MOTION FOR DEFAULT -FAILURE TO APPEAR PB 17-20 RESULT: Granted 6/25/2024 BY THE CLERK June 14, 2024 (2024)

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Ruling

Frank Betancourt, et al vs Richard Betancourt

Aug 23, 2024 |23CV02511

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

Ruling

LOUIS GRAY , ET AL. VS CURTIS WARE, ET AL.

Aug 23, 2024 |19STCV07986

Case Number: 19STCV07986 Hearing Date: August 23, 2024 Dept: 55 Background LOUIS GRAY and JASZMIN GRAY (Plaintiffs) bring this case against CURTIS WARE (Curtis), BRUCE DUREN, administrator of the Estate of ODESSA WARE PORTER (Estate), and DOE defendants 3 to 10, alleging breach of a real estate sales contract and seeking specific performance. Plaintiffs and the Estate previously stipulated to binding arbitration. The Court acknowledged the stipulation of the parties and ordered the case stayed pending arbitration. The Clerk entered default against Curtis. Plaintiffs move for an order compelling the Estate to participate in binding arbitration, appointing an arbitrator, and staying this case. The motion is unopposed. I. COMPEL ARBITRATION Legal Standard A party seeking arbitration has the burden of proving by a preponderance of evidence that a valid arbitration agreement exists. Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842; see also § CCP 1281.2. A party meets its initial burden simply by reciting the terms of the governing provision, or by attaching a copy of the provisions. Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793. Once the petitioner meets its burden, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges. Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160. Analysis In determining the enforceability of an arbitration agreement, the court first considers whether an enforceable arbitration agreement exists between the parties, and then whether the claims are covered within the scope of the agreement. Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961. Plaintiffs have met their initial burden by providing a copy of the Purchase Agreement, which contains a binding arbitration clause. Jaszmin Decl., Ex. 1, ¶ 22B. The Estate did not file an opposition to the motion to compel arbitration. As such, the Estate failed to present any evidence or argument contesting the validity of the agreement. Accordingly, the motion is granted. II. APPOINTMENT OF ARBITRATOR Legal Standard Code of Civil Procedure section 1281.6 provides, in relevant part, In the absence of an agreed method [for appointing an arbitrator], or if the agreed method fails or for any reason cannot be followed & the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator. When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may, within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees. (Code Civ. Proc. § 1281.6.) Analysis The arbitration agreement does not provide for a method of selecting an arbitrator, beyond establishing basic qualifications which may be waived by mutual agreement of the parties. Jaszmin Decl., Ex. 1. ¶ 22B. So far, the parties have not been able to agree on an arbitrator or a method of selecting one. Plaintiffs and the Estate are ordered to meet and confer and submit a stipulation and proposed order for the appointment of an arbitrator within seven days of this ruling. If the parties stipulate to an arbitrator, the Court will sign the proposed order. If the parties are unable to stipulate to an arbitrator, Plaintiffs and the Estate shall instead file within seven days of this ruling a joint statement listing potential arbitrators, with five names from Plaintiffs and five names from the Estate. Upon receipt of the joint statement, the Court will nominate five arbitrators from the joint statement and provide notice. The parties shall then meet and confer regarding whether they can agree on an arbitrator from the Courts list. Plaintiffs shall file and serve notice indicating whether the parties are able to agree on an arbitrator within seven days from receipt of the Courts list. If the parties can agree on an arbitrator from the Courts list, Plaintiffs shall indicate the name of the agreed upon arbitrator in the notice, and the Court will issue an order appointing that arbitrator. If the notice indicates the parties were unable to agree on an arbitrator, the Court will select the arbitrator from its list of five nominees and provide notice to the parties. Conclusion The Court grants the motion to compel arbitration and the motion to appoint an arbitrator. The action is stayed under Code of Civil Procedure § 1281.4 pending the outcome of the parties arbitration.

Ruling

34-2021-00305326-CU-OR-GDS

Aug 20, 2024 |Unlimited Civil (Other Real Property (not emin...) |34-2021-00305326-CU-OR-GDS

