Certificate - of filing Affidavit of Diligent Search and Inquiry on DefendantsParty: Plaintiff Money Source Inc February 06, 2020 (2024)

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Ruling

WVISTANO DANIEL PEREZ VS FCI LENDER SERVICES, INC., A CALIFORNIA CORPORATION, ET AL.

Aug 20, 2024 |23CHCV01341

Case Number: 23CHCV01341 Hearing Date: August 20, 2024 Dept: F43 Dept. F43 Date: 8-20-24 Case # 23CHCV01341, Wvistano Daniel Perez vs. FCI Lender Services, et al. Trial Date: N/A DEMURRER TO SECOND AMENDED COMPLAINT MOVING PARTY: Defendants FCI Lender Services, Inc., and Puerto Loreto, LLC RESPONDING PARTIES: No response has been filed. RELIEF REQUESTED Demurrer to Second Amended Complaint · Entire Cross-Complaint · First Cause of Action for Violation of Business and Professions Code § 17200 RULING: Demurrer is sustained without leave to amend. SUMMARY OF ACTION In February 2022, Plaintiff Wvistano Daniel Perez (Plaintiff) took out a mortgage for the subject property in the amount of $2,000,000.00. In late 2022, Plaintiff defaulted on the loan and contacted Defendant FCI to explore his loss mitigation options. Plaintiff alleges that FCI informed him that the loan was due, and he could either pay the defaulted amount or sell the property. On January 20, 2023, Defendants recorded a notice of Default against the property. Plaintiff alleges that Defendants failed to assess Plaintiffs finances prior to recording the Notice of Default on the property. Plaintiff also alleges that Defendants did not call him or otherwise attempt to contact him regarding non-foreclosure options. Plaintiff sold the property on June 22, 2023. The Court previously sustained Defendants demurrer to Plaintiffs cause of action for violation of Business and Professions Code § 17200 with leave to amend. Defendants have once again demurred to that cause of action. No opposition has been filed by Plaintiff. Defendants Request for Judicial Notice: Defendants have requested that the Court take judicial notice of several recorded deeds showing the chain of title of the subject property. The Court grants this request. ANALYSIS A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) 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. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Entire Complaint Defendants demur to the entire complaint, but there is only one cause of action. Plaintiff has also requested a preliminary and permanent injunction, but because Plaintiff requested this as partis of his prayer for relief, the Court will only address the one cause of action. First Cause of Action For the First Cause of Action, Business and Professions Code § 17200 prohibits any unlawful, unfair, or fraudulent business acts or practices and unfair, deceptive, untrue, or misleading advertising. (Puentes v. Wells Fargo Home Mortg., Inc. (2008) 160 Cal.App.4th 638, 643-644.) Unlawful practices are forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. (Saunders v. Sup.Ct. (1999) 27 Cal.App.4th 832, 838.) Unfair practices constitute conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition. (Cal Tech Communications, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 187.) When determining whether the challenged conduct is unfair within the meaning of the unfair competition law&, courts may not apply purely subjective notions of fairness. (Id. at 184.) The fraudulent prong under the UCL requires a showing of actual or potential deception to some members of the public, or harm to the public interest. (Id. at 180; see also McKell v. Wash. Mut., Inc. (2006) 142 Cal.App.4th 1457.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Malys of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Plaintiff has not alleged facts demonstrating that Defendants violated Section 17200. The only allegations of unfairness in Plaintiffs SAC are that Defendant acted unfairly by informing Plaintiff that the loan was due (after Plaintiff failed to pay on the loan) (SAC, ¶¶ 16, 17, 28) and that Defendant acted unfairly by refusing to review the loan for loss mitigation options (SAC, ¶ 28). Plaintiff also alleges that Defendants acted unfairly by signing off on what Plaintiff alleges was a patently false declaration of compliance. (SAC, ¶ 30.) None of the alleged unfair conduct rises to the level of conduct that threatens an incipient violation of an antitrust law. (Cal-Tech, 20 Cal.4th at 187.) Plaintiff has failed to allege conduct that would be a violation of Business and Professions Code § 17200. Plaintiff has also failed to oppose this demurrer or otherwise demonstrate how he could amend his complaint to allege this cause of action. Accordingly, Defendants demurrer to Plaintiffs First Cause of Action is sustained without leave to amend. Conclusion Defendants demurrer to Plaintiffs First Cause of Action is sustained without leave to amend. Defendants FCI Lender Services, Inc., and Puerto Loreto, LLC, are dismissed from this action. Only Defendant California TD Specialists remains as a defendant to this action, though this Court previously signed an order on June 11, 2024, that California TD shall have no further obligation to file any further responsive pleadings or otherwise respond in this matter and shall not be subject to any monetary awards, damages, or attorneys fees and costs. Moving party to give notice.

