settling of the Referee’s Final Report and Accounting, approving the final compensationand reimbursem*nt of expenses, and approving the Referee’s recommended distribution of funds.In opposition, Plaintiffs oppose the Referee’s motion to apportion attorney’s fees. The Refereerecommended an offset of fifty percent (50%), or $20,586.51 in Plaintiffs’ favor due to Defendants’conduct during the litigation. The Referee noted that Plaintiffs’ claim that Defendants’ unreasonablerefusal to engage in pre-litigation settlement negotiations was “facially plausible,” but was hesitant tofully offset Plaintiffs attorneys’ fees because much of the obstructionist conduct occurred prior to hisinvolvement. He did, however, acknowledge that this Court was better positioned to evaluate Plaintiffs’arguments. Consequently, Plaintiffs have repurposed their Motion to Apportion Attorneys’ Fees, addingadditional facts, into their opposition to support the court making a 100% offset in their favor, whichPlaintiffs assert is a fair and just result under the circ*mstances.Plaintiffs assert that this is a straightforward partition action. Defendants knew the Court was going toeventually partition the Property by sale according to Plaintiffs’ Complaint because Plaintiffs and theircounsel repeatedly explained that fact to them before this litigation commenced. Plaintiffs had anabsolute right to partition pursuant to Code of Civil Procedure section 872.010 et seq. Plaintiffs’ formercounsel made Defendants aware of this and proposed multiple options for the parties to sell the propertyand avoid litigation. Defendants failed to realistically engage in pre-litigation discussions with Plaintiffs’counsel, leaving Plaintiffs with no option but to file and prosecute the Complaint. Once litigationcommenced, Defendants retained counsel. Defendants forced both parties to incur substantialattorneys’ fees by dragging this litigation to the brink of trial despite having no defense to Plaintiffs’Complaint or any other claim against Plaintiffs.In support of their opposition, Plaintiffs submitted the declaration of Attorney Daniel Stouder whodeclares in pertinent part that 1) On May 24, 2024, he emailed counsel for Defendants to inform themthat Plaintiffs would stipulate to the Referee’s proposed distribution if Defendants were in agreement,otherwise, Plaintiffs would oppose and seek all of their attorneys’ fees. Counsel for Defendants refusedto stipulate. 2) By February 14, 2024, the deadline provided by the Referee for the parties to submitclaims for costs of partition, Plaintiffs had incurred a total of $24,945.60 in attorneys’ fees and costsfrom his firm’s representation. Since then, Plaintiffs have incurred an additional $1,445.50 in fees andcosts to prepare the opposition to the Referee’s Motion for an Order Confirming the Final Accounting.Since February 14, 2024, he has spent 0.5 hours working on and revising this Opposition andcorresponding with opposing counsel, for a total of $257.50. Danielle M. Patterson spent 3.6 hoursdrafting this Opposition, for a total of $1,188.00. 3) Plaintiffs have therefore incurred, to date, $26,391.10in attorneys’ fees and costs from his firm’s representation.Defendant Renda filed a reply to Plaintiffs’ opposition stating pointing out that while Plaintiffs’ counsel’sdeclaration set forth that Plaintiffs had incurred $24,945.60 in attorneys fees and costs as of February14, 2024, Plaintiffs submitted a claim of $41,173.02 to the receiver--$16,227.42 of which was allegedlyincurred or paid to Plaintiffs’ previous counsel without an original declaration from prior counsel.Therefore, Renda asserts that $16,227.42 of Plaintiffs’ claim should be disallowed. In addition, Rendaasserts that Plaintiffs request that the court offset 100%, or $41,173.02, in attorney’s fees and costs isnot reasonable. Renda asserts that the matter was barely litigated. There were no depositions. Theparties mutually agreed to the trial date, and neither party did anything to affect or delay the trial date.There was no settlement conference. The Defendants stipulated to the appointment of the refereewithout the need for a settlement conference, and they cooperated fully with the sale of the property.There was no trial. As the referee notes in his motion and proposed distribution, most of Plaintiffs' claimfor attorneys relates to matters before they filed their complaint. None of those fees or costs were forthe common benefit of the parties. Further, Renda asserts that Plaintiffs claim for fees incurred afterFebruary 14, 2024, is neither reasonable nor for the common benefit of the parties. Defendants’ failureto stipulate to an unfair division of the sale proceeds before the referee filed his motion does not justifyPlaintiffs filing a 15-page motion seeking additional attorneys. Defendants had no influence or controlover the referee's filing of the present motion or setting the hearing.Procedural IssuesPlaintiffs filed an objection to Defendant’s reply to their opposition, asserting that it constitutes a latefiled opposition and Defendants’ arguments should have been represented in opposition. However, it isnot an opposition, as it does not oppose the Referee’s motion in any form, but rather only opposesPlaintiffs’ opposition to the Referee’s recommendation regarding the allocation of attorney’s fees andcosts. The court will consider the reply.Evidentiary IssuesDefendant asserts that the court should strike portions of Plaintiffs’ opposition, which includesinappropriate and inadmissible evidence under Evid. Code §1152 and §1154. Renda asserts that if thecourt denies Defendants' motion to strike then the court must consider numerous additional reasons forrejecting Plaintiffs' requests. Chief among them is the fact that beginning years before they filed theircomplaint Plaintiffs had complete and exclusive control of the subject property, and all its income. Theyrefused and refuse to provide any accounting whatsoever for their management. While the case waspending, they even had the locks on the unit changed and instructed the properly manager to denyDefendants access to the property.Plaintiffs assert that Defendants’ motion to strike is improper. However, there is no proper noticedmotion before the court, and more importantly none of these “facts” were presented to the court asproper evidence for consideration, but rather only amount to unsupported argument by both parties.Accordingly, the court will only consider the “evidence” before the court in terms of the court record andfacts properly supported by declaration. The only declaration submitted merely relates to attorney’s feesincurred by Plaintiffs by their current counsel in this action.Approval of Final Report and Accounting by RefereeDefendant did not oppose any portion of the Referee’s motion. Plaintiffs oppose only the Referee’srecommendation that Plaintiffs receive a $20,586.51 offset due to attorney’s fees and costs incurred.Plaintiffs assert that they should receive an offset of all of their attorney’s fees in the amount of$42,618.52 (which includes $1,445.41 in filing its opposition to this motion).The Referee’s recommendation for the offset of attorney’s fees in the amount of $20,586.51 was basedon a proposed “Motion for Attorney’s Fees”, dated February 14, 2024, which was served on all parties,but not set as a noticed motion but rather simply presented to for the Referee’s consideration regardinga recommendation on the ultimate distribution of funds from the sale of the property.Pursuant to the clarifying stipulation of the parties regarding the Referee’s powers, the Referee wasgiven the power set forth in paragraph 28, which provides that the Referee in presenting the “final orderfor distribution of the proceeds from the sale of the Property and the monies received by the Refereefrom the Parties and the Property during the Referee appointment, shall include allowances for thecosts of partition (including attorney's fees incurred by either Party) and for costs and attorney's feesnecessarily incurred by a Party for the common benefit in prosecuting or defending other actions orother proceedings for the protection, confirmation, or perfection of title, setting the boundaries, ormaking a survey of the Property, with interest thereon from the date of making such expenditures.”