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FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM INDEX NO. E2019001205 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 MONROE COUNTY CLERK'S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 1953317 Book Page CIVIL Return To: No. Pages: 14 SARAH KRISTIN HYMAN PO Box 729 M=:nt: EFILING INDEX NUMBER East Amherst, NY 14051 Control #: 201902060031 Index #: E2019001205 Date: 02/06/2019 MIDFIRST BANK Time: 5:47:05 AM WEAVER, WANDA BROWN, SUZZETTE WARE, O. B. UNITED STATES OF AMERICA ACTING THROUGH THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT DOE, JOHN State Fee Index Number $165.00 Foreclosure Case Fee $190.00 County Fee Index Number $26.00 State Fee Cultural Education $14.25 Employee: JM State Fee Records $4.75 Management Total Fees Paid: $400.00 State of New York MONROE COUNTY CLERK'S OFFICE WARNING - THIS SHEET CONSTITUTES THE CLERKS ENDORsem*nT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. ADAM J BELLO MONROE COUNTY CLERK ':::: :.... . . - --::a ;;; IIlllilllII 1 of 14 201902060031 02/06/2019 05:47:05 AM CI 201902060031 INDEX NO. E2019001205 FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE _____..----------------------------------------------------------X MIDFIRST BANK SUMMONS Plaintiff, vs MORTGAGED PREMISES: WANDA WEAVER, SUZZETTE BROWN, O. 43 DEL MONTE STREET B. WARE AKA O B WARE, UNITED STATES ROCHESTER, NY 14621 OF AMERICA ACTING THROUGH THE SECRETARY OF HOUSING AND URBAN SBL #: 091.740 - 0001 - 007.000 DEVELOPMENT JOHN DOE (Those unknown tenants, occupants, persons or corporations or their heirs, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.) Defendant(s). __________ _________..____________________ _-----------------------X TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in the above captioned action and to serve a copy of your Answer on the Plaintiffs attorney within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after completion of service where service is made in any other manner than by personal delivery within the State. The United States of America, if designated as a Defendant in this action, may answer or appear within sixty (60) days of service hereof. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, a default indgment may be entered and you can lose your home. 2 of 14 20190206003i FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM 02/06/2019 05:47:05 AM CI 201902050031 INDEX NO. E2019001205 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property. Sending a payment to your mortgage company will not stop this foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. Monroe County is designated as the place of trial. The basis of venue is the location of the mortgaged premises foreclosed herein. DATED: Sarah K Hyman, Esq\ Gross Polowy, LLC Attorneys for Plaintiff 1775 Wehrle Drive, Suite 100 Williamsville, NY 14221 Tel.: (716)204-1700 3 of 14 201962066031 02/06/2019 05:47:05 AM CI 201902060031 INDEX NO. E2019001205 FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE ___________..______________..________________---------------------X MIDFIRST BANK COMPLAINT Plaintiff, vs MORTGAGED PREMISES: WANDA WEAVER, SUZZETTE BROWN, O. 43 DEL MONTE STREET B. WARE AKA O B WARE, UNITED STATES ROCHESTER, NY 14621 OF AMERICA ACTING THROUGH THE SECRETARY OF HOUSING AND URBAN SBL #: 091.740 - 0001 - 007.000 DEVELOPMENT JOHN DOE (Those unknown tenants, occupants, persons or corporations or their heirs, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.) Defendant(s). ..______________________________..__..________________.........-----X The Plaintiff by its attorneys, Gross Polowy, LLC, for its complaint against the Defendant(s) alleges upon information and belief as follows: 1. Plaintiff, MIDFIRST BANK is a Federally Chartered Savings Association organized and existing under the laws of the United States of America and the owner and holder of the subject note and mortgage or has been delegated authority to institute this mortgage foreclosure action by the owner and holder of the subject note and mortgage and has the right to foreclose. Attached here as Schedule A is a copy of the original note. 2. On or about September 24, 2004, Wanda Weaver, Suzzette Brown and O. B. Ware AKA O B Ware executed and delivered a note whereby Wanda Weaver, Suzzette Brown and O. B. Ware AKA O B Ware promised to pay the sum of $51,338.00 plus interest on the unpaid amount due. The terms of the note were further modified. 