COMPLAINT FILED August 06, 2013 (2024)

Case

WELLS FARGO BANK NA Vs CARMEN E BARRY VS.CARMEN E BARRY ET AL

Aug 14, 2024 |JULIE LYNCH |FORECLOSURES |24 CV 006302

Case

MIDFIRST BANK Vs ALBERTA D PAULEY VS.ALBERTA D PAULEY ET AL

Aug 15, 2024 |KAREN PHIPPS |FORECLOSURES |24 CV 006335

Case

EQUITY RESOURCES INC Vs BRANDON E HILLES VS.BRANDON E HILLES ET AL

Case

MIDFIRST BANK Vs DAVID R WOOTEN VS.DAVID R WOOTEN ET AL

Case

FRANKLIN COUNTY TREASURER Vs THOMAS R SIMMONS DECD VS.THOMAS R SIMMONS DECD ET AL

Case

US BANK NATIONAL ASSOCIATION Vs DENISE CHATMAN VS.DENISE CHATMAN ET AL

Aug 12, 2024 |KAREN PHIPPS |FORECLOSURES |24 CV 006251

Case

CARRINGTON MORTGAGE SERVICES LLC Vs UNKNOWN HEIRS OF DONNA JSPARKS VS.UNKNOWN HEIRS OF DONNA JSPARKS ET AL

Aug 15, 2024 |CARL A AVENI |FORECLOSURES |24 CV 006345

Case

MORTGAGE RESEARCH CENTERLLC Vs CHRISTOPHER J DENIHAN VS.CHRISTOPHER J DENIHAN ET AL

Case

FRANKLIN COUNTY TREASURER Vs BLIGH INVESTMENTS FUND LLC VS.BLIGH INVESTMENTS FUND LLC ET AL

Aug 14, 2024 |CHRIS M BROWN |FORECLOSURES |24 CV 006313

Ruling

ERIC CHEVALIER, ET AL. VS BOWL CHOI, INC., A CALIFORNIA CORPORATION, ET AL.

Aug 20, 2024 |24LBCV00437

Case Number: 24LBCV00437 Hearing Date: August 20, 2024 Dept: S27 1. Background Facts Plaintiffs, Eric and Carly Chevalier filed this action against Defendants, Bowl Choi, Inc., Golden Bowl Charbroiled Teriyaki, David Yashar, and Pibson Partners, LLC for private nuisance, aiding and abetting private nuisance, trespass to land, and negligence. The crux of Plaintiffs complaint is that Defendants reside in a home near Defendants restaurant, which emits smoke and odors without effective filtration. 2. Motion to Strike a. Meet and Confer Defense Counsel declares the parties met and conferred by email and telephone, but were unable to resolve the issues presented on the motion to strike. b. Punitive Damages Bowl Choi moves to strike Plaintiffs prayer for punitive damages, contending there are no facts pled with specificity that show fraud, malice, or oppression. Plaintiffs opposition does not meaningfully detail why Plaintiffs believe imposition of punitive damages is appropriate. Plaintiffs restate the facts from their complaint, then conclude the facts are sufficient. Plaintiffs do not address the lack of specificity of allegations against Choi, as opposed to the other defendants, and do not address the failure to plead malice, fraud, or oppression. The motion to strike is therefore granted. Plaintiffs ask for leave to amend in the event the motion is granted, but fail to indicate how they would amend if given leave to do so. The Court therefore denies leave to amend. c. Aiding and Abetting Defendant moves to strike all references to aiding and abetting, noting that aiding and abetting is not a legally recognized claim in California civil law. Plaintiffs expressly indicate that they do not oppose the motion to strike these references, and therefore the references are stricken without leave to amend. d. Damages Under Civil Code §3334 Defendant moves to strike Plaintiffs prayer for damages under Civil Code §3334, correctly noting that these section provides a remedy for damages for wrongful occupation of real property, which is not alleged in Plaintiffs complaint. Plaintiffs opposition is silent concerning the motion to strike this prayer for damages, and therefore it is granted without leave to amend. e. Conclusion The motion to strike is granted without leave to amend. Defendant is ordered to file an answer to the complaint, with the subject allegations and prayer deemed stricken, within ten days. 3. Case Management Conference The parties are reminded that there is a CMC on calendar concurrently with the hearing on the motion to strike. The Court asks Counsel to make arrangements to appear remotely at the CMC and hearing on the motion to strike.

Ruling

JUAN NOLASCO, ET AL. VS L.A LIVE RENTALS, LLC, ET AL.

Aug 21, 2024 |21STCV39199

Case Number: 21STCV39199 Hearing Date: August 21, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 21, 2024 Case Name: Nolasco, et al. v. Farnad, et al. Case No.: 21STCV39199 Matter: Motion for Determination of Good Faith Settlement Moving Party: Plaintiff Blanca Leyva Responding Party: Unopposed Notice: OK Ruling: The Motion is granted. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Plaintiff Blanca Leyva seeks for the Court to determine that the settlement between Defendant LA Live Rentals LLC and all other Plaintiffs was made in good faith pursuant to Code Civ. Proc. § 877.6. The settlement primarily requires that Defendant tender $227,599 to the Plaintiffs. The allocation amongst the Plaintiffs can be viewed on page 11 of the moving papers. Because no oppositions were filed, the Motions may be granted without consideration of the Tech-Bilt factors and on the basis of setting forth the ground for good faith determination and a brief background of the case. (See City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261 [[W]e . . . conclude that only when the good faith nature of a settlement is disputed, it is incumbent upon the trial court to consider and weigh the Tech-Bilt factors. That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.) Plaintiffs claim damages from defective conditions at their apartments owned by Defendant. It has become apparent from the evidence that even though the Defendant was issued citations by the public authorities due to the presence of defects in the leased apartments, Defendant offered proof that they had made repairs to both units in response to the citations. Furthermore, Defendant contends that the property discarded were aged and the value claimed did not have any evidentiary support or receipts. Also, there were doubts about whether plaintiffs could prove that the personal injuries that they claimed were caused by the condition of the apartments. Under the circ*mstances, the Court cannot find that the settlement is so far out of the ballpark in relation to [the Tech-Bilt] factors as to be inconsistent with the equitable objectives of the statute. (Tech-Bilt, Inc., supra, 38 Cal.3d at pp. 499500.) Accordingly, the Court finds that the settlement was made in good faith. The Motion is granted. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