Ruling

Frank Betancourt, et al vs Richard Betancourt

Aug 20, 2024 |23CV02511

23CV02511BETANCOURT v. BETANCOURT PLAINTIFFS’ MOTION FOR INTERLOCUTORY JUDGMENT OF PARTITION ON THE PLEADINGS AND APPOINTMENT OF REFEREE The motion for judgment on the pleadings is granted.Plaintiffs Frank A. Betancourt and Gidget M. Martinez seek the partition of property located at229 Elm St., Watsonville CA. They wish to force the sale since they, along with defendant(presumably their sibling), all own a third of the property. Defendant refuses to sell and contendsplaintiffs have benefited from rental income of the property not shared with him. (Verifiedanswer ¶ 1.) Plaintiffs ask the court to appoint a professional referee with full authority topartition the property, take possession for the purpose of terminating any tenancies, list it for saleand disburse the proceeds to all parties. In 1991, a grant deed transferred the property to Gloria E. Betancourt as her sole andseparate property. (Verified complaint ¶ 9.) On 9/12/18, a grant deed transferred the property toGloria Esther Betancourt, Frank Amador Betancourt (plaintiff), Richard Anthony Betancourt(defendant), and Gidget Marie Martinez (plaintiff), all unmarried, taking the property as jointtenants with rights of survivorship. (Verified complaint ¶ 12.) On 10/18/23, the affidavit of thedeath of joint tenant, Gloria Betancourt, was recorded. (Verified complaint ¶ 11.) Plaintiffs have not waived any right to partition and there are no encumbrances on theproperty. (Verified complaint ¶¶ 17, 21.) Defendant, in pro per, was served by email and regular mail. He filed an untimelyopposition on 8/15/24, over a week late. The opposition states the home has been the only homehe’s known and he is honoring his deceased mother by keeping and fixing it. He says his nephewlives in the home. His verified answer admits he has a 33.33% interest in the property as a jointtenant. (Verified answer ¶ 1.) Partition is an equitable action that is governed by statute. (Code Civ. Proc. § 872.010 etseq.; all statutory references are to the Code of Civil Procedure.) Property may be partitioned byphysical division, sale of the property and division of the proceeds, or court approved andsupervised partition by appraisal. (§§ 873.210-290, 873.510-850, 873.910-980.) “The interests ofthe parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the Page 1 of 4action.” (§ 872.610.) “Court determination of right to partition. At the trial, the court shalldetermine whether the plaintiff has the right to partition.” (§ 872.710(a) (emphasis added).) If thecourt finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment thatdetermines the interests of the parties in the property and orders the partition of the property. (§872.720(a).) Thereafter, the court shall order that the property be divided in accordance with theparties’ interests as determined in the interlocutory judgment. (§ 872.810.) If the court orderssale, the court shall appoint a referee to divide and sell the property. (§§ 872.010, 873.020.) Allegations in verified pleadings are binding judicial admissions and can support motionsfor judgment on the pleadings. “‘The admission of fact in a pleading is a ‘judicial admission.’’(Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 [127 Cal. Rptr.2d 436].) A judicial admission in a pleading is not merely evidence of a fact; it is a conclusiveconcession of the truth of the matter. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 218[51 Cal. Rptr. 2d 642].) ‘Well pleaded allegations in the complaint are binding on the plaintiff attrial.” (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 455, p. 587.)’” (Bucur v. Ahmad(2016) 244 Cal.App.4th 175, 187.) On a motion for judgment on the pleadings, as on a demurrer, the court must accept theallegations of the complaint and answer as true. (Gerawan Farming, Inc. v. Lyons (2000) 24Cal.4th 468, 515.) This motion is granted since the relief sought is appropriate considering the verifiedadmissions of ownership by all three owners. Plaintiffs’ Request for Judicial Notice: 1-3. Filed documents in this action: Denied, the court need not take judicial notice of itsown records in the action. 4-5. Recorded deed and affidavit of joint tenant: Granted.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 2 of 4 LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 19, 2024 TIME: 8:30 A.M.