3. As security for the payment of the note Wanda Weaver, Suzzette Brown and O. B. Ware AKA O B Ware duly executed and delivered a mortgage, in the amount of $51,338.00 which was recorded as follows. Recording Date: April 18, 2005 Book 19604/Page 104 Monroe County Clerk 4 of 14 02iü6i2019 05:47:05 AM Cl 201902060031 INDEX NO. E2019001205 FILED: 201902060031 MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 Said Mortgage was subsequently modified by a Loan Modification Agreement executed by Wanda Weaver, Suzzette Brown and O. B. Ware AKA O B Ware on April 27, 2013 and recorded June 13, 2013 in Book 25158, Page 231 in the Office of the Monroe County Clerk. Said Mortgage was subsequently modified by a Loan Modification Agreement executed by Wanda Weaver, Suzzette Brown and O. B. Ware AKA O B Ware on April 22, 2016 and recorded July 5, 2016 in Book 26696, Page 491 in the Office of the Monroe County Clerk. 4. The mortgaged property is known as 43 DEL MONTE STREET, ROCHESTER, NY 14621. The tax map designation is SECTION 091.740, BLOCK 0001, LOT 007.000. Plaintiff is foreclosing the land, buildings, and other improvements located on the property. The property is more fully described in Schedule B attached to this complaint. 5. Wanda Weaver, Suzzette Brown and O. B. Ware AKA O B Ware failed to comply with the conditions of the note and mortgage by not making the payment that was due on May 1, 2018 and subsequent payments. 6. There is now due and owing on the note and mortgage the following amounts: Principal Balance: $39,306.75 Interest Rate: 4.25% Date Interest Accrues from: April 1, 2018 Together with accrued late charges, monies advanced for taxes, assessments, insurance, securing, inspections, posting of notices, maintenance and preservation of the property. 7. In order to protect the value of the property and its rights in the property, the Plaintiff may have to pay additional taxes, assessments, water charges, insurance premiums and other charges and the costs, allowances, expenses of sale, and reasonable attorney's fees for the foreclosure. Plaintiff requests that any amount it pays, together with interest, be included in the total amount due. 8. The defendant(s) may have an interest encumbering the property, which is either subordinate to Plaintiff's mortgage, or paid in full, equitably subordinated, or adverse to C" Plaintiffs mortgage. The interest of each defendant is set forth in "Schedule of this complaint. 9. The interest or lien of the United States of America, the State, City or local D" government entity is set forth in "Schedule of this complaint. 10. Plaintiff has complied with sections 1304 and 1306 of the Real Property Actions and Proceedings Law, and the mortgage was originated in compliance with all provisions of section 595-a of the Banking Law and any rules or regulations promulgated there under, and, if applicable, sections 6-1 or 6-m of the Banking law. 5 of 14 AM CI 201902060031 INDEX NO. E2019001205 FILED: 2019020S0031 MONROE COUNTY CLERK 02/05/2019 12:20 02/06/2019PM 05:47:05 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 11. No separate pending action was brought to recover any part of the mortgage debt or if any such action is pending final judgment for Plaintiff was not rendered and it is the intent of the Plaintiff to discontinue it. WHEREFORE, PLAINTIFF DEMANDS: a. Judgment accelerating the maturity of the debt and determining the amount due Plaintiff for principal, interest, late charges, taxes, assessments, insurance, maintenance and preservation of the property and other similar charges, together with costs, allowances, expenses of sale, reasonable attorney's fees, all with interest, pursuant to the terms of the Note and Mortgage. b. That the property be sold at auction to the