(emphasis added.) Pursuant to those powers granted by both parties, the Referee has presented tothe court for final order of distribution his recommendation for allowance for attorney’s fees and coststo either party based on his assessment of what fees and costs were necessarily incurred by eitherparty for the common benefit in prosecuting or defending this action.However, while the parties granted the Referee the power (which power the court consented to andentered as part of an order) to make a recommended allocation within his final approval order regardingapportionment of attorney’s fees, ultimately such apportionment is for the court’s determination. Thecourt cannot assign to the referee its responsibility to determine the proper apportionment of fees.Further, the referee notes that the court is in the best position to determine the proper allocation ofreasonable attorney’s fees incurred for the common benefit and address any equitable basis toapportion those fees. The Referee further notes that Defendant and the opportunity to submit a claim,but failed to submit any claims against the net sale proceeds, therefore the Referee made norecommendation regarding offsets in Defendants’ favor. That being said, Referee noted that hadDefendant submitted a claim for reimbursem*nt of attorney fees and costs incurred during the partition,there would be a reasonable basis to award 50% of those fees and costs to Defendants based on theattorney’s fees incurred, but had he done so, the Referee would have found all those amounts incurredfor the common benefit and would have included those sums in the amounts to be reimbursed as a costof partition.CCP §873.810 provides that “[t]he court shall order the proceeds of sale and any security therefor to bepaid, transferred, deposited in court, placed in trust, or invested in State of California or United Statesgovernment obligations or interest-bearing accounts in an institution whose accounts are insured by anagency of the federal government, to or for the benefit of the persons in interest entitled thereto, as maybe appropriate or as specifically provided in this article.” (CCP §873.810.) The funds are currently in anEstate trust account set up by the Referee for the purposes of handling this matter. Once properlydeposited, “[t]he proceeds of sale for any property sold shall be applied in the following order: (a)Payment of the expenses of sale. (b) Payment of the other costs of partition in whole or in part or tosecure any cost of partition later allowed. (c) Payment of any liens on the property in their order ofpriority except liens which under the terms of sale are to remain on the property. (d) Distribution of theresidue among the parties in proportion to their shares as determined by the court.” (CCP §873.820.)CCP §874.010 provides that the costs of partition include: “(a) Reasonable attorney’s fees incurred orpaid by a party for the common benefit. (b) The fee and expenses of the referee. (c) The compensationprovided by contract for services of a surveyor or other person employed by the referee in the action.(d) The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon atthe legal rate from the time of payment or, if paid before commencement of the action, from the time ofcommencement of the action. (e) Other disbursem*nts or expenses determined by the court to havebeen incurred or paid for the common benefit.” (CCP §874.010.) The court is required to apportion thesecosts of partition among the parties in proportion to their interests or make such other apportionmentas may be equitable. (CCP §874.040.) “The statute's [CCP §874.040] broad language does not limitthe trial court's equitable discretion” to apportion fees based on any equitable considerations. (Lin v.Jeng (2012) 203 Cal.App.4th 1008, 1025.)“[T]he trial court may exercise its discretion in allocating fees, including setting the fee amounts anddetermining the appropriate allocation. …[I]n making these determinations the court should considerthe fees incurred by defendants as well as plaintiff, and allocate them appropriately to the extent theyare reasonable and incurred for the common benefit.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967-968.) Appellate courts review “the trial court's orders regarding attorney fees for abuse of discretion,and its ‘decision will only be disturbed when there is no substantial evidence to support the trial court'sfindings or when there has been a miscarriage of justice.’ [Citation.]” (Orien v. Lutz (2017) 16Cal.App.5th 957, 966.)“Sections 874.010 and 874.040 provide numerous avenues for trial courts to adjust the allocation ofcosts if, for example, fees are incurred for purposes that unduly exacerbate the dispute or do not providea common benefit to all parties. For instance, under section 874.010 a court may find that fees incurred‘advocat[ing] a position of limited merit” are not for the common benefit and should be borne by theparty “pressing” such “spurious matters.” [Citation] [proper to reduce fees to plaintiff who presented “atime consuming and meritless contention that he should receive some amount greater than that to whichhe [was] legally entitled”].) Or, a court may achieve a similar result through an exercise of its equitablediscretion under section 874.040 and require a party to bear its own fees. [Citation] [equitable for plaintiffin partition action to bear her own attorney fees when she sought to prevent her siblings from obtaininginterests to which they were entitled, herself claimed an interest to which she “was well aware that shewas not entitled,” and created unnecessary procedural hurdles].) A court also can adjust the allocationof fees incurred by a party to the extent they are not “reasonable” as required by section 874.010,subdivision (a). [Citation] [reversing fee award in partition action when trial court made no determinationof reasonableness].)” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 968.)In addition, the “common benefit” in a partition action, under the statute allowing attorney's fees incurredor paid “for the common benefit,” is the proper distribution of the respective shares and interests in thesubject property by the ultimate judgment of the court; this sometimes requires that controversies belitigated to correctly determine those shares and interests, but this ultimately can be for the commonbenefit as well, and the fact that a party resists the partition does not change this. (Orien v. Lutz (2017)16 Cal.App.5th 957, 967-968.)In sum, the court approves the final report and accounting and the final compensation andreimbursem*nt of expenses to the Referee totaling $11,810.37. However, all other requests in thismotion are denied. Fees and costs to be allocated 50/50 based on the interest in the subject propertysale as recommended by the referee.