Ruling

BENJAMIN WARWAS, AN INDIVIDUAL, ET AL. VS SHAHRIAR RAD, AN INDIVIDUAL, ET AL.

Aug 13, 2024 |23STCV21542

Case Number: 23STCV21542 Hearing Date: August 13, 2024 Dept: 49 Benjamin Warwas, et al. v. Shahriar Rad, et al. DEFENDANTS SPECIAL MOTION TO STRIKE THE COMPLAINT MOVING PARTY: Defendant Shahriar Rad RESPONDING PARTY(S): Plaintiffs Benjamin Warwas, Molly Schulman, Hesper Colohan, Jessica Norman and Daniel Tierney STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiffs are former residents of a rental property owned or managed by Defendants Shahriar Rad, Olivia Awadalla, Steve Awadalla, and Mazal Trinity Holdings, LLC. Plainiffs initially rented the units from Defendants predecessors. Upon purchasing the property, Plaintiffs allege Defendants failed to remedy dangerous or defective conditions at the property, and harassed Plaintiffs to force them to vacate, resulting in Plaintiffs constructive evictions. Defendant Shahriar Rad now moves to strike the Complaint under the anti-SLAPP statute. Plaintiffs opposed. [FN 1] The matter first came for hearing on June 18, 2024. Following argument, the court ordered the parties to meet and confer in efforts to agree to striking certain portions of the Complaint. The court also invited supplemental briefing and continued the hearing to this date. The court has read and considered Defendants supplemental filing of July 24, 2024, Plaintiffs supplemental filing of August 2, 2024, and Defendants response to Plaintiffs supplemental filing of August 8, 2024. TENTATIVE RULING: Defendants Special Motion to Strike is GRANTED in PART and DENIED in PART, as expressly stated herein. Moving party is ordered to give notice. DISCUSSION: Special Motion to Strike I. Objections to Evidence Defendants objections to the declarations of Benjamin Warwas, Molly Schulman, Hesper Colohan, Jessica Norman, and Daniel Tierney are OVERRULED. II. Legal Standard CCP section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. The anti-SLAPP procedures are designed to shield a defendants constitutionally protected conduct from the undue burden of frivolous litigation. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. (Id. at 384.) Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has described this second step as a summary-judgment-like procedure. The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiffs evidence as true, and evaluates the defendants showing only to determine if it defeats the plaintiffs claim as a matter of law. [C]laims with the requisite minimal merit may proceed. (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.) III. Analysis A. Prior Proceedings The matter initially came for hearing on June 18, 2024. Following argument, the court ordered counsel to meet and confer within the next three weeks on what can be stricken. (June 18, 2024.) The court also set a supplemental briefing schedule in the event the parties could not come to a resolution, with the first brief due approximately one week after the period set to meet and confer. (Id.) Defendant filed his supplemental brief on July 24, 2024. [FN 2] Based on the supplemental filings, it appears that the parties failed to meet and confer before this date. Moreover, its questionable whether any subsequent meet and confers were meaningful or engaged in good faith. (See, e.g., Plaintiffs Further Briefing and Opposition, 2: 16-27; Declaration of Stanley D. Bowman Re: Status of Meet and Confer, ¶ 10, 11, 12.) Be that as it may, the court will proceed to address the motion on its merits, including consideration of the parties supplemental briefings. B. Prong 1: Defendants Burden To satisfy the first prong of the two-prong test, a movant defendant must demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendants right of petition or free speech under the United States or California Constitution in connection with a public as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech].) Section 425.16 expressly defines the types of claims that are subject to the anti-SLAPP procedures&as these terms are defined in subdivision (e)(1)-(4) of the statute. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 7576.) Defendant argues the conduct here is protected under each of the First, Second, and Fourth categories in subdivision (e), as (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, ((e)(1)), (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law ((e)(2)), or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. ((e)(4).) In a so-called mixed cause of actionone containing allegations of both protected and unprotected activitiesa court must focus its analysis on the protected conduct. (Bonni v. St. Joseph Health Sys. (2021) 11 Cal. 5th 995, 1010.) It follows that courts may strike improper allegations under the statute even though doing so might not completely dispose of a cause of action. For his burden, Defendant argues: The challenged claims arise out of Defendants protected acts as a landlord: Posting notes on Plaintiffs cars which were blocking the single-lane driveway (Only point of access for vehicular ingress and egress) and/or which were parked in unauthorized parking spaces, sending text messages to Plaintiffs regarding rent, serving Plaintiffs with a notice to pay or quit, notice to perform or quit, accusing PLAINTIFFS of inappropriate behavior, notice terminating tenancy, etc., all of which are protected acts which led to the actual filing of various unlawful detainer actions against each of the Plaintiffs respectively. (Mtn. 8: 16-17.) Defendant continues that [p]relitigation communications such as these are privileged when it relates to litigation that is contemplated and/or pursued. (Id. 5: 8-9.) The contemplated or pursued litigation was apparently unlawful detainer actions against one or more of the Plaintiffs here. The court now turns to the following portions of the Complaint Defendant identifies as those that can be deemed challenging protected activity. [FN 3] 1. Notes