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54Tentative RulingDefendants/Cross-Complainants James Brian Putler and Brian Pifferini’s (“Defendants”) motionfor summary judgment, or in the alternative, motion for summary adjudication, is ruled upon asfollows.Plaintiffs’ counsel is admonished for failing to comply with CRC Rule 3.1110(f)(4).The parties’ unopposed requests for judicial notice are granted for the limited scope whichjudicial notice is permitted.BackgroundThis is a boundary dispute between two neighbors. Plaintiffs/Cross-Defendants Michele andAaron Solomon (“Plaintiffs”) allege the following. In 1987, Plaintiffs purchased the real propertylocated at 2031 Maple Glen Road, Sacramento, California 95864 in the subdivision known asArden Oaks. At the time of the sale, 2031 Maple Glen was owned by the Williamses.Additionally, the Williamses also owned the adjacent property located at 2041 Maple Glen.Plaintiffs allege that the Williamses developed Arden Oaks. The two properties are divided by asplit rail fence that was installed when the properties were developed in 1950. The configurationof the fence creates an enclosed wedge-shaped area (“the Wedge”) measuring approximately1,571.11 square feet. With the current configuration, Plaintiffs have exclusive access to theWedge and have installed and maintained various improvements in the Wedge.Defendants are the current owners of 2041 Maple Glen. In 2020, Defendants notified Plaintiffsthat they had commissioned a survey that revealed that the fence was not the actual boundaryline. Defendants thus informed Plaintiffs that they intended to demolish the fence and erect anew fence along the boundary line that is consistent with their survey. The new fence woulddeprive Plaintiffs access to the Wedge.Defendants filed the instant motion for summary judgment on June 20, 2023. Plaintiffs opposedand moved for leave to file an amended complaint. The Court granted Plaintiffs’ motion, and onMarch 15, 2024, Plaintiffs filed a first amended complaint. On July 10, 2024, Defendants filed asecond amended notice of motion for summary judgment/adjudication. According toDefendants’ amended notice of motion, “Defendants are entitled to summary judgment as toPlaintiffs’ complaint because Plaintiffs are not entitled to a prescriptive easem*nt as a matter oflaw. Defendants are also entitled to summary judgment as [to] their cross-complaint becauseDefendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.”(Second Amended Notice 2:4-7.)Alternatively, Defendants argue they are entitled to summary adjudication as to the followingissues: Page 1 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54 Issue No. One - Plaintiffs’ first cause of action in their Complaint for declaratory relief fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Two - Plaintiffs’ second cause of action in their Complaint for an injunction fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Three – Defendants are entitled to summary adjudication as to their first cause of action to quiet title in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt. Issue No. Four – Defendants are entitled to summary adjudication as to their second cause of action for declaratory relief in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.(Id. 2:9-18.)Since Defendants filed the instant motion on June 20, 2023, Plaintiffs have filed an amendedpleading. Accordingly, Plaintiff’s original complaint, at which the motion is directed, is nolonger operative. On this basis the motion for summary judgment as to Plaintiffs’ complaint isDENIED. The motion for summary adjudication as to issue nos. 1 and 2, also directed at claimsin Plaintiffs’ complaint, is likewise DENIED.The Court now addresses whether Defendants are entitled to summary judgment as to their cross-complaint, or in the alternative, summary adjudication as to issue nos. 3 or 4.Undisputed Material Facts [“UMF”]Defendants assert UMF nos. 1-6 in support of their motion as to issue nos. 3 and 4.Plaintiffs own the residential home at 2031 Maple Glen Road. (UMF 1.) Defendants own theresidential home at 2041 Maple Glen Road. (UMF 2.) The properties are adjacent to each otherand share a fence-line composed of “a split rail fence, a taller solid fence, brick column, and achain-link fence.” (UMF 3.) Defendants claim the fence-line is not on the legal boundary lineand encroaches on Defendants’ property. (UMF 4.) Plaintiffs dispute, arguing the fence reflectsthe legal boundary, and aerial photographs as far back as 1953 reflect the current fencing is in thesame location as the original fencing placed by the developers.Plaintiffs submit Additional Material Facts [“AMF”] nos. 1-22 in opposition.To the extent the parties’ responses to UMFs purport to assert objections to evidence, suchobjections are overruled because CRC Rule 3.1354(b) states that objections to evidence shall beset forth in a separate document and must inter alia quote or set forth the objectionable statement Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54or material.Legal StandardIn evaluating a motion for summary judgment and/or summary adjudication, the Court engagesin a three-step process.First, the Court identifies the issues framed by the pleadings. The pleadings define the scope ofthe issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issuesraised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidencesubmitted in support of or in opposition to the motion must be addressed to the claims anddefenses raised in the pleadings. The court cannot consider an unpleaded issue in ruling on amotion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papersfiled in response to a defendant’s motion for summary judgment or summary adjudication maynot create issues outside the pleadings and are not a substitute for an amendment to thepleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334,1342.)Next, the Court must determine whether the moving party has met its burden. A defendantmoving for summary judgment bears the burden of persuasion that one or more elements of theplaintiff’s cause of action cannot be established, or that there is a complete defense to the causeof action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc.,§ 437c, subd. (p)(2)].)Once the moving party has met its initial burden, the burden shifts to the opposing party to showthat a material factual issue exists as to the cause of action alleged or affirmative defenseclaimed. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents without Partners(1993) 17 Cal.App.4th 322, 326-327.)Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonablydrawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at 843.)Summary judgment is properly granted only if the moving party’s evidence establishes that thereis no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)DiscussionIssues No. 3 and 4Defendants contend they are entitled to summary adjudication as to their first cause ofaction to quiet title in their cross-complaint because they own the Wedge and Plaintiffsdo not have a prescriptive easem*nt. Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54The first cause of action in the Cross-Complaint is premised on the following allegations: The area between the legal boundary and portions of a fence separating the properties forms a wedge. Fencing encloses the wedge area of the Property as though it is part of Cross-Defendants' property, thereby preventing Cross- Complainants access to that portion of their Property. On or around June 30, 2021, Cross-Complainants informed Cross-Defendants of their intent to tear down the fencing that separates their properties and erect a new fence along the legal boundary line between the properties. Cross-Defendants now contend that they have a prescriptive easem*nt over the wedge area.(Cross-Complaint ¶¶ 10-12.)A motion for summary judgment or adjudication is framed by the pleadings. Thepleadings define the scope of the issues on a motion for summary judgment or summaryadjudication. (FPI Dev. Inc., supra, at 381-382.) Because a motion for summaryjudgment or summary adjudication is limited to the issues raised by the pleadings (seeLewis, supra, at 694), all evidence submitted in support of or in opposition to the motionmust be addressed to the claims and defenses raised in the pleadings. Since Defendantsfiled the instant motion, Plaintiffs have filed an amended complaint, no longer asserting aprescriptive easem*nt theory. Because the motion for adjudication is directed at a claimthat is no longer being asserted, it must be DENIED.Similarly, Defendants contend they are entitled to summary adjudication as to theirsecond cause of action for declaratory relief in their cross-complaint because Defendantsown a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.The second cause of action in the Cross-Complaint is premised on the followingallegations: An actual controversy has arisen and now exists between Cross-Complainants and Cross-Defendants concerning their respective rights to the wedge area of the Property. Cross-Complainants assert that Cross-Defendants have no right to the wedge area of the Property. Cross-Defendants assert that they have a prescriptive easem*nt over the wedge area of the Property.(Cross-Complaint ¶ 17.)Again, the Cross-Complaint is premised on allegations Plaintiff is no longer asserting.Accordingly, the summary adjudication is DENIED.DispositionThe motion for summary judgment/adjudication is DENIED in its entirety, without prejudice, for Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54the foregoing reasons.The Court need not rule on Defendants’ objections to evidence as they were not material to theCourt’s disposition of the motion. (Code Civ. Proc. §437c(q).)The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 orfurther notice is required.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf. Page 5 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 6 of 6