Ruling

ZIONS BANCORPORATION, N.A. vs PERRY

Aug 29, 2024 |CVRI2303974

Motion to Compel Responses toZIONS BANCORPORATION, Interrogatories and Document Requests,CVRI2303974N.A. vs PERRY and Request for Monetary Sanctions byZIONS BANCORPORATION, N.A.Tentative Ruling: The unopposed motion to compel is granted and sanctions are awarded in theamount of $720 jointly against defendant and counsel. Verified responses without objection areto be served within 20 days.

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 30, 2024 |23CV-0203591

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203591This matter is on calendar for review regarding status of default judgment. On June 5, 2024, thisCourt issued its Ruling after a June 3, 2024 Default Prove Up hearing. The Court denied therequest to enter default judgment without prejudice. Nothing further has been filed. Anappearance is necessary on today’s calendar to provide the Court with a status of defaultjudgment.

Ruling

KEN HOUANG, ET AL. VS ROCHELLE H. STERLING, ET AL.

Aug 26, 2024 |22STCV32478

Case Number: 22STCV32478 Hearing Date: August 26, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: August 26, 2024 TRIAL DATE: October 8, 2024 CASE: Ken Houang, et al. v. Rochelle H. Sterling, et al. CASE NO.: 22STCV32478 MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS MOVING PARTY: Plaintiff Ken Houang RESPONDING PARTY(S): Defendant Beverly Hills Properties, LLC STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is a habitability action that was filed on October 4, 2022. Plaintiffs, who are and were tenants at a residential apartment complex, allege that Defendants permitted the premises to develop extensive uninhabitable conditions and allowed those conditions to persist in violation of statutes and municipal ordinances. Plaintiffs seek monetary and injunctive relief. Plaintiff Ken Houang moves to compel further responses to special interrogatories propounded to Defendant Beverly Hills Properties, LLC, and for sanctions. TENTATIVE RULING: Plaintiffs Motion to Compel Further Responses to Special Interrogatories (Set One) propounded to Defendant Beverly Hills Properties, LLC is GRANTED IN PART. Defendant is ordered to provide a verified, code-compliant supplemental response without objections to Special Interrogatory No. 1 within 20 days of this order. Plaintiffs request for sanctions is DENIED. DISCUSSION: Plaintiff Ken Houang moves to compel further responses to special interrogatories Nos. 1 and 10 propounded to Defendant Beverly Hills Properties, LLC. Legal Standard Under Code of Civil Procedure section 2030.300, subdivision (a), a court may order a party to serve a further response to an interrogatory when the court finds that: (1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[; or] (3) An objection to an interrogatory is without merit or too general. The burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Timing: A motion to compel further responses to interrogatories must be served within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. (Code Civ. Proc. § 2030.300(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.) Plaintiffs counsel states that his office electronically served Defendant with interrogatories on April 17, 2024, and received responses on May 21, 2024. (Declaration of Gerald S. Ohn ISO Mot. ¶¶ 2-3, Exhs. A-B.) The statutory deadline for this motion was therefore Friday, July 5, 2024. This motion was served on July 4, 2024, and filed on July 5, 2024. (See Motion Proof of Service.) The motion is therefore timely. Meet and Confer A party making a motion to compel further responses must include a declaration stating facts showing a reasonable and good faith attempt to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2030.300 (b)(1).) Plaintiffs counsel states that he sent Defendants counsel a meet and confer letter via email on June 10, 2024. (Ohn Decl. ¶ 5, Exh. D.) The declaration does not state whether any response was received and provides no further information except that to date, the parties have been unable to resolve this discovery dispute. (Id.) A bare conclusion such as this is not sufficient to demonstrate a reasonable and good faith attempt to informally resolve this dispute. However, in the interest of expeditious discovery, the Court will consider the merits of the motion notwithstanding the deficient meet-and-confer declaration. // Interrogatory No. 1 Special Interrogatory No. 1 asks Defendant to state the last known name, address, email address, and phone number for the tenants who resided in Plaintiffs rental unit, 3101 S. Barrington Avenue Unit 5, Los Angeles CA 90066, immediately prior to Plaintiffs tenancy. (Ohn Decl. Exh. A. No. 1.) Defendant objected to this interrogatory as an invasion of the third-party privacy rights of the former tenants and refused to answer. (Ohn Decl. Exh. B. No. 1.) In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circ*mstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.) If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a compelling need simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.) As Defendant argues in its opposition, well-settled precedent holds that individuals have a substantial interest in the privacy of their home, including contact information such as addresses and telephone numbers. (See Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 357.) Defendant has not demonstrated, however, that the prior tenants have a reasonable expectation of privacy in these circ*mstances. Although Defendant cites to Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, to argue that tenants would have a reasonable expectation of privacy in the contact information collected by their landlord, a close reading of that opinion belies Defendants argument. In Puerto, the Court of Appeal rejected a privacy objection by an employer defendant to the employee plaintiffs discovery seeking basic contact information of other employees. (Puerto, supra, 158 Cal.App.4th at 1245.) While the Puerto court concurred with the defendant that the employees had a right to privacy with respect to contact information provided to the employer as a condition of employment, the Court of Appeal saw no basis to conclude that the employees would not wish their information disclosed to counsel as part of an investigation of wage and hour claims asserted in the lawsuit. (Id. at 1252-53.) In fact, if any of the current and former . . . employees are similarly situated to plaintiffs, they may reasonably be supposed to want their information disclosed to counsel whose communications in the course of investigating the claims asserted in this lawsuit may alert them to similar claims they may be able to assert. (Id. at 1253 [emphasis added].) Here, the prior tenants may likewise reasonably be supposed to want their information disclosed to counsel in this habitability defect claim, as communications with counsel may likewise alert them to similar claims. The Court is therefore not persuaded that the prior tenants have a reasonable expectation of privacy in these circ*mstances because it is not apparent from this record that the prior tenants would object to the disclosure of their information. Separately, Defendant entirely fails to address the seriousness of the threatened intrusion in its opposition. Therefore, even if Defendant had demonstrated a reasonable expectation of privacy in these circ*mstances, it has not shown a threatened intrusion that is serious. As Defendant has shown neither a reasonable expectation of privacy in these circ*mstances nor a threatened intrusion which is serious, the Court need not proceed to the balancing of interests. Defendants privacy objection with respect to Interrogatory No. 1 is without merit, and Plaintiff is entitled to an order compelling a further response. Interrogatory No. 10 Special Interrogatory No. 10 asks Defendant to identify any and all documents regarding mold testing or mold inspection that Defendants ordered for the property during the Plaintiffs tenancy. (Ohn Decl. Exh. A. No. 10.) In response, Defendant stated that it was unable to identify documents responsive to this interrogatory at this time. (Ohn Decl. Exh. B. No. 10.) Plaintiff contends that Defendants response is inadequate because it is evasive and incomplete. Pursuant to Code of Civil Procedure section 2030.220, an answer to an interrogatory shall be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc. § 2030.220(a).) Any interrogatory that cannot be answered completely shall be answered to the extent possible. (Id. § 2030.220(b).) Further, if the responding party lacks sufficient personal knowledge to fully respond, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party. (Id. § 2030.220(c).) Defendant, in opposition, contends that there is no need to compel a further response to this interrogatory because it has since responded to requests for production seeking the documents referenced by this interrogatory with a statement that after a diligent search and reasonable inquiry, Defendant does not possess responsive documents. (Declaration of Taylor Wall ISO Opp. Exh. B. Nos. 34-35.) Defendant thus implicitly concedes that its initial response to this interrogatory was not strictly code-compliant insofar as its response did not mirror the language of Code of Civil Procedure section 2030.220 subdivision (c). Further, Defendants subsequent responses to other discovery requests are not supplemental responses to this request such that they moot the issue on this motion. However, those responses, made under penalty of perjury, are evidence that Defendant has no information responsive to this interrogatory and could not obtain that information by a reasonable and good-faith effort. The Court therefore finds that Defendants response to Interrogatory No. 10 was substantially code-compliant such that no further response was required. Sanctions Plaintiff requests sanctions against Defendant and its counsel for the failure to provide code-compliant responses. However, as Plaintiff did not fully prevail on this motion, Plaintiff is not entitled to sanctions. (Code Civ. Proc. § 2030.300(d.) CONCLUSION: Accordingly, Plaintiffs Motion to Compel Further Responses to Special Interrogatories (Set One) propounded to Defendant Beverly Hills Properties, LLC is GRANTED IN PART. Defendant is ordered to provide a verified, code-compliant supplemental response without objections to Special Interrogatory No. 1 within 20 days of this order. Plaintiffs request for sanctions is DENIED. Moving Party to give notice. IT IS SO ORDERED. Dated: August 26, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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