highest bidder in accordance with the referee's terms of sale. c. That the interest of the defendant(s) and all persons claiming by or through them be foreclosed and their title, right, claim, lien, interest or equity of redemption to the property be forever extinguished. d. That out of the sale proceeds, the Plaintiff be paid the amounts due for principal, interest, late charges, taxes, assessments, insurance, securing, inspections, posting of notices, maintenance and preservation of the property, and other similar charges, together with court costs, allowances, expenses of sale, and reasonable attorney's fees, all with interest. e. That the property be sold in as is condition and subject to the facts an inspection or accurate survey of the property would disclose, covenants, restrictions, easem*nts and public utility agreements of record, building and zoning ordinances and violations, and the equity of redemption of the United States of America. f. That Plaintiff may purchase the property at the sale. g. That a receiver be appointed for the property, if requested by Plaintiff. h. That a deficiency judgment against Wanda Weaver, Suzzette Brown and O. B. Ware AKA O B Ware, to the extent allowable by law, for the amount that remains due after distribution of the sale proceeds, unless the debt was discharged in a bankruptcy or is otherwise uncollectable, be granted if requested by Plaintiff. i. That if the Plaintiff possesses other liens against the property, they not merge with the mortgage being foreclosed and that Plaintiff, as a subordinate lien holder, be allowed to share in any surplus proceeds resulting from the sale. j. That the Court award Plaintiff additional relief that is just, equitable and proper. Sarah K Hyman, Esq Gross Polowy, LLC 1775 Wehrle Drive, Suite 100 Williamsville, NY 14221 6 of 14 02106i2019 05:47:05 AM CI 2019020S0031 INDEX NO. E2019001205 FILED: 201902060031 MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 Schedule A Attached here as Schedule A is a copy of the original note. If applicable, certain non-public personal information has been redacted from the attached document. 7 of 14 02/06/2019 05:47:05 AM CI 201902060031 INDEX NO. E2019001205 FILED: 201902060031 MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 FHA cm No. NOTE Multistate September 24, 2004 |Datel 43 DEL MONTE ST , ROCHESTER,NY 14621-3805 IPropeny Address) 1. PARTIES "Bostower" "Lender" awuns cash person signing at theend of this Note, and the person's successors and assigns. mean; MidFirst Bank , A Federally Chartered Savings Assoc. and itssuccessors and assigns. 2, BORROWER'S PROM I SE TO PAY; INTEREST in return fora loan received from Lender, Borrower promises to pay theprincipal sum of Fifty One Thousand Three Hundred Thirty Eight and no/100 Dollars (U.S. 5 51.338.00 ).plusinterest, to theorder of Leader. Interestwill be charged on unpaid principal. from the dateof disbursem*nt of the loanproceeds by Lander. at therate of Seven percent ( 7.0000 %) per year untilthe fullamoum ofprincipal has been paid. 3. PROMISE 10 PAY SECURED Borrower's promise to deed of trustor similar instrumem thatis datedthe same datt- pay issecured by a mortgage, security Instrumem." as thisNote and called the "Security The Security Instrument protects theL4nder from losses which might resultif BorTOWer DefaultS under this Note. 4. MANNER OF PAYMENT (A) Time Borrower shall make a payment of principal and imerestto Londer on the firstday of each momh beginning on November 1 , 2004 . Any principaland interestremainingon the firstdayof October I, Date." 2024 , will be due on that date, which the is called "Maturity (B) Place Payment shallbe made at P.0. Box 268888, Oklahoma City, 0K, 73126-8888 orat such place as Lander may designate inwritin; by notice to Borrower. (C) Amount Each monthly payment of principaland interestwill be in theamount of U.S. $398.02 . Thisamous t will be part of a larger monthly payment required by the Security Insimment. that shallbe applied to principal,interestand other items inthe order described in theSecurity Instrument. (D) AIlonge to thisNote for payment adjustments