Ruling

R Scott Turicchi et al vs Randy Quaid et al

R. Scott Turicchi, et al., v. Randy Quaid, et al.Case No. 19CV06268 Hearing Date: 8/26/2024 HEARINGS: (1) Quaid motion to compel Turicchi compliance with subpoena (2) Quaid motion to strike references to July 28, 2024 ruling ATTORNEYS: Craig S. Granet / Claire K. Mitchell of RIMON, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs Randy Quaid and Evgenia Quaid are in pro per. TENTATIVE RULINGS: Both motions are denied. Motion to compel Turicchi compliance with subpoena: The Quaids filed their motion on June 28, 2024, seeking to compel the Turicchis to comply with a subpoena which the Quaids contend was served upon them May 14, 2024. The subpoena sought a “non-fabricated photograph” of a sign posted on the front gate of the property, and for the identity of the “friend” who allegedly created the sign. The motion contends that the information is critical to the fair resolution of the ongoing civil dispute concerning the property at 1335/1357 East Mountain Drive, in Montecito. The motion contends that the Turicchis had the Quaids “falsely citizen’s arrested” on the property in September 2010, at a time when the Turicchis’ claim of ownership was under a void title from the Bermans in 2007, and they had not yet perfected a 5-year adverse possession claim to the property. In October 2010, the Turicchis posted a sign on the front gate to the property “threatening harm” to the Quaids if they returned. Plaintiffs produced emails in November 2023 which reveal that multiple witnesses observed and photographed the sign. Since that time, the Quaids have made exhaustive requests for production of a photograph of the sign which had been posted on the gate, and have also requested the Turicchis to provide the name of the person who Mrs. Turicchi says made the sign. The subpoenaed a copy of the photograph and the name of the friend on May 14, 2024, but plaintiffs failed to respond by the June 14, 2024 deadline, and on June 20 responded providing “a suspiciously altered PDF image” of a sign on the front gate of the property, and did not identify the friend who created it. They contend that a preliminary analysis of the PDF image of the sign suggests that the image of the sign has been digitally altered and inserted into a photograph of the front gate. They assert further that the content of the sign “does not align with the reactions of witnesses.” Given that the preliminary analysis suggested possible manipulation, they contend that the actual photograph must be analyzed by a forensic expert using more advanced forensic tools, in order to determine the photograph’s authenticity. They therefore seek an order compelling plaintiffs to fully comply with the subpoena, and permitting the Quaids to engage a forensic expert to analyze the photograph. The PDF image of the photograph in question, produced by the Turicchis on June 20, 2024, is attached to the motion as Exhibit A, and depicts what appears to be a wooden gate, arched at the top, and attached to a stone wall. On the gate is affixed what appears to be a white, rectangular sign with red lettering, which states: To the couple arrested.This is not your property.Shy of purchasing it from me—KEEP YOUR ASS OFF MY PROPERTY.Opposition The Turicchis have opposed the motion, on multiple bases. First, they note that the discovery cut-off was 30 days prior to the then-June 24, 2024 trial date, and the Quaids’ subpoena called for documents to be produced on June 14, 2024, past the cut-off date. The Turicchis served written opposition noting the discovery cut-off date, and objecting that the Deposition Subpoena which had been served on counsel was not a valid subpoena, in that it was unsigned. It could not permissibly have been signed by the Quaids in any event, as the only persons authorized by law to issue a subpoena are a judge, court clerk, or an attorney at law who is an attorney of record. (Code Civ. Proc., § 1985, subd. (c).) Parties representing themselves are not authorized to issues subpoenas, and any subpoenas they attempt to issue are invalid. Additionally, while a Notice to Consumer was attached, it was not signed, and was not directed to any consumer.The Turicchis object that any motion to compel production of documents pursuant to a subpoena must contain specific facts showing good cause for the discovery being sought. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.) The motion to compel does not contain any such facts. The Turicchis explain that in connection with documents previously produced, an email was produced that referenced a sign the Turicchis had posted on their gate. One of the Quaids’ former attorneys requested a copy of the photo of the sign, but the Turicchis had not been able to locate a copy of the photo. They later located one, and that photo was produced to the Quaids on June 19. The current motion appears to contend that the photo which was produced was not genuine. However, since the photo requested was produced, there is no basis for any additional production. Further, the photo has no relevance to the slander of title cause of action against the Quaids, which is the only remaining cause of action. Quaid motion to strike references to July 28, 2014 ruling: The motion seeks to “strike” in this case all references to and citations of this Court’s July 28, 2014 ruling, citing as authority Code of Civil Procedure section 43, and the doctrine of stare decisis. The motion contends that the ruling violated established precedent set forth by the Court of Appeal in County of Santa Barbara v. American Surety Company (Case No. B238601), which found that Randy Quaid was not lawfully required to attend the hearing in question, and vacated his bail bond forfeiture. The Quaids contend that reliance on the Court’s 2014 ruling has allowed plaintiffs to unjustly harass and defame Randy Quaid. The Court of Appeal on November 14, 2013, ruled in favor of Randy Quaid, vacating his bail bond forfeiture and finding he was not lawfully required to attend the hearing. In spite of the ruling, Judge Sterne on July 28, 2014 issued a ruling declaring that Mr. Quaid was required to appear, and cited the Doctrine of Fugitive Disentitlement to bar him from seeking civil redress. His Code of Civil Procedure section 170.6, filed on December 29, 2020, was ignored by the court, as was a January 8, 2021 request for judicial notice and declaration of prejudice. The motion argues that use of the ruling to paint Mr. Quaid as a felony fugitive has caused significant harm, and has unjustly maligned his character. Since the Court of Appeal determined he was not lawfully required to attend the hearing, this court must adhere to that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450; Code Civ. Proc., § 43.) Randy Quaid therefore requests that the court strike all references to and citations of the July 28, 2014 ruling, and bar any future use of it by plaintiffs and their counsel. Opposition The Turicchis have opposed the motion, contending that the November 14, 2013 decision by the Court of Appeal was on a technical bail bond requirement, and had nothing to do with the Court’s July 28, 2014 order quashing the Quaids’ subpoena based upon the Doctrine of Fugitive Disentitlement. Only the bail bond forfeiture was vacated by the Court of Appeal decision, and that was on the basis that the court (the Honorable Frank Ochoa) should have forfeited the bond for Randy Quaid in court on November 2, 2010, as he had done for Evi Quaid, but instead continued the forfeiture issue to November 16, 2010, but then reconsidered his November 2 hearing on November 5, and ordered that the bond be forfeited nunc pro tunc to November 2, 2010. The Court of Appeal also found that, had Judge Ochoa waited until the next scheduled hearing on November 16 and, if Randy Quaid failed to appear, order forfeiture of the bond at that time, his actions would have been proper. He simply could not order forfeiture of the bond at a time when there was no scheduled hearing, since a bond can only be forfeited when a person subject to the bond does not appear at a hearing. It was only for that reason that the forfeiture was ordered reversed.None of the issues which formed the basis for the Court of Appeal’s decision had anything to do with the fact that the Quaids were fugitives for justice, which is the issue this Court decided on July 28, 2014. Consequently, there is no basis to strike the 2014 order or any reference to it in this case. Further, the Quaids remain fugitives from justice, and the Doctrine of Fugitive Disentitlement still applies to them. The Turicchis request judicial notice of the Criminal Complaint against the Quaids, which is still pending, arguing that their failure to return to California to face those charges makes them continue to be fugitives from justice. Reply The Quaids filed extensive reply papers. They first focus upon the language of the Court of Appeal that Randy Quaid “. . . was not obligated to appear,” and argue that tit doesn’t matter that the appellate ruling was based on a technicality due to a lower court’s error, and its language is binding on this court. They contend that even if the ruling was based on a technicality, it still provides a strong legal foundation for arguing that Randy Quaid was subject to unlawful procedures, reinforcing his case for relief under Code of Civil Procedure section 473(b). The Quaids argue that plaintiffs failed to distinguish facts leading to the 2013 appellate decision, including misidentifying the judge whose decision to forfeit an alleged bail bond nunc pro tunc was overturned. They assert that the 2013 decision is not irrelevant to the 2014 order, contending that the ruling quashing the Quaids’ subpoena was based upon a Quaid attorney disqualification issue, and the court tacked on as an alternative reason the Doctrine of Fugitive Disentitlement, effectively branding the Quaids as felony fugitives who failed to appear. Plaintiffs defend the ruling’s flawed reasoning, but the appellate ruling is what it is, and must be honored. The Quaids then raise an issue regarding findings of the California Department of Insurance regarding the validity of the forfeiture of Evi Quaids’ bail bond in 2010. They note that they sued the American Surety Company (ASC) in Indiana in 2014, and that ASC turned over the results of the California Department of Insurance investigation that agreed with the Quaids’ 2013 complaint that the Quaids took no cash bail in exchange for their September 2010 release, as the Santa Barbara District Attorney and Santa Barbara Sheriff’s Department falsely contained in their motions and statements in court. An August 12, 2013 Department of Insurance letter to ASC declared the Quaids’ complaint regarding the bail bonds to be justified under Section 2694 of the California Code of Regulations, agreeing with the Quaids that they took no bail bonds in exchange for their September 2010 release, and that the alleged bail bonds were extortionate. ASC concealed those findings from the Court of Appeal at the time it was considering the bail forfeiture issue. With no proper notice from the bond company as to their next appearance, the Quaids were not required to appear and the warrants for non-appearance are not valid. There was also never a bail hearing after the Quaids’ September 2010 false arrest. As a result, neither plaintiffs nor the Court can label the Quaids as “felony fugitives”, and all references to them as such must be stricken in the interests of fairness. The Quaids then include a section entitled “The Turicchis’ nefarious motives and misleading statements,” in which they argue that the Turicchis had no interest in the property and did not own it in 2010, since they had not yet owned it for five years, contending that the court’s summary adjudication ruling gave the Turicchis’ ownership as of 2012. They may claim they believed they owned the property based upon the forged, void deed form Berman, and that the Quaids are felony fugitives, but the Cobb forensic evidence, the Berman dissolution agreement, the Department of Insurance findings, the Vermont Superior Court denial of extradition based upon the District Attorney’s failure to show probable cause, the District Attorney’s numerous procedural errors, all supported by well-settled law, “dispel that illusion.” The Quaids argue that the Turicchis are relying on their own “false” citizen’s arrest of