Ruling

CHRISTOPHER PORTER ET AL VS. COOK GENERAL CONTRACTOR INC. ET AL

Aug 22, 2024 |CGC21589807

Ruling

WESTGATE AVENUE PROPERTIES, LLC VS SUSAN BRAGG

Aug 23, 2024 |11/28/2022 |24SMCV02886

Case Number: 24SMCV02886 Hearing Date: August 23, 2024 Dept: N TENTATIVE RULING Defendant Kraig Hills Motion for Anti-SLAPP Attorneys Fees and Costs [CCP § 425.16(c)] is GRANTED in the reduced amount of 45,850.00. Costs shall be awarded pursuant to statute. Defendant Kraig Hill to give notice. REASONING On May 30, 2024, the Court granted Defendant Kraig Hill (Defendant)s special motion to strike Plaintiffs Lacy J. Harber and Dorothy J. Harber (Plaintiffs)s complaint pursuant to Code of Civil Procedure section 425.16. Defendant now moves for an award of attorney fees pursuant to Code of Civil Procedure section 425.16, subdivision (c), which provides that a prevailing defendant on a special motion to strike shall be entitled to recover that defendants attorneys fees and costs. Defendant moves for an order awarding him $92,024.00 in fees and costs incurred as to the anti-SLAPP motion and this fee motion, which consists of $91,224 in fees and $880 in costs. Plaintiffs oppose the motion on the ground that Defendants fees and costs should be reduced because the hourly rate is too high. Insofar as Defendant has provided new evidence with his reply, the Court has not considered that new evidence because Plaintiffs have been denied an opportunity to respond, and the Laffey Matrix and Salary Tables would not change the Courts ruling herein. The fee setting inquiry in California ordinarily begins with the lodestar [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) [A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. (Margolin v. Regl Planning Commn (1982) 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys fees award].) Such an approach anchors the trial courts analysis to an objective determination of the value of the attorneys services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.) The factors considered in determining the modification of the lodestar include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. (Mountjoy v. Bank of America (2016) 245 Cal.App.4th 266, 271.) The Court has reviewed the special motion to strike and present fees motions and hours worked relating to the same and finds that the work performed was reasonable and necessary to prevail on the motion, but the hourly rate of $800 is not reasonable considering the amount of time spent on the motions, i.e., counsel could have employed an associate billing at a lower rate to perform much of the work, or counsel should have spent less hours preparing the motions considering his years of experience. Thus, the Court reduces the rate to $500 per hour. The Court also declines to use a contingency risk multiplier here, as the Court cannot conclude that this case was particularly novel or required unusual skill or knowledge, and this is not the sort of action that required litigating on a contingency basis. Thus, the Court awards Defendant for its 74.1 hours of work spent litigating the anti-SLAPP motion, 7.6 hours of work spent preparing the present motion, and 10 hours reviewing the opposition, filing a reply, and attending the hearing on this motion at the rate of $500 per hour. Accordingly, Defendant Kraig Hills Motion for Anti-SLAPP Attorneys Fees and Costs [CCP § 425.16(c)] is GRANTED in the reduced amount of $45,850.00. Costs shall be awarded pursuant to statute.