Ifan allonge providing for payment adjustmems isexecuted by Borrower together with this Note, the covenants of theallenge shallbe incorporated intoand shall amend and supplement the covenants of thisNote as ifthe allonge were a pastof thisNote. ICheck applicable box| Graduated Payment Allonge UGrowing Equity Allonge Other |specify) S. BORROWER'S RIGilT TO PREPAY Borrower has the right topay thedebt evidenced by this Note, in whole or in part,without charge or penalty, on the Grt t day of any inonth. Leader shall accept prepayment on other days provided that Borrower pays on interest theamount prepaid fo'r the remainder of the month tothe extent required by Lander and permitted by regulations ofthe Secretary. IfBorrower makes ,a partialprepayment, there will he no changes inthe due dateor in the amount of themonthly payment unless trader agrees in writing tothose changes. moam 0 FIIAMultistateFixed Rate Note - 10/9s Page1 pl 2 --.-., .1R torton.ot m 1601D1 tenting e a s. g o, e, w, 8 of 14 201902060031 02/06/2019 05:47:05 AM Cl 201902060031 INDEX NO. E2019001205 FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 . 's ' 6. BORROWER'S FAILURE TO PAY . .. (A) Late Charge for Overdue Payments . If Lender has not received the fullmonthly paymem required by the Security Instrument, as described in Paragraph 4(C) of this Note,by the end of fifteen calendar days afterthe payment isdue, lander may collect·a latecharge in theamounÏ of Four percent( 4.0000 %) or theoverdtic amount of each paymentl (B) Default If Bormwer defaultsby failingto pay in fullany monthly payment, then Lender may, except as limitedby regulations of the Secretary inthe case of payment defaults,n:quire immed½te paymem in fullof the principalbalance remaining due and allaccrued interest.Lender may choose not toexercise this option without waiving itsrights in the event of any subsequen,t default. Inmany circ*mstances n:gulations issued by the Secretary will limitLender's rightsto require immediate payment in fullin thecase of payment defaults.This Note does not authorizeacceleration when not permitted by HUD regulations.As used "Secretary" in diisNote, means the Secretaryof Housing and Urban Development or hisor her designee. (C) Payment ofCosts and Expenses If Lender has required immediate payment in full,as described above, Lender may require Borrower to pay costsand attorneys' expenses including reasonabic and customary fees forenforcing this Note tothe extent not prohibited by applicablt law. Such fees and costsshall bear interestfrom the date ofdisbursem*nt atthe same rateas theprincipal ofthis Note. 7. WAIVERS Borrower and any other person who has obligations under this Note waive the rights of presentment and notice of "Presentment" dishonor" dishonor. means the rightto require Lender to demand payment of amounts due. "Notice of means thh rightto require Lemier to give notice toother persons thatamounts due have notbeen paid. 8. GIVING OF NOTICES Unless applicable law requires a differentmethod, any notice thatmust be given to Borrower under this Note will be givei by delivering itor by mailing it by tirstclass mail to Borrower at the property address above or ata ditterentaddress if BoffoWer has given Lender a notice of Borrower's differentaddress. Any notice diatmust be given to Lender under thisNote will be given by firstclassmail to Lender atthe address statedin Paragraph 4(B) orat a differentaddress ifBorrower is givena notice ofthat differentaddress. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more thanone person signs thisNote, each person is fullyand personally obligated to keep allof the promises made in thisNote, including thepromise to pay the fullamount owed. Any person who is aguarantor, surety or endorser of thisNote s also obligated todo thesethings. Any person who takes over these obligations,including the obligations ofa guarantor, surety or endorser of thisNote, is alsoobligated to keep allof theprontises made inthisNote. Lender may enforce itsrightsunder this Note againsteach person iüdividually or againstall signatoriestogether.Any one person signing this Note ntay be