the Quaids for trespassing a property in which the Turicchis had no legal interest in 2010, so as to smear the Quaids as felons in 2023 and 2024. The charges were brought against the Quaids based solely on the Turicchis’ misleading and perjured statements and fabricated evidence of a broken mirror that they have admitted in writing was not broken. The Quaids’ argue that their Fifth Amendment rights were violated when they were not properly noticed for an appearance, and the invalid bail bonds and misimpressions by the District Attorney’s office continue to unfairly deprive them of their liberty. The District Attorney’s and Sheriff’s errors have compromised their right to a fair trial and violated their Sixth Amendment rights. They are being treated from other similarly situated, in violation of their Fourteenth Amendment right to equal protection under the law. The issuance of warrants based on insufficient evidence and procedural errors is an unreasonable seizure without due process, in violation of the Quaids’ Fourth Amendment rights. ANALYSIS: For the reasons more fully articulated below, both motions will be denied. Motion to compel compliance with subpoena The motion is denied. Apart from the significant technical insufficiencies with the subpoena, and the fact that the discovery cut-off took place in this case prior to the date for production set forth in the subpoena, the motion simply makes no attempt to explain how or why any such photo has any possible relevance to the remaining claim in this action, i.e., the Turicchis’ claim against the Quaids for slander of title. Indeed, even if the other claims alleged by the Turicchis against the Quaids had not already been adjudicated in this action, the photo at issue in the subpoena does not appear to have any relevance to those claims either. Further, the Quaids apparently seek the actual photograph so that they can conduct tests on the photograph to determine whether it was altered or manipulated in some manner, but they have never explained how that fact has any relevance to any issue in this action. It doesn’t even appear to have relevance to the claims which the Quaids attempted to insert into this action, with respect to their previously-heard motion for leave to file a cross-complaint for identity theft, mail theft, and mail fraud. Certainly, it appears from the motion that the Quaids took considerable offense from the posting of the sign and its contents. However, that does not mean it has any relevance to the action. Finally, the Turicchis have indicated that they have not been able to locate anything other than the PDF copy of the photograph which they provided to the Quaids. The Court simply cannot compel a party to produce something they do not have. For these reasons, the Court has no option but to deny the motion to compel compliance with the subpoena. Motion to strike reference to July 28, 2014 ruling The motion is denied.While the current motion is fashioned as a motion to strike, it appears to the Court to be more of a motion in limine to preclude any reference to the 2014 ruling at the trial of this action, and the Court will evaluate it as such.In order to resolve the current motion, reference to several distinct bodies of law is necessary, including: (1) Availability of a bench warrant for a felony defendant’s failure to appear for arraignment; and (2) Impact (or lack of impact) on the availability of a bench warrant caused by the invalidity of a trial court’s order of forfeiture of bail, and/or the invalidity of a bail bond in general. 1. Arraignments and bench warrants.Pursuant to Penal Code section 977(b)(1), one who is charged with a felony “shall be physically present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at all time of the imposition of sentence. . . .” Pursuant to Penal Code section 978.5(a) permits issuance of a bench warrant of arrest when a defendant fails to appear in court as required by law. Further, Penal Code section 979 provides that if a defendant has been discharged on bail, and does not appear to be arraigned when his personal presence is necessary, the court, in addition to the forfeiture of the undertaking of bail may order the issuance of a bench warrant for his arrest. The fact that felony defendant does not have actual notice of the hearing date at which their presence in court was required by law has no impact on the validity of the bench warrant issued based upon their failure to appear. (Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)“One who, with knowledge that he is being sought pursuant to court process in a criminal action, absents himself or flees is a fugitive from justice.” (People v. Kubby (2002) 97 Cal.App.4th 619, 624, quoting Estate of Scott (1957) 150 Cal.App.2d 590, 592.) 2. Bail Forfeiture. Penal Code section 1305(a)(1) provides that “a court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient cause, a defendant fails to appear for any one of the following: (A) Arraignment. (B) Trial. (C) Judgment. (D) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. (E) To surrender himself or herself in execution of the judgment after appeal. Pursuant to Penal Code section 1305.1, if a defendant fails to appear for arraignment (or other specified events at which personal appearance is required), but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it demes reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. If, after making the order, the defendant, without sufficient cause, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be issued.3. Application to the Quaids.The essence of the Quaids motion, as best as this Court has been able to discern, is that any mention of the fugitive disentitlement doctrine, or the Court’s 2014 ruling regarding application of that doctrine to them in another case, is improper because they are not actually “fugitives from justice.” In making that argument, they rely upon language set forth in County of Santa Barbara v. American Surety Company (2013) 2013 WL 6018066, to the effect that Randy was not required to be in court on November 5, 2010, the date on which his bail was ordered forfeited. The argument misunderstands both what occurred, and what was determined by the Court of Appeal in that case. According to the recitation of facts set forth in the appellate decision, the Quaids were arrested for felony vandalism on September 18, 2010, and bail was posted for their release on September 19, 2010. When they failed to appear at the October 18, 2010 arraignment (a hearing at which, as felony defendants, their presence was mandated by the provisions of Penal Code section 977(b)(1)), the Quaids attorney requested a continuance, and the trial court continued the arraignment to October 26, 2010. Several days later it was discovered that the Quaids were in Canada. On October 22, 2010, based upon their non-appearance and flight risk, the court granted the prosecution’s motion to increase their bail to $500,000 each. On October 26, 2010, the attorney again appeared and requested that the arraignment again be continued, and the trial court continued the arraignment to November 2, 2010, and ordered the $50,000 bench warrants to remain outstanding. After the hearing, the bail agent posted a $500,000 bail bond on each bench warrant. On November 2, 2010, the Quaids failed to appear. The trial court ordered Evi Quaid’s $500,000 bail forfeited. It recalled Randy’s bench warrant and ordered it held to November 16, 2010, pursuant to Section 1305.1. On November 5, 2010 (a date on which no hearing was scheduled at which the Quaids’ presence was required by law under Section 977(b)(1)), the trial court reconsidered its ruling, found there was no good cause for Randy’s non-appearance, and ordered Randy’s bail forfeited nunc pro tunc as of November 2, 2010. While the law regarding the issuance of bench warrants and the law regarding the forfeiture of bail frequently operate in tandem, give that both are triggered by the failure to appear for a hearing at which the felony defendant is required by law to personally appear, they are separate and distinct. The forfeiture of a bail bond for a defendant who has failed to appear in court when required by law, has no impact on the validity of a bench warrant for an individual’s arrest, based upon the same failure to appear in court when required by law. The Quaids were required by law to personally appear in court for their arraignment, and for each successive, continued hearing date for such arraignment, including October 18, 2010, October 26, 2010, November 2, 2010, and November 16, 2010. They did not do so. As a result, the bench warrant that had been issued based upon their failure to appear for their arraignment was valid and enforceable, regardless of whether their bail was either properly or improperly imposed or ordered forfeited. For as long as the bench warrant remains in effect, the Quaids are considered “fugitives from justice,” because they are fully aware that they are being sought pursuant to court process in a criminal action. (See People v. Kubby (2002) 97 Cal.App.4th 619, 624, quoting Estate of Scott (1957) 150 Cal.App.2d 590, 592.) This is true regardless of whether they had advance notification of the precise date for the arraignment. (See Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)The reason the Court of Appeal found that it was impermissible for the trial court to declare a forfeiture of Randy’s bail on November 5, 2010, was that there was no hearing set on that date at which Randy was required by law to personally appear. This is also why the Court of Appeal noted that it would have been proper for the trial court to declare the forfeiture in open court on November 2, 2010 (a scheduled date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305), or November 16, 2010 (a continued hearing date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305.1). Nothing in the Court of Appeal opinion ever said that either Randy Quaid or Evi Quaid were not required to personally appear in court for their arraignment, no matter what date it was scheduled for.While the Quaids also, in their reply papers, make arguments with respect to the validity of the criminal charges against them, that issue, too, is irrelevant to the question of whether they are truly fugitives from justice. Legally, their remedy is to submit to the jurisdiction of the criminal court and establish their claims before that court at trial. Because the validity of the criminal charges against them, the validity of the bail bonds which were issued, and the validity of a trial court’s order of forfeiture of the bail bond, all have absolutely no impact on the validity of the bench warrant issued by the trial court based upon their failure to appear at a hearing at which their appearance was required by law (i.e., arraignment), the basis for their motion—that they are not in fact fugitives from justice because they were not required to be present in court—is legally erroneous, requiring that the motion be denied. 4. Future proceedingsHaving ruled on the motion that was filed, the Court notes that there could be other bases for an order precluding the mention of the Quaids’ fugitive status at trial, which were not raised in the motion. Due process would preclude the Court from entertaining at this time any grounds for exclusion that were not raised by the moving papers, and for which the parties have not notice or an opportunity to respond. The Trial Confirmation Conference for this action is currently scheduled for January 27, 2025. Prior to the commencement of trial, the parties will have an opportunity to present motions in limine to address evidence which the party contends should not be admitted or mentioned in front of the jury. This would include motions based upon Evidence Code section 352, which provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.Certainly, the fact does not readily appear to have any significant relevance to the remaining slander of title cause of action against them, which will be the subject of the upcoming trial. However, the Court has not evaluated the issue, nor has it reached any conclusion regarding whether evidence of the Quaids’ alleged fugitive status would meet the standards for exclusion under Section 352, and is merely positing that it would be amenable to considering a properly supported motion in limine made on this basis, when the time for trial nears.