Vahid Haghiri vs. Nationstar Mortgage LLC

Aug 22, 2024 |C24-00194

C24-00194CASE NAME: VAHID HAGHIRI VS. NATIONSTAR MORTGAGE LLC *FURTHER CASE MANAGEMENT CONFERENCEFILED BY:*TENTATIVE RULING:*See Line 4.

Ruling

SHAUN IDNANI, ET AL. VS DH BUILDING INC., ET AL.

Aug 27, 2024 |22PSCV00439

Case Number: 22PSCV00439 Hearing Date: August 27, 2024 Dept: O Tentative Ruling Plaintiffs Application for Entry of Default Judgment is DENIED without prejudice (namely for insufficient evidence of damages). Background This case arises from a home renovation. Plaintiffs ARJAN IDNANI and SHAUN IDNANI[1] allege the following against Defendants DH BUILDING, INC. (DH); ALISA LI aka DAN LI (Alisa); GEORGE TOC (George)[2] and Doe Defendants: On October 16, 2019, Plaintiffs and DH entered into a written contract whereby DH would perform certain construction work (to build a first and second floor remodel and two-story addition) on Plaintiffs residence for $300,000. Defendants began the work on September 10, 2020. However, the work was delayed; Defendants failed to complete the work; Defendants used inferior quality materials; and Defendants damaged the premises. Additionally, Plaintiffs allege that Defendants failed to secure the work site resulting in theft of personal property and also brought a dog onto the premises that attacked and bit one of the Plaintiffs. On May 6, 2022, Plaintiffs filed suit asserting the following seven causes of action (COAs): 1. Breach of Contract 2. Recission 3. Negligence 4. Breach of Express Warranties 5. Breach of Implied Warranties 6. Disgorgement of Payments Under Business & Profession Code section 7031 7. Unfair Business Practices On October 21, 2022, default was entered against Alisa and DH. On April 24, 2024, Plaintiffs filed a POS as to George indicating that he was served via substituted service on 4/19/24 by serving Georges brother. On June 6, 2024, default was entered against George. On July 18, 2024, Plaintiffs filed the instant application for entry of default judgment. Discussion Plaintiffs seek entry of default judgment against Defendants (DH, Alisa, and George) in the total amount of $330,593.42, comprised of $262,052 in damages; $58,006.32 in prejudgment interest;[3] $8,511.04 in attorney fees;[4] and $2,024.06 in costs. (See JUD-100 form.) As more specifically laid out in Plaintiffs declarations, the total property and economic damages resulting from the acts and omissions of Defendants are as follows (see Idnani Decls., ¶32): - $190,000 for additional costs to complete the work - $32,100 for lost rental profits - $5,272 for additional costs - $10,400 for cost of alternative housing - $21,280 for rent for contractors unauthorized use of garage/storage fee Here, the application is denied for insufficient evidence. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267 [setting forth trial courts role in ensuring sufficient evidence is provided that support well pled allegations].) First, Plaintiffs contend that their new contractor has estimated it will cost an additional $350,000 to complete the work. (¶26.) However, no evidence (i.e., statement from contractor) has been submitted. Second, Plaintiffs contend that [b]ecause of the wrongful acts of Li, Toc and DH Building, I have had to pay $800 per month for 13 months for alternative housing because the delays and negligence totaling $10,400.00. (¶28.) However, no evidence (i.e., receipts or billing statements) have been submitted to support these damages. Third, Plaintiffs, contend that they also had to pay the following additional costs that they would not have otherwise had to pay as a direct and proximate result of the negligence of Li and DH Building, in the amount of $5,272.00 including without limitation (a) Storage at CubeSmart in the amount of $2,512&. (¶29.) For similar reasons above, absent evidence, this cost is not recoverable. Fourth, Plaintiffs seek damages for trespass wherein the workers used the garage as a break room; they seek $1,120 per month from September 2020 to April 2022 for a total of $21,280. (¶30.) However, according to Plaintiffs declarations, there were months wherein workers did not even work. (See ¶13 [For numerous days, and entire weeks and months they ceased all Work on the Contract, and even when workers did arrive at the Residence, they often only performed marginal tasks while waiting for direction or supervision that never arrived. For example, they performed no work during the following weeks: September 21 to 27, October 5 to November 12, November 24 to December 2, 2020, January 7 to 13, 2021, February 4 to 9, September 27 to October 9, November 26 to 28, 2021, January 14 to 31, 2022, February 1 to 19, 2022, March 6 to the present.], emphasis added.). Thus, the court seeks clarification as to the damages relating to the trespass COA. Conclusion Based on the foregoingnamely insufficient evidencethe application for entry of default judgment is denied without prejudice. [1] Arjan is the father and Shaun is his son. (Arjan Idnani Decl., ¶1.) [2] According to the complaint, Alisa is the responsible managing officer, president, and chief executive officer of DH and George is the construction manager on the project at the premises and an employee of DH. Additionally, Plaintiffs allege that they believe DH is an alter ego of Alisa. (Complaint p. 2.) Generally, a corporate officer may not be personally liable for the acts or obligations of their corporation. However, there are some exceptions. One is when the director or officer directly authorized or actively participated in wrongful or tortious conduct. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 503-504; see also Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 858.) Another is piercing the corporate veil which occurs when the individual (officer/director) abused the corporate form such that it would be unfair to shield the individual from personal liability. (See Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538-599 [background and framework for alter ego/piercing the corporate veil].) Here, a review of the evidence provides a sufficient basis for piercing the corporate veil because Alisa directed Plaintiffs to directly pay her for construction materials and it became evident that DH didnt have adequate capitalization to pay for the construction materials. (Idnani Decl., ¶4.) (The exhibits provide that checks were made to DH, but that some payments were made to George; none were made to Alisa.) Additionally, there is sufficient evidence to hold Alisa personally liable as she directly made misrepresentations. (See e.g., Idnani Decl., ¶8 [[Alisa] went so far as to misrepresent [] that permits had been approved, when in fact, they had not. [She] also falsely blamed the City of Diamond Bar for the failure to timely approve the applications&.].) Therefore, Plaintiffs attempt to seek default judgment against all defendants is permissible. [3] Plaintiffs seek prejudgment interest pursuant to Civil Code section 3289(b). (See Goldberg Decl., ¶3.) (Civil Code 3289(b) only sets forth the legal rate of interest; considering that Plaintiffs seek prejudgment interest from the date of filing the complaint, then the court presumes Plaintiffs seek interest pursuant to Civil Code section 3287(a) [liquidated damages since damages for dog bite are not sought]; see Maurice L. Bein, inc. v. Housing Auth. of City of Los Angeles (1958) 157 Cal.Ap.2d 679, 686.) Calculation: 808 days (5/6/22 (date complaint filed) to 7/17/24 (date application filed) x $71.79 daily interest. [4] Attorney fees were calculated using the Local Rules. On April 14, 2023, Defendant filed its answer. On November 30, 2023, the case was transferred to the Pomona Courthouse South. On June 5, 2024, the parties attended an IDC; the issues remain unresolved. On July 8, 2024, Plaintiff filed the instant motion.