on Cars; Text Messages Complaint ¶ 26: PLAINTIFFS were subjected to continuous harassment and hostile behavior from DEFENDANTS. These harassing acts included, inter alia, (1) placing aggressive notes on PLAINTIFFS car,&(4) sending aggressive text messages about rent payments&(6) accusing PLAINTIFFS of inappropriate behavior. (See Compl. ¶ 26; see also Ds Mtn. at 9:23-26.) Leaving aggressive notes on Plaintiffs cars is not protected activity. There is no indication from the Complaint what purpose these notes served. Defendants declaration states that Plaintiffs cars were blocking the single-lane driveway or were parked in unauthorized parking spaces. (Shahriar Rad Decl. ¶ 5.) Presumably, then, Defendant placed the notes to warn against that behavior. But Defendant provides no authority suggesting that leaving notes on the cars to enforce vehicle restrictions is protected by the anti-SLAPP statute. Defendant appears to assert that these notes were anticipation of litigation. However, the court sees no rational evidence in the moving papers to support that contention. The same is true of sending text messages to Plaintiffs about rent payments. Defendant Rad states in declaration that sending text messages to Plaintiffs regarding rent was due to litigation conduct. (Rad Decl. ¶ 5.) Defendant has not provided the text messages or any indication of when they were sent. Standing alone, the assertion that the text messages related to anticipated litigation is insufficient to meet Defendants burden. The California Supreme Court has explained that, [i]n deciding whether the initial arising from requirement is met, a court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [quoting § 425.16, subd. (b)(2), italics added].) This court does not mean to suggest that a moving defendant must always submit evidence in support of prong one. (See Bel Air Internet, LLC v. Morales (2018) 20 Cal. App. 5th 924, 935 [stating if the complaint itself shows that a claim arises from protected conduct&a moving party may rely on the plaintiff's allegations alone in making the showing necessary under prong one without submitting supporting evidence].) But here, the protected conduct is not apparent on the face of the Complaint, and therefore, further context is necessary. Without it, Defendant cannot meet his burden. Because Defendant has not met his burden as to these claims under prong one, they need not be addressed under prong two, and are not subject to be stricken. 2. Pay or Quit Notices; Termination of Tenancy Complaint ¶ 29: DEFENDANTS posted numerous pay or quit notices, despite PLAINTIFFS having paid their rent on time. (See Compl. ¶ 29; see also Ds Mtn. at 10: 2-4.) Courts have adopted an expansive view of what constitutes litigation-related activities within the scope of section 425.16. (Neville v. Chudacoff (2008) 160 Cal. App. 4th 1255, 1268 (2008). Statements made in preparation for litigation or in anticipation of bringing an action fall within the protected categories. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co. (2020) 56 Cal. App. 5th 413, 425) [S]tatements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. [Citations.] (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) The filing of an unlawful detainer action is protected activity within the meaning of section 425.16. (Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal. App. 4th 1467, 1479; Clark v. Mazgani (2009) 170 Cal. App. 4th 1281, 1286 [There is no question that the prosecution of an unlawful detainer action is indisputably protected activity within the meaning of section 425.16.].) In addition, service of a three-day notice to quit¬a prerequisite to the filing of an unlawful detaineris also a protected activity. (Id. at 1480). Stretching even further, alleged threats by a Defendant in connection with an anticipated unlawful detainer action are within the scope of the anti-SLAPP statute. (Id. at 1481 [threats were covered by statute because they were communications in connection with an ongoing dispute and in anticipation of litigation].). On the other hand, [t]erminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech. (Clark, supra, 170 Cal. App. 4th at 1286-87.) [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation]. The pivotal question is whether the cause of action is based on the defendant's protected free speech or petitioning activity. (Id.) Here, based on the allegations and supporting evidence, Defendant has demonstrated that the numerous pay or quit notices were made in preparation to an actual or anticipated unlawful detainer action against various Plaintiffs. Defendant has therefore met his burden under prong one on these claims. This switches the burden to Plaintiffs. 3. Complaints to Police Complaint ¶ 29: DEFENDANTS falsely accused PLAINTIFFS of attacking them, leading to MS. SCHULMANS arrest and being charged with a misdemeanor. (See Compl. ¶ 29; see also Ds Mtn. at 10: 6-8.) Defendant argues that reporting Plaintiff Schulman to the police was protected activity. In Defendant Shahriar Rads declaration, he states that Molly Schulmans criminal acts were reported to the Los Angeles Police Department, resulting in her arrest. (Rad Decl. ¶ 7.) By implication of the allegation, it appears that the conduct giving rise to this claim was, in fact, based on Defendants complaints to police.Generally, statements to law enforcement invoke the right to petition the government, and thus have been deemed protected activity under the anti-SLAPP law. (See Chabak v. Monroy (2007) 154 Cal. App. 4th 1502, 1512; Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439 [complaint to police is made in connection with an official proceeding authorized by law]; Comstock v. Aber (2012) 212 Cal. App. 4th 931, 94142 [The law is that communications to the police are within SLAPP].) Here then, to the extent any cause of action is based on complaints to police relating to the arrest of Plaintiff Schulman, those are allegations protected by the SLAPP. Defendant has met his burden under prong 1 as to these claims. This switches the burden to Plaintiffs. C. Prong 2: Plaintiffs Burden To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. In making this assessment it is the courts responsibility&to accept as true the evidence favorable to the plaintiff [&]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal. 5th 931, 940.) Defendant argues that Plaintiffs cannot prevail on their claims because they are barred by the litigation privilege. The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a publication or broadcast made as part of a judicial proceeding is privileged. This privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. [Citation.] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action. (Kenne v. Stennis (2014) 230 Cal. App. 4th 953, 964.) [T]he privilege is an absolute privilege, and it bars all tort causes of action except a claim of malicious prosecution. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926927 [plaintiff must overcome litigation privilege to demonstrate a probability of prevailing under anti-SLAPP prong two].) [T]he principal purpose of [Civil Code] section 47 [, subdivision (b) ] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. (Id.) The breadth of the litigation privilege cannot be understated. (Finton Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 212.) Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.] (Id.) While the litigation privilege and anti-SLAPP statute are not necessarily coextensive, the privilege is a defense that may be considered at prong two. (See RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co. (2020) 56 Cal. App. 5th 413, 444-45 [Because this tort claim was barred by the litigation privilege, RGC could not establish the minimal merit of its action at prong two of the anti-SLAPP inquiry].) Based on the above, and considering the evidence presented, this court finds that Plaintiffs have not made a prima facie showing to defeat the litigation privilege defense. First, the posting of numerous pay or quit notices were made in preparation to an actual or anticipated unlawful detainer action against all or some Plaintiffs. (See Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal. App. 4th 1467, 1488 [notice to quit was clearly connected to and logically related to the unlawful detainer action, and therefore protected by litigation privilege].) This is evident by the fact that Defendants filed unlawful detainer actions against the Plaintiffs. Therefore, these communications are absolutely privileged. As to the police reports, it appears that on or about August 25, 2022, Defendants accused Plaintiff Schulman of hitting her in the head with a cabinet, resulting in Plaintiffs Schulmans arrest. (Schulman Decl. ¶ 28.) In Defendants declaration, he states that the complaints to police regarding Plaintiff Schulman was one of multiple acts which led to the actual filing of various unlawful detainer actions filed against each of the Plaintiffs respectively. (Rad Decl. ¶ 7.) Based on the evidence presented, the court can only conclude that the call to police was made in connection with a pending or anticipated unlawful detainer action against Plaintiff Schulman. (See Kenne v. Stennis (2014) 230 Cal. App. 4th 953, 971 [because police reports had some logical relationship to the various lawsuits between the parties, that conduct is privileged under Civil Code section 47, subdivision (b)].) In other words, Plaintiffs have failed to present evidence that the call to police (and underlying dispute provoking it) were not connected to the legal proceedings. The court comes to this conclusion on the backdrop that [t]he breadth of the litigation privilege cannot be understated, and that [a]ny doubt about whether the privilege applies is resolved in favor of applying it. [Citation.] (Finton Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 212.) Because the litigation privilege is a total bar to these claims, they are ordered stricken. Accordingly, Defendants Special Motion to Strike is GRANTED in PART and DENIED in PART, as expressly stated herein. IV. Attorneys Fees A prevailing defendant on a special motion to strike shall be entitled to recover its attorneys fees and costs. (CCP 425.16(c)(1).) Defendant may file a motion for attorneys fees if it elects to do so. The court will address any potential award at such a hearing. Moving party is ordered to give notice. IT IS SO ORDERED. Dated: August 13, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior CourtFN 1 - Under Rule 3.1113(d), a responding memorandum may not exceed 15 pages. (Cal. Rules of Court, Rule 3.1113(d).) Not including the cover page, Plaintiffs opposition runs 22-pages. Plaintiffs did not seek leave to file an opposition exceeding the page limits. For sake of completeness and given that a special motion to strike is an extreme remedy, the court will consider the opposition in full. The parties are admonished to comply with all page limitations going forward.FN 2 - By minute order of June 18, 2024, Defendants supplemental brief was due on Friday, July 19, 2024. On or about this date, a ransomware attack severely impacted the Los Angeles Superior Courts network, including the ability of litigants to file documents electronically. The network remained down in the following days, with only limited or intermittent access to certain applications available. On these facts, and without any undue prejudice to Plaintiff, the court will read and consider Defendants filing to the extent it might be considered untimely.FN 3 - Defendant also raised Paragraph 35 of the Complaint. This paragraph, however, is only a general prayer for punitive damages. It does not identify or allege any specific conduct, much less any protected under prong 1 of the anti-SLAPP statute. The court therefore disregards this paragraph in its analysis. Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Ruling

