Complaint July 02, 2024 (2024)

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Ruling

UNIFUND V HAGSTROM

Jul 10, 2024 |MCV-231357

MCV-231357, Unifund v. Hagstrom Judgment Creditor, Unifund CCR, LLC’s, unopposed Application for Order of Sale of Dwellingis GRANTED. Judgment Debtor, Steve E. Hagstrom, has failed to show cause why the property shouldnot be sold to satisfy the judgment. A homestead declaration has not been recorded by Judgment Debtor.By failing to oppose the application and failing to respond to the Court’s order to show cause, JudgmentDebtor has failed to meet his burden of showing that the homestead exemption applies here. (CCP §704.780.) There is no evidence of any other exemption being applicable here. The property shall be soldin the manner provided in Article 6 (commencing with Section 701.510) of Chapter 3 of the Code of CivilProcedure, as required by CCP § 704.780. Judgment Creditor shall submit a written order consistent with this tentative ruling. The proposedorder currently lodged with the Court does not conform with the Court’s ruling. It does not reference thecorrect hearing date. It refers to the Judgement Debtor as “Adam Seller” on the first page. Also, it statesthat no minimum bid shall be required, but this does not comply with CCP § 701.620, which statesproperty shall not be sold without a minimum bid. Judgment Creditor shall submit a written order thatcomplies with all of the requirements of Article 6 of Chapter 3 and of Article 4 of Chapter 4.4. 23CV00186, Jooblay, Inc. v. Steven D. Skolnik The Court awards Defendant $5,545 in fees and costs. Defendant’s counsel shall prepare a writtenorder consistent with this tentative ruling in compliance with California Rules of Court, rule 3.1312.I. Background On August 29, 2023, Plaintiff filed this action for (inter alia) wrongful foreclosure and quiet title.The subject properties are 1551 Laguna Road, Santa Rosa, and 9579 Ross Station Road, Sebastopol. OnSeptember 26, 2023, Plaintiff recorded Notices of Pending Action (“lis pendens”) on both properties. Thenotices were filed with the Court on April 16, 2024. On the same day, Pacific Private Money(“Defendant”) moved to expunge the lis pendens on the Laguna Road property only (the “Motion”). TheMotion included a request for attorney’s fees, but did not specify an amount. On May 28, 2024, Plaintiff filed a different lawsuit, Jooblay, Inc. v. Sanchez (24CV03100),concerning the same two properties. The Sanchez complaint alleges causes of action that fundamentallyduplicate six of the causes of action in the instant case, though against slightly different sets ofdefendants. The duplicated causes of action include two for quiet title, one related to the Ross Stationproperty and the other to the Laguna property. On June 13, Plaintiff filed a Request for Dismissal in theinstant case, dismissing the causes of action that had been duplicated in the Sanchez complaint, includingthe two quiet title claims. In summary, Plaintiff moved several causes of action, including two for quiettitle, from the instant case into a different lawsuit. Thus, the instant case no longer has a quiet titlecomponent. Plaintiff withdrew the lis pendens on the Laguna Road property on June 3. Plaintiff recorded anew lis pendens on the Laguna Road property, relating to the Sanchez matter, on or about June 6. At the June 14 hearing, the Court denied the Motion as moot. Defendant argued that the motion isnot moot because it is entitled to attorney’s fees. The Court continued the matter and instructedDefendant to submit an itemization of its fees and costs. Defendant did so on June 24. This matter comeson calendar for consideration of Defendant’s requests for fees and costs.II. Analysis CCP § 761.010(b) requires that “[i]mmediately upon commencement of [a quiet title] action, theplaintiff shall file a notice of the pendency of the action in the office of the county recorder of each countyin which any real property described in the complaint is located.” The complaints in both the instant case and Sanchez allege causes of action for quiet title. In theinstant case, Plaintiff recorded a lis pendens just under a month after filing the complaint. In the Sanchezcase, Plaintiff recorded it slightly over a week after filing the complaint. Both timeframes somewhatstretch the definition of “immediately,” but the point is that Plaintiff was required to record the lispendens in both cases. Plaintiff withdrew the lis pendens in the instant case ten days before dismissingthe two quiet-title cause of action that had required it. In other words, as relevant here, Plaintiff has fileda lawsuit containing quiet-title allegations, recorded a lis pendens as required by statute, moved the quiet-title allegations to a different lawsuit, withdrawn the lis pendens in the first lawsuit because it was nolonger required by statute, and recorded it in the second one because it was required by statute. The party prevailing on any motion to expunge a lis pendens is entitled to “the reasonableattorney’s fees and costs of making or opposing the motion.” (CCP § 405.38.) If the Court had grantedDefendant’s motion and ordered Plaintiff to withdraw the lis pendens, there would be no question thatDefendant was the prevailing party and entitled to attorney’s fees. But the Court did not do that; theCourt denied Defendant’s Motion as moot because the lis pendens addressed by the Motion had alreadybeen withdrawn. The question, then, is whether Defendant is still the prevailing party. Plaintiff argues that Defendant is not, noting that “California law defines the ‘prevailing party’ toinclude ‘the party with a net recovery’ or ‘a defendant in whose favor a dismissal is entered.’” (Oppo atp. 6.) Plaintiff cites for this proposition to CCP § 1032(a)(4), which does begin with the passage Plaintiffquoted, but goes on to add that “[i]f any party recovers other than monetary relief and in situations otherthan as specified, the ‘prevailing party’ shall be as determined by the court, and under thosecirc*mstances, the court, in its discretion, may allow costs or not . . . .” Thus, CCP § 1032(a)(4), asapplied to the situation presented here, simply says that the court has the discretion to determine whichparty is “prevailing,” but provides no guidance on how to make that determination. Significant guidance is provided by Castro v. Superior Court (2004) 116 Cal.App.4th 1010, whichaddresses this exact issue. Castro rejects any inflexible rule that the moving party either is or is notentitled to attorney’s fees when a lis pendens is withdrawn before the court has an opportunity to rule on amotion to expunge it. Instead, Castro calls for a “practical approach,” under which “the trial court has thediscretion to award attorney fees based on a determination of which party would have prevailed on themotion, and whether the lis pendens claimant acted with substantial justification in withdrawing the lispendens, or whether, in light of all of the circ*mstances, the imposition of fees would otherwise beunjust.” (Id. at pp. 1024-1025.) A. Defendant would have prevailed on the Motion. In the Motion, Defendant sets forth a variety of reasons why it should prevail. The reasons fallinto two categories: procedural defects, and reasons Plaintiff cannot establish a likelihood of prevailing ona real property claim. (CCP § 405.32 [lis pendens to be expunged if claimant does not establish probablevalidity of claim].) In the first category, Defendant notes that the recording, service, and filing of the lis pendensfailed to comply with statutory requirements. First, Defendant points out that the lis pendens bears thewrong caption in that it lists only Defendant, Pacific Private Money, as a defendant in the pending action,whereas the complaint in the instant case lists a number of other defendants. The Court does not find thispoint significant standing alone, in light of the fact that the actual complaint, with its full caption, wasattached to the Notice of Pending Action. Defendant’s second point in this category is that the lis pendenswas not served on Defendant, and that it should have been because Defendant is “affected by the realproperty claim.” (CCP § 405.22.) (Defendant also argues that the lis pendens was not filed with theCourt, but in fact it was, on April 16, 2022, the same day the Motion was filed.) In the second category, Defendant makes a series of arguments as to the prospective failure ofevery cause of action in the complaint. In light of Plaintiff’s contention that its only reason for filing thelis pendens was to comply with a statutory requirement related to quiet-title actions, the most relevantcause of action is the eighth, the one to quiet title on the Laguna property. That cause of action states thatthe defendants against whom it is alleged have no interest in the Laguna Road property. Defendant arguesthat this claim will fail for two reasons: first, because it rests on the allegation that the loan upon whichthe defendants foreclosed was usurious, which is not a valid argument because Defendant is a licensedbroker and therefore exempt from the usury laws (Fin. Code § 22002); and second, because Plaintiffcannot contest the foreclosure because he failed to tender the payment due (Daniels v. Select PortfolioServicing (2016) 246 Cal.App.4th 1150, 1184-1185). Plaintiff did not address any of these arguments in its opposition to the Motion; it rested on thepoint that the motion was moot because Plaintiff had withdrawn the lis pendens. Nor does Plaintiffaddress them in its opposition to the instant fee motion, with the exception of Plaintiff’s explanation thatthe quiet-title causes of action in the complaint are not alleged against Defendant. Plaintiff’s point,presumably, is that Defendant is not “affected by the real property claim” and therefore service onDefendant was not required. (CCP § 405.22.) That argument would carry a great deal more weight ifDefendant Pacific Private Money were not the only party mentioned in the caption of the lis pendensdocument. The fact that Plaintiff named Pacific Private Money, and no other defendant, in the caption ofthe Notice of Pending Action is at odds with the notion that Plaintiff did not consider Pacific PrivateMoney to be sufficiently “affected by the real property claim” to require the lis pendens document to beserved on them. “[T]he court shall order that the [lis pendens] notice be expunged if the court finds that theclaimant has not established by a preponderance of the evidence the probable validity of the real propertyclaim.” (CCP § 405.32.) In light of Plaintiff’s failure to address Defendant’s contentions about why theclaim will fail, the Court finds that Plaintiff has not established validity. Therefore, the court finds thatDefendant would have prevailed on the Motion if it had gone forward. B. Substantial justification Plaintiff asserts that it, “acted in substantial justification in withdrawing the Laguna Road Property lis pendens when Plaintiff elected, as is its right, to voluntarily dismiss its causes of action for quiet title. Upon deciding to dismiss the quiet title causes of action – the only cause of action requiring the recording of a lis pendens, Plaintiff adopted the only practical approach to the dismissal by withdrawing the lis pendens no longer required because the quiet title cause of action are no longer part of this case. Plaintiff acted with substantial justification in withdrawing the lis pendens.”