[1] On August 14, 2024, Defendant filed its opposition. On August 20, 2024, Plaintiff filed her reply. Discussion At issue are RFPs of documents Nos. 33 and 34 which demand communications and documents related to the Universitys internal peer-review process by which it evaluated Plaintiffs tenure application. The University objects on the predominant grounds that the request[s] seek[] documents reflecting the mental process of peer reviewers, committee members who reviewed Plaintiffs candidacy for tenure or related grievances, if any. (See Plaintiffs Separate Statement (SS), Defendants Responses.) Plaintiff does not deny the area of autonomy awarded to universities that prevents the disclosure of the tenure review process but argues that the relevant cases also make an express exception&for cases involving discrimination. (Plaintiffs SS p. 3:18-21.)[2] According to the Code of Civil Procedure section 2031.310 subdivision (b)(1), a motion for an order compelling further responses shall set forth specific facts showing good cause justifying the discovery sought by demand. Inherent in this determination, is whether the discovery is relevant to the subject matter involved in the pending action. (Greyhound Corp. v. Superior Court In and For Merced County (1961) 56 Cal.2d 355.) With that, the court turns to the pleading and the parties arguments to craft a timeline that demonstrates the incident(s) at issue. - Plaintiff started in 2014. Plaintiffs responsibilities as an assistant professor included teaching courses and participating in and publishing educational research for Defendants and DOES 1 100, and each of them. (Complaint P18.) - In 2015, Plaintiff reported a co-worker, Kent Badger, to human resources for sexual harassment of a student. After Badger disparaged Plaintiff, she made complaints to Dean Helou, who dismissed the complaints. - Plaintiff reported threatening and harassing emails, from who she thinks was Kent, to the police; no date of this report is provided. - In 2017, the department chair began removing classes from Plaintiffs teaching course load with no justification.[3] - Since 2014 she received positive reviews, but in 2019, she received a negative performance review. - In 2019, Plaintiff, Kelly Nikes-Yokum (another professor), and Ning Tao (a graduate student) discussed Plaintiffs need to publish papers for her tenure portfolio and that Plaintiff would take the lead on the project that she, Kelly Niles-Yokum and a student named Ning Tao had worked on together previously and turn it into a publishable paper. (P31.) Upon return from the trip where the foregoing was discussed, Plaintiff reported her colleagues (Kelly Nikes-Yokum (Kelly) unprofessional behavior (e.g. drinking) that was exhibited during the trip to Defendants. - In September 2019, Plaintiff sought additional time to submit her tenure portfolio, but the Dean denied her request. - After learning of the report, Kelly wanted her name removed from the paper, as did Tao. Plaintiff removed their names but moved forward with publishing the paper (due early October 2019) or else she would put her tenure at risk. Shortly thereafter, she was accused of plagiarism. - In December 2019, she was denied tenure. - In 2021, after attempts to return from industrial medical leave, she was terminated. Based on the foregoing discussion of facts it is clear that Plaintiff has alleged disability discrimination&. (SS p. 5:11-16, emphasis added.) But the facts do not support that contention. The following is the excerpt from Plaintiffs deposition which is discussing the August 2019 meeting between Plaintiff and the dean: Q.· ·Okay.· And what did you say during that meeting? A.· ·I told him that I wanted to withdraw from my · ·tenure, what would it take to do that?· My tenure - ·applying for my tenure, that I wasn't ready, that I felt ·physically ill, and it was keeping me from getting my portfolio in order and everything done. Q.· ·Okay.· Did you -·A.· ·And that I didn't want to look bad.· So what ·would be the answer.· And I knew that he had done it with ·another professor in the past. ·Q.· ·Okay.· And when you say "withdraw from my ·tenure," what did you mean? ·A.· ·I mean that I had been given a letter saying ··we're going to put you up for tenure; do you accept it? ·And I was saying, No, I would like to delay it.· And... ·with good reason.· But he said it wasn't good enough. ·· ·Q.· ·When did he say it wasn't good enough? · ·A.· ·In the meeting.· He said no·Q.· ·Okay. ··A.· ·I'm sorry.· I won't stop the procedure. ·· · ·Q.· ·Okay. ·A.· ·I've never done it before and I'm not going to · ·start now. Q.· ·That's what Dean Helou said? · ·A.· ·Uh-huh. · · ·Q.· ·Okay.· And that's after you told him you weren't· ·ready, that you felt physically ill and that's why you couldn't get your dossier together? · ·A.· ·Yes. · · ·Q.· ·Okay.· Did you describe what you -- did you use· ·the phrase "physically ill"? · · · ·A.· ·Yes. · · ·Q.· ·Okay.· Did you describe at all what that illness A.· ·He didn't ask, and I didn't tell. · ·Q.· ·Okay.· Did you explain how your physical illness· ·was preventing you from preparing your tenure dossier ·A.· ·Yes· · ·Q.· ·What did you say? · ·A.· ·I said that I was physically ill and that this ·was only making me feel worse and that I thought it was ·· ·-- was only fair for me -- I mean, I thought I was doing · ·a good thing by saying, I need to step down right now. I · ·mean, it's a good all-around thing for all of us.