United Wholesale Mortgage, LLC vs. Lober, Karen Aline et al

Aug 26, 2024 |S-CV-0049791

S-CV-0049791 United Wholesale Mortgage, LLC vs. Lober, Karen Aline** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue - Need responsive pleading,default or dismissal as to Defendant(s): Red Shield Servicing, Inc.Cross Complaint of Lober [filed 03/08/23] is not at issue - Need responsivepleading, default or dismissal as to Cross Defendant(s): Gaunt, Kandice Marie

Ruling

Andrew Muray et al vs Karen Lantz et al

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

Ruling

Ismael Ramirez vs. Laura Santos

Aug 15, 2024 |23CECG04611

Re: Ismael Ramirez v. Laura Santos. Superior Court Case No. 23CECG04611Hearing Date: August 15, 2024 (Dept. 502)Motion: Defendants Laura Santos, Carrie Simmons, Juan Francisco Alvarez and Envision Realty Inc.’s Demurrer and Motion to Strike the First Amended Complaint. If timely requested, oral argument will be entertained on Thursday, August 15, 2024 at 1:00 PM in Department 502.Tentative Ruling: To deny the motion to strike the first and second causes of action of the FirstAmended Complaint. To overrule the general demurrer to the First Amended Complaint. (Code Civ.Proc. §430.10, subd. (e).) Defendants Laura Santos, Carrie Simmons, Juan FranciscoAlvarez, and Envision Realty, Inc. to file an answer to the First Amended Complaint. Thetime in which the answer can be filed will run from service by the clerk of the minuteorder.Explanation: As a threshold matter, the court will address the motion to strike the addition oftwo causes of action in order to define the scope of the demurrer to the first amendedcomplaint. The addition of two new causes of action was not directly specified within thescope of leave granted in the court’s ruling on the April 25, 2024 demurrer to thecomplaint. However, the two additional causes of action for fraud and fraudulenttransfer directly respond to the deficiencies identified in the April 25, 2024 ruling. (Patrickv. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) The additional causes of actionaddress absence of allegations to support plaintiffs’ standing to bring their quiet titleclaim and provide the basis of for the alleged financial elder abuse. Accordingly, themotion to strike is denied. Defendants’ general demurrer to the verified first amended complaint asserts thefirst amended complaint “fails to state facts sufficient to constitute a cause of actionagainst all moving defendants, in that the First Amended Complaint fails to plead factsestablishing there was any valid written agreement by Plaintiffs to obtain legal title to thesubject property and that the Plaintiffs’ [sic] lack standing to bring such action.”(Demurrer to Plaintiffs’ Verified First Amended Complaint, ¶ 1.) Defendants have notraised arguments as to the specificity of the allegations as plead in the First AmendedComplaint. There is no general demurrer directed at any specified cause of action, ratherdefendants’ demurrer is directed at the entire first amended complaint. Where there areseveral causes of action in the complaint, a demurrer to the entire complaint may beoverruled if any cause of action is properly stated. (Warren v. Atchison, Topeka & SantaFe Ry. Co. (1971) 19 Cal.App.3d 24, 36.) The stated basis for defendants’ argument as to why the first amended complaintfails to state a cause of action is focused on plaintiffs’ standing to bring their quiet titleclaim. Plaintiffs allege they have standing to quiet title of defendant Santos because sheacquired title to the property by fraudulent transfer. Accordingly, the focus of the court’sanalysis will be plaintiffs’ second cause of action against defendants Ramirez and Santosalleging fraudulent transfer. “A fraudulent conveyance is a transfer by the debtor of property to a third personundertaken with the intent to prevent a creditor from reaching that interest to satisfy itsclaim.” (Yaesu Electronics Corp. v. Tamura (1994) 28 Cal.App.4th 8, 13.) The UniformVoidable Transactions Act (UFTA), Civil Code section 3439, et seq., states the elements ofa claim of fraudulent transfer that would void such a transfer: A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor. (2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either: (A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. (B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due.(Civ. Code § 3439.04, subd. (a).) Defendants argue the first amended complaint does not satisfy the elements of afraudulent transfer under the UFTA because plaintiffs have not alleged facts to supporttheir standing as creditors. In opposition, plaintiffs identify the allegations of the complaintdemonstrating plaintiffs provided a total of $56,000 to defendant Ramirez toward thepurchase of the Corona property and additionally paid the mortgage payments directlyto Ramirez for twenty years. (FAC, ¶¶ 20-23, 26.) The payment of this money to Ramirezwith the understanding it was secured as equity in the Corona property, as alleged,supports finding plaintiffs have a right to payment of these sums and qualifies them ascreditors as defined by the UFTA. (Civ. Code § 3439.01, subd. (b)-(c). Defendants additionally argue plaintiffs have failed to allege a claim of fraud inhaving made the transfer in order to satisfy the element of actual intent to defraud inCivil Code section 3439.04, subdivision (a)(1). Defendants interpret the element to requirea showing of all elements of a claim for fraud: (1) a misrepresentation, (2) knowledge offalsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resultingdamage. This interpretation is not supported by the statute. The statute defines how to determine actual intent, as used in Civil Code section3439.04, subdivision (a)(1), by listing factors (1) through (11) for consideration. (Civ. Code§ 3439.04, subd. (b).) Here, plaintiffs have alleged facts that support several of the factors.Defendant Santos is alleged to have paid $0 in exchange for the grant deed to theCorona property. (FAC ¶¶ 38, 58.) This would speak to “[w]hether the value ofconsideration received by the debtor was reasonably equivalent to the value of theasset transferred ….” (Civ. Code § 3439.04, subd. (b)(8).) Santos is alleged to haveconspired with defendant Ramirez in transferring the property and sale of the property todefraud plaintiffs, which would characterize her role as one of an insider. (FAC ¶¶ 57-58.)This is consistent with considering “[w]hether the transfer or obligation was to an insider.”(Civ. Code, §3439.04, subd. (b)(1). Indeed, all defendants are alleged to have conspired,aided and abetted, and ratified these acts with the intent to defraud plaintiffs1. (FAC, ¶¶12-16) Accordingly, the allegations of the first amended complaint are sufficient to statea cause of action for fraudulent transfer against defendants Ramirez and Santos. Havingfound the allegations of the fraudulent transfer are sufficient, plaintiffs have adequatelyalleged facts to support their standing to bring an action for quiet title. Further, theallegations support the cause of action for financial elder abuse based on the fraudulenttransfer of the property. (FAC, ¶ 93.) Plaintiffs’ first amended complaint properly states the challenged causes of actionfor fraudulent transfer, quiet title, and financial elder abuse. As a result, the demurrer tothe entire first amended complaint is overruled. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 08/14/24 . (Judge’s initials) (Date)1These allegations go to defendants’ argument that defendants Simmons, Alvarez and Envisiondid not assist in the fraudulent conveyance that serves as the basis for the fourth cause of actionfor financial elder abuse.