(Oppo at p. 6.) That is, Plaintiff argues that withdrawing the lis pendens that had been recorded in theinstant case was justified and necessary and done in good faith because there ceased to be any need for itonce the quiet-title causes of action were dismissed. The Court acknowledges that Plaintiff had the legal right remove several causes of action from theinstant case and re-allege them in a new case. The Court also acknowledges that when Plaintiff did that,withdrawing the lis pendens he had filed in the instant case was the right thing to do. However, Plaintiffnever addresses the question of why he filed the new case. It is not at all obvious why the same thingcould not have been accomplished more straightforwardly, without the need for a new $435 first-paperfiling fee and without exposing Plaintiff to an additional case’s worth of discovery demands, by movingto file a First Amended Complaint in the case at bar. Plaintiff cannot have reasonably been concernedthat the Court would deny such a motion at this early stage of the proceedings. What is obvious is that by taking the action it did, Plaintiff created a basis to oppose the Motion,which had been filed six weeks before Plaintiff filed Sanchez and which was set for hearing two weekslater, as moot. Whether or not that was Plaintiff’s motivation for filing the new case and dismissing thecorresponding causes of action in the instant one, the Court finds that doing so does not rise to substantialjustification for withdrawing the lis pendens. Accordingly, Defendant is the “prevailing party” under the Castro analysis described above. C. Imposition of the fees is not unjust The Court sees no reason to conclude that imposition of attorney’s fees would be unjust, and willtherefore impose them.III. Computation of the fee award The standard for calculating attorney fee awards under California law “ordinarily begins with the‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order tofix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchorsthe trial court’s analysis to an objective determination of the value of the attorney's services, ensuring thatthe amount awarded is not arbitrary.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) In calculating the lodestar, “The reasonable hourly rate is that prevailing in the community forsimilar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095.) “The general rule is ‘[t]he relevant“community” is that where the court is located,’ unless the party claiming fees demonstrates that hiringlocal counsel was impracticable or local counsel was not available.” (Marshall v. Webster (2020) 54Cal.App.5th 275, 285-286; see also Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226Cal.App.4th 26,72 [“fee awards generally should be based on reasonable local hourly rates”]; Horsford v.Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 398-399 [different rulewhere plaintiff demonstrated inability to hire local counsel].) “[T]he trial court has broad authority to determine the amount of a reasonable fee.” (PLCMGroup, supra, 22 Cal.4th at p. 1095.) “The determination of what constitutes reasonable attorney fees iscommitted to the discretion of the trial court. [Citation.] The experienced trial judge is the best judge ofthe value of professional services rendered in his or her court.” (Rey v. Madera Unified School Dist.(2012) 203 Cal.App.4th 1223, 1240.) A. Defendant’s request In the Supplemental Declaration of Brianna Milligan accompanying the request for attorney’sfees, Defendant requests fees as follows, as well as $60 for the filing fee for the Motion: Jacoby Perez Researching and evaluating grounds for Motion: 5 hours Preparing and finalizing Motion: 5 hours Reviewing and revising reply: 1.2 hours Total: 11.2 hours @ $525/hour Brianna Milligan Reviewing opposition and preparing reply and declaration: 4.2 hours Reviewing billing charges and preparing declaration re. fees: 1.5 hours Preparing supplemental brief re. fees: 2 hours Anticipated time at hearing: 1 hour Total: 8.7 hours @ $455/hour B. Defendant’s arithmetic is in error Defendant requests a total of $17,773.35 in fees and costs. That figure is the sum of $13,755.00for Mr. Perez’s time, $3,503.35 for 7.7 hours of Ms. Milligan’s time attributable to preparing the Replyand the fee request, an additional $455 for Ms. Milligan’s anticipated time at the hearing on the feerequest, and the $60 filing fee. Those figures do add up to $17,773.35. However, there are two problems with the calculation. The first is very small: 7.7 hours at$455/hour is $3,503.50, not $3,503.35. Thus, Defendant presumably intends to request a total of$3,958.50 for 8.7 hours of Ms. Milligan’s time, not $3,958.35. The second is considerably larger. Mr. Perez, according to Ms. Milligan’s declaration, has “spent5 hours researching and evaluating the grounds for the Motion to Expunge the Lis Pendens, and anadditional 5 hours preparing and finalizing the Motion to Expunge the Lis Pendens. Mr. Perez alsoreviewed and revised Defendant’s Reply Brief to Plaintiff’s Opposition to the Motion to Expunge the LisPendens and spent 1.2 hours doing so.” (Milligan Dec., ¶ 6.) That is a total of 11.2 hours. Mr. Perez’sbilling rate is $525/hour. (Milligan Dec., ¶ 7.) 