Ruling

Heritage 21, LLC vs. Bramble, et al.

Aug 22, 2024 |22CV-0200645

HERITAGE 21, LLC VS. BRAMBLE, ET AL.Case Number: 22CV-0200645This matter is on calendar for status of dismissal. Defendants filed a Case Management Conference Statementindicating that the settlement terms have not been finalized and that there have been recent developments thatmay delay settlement. The matter is continued to Monday, October 7, 2024 at 9:00 a.m. in Department 63for status of the case. The parties are ordered to meet and confer to finalize the settlement. If a settlement willnot be finalized prior to the next hearing, the Court intends to set the matter for trial and expects that the partieswill have met and conferred regarding proposed dates for trial. No appearance is necessary on today’scalendar.

Ruling

SMCA MAIN STREET PLAZA LLC, A CA. LIMITED LIAB. CO. VS BSM 2ND STREET LLC, A CA. LIMITED LIAB. CO.

Aug 22, 2024 |24SMCV01572

Case Number: 24SMCV01572 Hearing Date: August 22, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 22, 2024 CASE NUMBER 24SMCV01572 MOTION Motion to Quash Service of Summons MOVING PARTY Defendant BSM 2nd Street LLC OPPOSING PARTY Plaintiff SMCA Main Street Plaza LLC BACKGROUND On April 3, 2024, Plaintiff SMCA Main Street Plaza LLC (Plaintiff) filed an unlawful detainer complaint against Defendant BSM 2nd Street LLC (Defendant). The proof of service indicates Defendant was served with a copy of the original summons and complaint via substitute service on April 10, 2024. On April 30, Defendant moved to quash the summons. On June 20, Defendant also demurred to the original complaint. Six days later, Plaintiff timely filed an amended complaint, mooting the demurrer to the original complaint. An amended summons was issued in connection with the first amended complaint. The following day, Defendant withdrew its motion to quash service of the original summons. Defendant now moves to quash service of the first amended summons on the grounds that this Court lacks jurisdiction over it because the first amended summons was served on Defendant via counsel, and not in accordance with the rules for service of summons. Plaintiff opposes on the grounds that Defendants demurrer to the original complaint operated as a general appearance. LEGAL STANDARDS - JURISDICTION A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 14391440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [It was incumbent upon plaintiff, after the filing of defendant's motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant]; Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 [when a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service ].) A declaration of service by a registered process server establishes a presumption that the facts stated in the declaration are true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.) In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures. (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1417, quoting Stamps v. Superior Court (1971) 14 Cal.App.3d 108, 110.) For service on persons within California, generally, service of summons and complaint must be done by personal service. (Code Civ. Proc., § 415.10.) However, [i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, a plaintiff may serve an individual defendant by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address . . . , in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . , at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. (Code Civ. Proc., § 415.20, subd. (b).) A court may also exercise jurisdiction over an individual who consents to such jurisdiction. (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658.) Express consent to a court's jurisdiction will occur by generally appearing in an action or by a valid forum-selection clause designating a particular forum for dispute resolution regardless of residence. (Ibid. [cleaned up].) A general appearance by a party is equivalent to personal service of summons on such party. (Code Civ. Proc., § 410.50, subd. (a).) A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service. (2 Witkin, Cal. Procedure (6th ed. 2021) Jurisdiction, § 214, p. 828.) Moreover, [a] general appearance can make up for a complete failure to serve a summons. An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections. Filing an answer on the merits constitutes a general appearance. (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 [cleaned up].) ANALYSIS Code of Civil Procedure section 418.10, subdivision provides, in relevant parts: A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. [&] A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint. (1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion. [&] (3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution. (Code Civ. Proc., § 418.10, subds. (a)(1) and (e)(1).) Although Defendant originally filed a motion to quash service of the summons and complaint, Defendant voluntarily withdrew that motion on June 27, 2024. Although Plaintiff had filed a first amended complaint (FAC), which superseded the original complaint and mooted the pending demurrer, the issue of whether Defendant was properly served with the original summons such that this Court has jurisdiction over Defendant was not mooted. Accordingly, by voluntarily withdrawing its original motion to quash, Defendant forfeited the issue of inadequacy of service of process. Similarly, when Defendant voluntarily withdrew the original motion to quash, Defendants demurrer to the original complaint operated as a general appearance, notwithstanding that it was mooted by Plaintiffs FAC. (See Roy v. Superior Court (2005) 127 Cal.App.4th 337, 344 [a defendant who demurs or moves to strike must concurrently move to quash or dismiss, or any jurisdictional defect is waived].) CONCLUSION AND ORDER Therefore, the Court denies Defendants motion to quash. Defendant shall file and serve a responsive pleading to the First Amended Complaint on or before August 29, 2024. The Clerk of the Court shall provide notice of the Courts ruling. DATED: August 22, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Ruling