required to pay allof the amounts owed under thisNote. . BY SfGNING BELOW, Borrower accepts ami agrees tothe terms and covenants contained in thisNote- (Seal) (Seal) WANDA WEAVER . -son=« SUZZE BROWN -non=« (Seal) (Seal 0.B. WARE -non=« -norrowlr (Seat) (Seal) -Borrower -Borrow (Seal) (Sea ) -Bonmver •Bormwer 4 R [021DP01 Page2 of 2 9 of 14 201éü1üèüü31 02iü6i2ü19 05:47:05 AM CI 2019020S0031 INDEX NO. E2019001205 FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 W® ecou(S® pat Ord® . * pros otBao tt9et prep6ent ER OF O 10 of 14 02/06/2019 05:47:05 AM CI 201902060031 INDEX NO. E2019001205 201902660051 FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 Schedule B - Legal Description That tract or parcel of land, situate in the City of Rochester, County of Monroe and State of New York, known and designated as Lot No. 29 as shown on a map of the Zielinski Real Estate Company, Inc., Subdivision, being part of Lot No. 9 and allof Lots No. 11, 12 and 13 of the Assessor's Lots being in Town Lot 45, which map is on file in the Monroe County Clerk's Office in Liber 69 of Maps, page 32. Said Lot No. 29 is situate on the south side of Delmonte Street and is 38.5 feet wide front and rear and 102.21 feet deep on the west side and 102.25 feet deep on the east side as shown on said map above referred to. 11 of 14 2019u2960031 02/06/2019 05:47:05 AM CI 20i902000031 INDEX NO. E2019001205 FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 Schedule C - Defendants Wanda Weaver Borrower Suzzette Brown Borrower O. B. Ware AKA O B Ware Borrower 12 of 14 201962ùéü031 02/06/2019 05:47:05 AM CI 20i902060031 INDEX NO. E2019001205 FILED: MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 Schedule D - Defendants United States of America acting through the Holder of a mortgage recorded in the Office of Secretary of Housing and Urban Development the Monroe County Clerk at Book 25104, Page 96 on May 20, 2013 . 13 of 14 02/06/2019 05:47:05 AM Cl 201502060031 INDEX NO. E2019001205 FILED: 201902060031 MONROE COUNTY CLERK 02/05/2019 12:20 PM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE ----------------------------------------------------------------X MIDFIRST BANK Plaintiff, vs. WANDA WEAVER, SUZZETTE BROWN AND O. B. WARE AKA O B WARE et al. Defendants. ______________________________________..___.._________------------X SUMMONS AND COMPLAINT ___________________________________________________..------------X GROSS POLOWY, LLC Attorney for Plaintiff 1775 Wehrle Drive, Suite 100 Williamsville, NY 14221 14 of 14
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On July 9, 2024, Cross-Complainants Four Joy Investment, LLC and Four Joy One, LLC (Four Joy Entities) filed a Second Amended Cross-Complaint (Four Joy SAXC) against Cross-Defendants DBIK, Danny Hung Cheng, and DC International Design & Construction, Inc. for: (1) violation of Business & Professions Code, §§ 7125.2 and 7031(b) (disgorgement action against unlicensed contractor); (2) violation of Business & Professions Code, § 7160 (statutory fraud by unlicensed contractor); (3) (deceit) intentional misrepresentation; (4) deceit (negligent misrepresentation); (5) negligence; and (6) violation of Business & Professions Code, § 17200 et seq. C. Motion on Calendar On July 3, 2024, Cross-Complainants DBIK and Cheng filed a motion for leave to amend their cross-complaint to name additional fictious Moes. The Court is not in receipt of an opposition brief. LEGAL STANDARD CCP § 473(a)(1) states: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts: 1) The effect of the amendment; 2) Why the amendment is necessary and proper; 3) When the facts giving rise to the amended allegations were discovered; and 4) The reasons why the request for amendment was not made earlier. The Courts discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.) DISCUSSION Cross-Complainants DBIK and Cheng (Cross-Complainants) move for leave to amend their cross-complaint (filed July 11, 2022) to name the following Moe Cross-Defendants: (1) New Sunrise Building, Inc. as Moe 1; (2) R & S Rain Gutters and Sheet Metal as Moe 2; (3) Iron Dragon Manufacturing, Inc. as