11.2 hours at $525/hour is $5,880. It is not $13,755, theamount claimed for Mr. Perez’s time. $13,775 divided by $525 is 26.2. The claimed amount, therefore,appears to be based on an additional 15 hours of Mr. Perez’s time that are not accounted for in thedeclaration. The Court will interpret Defendant’s request as being for 11.2 hours of Mr. Perez’s time at$525/hour ($5,880), 8.7 hours of Ms. Milligan’s time at $455/hour ($3,958.50), and $60 in filing fees, fora total of $9,898.50. D. Time 1. Motion to expunge Defendant claims a total of 10 hours of Mr. Perez’s time in connection with the researching anddrafting the Motion. The memorandum of points and authority is detailed and fact-intensive, and includesextensive citation to authority. Its complexity is tied to the complexity of the complaint in this matter: itargues, inter alia, that Plaintiff is unlikely to succeed on eight separate causes of action. However, theCourt notes that in his declaration accompanying the Reply, Mr. Perez declares that he spent only 6.5hours on the motion: “2 hours doing preliminary research to form the basis for this expungement motion,”and “4.5 hours preparing the motion to expunge.” Mr. Perez was clearly referring to the motion itself, notto the reply memorandum, as he claims an additional 4.3 hours for that. Ms. Milligan’s declaration does not explain why Mr. Perez now appears to have spent 10 hoursresearching and drafting the motion. The Court will take Mr. Perez at his word, and award attorney’s feesfor 6.5 hours for preparing the Motion. 2. Reply Defendant claims a total of 5.4 hours in connection with drafting the Reply: 4.2 hours of Ms.Milligan’s time and 1.2 of Mr. Perez’s. The Reply was a well-justified response to Plaintiff’s contentionthat the Motion was moot. The Court finds the 4.2 hours claimed by Ms. Milligan for preparing the replyto be reasonable. However, the Court will not award the 1.2 hours for Mr. Perez’s time on the replybecause 4.2 hours should have been sufficient to prepare the memorandum and no review should havebeen necessary. As noted above, Mr. Perez states in his declaration accompanying the Reply that he “spent 4.3hours reviewing and researching Plaintiff’s Opposition and in preparing Defendant’s Reply Brief and inmaking this Declaration.” The Court finds the 4.3 hour figure unreasonable. The Oppositionfundamentally says no more than that the motion is moot because the lis pendens was withdrawn; thattakes no significant time to review. The declaration is one page long (exclusive of the jurat), much ofwhich consists of the list of defendants; it also cannot have taken significant time. 4.3 hours is no lessreasonable than the 4.2 hours claimed by Ms. Milligan for preparing the reply, but if Ms. Milligan spent4.2 hours preparing it, it is unreasonable to award Mr. Perez an additional 4.3 hours for doing the samething. Accordingly, the Court will award attorney’s fees for 4.2 hours of Ms. Milligan’s time inconnection with the reply. 3. Fee request Defendant claims a total of 3.5 hours of Ms. Milligan’s time in connection with the fee request,consisting of 1.5 hours for reviewing billing charges and preparing the declaration, and 2 hours fordrafting the motion. The Court finds the 1.5 hour figure excessive. The Court again notes that Mr. Perezdescribed the time he spent on the original motion in his declaration accompanying the reply; no furtherreview was necessary to determine that figure. Ms. Milligan cannot reasonably have spent an hour and ahalf determining her own time in connection with the reply, and her time spent preparing the fee requestcannot even have been entered into anything she could review while she was engaged in that exact task. The Court will award 2.2 hours of attorney’s fees in connection with the fee request, consisting oftwo hours to draft the memorandum and .2 hours to review billing records. 4. Anticipated time for hearing The Court will not award attorney’s fees for appearance at the hearing set for July 10 at this time.If the tentative ruling is contested and the hearing takes place, the Court will be amenable to a request toincrease the fee award to cover the time spent by Defendant’s counsel. 5. Total time Thus, the Court will award attorney’s fees for 6.5 hours of Mr. Perez’s time and 6.4 hours of Ms.Milligan’s time. E. Hourly rates As noted above, “The reasonable hourly rate is that prevailing in the community for similar work.”(PLCM Group, supra, 22 Cal.4th at p. 1095.) As noted above, the relevant “community” is the “forumdistrict,” here Sonoma county. (Nishiki, supra, 25 Cal.App.5th at p. 898.) Fees are limited to localhourly rates unless the party seeking fees has made a good-faith but unsuccessful effort to find localcounsel. (Horsford, sura, 132 Cal.App.4th at pp. 398-399.) Defendant’s counsel is located in Irvine. Defendant has not suggested that it has attempted to hirelocal counsel instead. Therefore, the Court will adjust the hourly rates requested by counsel to reflectSonoma County rates. Defendant has also not provided any information about Mr. Perez’s and Ms.Milligan’s level of skill and experience or their positions within the firm, but the Court takes judicialnotice that the State Bar website indicates that Mr. Perez has seven years’ practice experience and Ms.Milligan has three. On that basis, the Court will set Mr. Perez’s rate, based on the reasonable ratesgenerally awarded to counsel of similar skill and experience in Sonoma County, to $450/hour, and Ms.Milligan’s to $400/hour.IV. Conclusion The Court awards Defendant $5,545 in fees and costs, consisting of $2,925 for 6.5 hours of Mr.Perez’s time at $450/hour, $2,560 for 6.4 hours of Ms. Milligan’s time at $400/hour, and the $60 filingfee.