· And he ·disagreed with me. (Ex. 25, emphasis added.) Effectively, what Plaintiff told the Dean was that she was not feeling well; not that she has Lupus and that because of her medical condition she cannot proceed with work; she never disclosed her disability or medical condition until AFTER she learned that the Dean and the College Tenure Review Committee recommended against granting her tenure. (Opp. p. 6:3-4.) Thus, absent discrimination, which is the necessary condition Plaintiff argues allows for the exception to such disclosure,[4] the holding of Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1726 applies:[5] Because de novo review by lay juries of the merits of tenure candidacies will severely impact these freedoms, we hold that, absent discrimination, judicial review of tenure decisions in California is limited to evaluating the fairness of the administrative hearing in an administrative mandamus action. (See also Ibid, at fn. 9 {Corin suggests that litigation of his claims will not require disclosure of confidential information. Corin admits, however, that the mental processes of his peer reviewers, the committee members who reviewed his candidacy, and the grievance committee members are relevant to all of his claims. The identities of Corin's peer reviewers and their candid views and opinions expressed during the tenure review process are protected by the constitutional right to privacy. (See Scharf v. Regents of University of California (1991) 234 Cal.App.3d 1393, 14081409, 286 Cal.Rptr. 227.) Allowing this privacy right to be threatened by the specter of civil discovery would, in our opinion, be fatal to the proper functioning of this review process.].) Notwithstanding discrimination, Plaintiff argues that her retaliation claims are sufficient grounds to compel disclosure. (See Reply. p. 7 [Header D].) Defendant disagrees on the grounds that Plaintiff has not demonstrated good cause for production because her allegation of retaliation fails to connect a protected activity to her tenure review. (Opp. p. 13:11-13, emphasis added.) But Plaintiff may have provided some circ*mstantial evidence to support a connection. Plaintiff alleges that Dean Helou had a strong interest and motive to retaliate against Plaintiff because of Plaintiffs repeated and ongoing complaints about Kent Badger that Dean Helou was forced to continually cover up and minimize. (Reply p. 9.)[6] Plaintiff has also alleged and established that Dean Helou communicated with the tenure committee during deliberations and commented on the merits of Plaintiffs application to members of the committee (Gleason Dec. ISO Motion, ¶26, Ex. 26, ULV 4423) and this is circ*mstantial evidence Helous retaliatory intent toward Plaintiffs protected reporting activity[7] was directly communicated to the tenure committee, and/or that the committee relied upon information from Helou tainted by his retaliatory intent toward Plaintiffs protected reporting activity. (Reply pp. 9-10, emphasis added.) The court turns to Exhibit 26, ULV 4423, which is a document entitled Faculty Personnel Committee Ballot. (Ex. 26, p. 280 of 303 of PDF.) The form states that Dr. Shipley does not meet the requirements in the area of scholarship. Very little progress after year review. Does not have a tier 2 journal article as required by the College. The 2 articles submitted appear to be in non-approved journals. College committee and Dean indicate also., these do not meet the requirements. No indication of a clear scholarship agenda moving forward, not follow through from 3' year review. (emphasis added.) Accordingly, it does appear that the Dean did communicate with the tenure committee. That said, as acknowledged by both parties, California abides by a balancing test: balancing the interests in disclosure of particular academic employees against a university's interest in confidentiality. (See e.g., Scharf v. Regents of University of California (1991) 234 Cal.App.3d 1393, 1408; see also Kahn v. Superior Court (1987) 188 Cal.App.3d 752, 770 [We are required to balance these competing interests carefully. In our view the scales tip in favor of nondisclosure. The ordinary yardstick for discoverability, i.e., that the information sought may lead to relevant evidence, is not applicable when compelled disclosure would intrude on constitutionally protected areas. The complaint in this case made no claim of discrimination on the basis of sex, religion, age, or any other ground.], emphasis added.) Here as the Reply raised many arguments and cited to new cases, the court continues the matter for supplemental briefing regarding the specific issue of whether Plaintiffs retaliation COA predicated upon FEHA warrants disclosure of the documents used in her tenure review. Conclusion Based on the foregoing, the hearing is continued pending supplemental briefing.[8] [1] The motion itself does not set forth arguments. Instead, the separate statements provides the relevant legal authority (largely citing to Pomona and Schafer) and arguments. [2] According to Plaintiff, retaliation is, by definition, an intentional act. It is a form of discrimination. (Reply p. 9, quoting Gutierrez v. State of Wash., Dept. of Social and Health Services (E.D. Wash., Sept. 26, 2005, No. CV-04-3004-RHW) 2005 WL 2346956.) [3] Her 6th COA for retaliation is predicated upon Plaintiff reporting Kent for sexual harassment. (Complaint P105.) Though there may a casual connection between the reporting and lesser class load, Plaintiff was still offered to opportunity to apply to tenure. (See Gleason Decl., Ex. 25 [Plaintiffs Testimony], p. 114:1-2 [I mean that I had been given a letter saying were going to put you up for tenure; do you accept it.].) [4] See SS p. 3:18-21 [Plaintiff does not deny that as set forth in Scharf and Pomona, there is an area of autonomy granted Universities under article IX, section 9 of the California Constitution. However, both Scharf and Pomona make an express exception to this area of autonomy for cases involving discrimination and/or Title VII of the Civil Rights Act.], emphasis added.) [5] Pomona College did not involve claims of discrimination or retaliation was predicated upon a breach of contract claim. [6] For clarity, to the extent that Plaintiff relies upon any allegations that the Dean communicated with the committee about Plaintiffs disability to support her position that the committee relied upon said information (Reply p. 6:1-6), as explained, the evidence unequivocally demonstrates she did not disclose a disability to the dean before the committee reached its decision. [7] For reporting Badger to the appropriate Title IX authorities at the University. [8] At this juncture, the court need not address whether the court should consider Plaintiffs demand for unredacted documents. On May 22, 2024, Defendants filed their answer. On May 28, 2024, Defendants HANK JANN dba NORTH EL MONTE AUTOMOTIVE, and ELDAN JANN filed a cross-complaint against Plaintiff Zhou, Evergreen Tree Service, LLC (Evergreen) and Cheng Hua Chui aka Roger Chui (Chui) for: 1. Intentional Misrepresentation 2. Negligent Misrepresentation 3. Fraudulent Concealment 4. Negligence On July 24, 2024, Plaintiff Zhou filed the instant demurrer to the cross-complaint and a motion to strike.[1] On August 6, 2024, Defendants filed a substitution of attorney. On August 14, 2024, Defendants filed their opposition to the demurrer and motion to strike. On August 20, 2024, Plaintiff filed his reply. Discussion Preliminary, while Plaintiffs Counsel attempted to meet and confer with the prior Defense counsel prior to filing the demurrer and motion to strike (who did not respond to meet and confer efforts), Counsel should have attempted to meet and confer with current counsel as well. For future motions wherein the attorneys do not meet and confer in good faith, the court will continue the hearing. Additionally, the motion to strike should have been filed as a separate filing.