Moe 3; (4) Mage USA Group as Moe 4; (5) JFE HVAC, Inc. as Moe 5; and (6) California Garvey Glass and Awnings, Inc. as Moe 6. In support of the motion, Cross-Complainants provide the declaration of counsel Lauren N. LEcuyer. Ms. LEcuyer states that the scope of the relevant subcontractors and the implications of their trade was unclear, incomplete, and not entirely known until the inspections of the property. (LEcuyer Decl., ¶9.) She states that the first inspection occurred on February 16, 2024 (which the Court attended) and the second inspection took place on June 17 2024. (Id., ¶¶7-8.) Counsel states that it became apparent after the inspections that the addition of the 6 subcontractors was necessary. (Id., ¶9.) She states that there are existing defects at the property as of the date of the inspection, including the roofs, HVAC systems, and the stucco on the hotel and commercial properties, and the iron handrails and shower doors within the hotel only, and states that most of the alleged defects have been repaired to date; however, she states that it appears relevant and necessary to cross-complain against the subcontractors that performed work on the various alleged defects. (Id., ¶10.) Counsel details the delays in performing the inspections and the inability for DBIK to understand the full extent of the defects at the property until June 17, 2024. (Id., ¶¶11-13.) She states that DBIK met and conferred with the parties regarding the addition of the subcontractors but has not received a response. (Id., ¶14, Ex. B.) Counsel states that to ensure that all necessary and proper parties are included in the pending litigation and so that DBIK would not be prejudiced, DBIK seeks leave to amend the cross-complaint. (Id., ¶¶15-16, Ex. C.) She states that DBIK only seeks to add the name of the relevant subcontractors who performed work on the alleged defects at the property. (Id., ¶17.) Exhibit C includes six Amendment to Complaint (Cross) forms naming Moes 1-6. Based on the moving papers, the Court grants Cross-Complainants motion for leave to amend the cross-complaint. Ms. LEcuyers declaration addresses the factors under CRC Rule 3.1324. Further, the motion is not opposed. In addition, the Court recognizes the liberal policy in allowing amendment. [T]he court's discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) CONCLUSION AND ORDER Cross-Complainants DBIK Construction & Design, Inc. and Danny Chengs motion for leave to amend the cross-complaint (filed July 22, 2022) and identify Cross-Defendants is granted. Cross-Complainants are ordered to file the Amendment to Complaint (Cross) forms names Moes 1 to 6 for the Courts signing. Cross-Complainants shall provide notice of this order. DATED: August 23, 2024 ___________________________ John J. Kralik Judge of the Superior Court
Ruling
Nicole Martinez vs Guy Maxwell
Aug 20, 2024 |24CV-01096
24CV-01096 Nicole Martinez, et al. v. Guy Maxwell, et al.Motion to Strike Portions of Plaintiff’s Complaint Relating to Punitive DamagesThe Motion to Strike Portions of Plaintiff’s Complaint Relating to Punitive Damages isGRANTED WITH LEAVE TO AMEND to allege facts establishing malice, oppression orfraud.
Ruling
ELIZABETH QUINN ET AL VS. MARY R. COULTON ET AL
Aug 20, 2024 |CGC23606844
Real Property/Housing Court Law and Motion Calendar for August 20, 2024 line 2. DEFENDANT NEIL STRAGHALIS AN INDIVIDUAL, ELYSA STEIN MOTION FOR JUDGMENT ON THE PLEADINGS is OFF CALENDAR. Motion for Determination of Good Faith Settlement pending. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
YAEL MAGUIRE ET AL VS. EASTWOOD DEVELOPMENT INC. ET AL
Aug 23, 2024 |CGC23607922
Real Property/Housing Court Law and Motion Calendar for August 23, 2024 line 7. DEFENDANT EASTWOOD DEVELOPMENT INC., LUCAS EASTWOOD, 4028 25TH STREET, LLC DEMURRER to Amended COMPLAINT is transferred to department 302 to be heard on September 6, 2024. The previous transfer of this construction defect case to department 501 was in error. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
Ruling
WVISTANO DANIEL PEREZ VS FCI LENDER SERVICES, INC., A CALIFORNIA CORPORATION, ET AL.