Ruling

American Express National Bank vs. Conway, Scott

Jul 15, 2024 |S-CV-0052368

S-CV-0052368 American Express National Bank vs. Conway, ScottNo appearance required. CMC is continued to 10/07/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Conway, ScottAdditionally, no proof of service has been filed as to Defendant(s): Conway, Scott

Ruling

Capital One, N.A. vs. Sebastian T Evans, III

Jul 10, 2024 |CU23-05874

CU23-05874Motion for Judgment on the Pleadings Page 1 of 2TENTATIVE RULINGPlaintiff’s unopposed motion for judgment on the pleadings is granted.Defendant’s answer admits the existence and amount of the indebtedness. (Answer, ¶10.) Defendant’s inability to pay is not a defense to the indebtedness. A borrower islegally obligated to repay the debt. (Ab Group v. Wertin (1997) 59 Cal.App.4th 1022,1028.) And, a creditor has no duty to exercise reasonable forbearance in enforcing itslegal remedies against a debtor. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465,479.) Page 2 of 2

Ruling

201700491367CUOR Sherwood Valley HOA vs New Mission

Jul 09, 2024 |Jeffrey G. Bennett |Motion to Quash Specially Appearing Non-Party Amy Levan's Notice of Motion and Motion to Quash Service of Motion to Amend Judgment to Add Judgment Debtor |201700491367CUOR