Ruling

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

Aug 14, 2024 |23STCV24386

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

Ruling

Ben Haddad vs. Monroe RE, LLC

Aug 09, 2024 |C23-02292

C23-02292 CASE NAME: BEN HADDAD VS. MONROE RE, LLC HEARING ON DEMURRER TO: COMPLAINT OF CA DEPT. OF SOCIAL SERVICES FILED BY: *TENTATIVE RULING:*The Demurrer of the California Department of Social Services to the first amended complaint of PlaintiffsBen Haddad and Joni Haddad is sustained. Because this is the first time the complaint is being tested bydemurrer, Plaintiffs have leave to amend.Plaintiffs have until August 19, 2024 to file and serve a second amended complaint. If Defendant intendsto demur, the demurrer hearing will take place on October 11, 2024 at 9:00 a.m. in Department 18. Thedemurrer must be filed sufficiently in advance of the October 11 hearing date to comply with CCP SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024section 1005(b). Opposition and reply briefing shall be pursuant to code. Defendant must call the clerk’sattention to this order when filing the demurrer. This may be done in the comment box if the documentis e-filed.BACKGROUNDPlaintiffs bought 5536 Johnston Road (the Haddad Property) on January 28, 2005 for use as a residence.(FAC ¶¶ 1, 3.) The Haddad Property is subject to a non-exclusive easem*nt in favor of an adjacentproperty owned by Defendant Monroe Operations, LLC (the Monroe Property), which consists of a rightof way used as a roadway (the easem*nt). (Id. ¶¶ 9, 10.) The easem*nt is the only route of access toeither property from a public street. (Ibid.)On or about July 30, 2021, Defendant Monroe Operations applied to Defendant California Departmentof Social Services (the Department) for a license to operate a group home, called the “NewportAcademy-Arena,” (the Facility), at the Monroe Property. (FAC ¶ 15.) The application included arepresentation that Monroe Operations owned the Monroe Property via a grant deed from DefendantMonroe RE, LLC. (Ibid.) The Department granted the License, which allows the operation of a facilitywith up to six children as residents, on or about August 4, 2021. (Id., ¶16 and Exh. 6.)Plaintiffs allege traffic along the easem*nt has increased to approximately 70 to 80 trips per day, upfrom six-to-twelve trips per day, since the License (FAC ¶¶ 20, 22.) Plaintiffs allege that the “reasonableprojected increase in the volume of traffic” would be “twelve to twenty-four trips per day, primarilyduring daylight hours.” (Id. ¶ 21.) The traffic on the easem*nt includes Monroe staff members,commercial food delivery trucks, including traffic generated for the benefit of other Monroe facilities.(Id. at 23.) Plaintiffs further allege that traffic associated with the Facility on a “stand alone” basis andproviding “no services or support to other facilities, would still “exceed by multiples the volume of trafficprojected to result from the potential growth” described in paragraph 21 of the FAC. (FAC ¶ 25.)Plaintiffs allege the increase in traffic has interfered with their use and enjoyment of the HaddadProperty and has accelerated the wear and tear of the asphalt on the easem*nt. (FAC ¶ 31, 32.)Plaintiffs allege the Department issued the License in error because California regulations require anapplicant to “control” the property where the property will be located. Plaintiffs claim that Monroelacked the required control of the Monroe Property when it applied for the License because Monroe’sonly access to the property is via the easem*nt.The operative first amended complaint filed on December 29, 2023 contains the following causes ofaction against the Monroe defendants and the Department: (1) declaratory relief (Monroe Defendants);(2) declaratory relief (the Department); (3) “Petition for Writ of Mandate” (the Department); (4) quiettitle (Monroe Defendants); (5) “Injunction and Damages” (Monroe Defendants); and (6) inversecondemnation (the Department).The Department now demurs to the second, third and sixth causes of action. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024STANDARDS ON DEMURRERA demurrer challenges the legal sufficiency of the complaint on the ground it fails to state factssufficient to constitute a cause of action. (CCP § 430.10(e); Rakestraw v. California Physicians' Service(2000) 81 Cal.App.4th 39, 42-43.) "[W]e are guided by long-settled rules. 'We treat the demurrer asadmitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact orlaw. We also consider matters which may be judicially noticed.' Further, we give the complaint areasonable interpretation reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39Cal.3d 311, 318 [citations omitted].)ANALYSIS(1) Second Cause of Action for Declaratory ReliefThe second cause of action seeks “a declaration that the License conferred on MonroeOperations is invalid or, if the status it confers on Monroe Operations as licensee of the NewportAcademy Arena Facility pursuant to Division 2, Chapter 3, Article 7 (§§ 1566.3 and 1566.5) of the Healthand Safety Code does not extend to the use of the Easem*nt by Monroe Operations or anyone actingunder its authority or direction.” (FAC pages 19-20, Prayer as to Second Cause of Action; see also FAC¶¶17, 42, 43.) The Department argues the second cause of action fails because, among other reasons, aplaintiff may not seek review of an administrative decision through a declaratory relief action. The Courtagrees.It is established that "an action for declaratory relief is not appropriate to review an administrativedecision." (State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 249; Selby Realty Co. v. Cityof San Buenaventura (1973) 10 Cal.3d 110, 127 [same]; Tejon Real Estate, LLC v. City of Los Angeles(2014) 223 Cal.App.4th 149, 155 [same].) Moreover, a complaint that improperly seeks declaratory reliefto review an administrative decision may be dismissed on that ground alone. (Veta, supra, 12 Cal.3d at249; Tejon, supra, 223 Cal.App.4th at 155.)Consistent with these authorities, the demurrer to the second cause of action is sustained. The courtdoes need not address the Department’s remaining arguments as to the sufficiency of the declaratoryrelief cause of action at this time.