YAEL MAGUIRE ET AL VS. EASTWOOD DEVELOPMENT INC. ET AL

Aug 23, 2024 |CGC23607922

Real Property/Housing Court Law and Motion Calendar for August 23, 2024 line 7. DEFENDANT EASTWOOD DEVELOPMENT INC., LUCAS EASTWOOD, 4028 25TH STREET, LLC DEMURRER to Amended COMPLAINT is transferred to department 302 to be heard on September 6, 2024. The previous transfer of this construction defect case to department 501 was in error. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.

Ruling

Salvador vs. Fidelity National Title

Aug 16, 2024 |C23-01361

C23-01361CASE NAME: SALVADOR VS. FIDELITY NATIONAL TITLEHEARING ON DEMURRER TO: TO THE FIRST AMENDED COMPLAINTFILED BY: FIDELITY NATIONAL TITLE INSURANCE COMPANY*TENTATIVE RULING:*This is Fidelity’s demurrer to the First Amended Complaint.Request for Judicial Notice:Fidelity’s request for judicial notice of recorded documents, Exhibits A, E, and F is granted. Fidelity’srequest for judicial notice of court filed documents Exhibits B, C and D is granted.Analysis:Original Complaint:Following a hearing on Fidelity’s demurrer to the original complaint, which was opposed, the Courtagreed with Fidelity that the Complaint fails to plead facts sufficient to identify any contract provisionwhich would confer third-party rights to Plaintiff, in relation to the first cause of action for breach ofcontract. The court also determined that the second cause of action for declaratory relief isdependent on the first cause of action for breach of contract and cannot stand alone. The Courtsustained the demurrer, in part, with leave to amend.Separately, Fidelity raised the argument in that first demurrer that the statute of limitations barsPlaintiff’s claims, but Fidelity only first raised this argument in its Reply and further failed to identifyany specific statute to support that argument, leaving it vague and unclear. Therefore, the Courtoverruled the demurrer, in part, on this ground for Fidelity’s failure to identify the specific statutewith proper notice, but informed that Fidelity is not precluded from raising a statute of limitationsdefense in future proceedings.First Amended Complaint:Before this court on the unopposed demurrer to the First Amended Complaint, the court considersthe ruling on the first demurrer and plaintiff’s effort to overcome the deficiencies in the originalcomplaint. The court also considers Fidelity’s argument relating to the statute of limitations that wasnot properly before the court on the first demurrer. Notably, the court has not received anyopposition to the demurrer to the First Amended Complaint and none was served, per Fidelity’scounsel.The court finds that plaintiff has not cured the problems identified in the original complaint that gaverise to the court sustaining the demurrer with leave to amend as to the breach of contract anddeclaratory relief causes of action (see above). Further, the FAC does not cure any potential statute oflimitations problems, although the plaintiff was on notice that this could be an issue in a subsequentdemurrer. The court finds the statute of limitations argument persuasive. In light of these findingsand having given plaintiff an opportunity to cure the defects, which plaintiff has failed to do, and noopposition having been filed, the court sustains the demurrer without leave to amend. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/16/2024