SUPERIOR COURT OF CALIFORNIA COUNTY OF VENTURA Tentative Ruling 201700491367CUOR: Sherwood Valley HOA vs New Mission 07/09/2024 in Department 21 Motion to Quash Specially Appearing Non-Party Amy Levan's Notice of Motion and Motion to Quash Service of Motion to Amend Judgment to Add Judgment DebtorThe morning calendar in courtroom 21 will normally begin between 8:30 and 8:45 a.m. Pleasearrive at the courtroom no later than 8:30 a.m. The door will be opened before the calendar iscalled.The Court allows appearances by CourtCall but is not equipped for Zoom. If appearing byCourtCall, call in no later than 8:15 a.m. If you intend to appear by CourtCall, you must makearrangements with CourtCall by 4:00 p.m. the day before your scheduled hearing. Requests forapproval of a CourtCall appearance made on the morning of the hearing will not be granted. Noexceptions will be made.With respect to the tentative ruling below, no notice of intent to appear is required. If you wish tosubmit on the tentative ruling you can fax notice to Judge Riley's secretary, Ms. Sedillos at805-289-8705, stating that you submit on the tentative. You may also email the Court at:Courtroom21@ventura.courts.ca.gov with all counsel copied on the email. Do not call in lieu ofsending a fax or email. If you submit on the tentative without appearing and the opposing partyappears, the hearing will be conducted in your absence. If you are the moving party and do notcommunicate to the Court that you submit on the tentative or you do not appear at the hearing,the Court may deny your motion irrespective of the tentative.Unless stated otherwise at the hearing, if a formal order is not signed at the hearing, theprevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a),(b), (d) and (e). The signed order shall be served on all parties and a proof of service filed withthe court. A "notice of ruling" in lieu of this procedure is not authorized.Tentative RulingGRANTS nonparty Amy LeVan’s motion to quash Plaintiff Sherwood Valley HomeownersAssociation’s service of its motion to amend judgment to add judgment debtors.Although the law regarding what type of service is required for Plaintiff’s motion to amend thejudgment is not entirely clear (compare Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 947,fn. 10, with Reliant Life Shares, LLC v. Cooper (2023) 90 Cal.App.5th 14, 58), the Courtconcludes that for the purposes of Plaintiff’s motion to amend the more “suitable process…mostconformable to the spirit of [the Code of Civil Procedure]” (see Code of Civil Procedure §187) isthat Plaintiff be required to serve LeVan with its moving papers in the same manner as requiredfor service of summons. As a result, the Court finds Plaintiff’s service of its motion to amendthe judgment by mail on LeVan insufficient and quashes such service. 201700491367CUOR: Sherwood Valley HOA vs New MissionBased on the above, the Court continues the hearing on Plaintiff’s motion to amend thejudgment, presently set for July 11, 2024, to August 15, 2024, to give Plaintiff sufficient time toeffect service of its moving papers on LeVan in the manner required for service of process atleast 16 court days prior to the August 15, 2024 hearing, and to file and serve proof of suchservice with the Court.The motion to amend the judgment is already fully briefed, and no additional briefing isauthorized at this time.AnalysisThe Association’s motion to amend the judgment to add additional judgment debtors is broughtpursuant to Code of Civil Procedure §187. Section 187 provides that: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”Because a motion to amend a judgment to add alter egos is not a “proceeding …specificallypointed out by this Code or the statute,” the Court may employ “any suitable process or mode ofproceeding may be adopted which may appear most conformable to the spirit of this Code.”Stated differently, the procedural rules governing the Association’s motion to amend thejudgment are not specified by statute, and therefore the Court must determine what proceduralrules are appropriate (“most conformable to the spirit of this Code”) for such a proceeding.The Court notes that a motion to amend the judgment to add an alter ego as a judgment debtor isviewed by the courts as an equitable procedure pursuant to which the Court is not adding a newdefendant, but merely inserting the correct name of the real defendant. (See Leek v. Cooper(2011) 194 Cal.App.4th 399, 419.) However, LeVan persuasively argues that unless and untilthe Court adjudicates that LeVan is an alter ego of the judgment debtor, New Mission, LLC(“New Mission”), LeVan is legally a separate person from New Mission and therefore the Courtneeds to acquire jurisdiction over LeVan in an appropriate manner to rule on the merits of thealter ego allegations.There is appellate authority standing for the procedure that a motion to amend the judgmentpursuant to §187 must be a noticed motion. (See, e.g., Wells Fargo Bank, N.A. v. Weinberg(2014) 227 Cal.App.4th 1, 9 [Stating that: “Code of Civil Procedure section 187 contemplates anoticed motion.”].) However, there appears to be a dearth of authority directly addressing theissue of how a nonparty alleged alter ego should be served with notice of such a motion and themoving papers.There is authority suggesting – without explicitly holding –that the Association’s moving papersin support of the motion should have been personally served on LeVan, because such service isin the spirit of the provisions in the Code of Civil Procedure regarding initiating a lawsuit against 201700491367CUOR: Sherwood Valley HOA vs New Missiona party. For example, the 2nd District Court of Appeal stated the following with respect toservice of a motion to amend a judgment on the person allegedly the alter ego of the judgmentdebtor: “As discussed, the Estate personally served the motion to amend on Pasquarella, at the time no longer a party in the Get Flipped litigation, and not her counsel of record in the Moofly Productions litigation—a procedure that was entirely proper, although perhaps not a model of professional courtesy. (Cf. §§ 415.10 [requiring personal service of papers initiating a lawsuit], 684.020, subd. (a) [requiring postjudgment papers be served on postjudgment debtor, not debtor's counsel, absent a request on file with the court].) (Pasquarella was also served as the registered agent for judgment debtor Moofly Productions.)” (Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 947, fn. 10.)There is 2nd District Court of Appeal authority suggesting that service of a motion to amendjudgment is affected by the presence or lack thereof of evidence regarding alter ego status. “As Ms. Cainong necessarily concedes, the service at issue here is not the service of a summons and complaint, and she offers no authority for her contention that the motion to amend the judgment was ‘akin’ to service of a summons and complaint. In the absence of any such authority, we see no reason to treat Cooper's motion to amend the judgment as subject to different procedural requirements than any other motion. Particularly is this so given the court's findings in phase one of the trial that the evidence established Michaels used the three trusts as extensions of himself.” (emphasis added) (Reliant Life Shares, LLC v. Cooper (2023) 90 Cal.App.5th 14, 58 [“Reliant”].)Here, unlike in Reliant, the Association fails to submit any evidence that this Court made anyfindings at or prior to trial that any of the third parties the Association seeks to add to thejudgment “used [New Mission] as extensions of [themselves].”The very limited case law on the issue does not provide a clear answer as to what kind of serviceof the present motion to amend the judgment is required with respect to LeVan. The Courtadopts the more conservative approach approved of in Favila v. Pasquarella, and requires theAssociation to serve LeVan personally with the moving papers, as this is more likely to avoidpotential jurisdictional issues with any amended judgment against LeVan. The Court will requirethe Association to serve LeVan with its moving papers in the same manner as required forservice of process.In her Reply Brief, LeVan argues that Court lacks the discretion to continue the hearing becauseit does not presently have jurisdiction over the controversy between the parties. The Courtrejects LeVan’s argument because, inter alia, in her May 16, 2024 ex parte application LeVanpreviously requested an order continuing the hearing on the Association’s motion to amend thejudgment, which request was granted in part, and therefore she will not be heard to argue that theCourt lacks either the jurisdiction or power to continue the hearing. 201700491367CUOR: Sherwood Valley HOA vs New MissionThe hearing on the Association’s motion to amend the judgment is presently set for July 11,2024. The Court will continue the hearing on the motion for approximately five weeks toAugust 15, 2024, to give the Association sufficient time to effect service of its moving papers onLeVan in the manner required for service of process at least 16 court days prior to the August 15,2024 hearing, and to file and serve proof of such service.The Court does not authorize any additional briefing on the motion for leave to amend, as thematter has already been fully briefed.