[2] Plaintiff demurs to the 1st through 3rd COAs in that they all allege facts sufficient to constitute a cause of action insomuch that they fail to plead the causes of action with particularity. (Demurrer p. 2:11-14.) Before turning to the merits, the court turns to the allegations in the cross-complaint, which provide the following relevant allegations and describe the parties: - Hank Jann (Hank) does business as North El Monte Automotive, an automotive repair shop owned by Hanks brother, Eldan Jann. - Eldan Jann owns the business. - Chui is the sole owner/member of Evergreen. - In January 2024, Eldan was looking for a licensed roofer to repair the roof of the business, so he sought the recommendation of his client, Chui. - Chui represented to Eldan that he was affiliated with Zhou and that Zhou was a licensed roofer. - Eldan spoke with Zhou, who said he had twenty-plus years in the roofing business. - Zhou gave Eldan a quote and told Eldan that he would have a trained team working under him. - Zhou and the workers were negligent in their working, exhibited by throwing pieces off the roof without looking where the pieces would land, which damaged a customers vehicle. - Hank warned Zhou one day that heavy rains were forecasted, but Zhou proceeded with work without taking proper precautions. - Zhou fell off the ladder one day onto a pile of bricks. 1. Intentional Misrepresentation A cause of action for intentional misrepresentation falls under the category of fraud and deceit. The elements of fraud that will give rise to a cause of action for deceit are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e, to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973-974.) This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) (emphasis added). This COA is predicated upon the allegation found in paragraph 7: In or about late January 2024, ELDAN JANN was looking for a licensed roofer to repair the roof at the Premises. In this regard, ELDAN JANN sought a recommendation from CHUI, as CHUI was a customer of ELDAN JANN. CHUI recommended ZHOU. Specifically, CHUI represented to ELDAN JANN that he was affiliated with ZHOU, and that ZHOU was a licensed roofer. ELDAN JANN later spoke with ZHOU, at which time ZHOU represented to ELDAN JANN that he was a licensed roofer with twenty-plus years in the roofing business. (emphasis added.) Zhou demurs on the grounds that [n]owhere does the Cross Complainant mention when and where the statement was made. (Demurrer p. 6:3-4.) In opposition, Plaintiff contends that paragraph 7 alleges that in or about late January 2024 the purported representation was made. (Opp. pp. 5-6.) Here, the court disagrees with Plaintiff that later could mean the next decade. (Reply p. 2:15-16.) Clearly, reading the allegations in the light most favorable to the pleader, later means sometime shortly after the initial conversation in January 2024 and sometime before work began; this timeline does not involve a guessing game when attempting to determine when&.any misrepresentations may have occurred. (Reply p. 2:23-25.) Notwithstanding, defendants do not otherwise address the other elements and requirements (e.g., induce reliance). Therefore, the demurrer is SUSTAINED with leave to amend. 2. Negligent Misrepresentation Like a claim for fraud, each element of a cause of action for negligent misrepresentation must be factually and specifically alleged. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) The elements of a cause of action for negligent misrepresentation are: (a) The defendant must have made a representation as to a past or existing material fact; (b) The representation must have been untrue; (c). Regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true; (d) The representation must have been made with the intent to induce plaintiff to rely upon it; (e) The plaintiff must have been unaware of the falsity of the representation; he must have acted in reliance upon the truth of the representation and he must have been justified in relying upon the representation; (f) And, finally, as a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage. (Demurrer p. citing Continental Airlines, Inc. v. McDonnell Douglas Cor., (1989) 216 Cal.App.3d 388, 402). For similar reasons stated above, the cross complaint fails to allege certain elements (e.g., Plaintiff made the purported representation with the intent to induce Cross Complainants to rely on it). (The opposition consolidated the analysis as to the 1st and 2nd COAs.) Therefore, the court sustains the demurrer as to the 2nd COA with leave to amend. 3. Concealment For the same reasons above, the demurrer to the 3rd COA is sustained with leave to amend.[3] Motion to Strike Plaintiff files an MTS on two grounds: i. The CC is untimely ii. Punitive damages 1. Timeliness A party shall file a cross-complaint against any of the parties who filed the complaint or CC against him or her before or at the same time as the answer to the complaint or CC. A party shall obtain leave of court to file any cross-complaint except one filed within the time specified. Code of Civil Procedure §428.50. (a) and (b). Here, Defendants filed and Answer on May 22, 2024, and a Cross-Complaint May 28, 2024, six (6) later. Defendants failed to seek leave of Court as required. But a review of the proof of service indicates that the CC was served on May 20, 2024. As technical errors happen, the court finds the POS sufficient evidence that the CC was otherwise timely served. Plus, the court would exercise its discretion pursuant to CCP section 473 and its inherent authority to enlarge the time for the CC to have been filed. Therefore, the court denies the MTS on timeliness grounds. 2. Punitive Damages As the court has sustained with leave to amend the COAs predicated upon intentional or fraudulent misrepresentations/concealment, this issue is MOOT. Therefore, the motion to strike is moot in part and denied in part. Conclusion Based on the foregoing, the demurrer is sustained in its entirety and the MTS is moot in part and denied in part. [1] There are two named plaintiffs but the demurrer and motion are filed by only one plaintiff; it is unclear which plaintiff, but the court presumes it is Zhou. [2] The MTS starts at p. 40 of 75 of the PDF. [3] Plaintiff avers that the cross-complaint does, for example, allege that Eldan did rely upon the alleged misrepresentation that Zhou was a licensed roofer, and cites to Paragraph 32. (Opp. p. 7:3-4.) However, that paragraph states: At all times herein mentioned, ZHOU and CHUI intentionally failed to disclose important facts to ELDAN JANN, to wit, that CHUI was not a licensed roofer. That is conclusory.