(2) Third Cause of Action for Writ of MandateIn their third cause of action, Plaintiffs seek a writ of mandate pursuant to CCP section 1085. A writ ofmandate under CCP section 1085 is the method of compelling the performance of a legal, ministerialduty. (Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584.) Mandamuswill lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has aduty to perform, and (3) the petitioner has a clear and beneficial right to performance. (Id. at 584.) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024The Department argues the third cause of action fails because plaintiffs cannot satisfy the requirementsfor writ relief. In particular, the Department argues that Plaintiffs do not identify any ministerial duty theDepartment was bound to perform. The Department claims that licensing decisions involve discretionand are not strictly “ministerial.” (See, e.g., MacDonald v. California (1991) 230 Cal.App.3d 319, 330[licensing of day care facilities is “generally considered to be discretionary rather than mandatory… [i]tis, however, clear that the predominant character of licensing is discretionary.”].)In opposition, Plaintiffs confirm that they do not seek to compel the Department to perform aministerial duty. Plaintiffs state: “CDSS is correct that "[Plaintiffs'] allegations do not identify a'ministerial' duty which CDSS did not perform" and that "No statute compels notice to adjacent propertyowners such as the Haddads as to the issuance of a [group home] license." (Opp. p. 4:1-4.) Plaintiffsclarify instead that the third cause of action is premised on the theory that certain land use decisionshave such a significant impact on nearby property owners so as to constitute a deprivation of propertyrights in violation of the due process clause in the California Constitution, thereby entitling themPlaintiffs to notice and an opportunity to be heard. The Plaintiffs assert, and the Department does notdispute, that procedural unfairness is actionable under section 1085.In arguing the right to a hearing, Plaintiffs rely on Calvert v. County of Yuba (2006) 145 CalApp.4th 613,which they claim is “identical” to this case. Plaintiffs do not allege facts showing that the act ofapproving Monroe’s license was an "adjudicatory" function that required a due process hearing.Assuming that it was, the Court finds that the Monroe license approval does not clear the legal bar set inCalvert for special, personalized notice: the "'significant' or 'substantial' deprivation[] of property."(Calvert, 145 CalApp.4th at 618; Scott, 6 Cal.3d at 544-45.)Calvert was in regard to a county's approval of a mining operator's request for a “vested rights”determination allowing the right to mine “‘aggregate’ (sand, gravel and rock for construction) fromapproximately 3,430 acres” in the 10,000 acres of the “Yuba Goldfields.” (Calvert, supra, 145 Cal.App.4that p. 618.) The petitioners were found to be constitutionally entitled to notice and hearing as theadministrative procedure for a “vested rights” determination was similar to the basic procedure fordetermination of a surface mining permit, which was concededly “‘adjudicatory in nature and thereforesubject to notice and hearing requirements.’” (Id. at p. 625.) The court analyzed whether there were"'significant' or 'substantial' deprivations of property" and concluded that because the approval allowedthe mining company an almost "threefold increase" in mining, and the description of the miningoperation expansion "itself [was] enough to envision significant environmental consequences andadverse effects to adjacent properties," the property owners living adjacent to the mining expansionhad "significant property interests at stake." (Id. at 626.) Therefore, the court found that the petitionershad "adequately described a property deprivation 'substantial' enough to require procedural dueprocess protection" and were "entitled to reasonable notice and an opportunity to be heard" before thecounty made the vested rights determination. (Id. at 627.)Scott v. City of Indian Wells (1972) 6 Cal.3d 54, another “adjacent landowner” case, is also instructive.There, the court addressed the question of whether a city must provide the same notice to nonresidentsliving adjacent to a large development project that it provided to similarly-situated city residents and SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024found that it did. (Scott, 6 Cal.3d at 548.) The Scott plaintiffs owned property just outside the city limitsand adjacent to property within the city. The city approved a large development project that included"two golf courses, tennis courts, clubhouses, . . . 90 individual lots," as well as "a seven-story apartmentbuilding, liquor store, rental office, and heliport." (Id. at 543-45.) The city provided mailed notice only tothose landowners within 300 feet of the development parcel (as required by the city's municipal code)and within city limits. (Id. at 545.) And the plaintiffs, property owners with land just outside the citylimits, argued that the city should have provided them with notice as well since they too lived within 300feet of the development. (Id.)The court held that "development of a parcel on the city's edge [would] substantially affect the valueand usability of an adjacent parcel on the other side of the municipal line" and that "the 'rootrequirement' of the due process clause is 'that an individual be given an opportunity for a hearingbefore he is deprived of any significant property interest.'" (Id. at 548-49 [citation omitted].) Therefore,the city owed "adjoining landowners who are not city residents a duty of notice to the extent given tosimilarly situated city residents." (Id. at 549.)It is hard to see how the above cases are analogous since issuance of the License did not and could nothave been expected to result in anything close to the massive increase in adjacent residentialdevelopment or industrial mining operations as in Calvert and Scott. Even when property owners allegeimpacts to their property interests and values, the court may find that as a matter of law there is nosignificant deprivation of property that triggered due process rights. (See Robinson v. City and County ofSan Francisco (2012) 208 Cal.App.4th 950, 963.)McCaffrey v. Preston (1984) 154 Cal.App.3d 422 also supports that Plaintiffs were not entitled to ahearing on Monroe’s license application. In McCaffrey, the neighbors of a residential facility sought aninjunction enjoining the defendants' operation of the home based upon a restrictive covenant imposedprior to 1979 which stated: "'This property shall be used for single family residential purposes only . . . .