Ruling

SAN FRANCISCO FEDERAL CREDIT UNION VS. YUON LAU ET AL

Jul 10, 2024 |CGC16553110

Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 3. ASSIGNEE TK CREDIT RECOVERY's Motion To Add Defendant'S Alias And Non Debtor'S Spouse Name To Abstract Of Judgment. TK Credit Recovery's unopposed "motion to add defendant's alias and non-debtors spouse's name to abstract of judgment" is granted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

- ROCKY TOP RENTALS LLC vs STANLEY, ROBERT JASON

Jul 10, 2024 |CV-23-002760

CV-23-002760 - ROCKY TOP RENTALS LLC vs STANLEY, ROBERT JASON - Plaintiff's Application for Writ of Possession - DENIED, as MOOT, in view of entry of Defendants’ defaults on 6-24-24.

Ruling

Creditors Adjustment Bureau, Inc., vs. Castro

Jul 11, 2024 |23CVG-00362

CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTROCase Number: 23CVG-00362Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. movesfor terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in theamount of $1,572.75 for each motion.Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, andset for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days beforethe hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For serviceby email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated bycounting backwards from the hearing date but excluding the hearing date. CCP § 12c.Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holidayof May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail nolater than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was servedon May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion isdenied.Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted.Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & TractSociety of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally beimposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justificationhas been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary orissue sanctions. Without additional evidence, terminating sanctions would be premature.The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect thedenial.Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates thismatter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance isnecessary on today’s calendar to discuss available trial dates.