Ruling

R. BRUCE KEINER, ET AL. VS TREVOR DAMYAN, ET AL.

Aug 22, 2024 |Echo Dawn Ryan |22STCV06126

Case Number: 22STCV06126 Hearing Date: August 22, 2024 Dept: 26 8/22/2024 Dept. 26 Hon. Rolf Treu, Judge presiding KEINER, et al. v. DAMYAN, et al. (22STCV06126) Counsel for Plaintiffs/Cross-Defendants/moving party: James Hepworth (Fidelity National Law Group) Counsel for Defendant/Cross-Complainant/opposing party: David Loe (Loe Law Group) MOTION FOR AN ORDER IMPOSING EVIDENTIARY SANCTIONS AGAINST DEFENDANT AND CROSS-COMPLAINANT TREVOR DAMYAN FOR WILLFUL REFUSAL TO APPEAR FOR COURT-ORDERED DEPOSITION AND REQUEST FOR MONETARY SANCTIONS (filed 07/12/2024) TENTATIVE RULING The Court GRANTS Plaintiffs request for evidentiary sanctions against Defendant Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims. The Court GRANTS Plaintiffs request for monetary sanctions in the reduced sum of $1,800. Defendant is ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,800, within thirty (30) days. I. BACKGROUND On February 17, 2022, Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner (collectively Plaintiffs) filed the instant quiet title action against Defendants Trevor Damyan (Defendant) and Done Right Home Remodeling, Inc. On April 7, 2022, Plaintiffs filed a Doe Amendment naming Urban Professional Builders, Inc. as Doe 1. The Second Amended Complaint alleges causes of action for: 1. Quiet Title; 2. Damages for Trespass and Injunctive Relief; 3. Nuisance; 4. Negligence; and 5. Prescriptive Easem*nt. Plaintiffs allege the following. Plaintiffs are owners of a duplex at 1235 S. Orange Drive, Los Angeles 90019-1545 (Keiner Property). (SAC ¶¶ 1-4.) Plaintiffs have owned the Keiner Property since 2008. (SAC ¶ 10.) Defendant is Plaintiffs neighbor and owns 1229 S. Orange Drive Los Angeles 90019-1545 (Damyan Property). (SAC ¶¶ 1-11.) The Damyan Property consists of a primary house and an accessory dwelling unit. (Ibid.) Defendant has owned the Damyan Property since 2015. (Ibid.) The Keiner Property and Damyan Property share a common north/south border that extends approximately 125 feet. (SAC ¶ 14.) On or about January 4, 2022, Defendant and Urban Professional Builders, Inc., without obtaining prior permission or consent from the Plaintiffs, began digging a long trench along the common boundary between the Keiner Property and the Damyan Property, as well as, installed rebar on which to pour concrete for footings for a fence. (SAC ¶ 25.) Defendants have also reinstalled a driveway gate which encroaches, in part, on the Keiner Property. (Ibid.) The portions of the driveway gate, the rebar, and the footings on the Keiner Property, and the fence itself (to the extent it is built on the Keiner Property), are referred to herein as the Encroachments. The Encroachments interfere with the Keiners use and enjoyment of the Keiner Property, and this problem will worsen if the fence is fully constructed. (SAC ¶ 28.) Plaintiffs have demanded that Defendant remove the Encroachments, build the fence entirely on the Damyan Property (but in accordance with the HPOZ / Miracle Mile Preservation Plan and all applicable building codes), and restore the Keiner Property to its original condition. Defendant, however, has refused to remove all of the Encroachments. (Ibid.) On April 8, 2022, Defendant Damyan filed a Cross-Complaint against Plaintiffs and Guaranteed Rate, Inc., alleging causes of action for: 1. Quiet Title; 2. Nuisance; 3. Equitable Easem*nt For Access to ADU; 4. Prescriptive Easem*nt For Garbage Cans; 5. Prescriptive Easem*nt For Portion of Driveway; and 6. Negligence On July 12, 2024, Plaintiffs filed a Motion for an Order Imposing Evidentiary Sanctions and Monetary Sanctions, arguing: · Plaintiffs move for an order imposing evidentiary sanctions against Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims, and imposing monetary sanctions against Damyan, and in favor of the Keiners, in the amount of $2,700.00 · In the alternative, Plaintiffs move for a second order compelling Damyan to appear for his deposition prior to the September 3, 2024 trial date, at a date and time convenient to the Keiners and the counsel that is on or before July 31, 2024, and imposing monetary sanctions against Damyan, and in favor of the Keiners, in the amount of $2,700.00. · This motion is made on the grounds that Damyan failed to comply with this Courts February 29, 2024 order requiring him to appear for his deposition and has refused to appear for any deposition before the September 3, 2024 trial date. Defendants did not file an opposition. On August 16, 2024, Plaintiffs filed a notice of non-opposition. II. ANALYSIS A. Legal Standard A misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) A misuse of the discovery process also includes disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g).) A court may impose issue sanctions, evidence sanctions, or monetary sanctions against a party engaging in misuse of the discovery process. (Code Civ. Proc. § 2023.030.) Where an issue sanction is imposed, designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (b).) An issue sanction may also involve any party engaging in misuse of the discovery process from supporting or opposing designated claims or defenses. (Code Civ. Proc., § 2023.030, subd. (b).) An evidence sanction involves an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).) The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Ibid.) [C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Ibid.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. (Ibid.) B. Evidentiary Sanctions Plaintiffs request evidentiary sanctions against Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims, and imposing monetary sanctions against Damyan, and in favor of the Plaintiffs, in the amount of $2,700.00. In the alternative, Plaintiffs move for a second order compelling Damyan to appear for his deposition prior to the September 3, 2024 trial date, at a date and time convenient to Plaintiffs and the that is on or before July 31, 2024, and imposing monetary sanctions against Damyan, and in favor of the Plaintiffs, in the amount of $2,700.00. Plaintiffs assert that Damyan has violated this Courts February 29, 2024 order requiring him to appear for his deposition. (Hepworth Decl., Ex. B.) Plaintiffs served an Amended Notice of Deposition on Defendant prior to the scheduled deposition date of May 30, 2024. (Hepworth Decl., Ex. E.) Plaintiffs did not receive any objections to the Amended Notice of Deposition. (Hepworth Decl., ¶ 8.) Thereafter, Damyan failed to appear for his deposition. (Hepworth Decl., ¶ 9, Ex. F.) Plaintiffs counsel states in his declaration that following Damyans failure to appear for his deposition on May 30, 2024, I met and conferred with Damyans counsel in an effort to secure his appearance at a deposition at a future date. Counsel for Damyan informed me that Damyan refused to provide an alternative date for his deposition that was before the September 3, 2024, trial date. (Hepworth Decl., ¶ 10.) The Court finds that imposition of evidentiary sanctions is warranted due to Damyans failure to appear for his court ordered deposition. The Court notes that Damyan did not file an opposition. A party who has not timely filed written opposition to a motion&may not be afforded an opportunity to offer oral argument at the hearing. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The failure to file opposition creates an inference that the motion or demurrer is meritorious.¿ (Id.) Damyan does not establish that lesser sanctions would not prevent further discovery abuse. Based on the foregoing, the Court GRANTS Plaintiffs request for evidentiary sanctions against Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims. C. Monetary Sanctions Plaintiffs also seek monetary sanctions against Defendant for bringing the instant motion. California Code of Civil Procedure, Section 2023.030 provides that [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) Counsels declaration in support of the instant motion sets forth counsels hourly rate of $450 per hour and the time spent on the instant motions. Counsel attests that Plaintiff will and has incurred attorneys fees and costs totaling $2,700 in bringing the instant motion. The Court finds sanctions are warranted, but not to the full extent requested. A court has discretion to award sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but they should not be punitive in nature or levied for the purposes of punishing an offending party. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) Since no opposition was filed, the Court does not grant the 2 hours counsel anticipated it would spend on reviewing the opposition and preparing the reply brief. Therefore, the Court reduces the requested monetary sanctions to $1,800. Accordingly, Plaintiffs are awarded $1,800 collectively as attorneys fees. Sanctions are imposed against Defendant. Defendant is ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,800, within thirty (30) days. III. CONCLUSION The Court GRANTS Plaintiffs request for evidentiary sanctions against Defendant Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims. The Court GRANTS Plaintiffs request for monetary sanctions in the reduced sum of $1,800. Defendant is ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,800, within thirty (30) days. 8/22/2024 Dept. 73 Hon. Rolf Treu, Judge presiding KEINER, et al. v. DAMYAN, et al. (22STCV06126) Counsel for Plaintiffs/Cross-Defendants/moving party: James Hepworth (Fidelity National Law Group) Counsel for Defendant/Cross-Complainant/opposing party: David Loe (Loe Law Group) MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (filed 07/11/2024) TENTATIVE RULING Plaintiffs Motion for Leave to File Third Amended Complaint is DENIED without prejudice. I. BACKGROUND On February 17, 2022, Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner (collectively Plaintiffs) filed the instant quiet title action against Defendants Trevor Damyan (Defendant) and Done Right Home Remodeling, Inc. On April 7, 2022, Plaintiffs filed a Doe Amendment naming Urban Professional Builders, Inc. as Doe 1. The Second Amended Complaint alleges causes of action for: 1. Quiet Title; 2. Damages for Trespass and Injunctive Relief; 3. Nuisance; 4. Negligence; and 5. Prescriptive Easem*nt. Plaintiffs allege the following. Plaintiffs are owners of a duplex at 1235 S. Orange Drive, Los Angeles 90019-1545 (Keiner Property). (SAC ¶¶ 1-4.) Plaintiffs have owned the Keiner Property since 2008. (SAC ¶ 10.) Defendant is Plaintiffs neighbor and owns 1229 S. Orange Drive Los Angeles 90019-1545 (Damyan Property). (SAC ¶¶ 1-11.) The Damyan Property consists of a primary house and an accessory dwelling unit. (Ibid.) Defendant has owned the Damyan Property since 2015. (Ibid.) The Keiner Property and Damyan Property share a common north/south border that extends approximately 125 feet. (SAC ¶ 14.) On or about January 4, 2022, Defendant and Urban Professional Builders, Inc., without obtaining prior permission or consent from the Plaintiffs, began digging a long trench along the common boundary between the Keiner Property and the Damyan Property, as well as, installed rebar on which to pour concrete for footings for a fence. (SAC ¶ 25.) Defendants have also reinstalled a driveway gate which encroaches, in part, on the Keiner Property. (Ibid.) The portions of the driveway gate, the rebar, and the footings on the Keiner Property, and the fence itself (to the extent it is built on the Keiner Property), are referred to herein as the Encroachments. The Encroachments interfere with the Keiners use and enjoyment of the Keiner Property, and this problem will worsen if the fence is fully constructed. (SAC ¶ 28.) Plaintiffs have demanded that Defendant remove the Encroachments, build the fence entirely on the Damyan Property (but in accordance with the HPOZ / Miracle Mile Preservation Plan and all applicable building codes), and restore the Keiner Property to its original condition. Defendant, however, has refused to remove all of the Encroachments. (Ibid.) On April 8, 2022, Defendant Damyan filed a Cross-Complaint against Plaintiffs and Guaranteed Rate, Inc., alleging causes of action for: 1. Quiet Title; 2. Nuisance; 3. Equitable Easem*nt For Access to ADU; 4. Prescriptive Easem*nt For Garbage Cans; 5. Prescriptive Easem*nt For Portion of Driveway; and 6. Negligence On July 11, 2024, Plaintiffs filed a Motion for Leave to File Third Amended Complaint, arguing: · The proposed third amended complaint adds 1229 S ORANGE LLC (1229 LLC) as a defendant to the first cause of action (for Quiet Title), second cause of action (for Damages for Trespass and Injunctive Relief), third cause of action (for Nuisance), and fifth cause of action (for Prescriptive Easem*nt). · Defendant Trevor Damyan (Damyan) recently transferred ownership of the property at issue in this action to 1229 S. Orange LLC, a Delaware limited liability company. The Grant Deed reflecting the transfer is attached hereto as Exhibit B. The grant deed is dated March 21, 2024, after the original trial date in this action of March 4, 2024. The grant deed was recorded with the Los Angeles County Recorders Office on April 3, 2024. · No notice was provided by Damyan (or his counsel) to the Keiners (or their counsel) of this transfer. The Keiners recently discovered the transfer through their own investigation. · Including 1229 LLC as a defendant is essential in order to ensure that any and all rulings, orders, determinations and judgments concerning the property are binding on the current owner of the property. · There has been no undue delay, bad faith or prejudice created by the Keiners. They acted promptly upon discovering the transfer of ownership. Defendants did not file an opposition. On August 16, 2024, Plaintiff filed a notice of non-opposition. II. ANALYSIS A. Legal Standard The trial court has discretion to allow amendments to pleadings in the furtherance of justice. (Code Civ. Proc., § 473, subd. (a)(1).) Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading. (Code Civ. Proc., § 576.) There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) An application to amend a pleading is addressed to the trial judges sound discretion. (Ibid.) B. Discussion Here, Plaintiffs proposed TAC adds 1229 S ORANGE LLC (1229 LLC) as a defendant to the first cause of action (for Quiet Title), second cause of action (for Damages for Trespass and Injunctive Relief), third cause of action (for Nuisance), and fifth cause of action (for Prescriptive Easem*nt). (Wootton Decl. ¶ 2, Ex. A.) Plaintiffs have attached a copy of the proposed TAC. (Ibid.) Plaintiffs assert that Defendant Damyan recently transferred ownership of the property at issue in this action to 1229 S. Orange LLC, a Delaware limited liability company. (Wootton Decl., Ex. B.) Plaintiffs contend they recently discovered the transfer through their own investigation. Plaintiffs further argue that including 1229 LLC as a defendant is essential in order to ensure that any and all rulings, orders, determinations and judgments concerning the property are binding on the current owner of the property. However, Plaintiffs have not complied with all the requirements of Rules of Court, rule 3.1324. Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany a motion for leave to amend and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b).) A party seeking leave to amend must attach a copy of the proposed pleading to the motion for leave to amend. (Cal. Rules of Court, rule 3.1324, subd. (a).) While Plaintiffs counsel submitted a declaration in support, the declaration does not contain the information required by Rule 3.1324. For example, the declaration does not specify when the facts giving rise to the amended allegations were discovered, or why the request for amendment was not made earlier. Defendant did not file an opposition. A party who has not timely filed written opposition to a motion&may not be afforded an opportunity to offer oral argument at the hearing. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The failure to file opposition creates an inference that the motion or demurrer is meritorious.¿ (Id.)¿ In such cases, the court may hear argument limited to a request for a continuance of the hearing in order to afford an opportunity for written opposition. (Id.) [T]he rule is patently intended to prevent the introduction of legal theories without prior notice to opposing counsel and the court. (Id.) Since Plaintiffs have not complied with all requirements of Rule 3.1324, Plaintiffs Motion for Leave to File Third Amended Complaint is DENIED without prejudice. III. CONCLUSION Plaintiffs Motion for Leave to File Third Amended Complaint is DENIED without prejudice.

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