Ruling

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

Aug 22, 2024 |24SMCV01572

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

Ruling

- GRESIO, TINA vs MYERS, BEVERLY J

Aug 25, 2024 |CV-24-004770

CV-24-004770 - GRESIO, TINA vs MYERS, BEVERLY J - Plaintiff's Motion For Preliminary Injunction Prohibiting Eviction, Encumbrances,and Sale Of Property Ccp526(A)(1)-(4); 527(A) - CONTINUED, at the moving party’s request, to October 9, 2024 at 8:30 a.m. in Department 23.

Ruling

LAURENCE F. NASEY VS. FELL HOLDINGS LLC, A DELAWARE LIMITED LIABILITY ET AL

Aug 21, 2024 |CGC23611378

Real Property/Housing Court Law and Motion Calendar for August 21, 2024 line 6. DEFENDANT FELL HOLDINGS LLC, STANYAN HOLDINGS LLC, MDF FACILITY LLC, 1215 FELL SF OWNER LLC, 624 STANYAN SF OWNER LLC NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS is OFF CALENDAR. The parties are ordered to comply with CCP 439 in good faith. The Court further notes that the Notice of Motion does not state any grounds for the motion. CRC 3.1110(a). In the future, declaration showing compliance with CCP 439 must accompany a motion for judgment on the pleadings. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

Document

IDAHO HOUSING AND FINANCE ASSOCIATION v. JORDAN, LACEY N. Et Al

Aug 21, 2024 |P00 - Property - Foreclosure |NNI-CV24-6033959-S

Document

FD COMMUNITY FEDERAL CREDIT UNION v. MURPHY, KEITH Et Al

Feb 20, 2024 |P00 - Property - Foreclosure |UWY-CV24-6075716-S

Document

DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FO v. CAPELA, JOSE C. Et Al

Jan 05, 2024 |Walter M. Spader, Jr. |P00 - Property - Foreclosure |NNH-CV24-6139258-S

Document

U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSRMF MORTGA v. LANGLEY, FLOYD Et Al

Aug 20, 2024 |P00 - Property - Foreclosure |NNH-CV24-6146700-S

Document

U.S. BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS I v. THE THOMAS JOSEPH O'BRIEN IRREVOCABLE TRUST Et Al

Feb 07, 2023 |Walter M. Spader, Jr. |P00 - Property - Foreclosure |NNH-CV23-6130048-S

Document

TOWER FUND SERVICES AS CUSTODIAN FOR FIG CT13, LLC v. ZAINO, GINA Et Al

Mar 04, 2021 |Walter M. Spader, Jr. |P00 - Property - Foreclosure |NNH-CV21-6111984-S

Document

FD COMMUNITY FEDERAL CREDIT UNION v. MURPHY, KEITH Et Al

Feb 20, 2024 |P00 - Property - Foreclosure |UWY-CV24-6075716-S

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CASCADE FUNDING MORTGAGE TRUST HB1 v. MARCINKO, ANTONINA Et Al

Jan 29, 2019 |Walter M. Spader, Jr. |P00 - Property - Foreclosure |NNH-CV19-6088671-S

MOTION FOR DEFAULT -FAILURE TO APPEAR PB 17-20 RESULT: Granted 6/25/2024 BY THE CLERK June 14, 2024 (2024)

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