Ruling

BANK OF AMERICA N.A. VS SOO S CHO

Jul 10, 2024 |23STCV25173

Case Number: 23STCV25173 Hearing Date: July 10, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING BANK OF AMERICA N.A., Plaintiff, v. SOO S CHO, Defendants. Case No: 23STCV25173 Hearing Date: July 10, 2024 Calendar Number: 10 Plaintiff Bank of America N.A. (Plaintiff) seeks default judgment against Defendant Soo S Cho (Defendant). Plaintiff requests: (1) money judgment in the amount of $86,498.84, consisting of: (a) damages in the amount of $85,995.34; (b) costs in the amount of $503.50. The Court GRANTS Plaintiffs request for default judgment. Background Plaintiff is a subsidiary of Bank of America Corporation. Defendant opened a credit account with Plaintiff and obtained credit from Plaintiff. Plaintiff is currently indebted to Defendant in the amount of $85,995.34. Plaintiff failed to make periodic payments as required by the agreement covering use of the credit account. The last payment occurred on February 24, 2023. Plaintiff filed this action October 16, 2023, raising one claim for common counts. On December 22, 2023, the Court entered default against Defendant. Legal Standard CCP § 585 permits entry of a judgment after a Defendant has failed to timely answer after being properly served. A party seeking judgment on the default by the Court must file a Form CIV-100 Request for Court Judgment, and: (1) Proof of service of the complaint and summons; (2) A dismissal of all parties against whom judgment is not sought (including Doe defendants) or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment (CRC 3.1800(a)(7)); (3) A declaration of non-military status as to the defendant (typically included in Form CIV-100) (CRC 3.1800(a)(5)); (4) A brief summary of the case (CRC 3.1800(a)(1)); (5) Admissible evidence supporting a prima facie case for the damages or other relief requested (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362); (6) Interest computations as necessary (CRC 3.1800(a)(3)); (7) A memorandum of costs and disbursem*nts (typically included in Form CIV-100 (CRC 3.1800(a)(4)); (8) A request for attorneys fees if allowed by statute or by the agreement of the parties (CRC 3.1800(a)(9)), accompanied by a declaration stating that the fees were calculated in accordance with the fee schedule as per Local Rule 3.214. Where a request for attorney fees is based on a contractual provision the specific provision must be cited; (Local Rule 3.207); and (9) A proposed form of judgment (CRC 3.1800(a)(6)); (10) Where an application for default judgment is based upon a written obligation to pay money, the original written agreement should be submitted for cancellation (CRC 3.1806). A trial court may exercise its discretion to accept a copy where the original document was lost or destroyed by ordering the clerk to cancel the copy instead (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124); (11) Where the plaintiff seeks damages for personal injury or wrongful death, they must serve a statement of damages on the defendant in the same manner as a summons (Code Civ. Proc. § 425.11, subd. (c), (d)). (California Rules of Court rule 3.1800.) Pursuant to Code Civ. Proc., § 1033.5(a)(1), items are allowable as costs under Section 1032 if they are filing, motion, and jury fees. A party who defaults only admits facts that are well-pleaded in the complaint or cross-complaint. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.) Thus, the complaint must state a claim for the requested relief. Discussion Service of the Complaint and Summons According to the proof of service filed on October 31, 2023, Defendant was served on October 26, 2023 at 1718 N Las Palmas Avenue, Apartment 617, Los Angeles, California 90028, via personal service. Non-Military Status Alexander Baizer Carr avers to Defendants non-military status. Summary of the Case Plaintiff provides a brief summary of the case in the declaration of Roberta Galbreath. Plaintiff adequately pleads its cause of action in the Complaint. Evidence of Damages Code of Civil Procedure section 580 prohibits the entry of a default judgment in an amount in excess of that demanded in the complaint. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 286.) Moreover, a statement of damages cannot be relied upon to establish a plaintiff's monetary damages, except in cases of personal injury or wrongful death. (Ibid.) In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint. (Ibid.) Moreover, a plaintiff must submit admissible evidence supporting a prima facie case for the damages or other relief requested (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362.) Roberta Galbreath is a custodian of records for Plaintiff. Galbreath avers that the submitted records showing the amount due on Defendants account with Plaintiff are contemporaneously recorded by a person with actual knowledge of the information in question and are true and accurate copies of Plaintiffs business records. Interest Plaintiff does not seek interest. Memorandum of Costs and Disbursem*nts Plaintiff includes a memorandum of costs in the submitted Form CIV-100. Alexander Baizer Carr avers that Plaintiff expended $503.50 in costs. Attorneys Fees Plaintiff does not seek attorneys fees. Proposed Form of Judgment Plaintiff has submitted a proposed form of judgment consistent with the foregoing. Submission of the Written Agreement California Rule of Court 3.1806 states that unless otherwise ordered judgment upon a written obligation to pay money requires a clerks note across the face of the writing that there has been a judgment. Here, Plaintiff has not submitted the original documents. The Court does not discern any practical need for such a clerks note on the written obligation in the current case and therefore orders that it need not be included. If this causes any issues for any party or non-party, they are authorized to bring the matter to the Courts attention. Statement of Damages Plaintiff does not need to submit a statement of damages because this is not a personal injury or wrongful death case.

Ruling

Discover Bank vs William Arteaga

Jul 10, 2024 |23CV-03426

23CV-03426 Discover Bank v. William ArteagaCourt TrialAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Ex Parte Matters Hon. Brian L. McCabe Courtroom 8 627 W. 21st Street, Merced Wednesday, July 10, 2024 1:15 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / DescriptionThere are no Ex Parte Matters Scheduled SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Ex Parte Matters Judge Pro Tem Peter MacLaren Courtroom 9 627 W. 21st Street, Merced Wednesday, July 10, 2024 1:15 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / DescriptionThere are no Ex Parte matters scheduled. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Ex Parte Matters Hon. Jennifer O. Trimble Courtroom 12 1159 G Street, Los Banos Wednesday, July 10, 2024 1:15 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / DescriptionThere are no Ex Parte matters scheduled. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Limited Civil Long Cause Court Trials Judge Pro Tem Peter MacLaren Courtroom 9 627 W. 21st Street, Merced Wednesday, July 10, 2024 1:30 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / DescriptionThere are no cases set for hearing. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Mandatory Settlement Conference Hon. Brian L. McCabe Courtroom 8 627 W. 21st Street, Merced Wednesday, July 10, 2024 1:30 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / Description

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