[A] breach of any of the foregoing conditions and restrictions shall cause the premises to revert tograntors, their heirs or assigns, each of whom respectively shall have the right of immediate entry uponthe premises . . . .'" (Id., at p. 428.) The trial court refused to grant the injunction, holding the covenantwas personal and enforceable only through the original grantor's reversionary interest, which had sincebeen extinguished. The court held that the neighbors had no right to notice and hearing prior tolicensing the residential care facility because in passing Health & Safety code section 1566, requiringthat licensing residential facilities serving six or fewer persons be treated as any other single-familydwelling for zoning purposes, the legislature determined that such facilities housing six or fewer personshave only a de minimis effect on land. (McCaffrey at 433 [citation omitted].) The court stated thatlicensing those facilities “changes neither the character nor the intensity of the use” and is “dissimilar toland use decisions where notice and an opportunity to be heard are constitutionally required.” (Ibid.[emphasis added].)The foregoing authorities persuade this Court that the licensing decision at issue in this case did notimplicate the right to a due process hearing. Plaintiffs have not alleged sufficient facts showing the SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024Department should have anticipated that granting the License would deprive Plaintiffs of a significantproperty interest because Monroe’s grant deed may have identified an access easem*nt.As an additional reason the demurrer is sustained, “[t]he extraordinary remedy of mandate is notavailable when other remedies at law are adequate.” (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 336.) The License having been granted,Plaintiffs have an adequate remedy at law. Plaintiffs seek a writ commanding the Department to revokeMonroe’s license and provide a hearing at which they can argue the License should not be reinstated.Plaintiffs could not obtain this exact relief in their action against Monroe. However, Plaintiffs appear toacknowledge that they don’t need it. Plaintiffs state in opposition to Monroe’s demurrer that the “neverdisputed the right of Monroe to operate a residential facility. What they dispute is that . . .Monroe . . . isentitled to use the easem*nt . . . at the scale Monroe is using it, which is more than ten times thevolume of traffic that any prior owner of Monroe's property generated or that would have beencontemplated in 1978 when the parties' predecessors…created the easem*nt….” (See Opp to MonroeDemurrer, p. 3:1-7.)If Plaintiffs prove their claims against the Monroe defendants and the Court enjoins the conduct theyclaim violates their rights, this will provide Plaintiffs with an adequate remedy for the harm alleged inthe third cause of action. Therefore, even if Plaintiffs could otherwise show entitlement to mandamusrelief, the third cause of action is barred because Plaintiffs have adequate remedies in their actionagainst Monroe for an injunction (or equivalent monetary damages).For these reasons, the Department’s demurrer to the third cause of action is sustained.(3) Sixth Cause of Action for Inverse CondemnationTo establish liability for inverse condemnation, the plaintiff must prove that: (1) there was a taking ordamaging by a public entity of a valuable property right; (2) that the taking or damaging was for a publicuse; and (3) that the invasion or appropriation directly and specifically affected the property owner tohis or her injury. (City of Los Angeles (2011) 194 Cal. App. 4th 210, 221.)In the sixth cause of action, Plaintiffs do not allege the Department has asserted eminent domain orcondemned any property belonging to them. Instead, Plaintiffs’ theory is that the Department’s act ofapproving Monroe’s permit authorized Monroe to engage in activities that overburden the easem*ntthereby amounting to a taking of Plaintiffs’ property.Where to start. Plaintiffs do not plead a cognizable inverse condemnation claim because, at a minimum,they do not allege any facts showing the purported “taking” of their property was a for a public purpose.Plaintiffs acknowledge that Monroe is a private entity operating a private business. Just becauseCalifornia has passed laws regarding group homes and residential use for purposes of restrictivecovenants and zoning laws does not mean that any alleged taking of property in this case was for apublic purpose. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024Plaintiffs argue this act constitutes a taking, citing Cedar Point Nursery v. Hassid (2021) 141 S. Ct. 2063, arecent Supreme Court case holding that a California regulation granting union organizers access toprivate property constituted a per se physical taking, as distinguished from a regulatory taking. TheSupreme Court held that “government-authorized invasions of property—whether by plane, boat, cable,or beachcomber—are . . . per se physical takings.” (Id. at 2074.) Here, the Department granted a licenseto operate a group home. Unlike in Cedar Point, it did not adopt a regulation or law granting anyone“formal entitlement” to enter Plaintiffs' property for any reason. Accordingly, such circ*mstances ofphysical invasion of property are not present here.If plaintiffs reassert this cause of action in their second amended complaint, and the Departmentdemurs, the Court anticipates having the benefit of a thoughtful analysis as to why Cedar Point Nurseryapplies.

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