Ruling

Ford vs GreenHorn Golf, LLC, a California Limited Liability Company

Aug 30, 2024 |23CV47102

23CV47102 PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTIONOn December 6, 2023, Patricia Ford (“Plaintiff”) filed a Complaint against GreenhornGolf, LLC (“Defendant”)1 seeking damages for nuisance and requesting injunctive relief.On May 28, 2024, Plaintiff filed a motion seeking a mandatory injunction orderingDefendant to “remove approximately eighteen (18) Poplar Trees located on Defendant'sreal property which is abutting to Plaintiff's Residence located at 138 Smith Road,Angels Camp, California.”Plaintiff’s motion was originally on calendar for June 28, 2024. The Court granted acontinuance to July 12, 2024, to allow Defendant to respond to new evidence of aParcel Map submitted with Plaintiff’s Reply. On July 12, 2024, the Court grantedDefendant’s request for a second continuance, giving the Defendant until August 30,2024, to “obtain and analyze the relevant Parcel Map to determine if Plaintiff’s claims inthe Reply are correct.”Defendant has not filed any additional opposition.I. Factual BackgroundPlaintiff is the owner of property located at 138 Smith Flat Road, Angels Camp,California (“Property”), within a golf course community owned and operated byDefendant. (Declaration of Patricia Ford (“Ford Decl.”) ¶ 4.) The Property is also locatednext to an unimproved, wooded lot, owned by Defendant (“Tree Lot”) (Ford Decl. ¶ 5).Plaintiff alleges that the roots from the trees located on the Tree Lot are encroachingupon Property and have caused damage to Plaintiff’s sprinkler system, yard/garden,and a portion of her house. (Ford Decl. ¶ 6.)Plaintiff has obtained an estimate of $22,190.00 to remove and grind 22 tree stumpsand treat the roots that are alleged to be encroaching the Property. (Ford Decl. ¶ 7.)In its Opposition, Defendant took issue with whether it truly is the owner of the Tree Lot.Defendant provided the declaration of Miriam Cline, Regional Manager for Golf Clubswhich owns Defendant. (Declaration of Miriam Cline (“Cline Decl.”) ¶ 1.) Ms. Clineavers:1 Plaintiff has also sued Does 1-10. While I have been as yet unable to obtain definitive documentation of the bounds of GREENHORN’s property, the information I have obtained to date indicates that the trees are located on an open space that is owned and maintained by the City of Angels Camp, and not by GREENHORN. (Cline Decl. ¶ 4.)Defendants further argued that they had filed a Cross-Complaint against parties whomay have ownership rights to the Tree Lot and that: Absent proper evidence as to ownership being brought before this Court, and until such time as GREENHORN can conduct a full investigation of the matter, FORD's request for an order compelling it to address the nuisance is premature.On Reply, Plaintiff produced the Grant Deed recorded on April 12, 2021, establishingthat Defendant owns the Tree Lot. (Declaration of Eurik O’Bryant (“O’Bryant Decl.”) ¶ ¶4, 5, Ex. 1-2.)II. Legal Standard and AnalysisWhen determining whether to issue a preliminary injunction, the court considers twointerrelated questions: (1) the likelihood that the plaintiff will prevail on the merits, and(2) the relative balance of harms that is likely to result from the granting or denial ofinterim injunctive relief. (White v. Davis (2003) 30 Cal.4th 528, 554; see also Robbins v.Sup. Ct. (1985) 38 Cal.3d 199, 206; Code Civ. Proc., § 526.)Here Plaintiff has shown that Defendant owns Tree Lot. Defendant was given twocontinuances in order to obtain evidence contradicting Plaintiff’s title report and grantdeed showing that Defendant owns Tree Lot. No such evidence has been produced.Defendant further does not dispute Plaintiff’s evidence that the stumps and rootscoming from the Tree Lot onto her Property have caused significant damage. Defendantdoes not dispute that the continued presence of the stumps and roots will cause furtherdamage and harm to Property.Plaintiff has demonstrated that she is likely to prevail on her claim for nuisance. She hasfurther demonstrated that she is likely to suffer greater harm by the continued presenceof the stumps and roots than Defendant will suffer if ordered to abate the nuisance.Based on the foregoing, Plaintiff’s application for a preliminary injunction is GRANTED.The clerk is to provide notice of this Ruling. Plaintiff to submit a formal Order pursuant toRule of Court 3.1312 in conformity with this Ruling. TRYON v ANGELS GUN CLUB, INC.

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