Aug 20, 2024 |23CHCV01341
Case Number: 23CHCV01341 Hearing Date: August 20, 2024 Dept: F43 Dept. F43 Date: 8-20-24 Case # 23CHCV01341, Wvistano Daniel Perez vs. FCI Lender Services, et al. Trial Date: N/A DEMURRER TO SECOND AMENDED COMPLAINT MOVING PARTY: Defendants FCI Lender Services, Inc., and Puerto Loreto, LLC RESPONDING PARTIES: No response has been filed. RELIEF REQUESTED Demurrer to Second Amended Complaint · Entire Cross-Complaint · First Cause of Action for Violation of Business and Professions Code § 17200 RULING: Demurrer is sustained without leave to amend. SUMMARY OF ACTION In February 2022, Plaintiff Wvistano Daniel Perez (Plaintiff) took out a mortgage for the subject property in the amount of $2,000,000.00. In late 2022, Plaintiff defaulted on the loan and contacted Defendant FCI to explore his loss mitigation options. Plaintiff alleges that FCI informed him that the loan was due, and he could either pay the defaulted amount or sell the property. On January 20, 2023, Defendants recorded a notice of Default against the property. Plaintiff alleges that Defendants failed to assess Plaintiffs finances prior to recording the Notice of Default on the property. Plaintiff also alleges that Defendants did not call him or otherwise attempt to contact him regarding non-foreclosure options. Plaintiff sold the property on June 22, 2023. The Court previously sustained Defendants demurrer to Plaintiffs cause of action for violation of Business and Professions Code § 17200 with leave to amend. Defendants have once again demurred to that cause of action. No opposition has been filed by Plaintiff. Defendants Request for Judicial Notice: Defendants have requested that the Court take judicial notice of several recorded deeds showing the chain of title of the subject property. The Court grants this request. ANALYSIS A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Entire Complaint Defendants demur to the entire complaint, but there is only one cause of action. Plaintiff has also requested a preliminary and permanent injunction, but because Plaintiff requested this as partis of his prayer for relief, the Court will only address the one cause of action. First Cause of Action For the First Cause of Action, Business and Professions Code § 17200 prohibits any unlawful, unfair, or fraudulent business acts or practices and unfair, deceptive, untrue, or misleading advertising. (Puentes v. Wells Fargo Home Mortg., Inc. (2008) 160 Cal.App.4th 638, 643-644.) Unlawful practices are forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. (Saunders v. Sup.Ct. (1999) 27 Cal.App.4th 832, 838.) Unfair practices constitute conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition. (Cal Tech Communications, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal.4th 163, 187.) When determining whether the challenged conduct is unfair within the meaning of the unfair competition law&, courts may not apply purely subjective notions of fairness. (Id. at 184.) The fraudulent prong under the UCL requires a showing of actual or potential deception to some members of the public, or harm to the public interest. (Id. at 180; see also McKell v. Wash. Mut., Inc. (2006) 142 Cal.App.4th 1457.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Malys of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Plaintiff has not alleged facts demonstrating that Defendants violated Section 17200. The only allegations of unfairness in Plaintiffs SAC are that Defendant acted unfairly by informing Plaintiff that the loan was due (after Plaintiff failed to pay on the loan) (SAC, ¶¶ 16, 17, 28) and that Defendant acted unfairly by refusing to review the loan for loss mitigation options (SAC, ¶ 28). Plaintiff also alleges that Defendants acted unfairly by signing off on what Plaintiff alleges was a patently false declaration of compliance. (SAC, ¶ 30.) None of the alleged unfair conduct rises to the level of conduct that threatens an incipient violation of an antitrust law. (Cal-Tech, 20 Cal.4th at 187.) Plaintiff has failed to allege conduct that would be a violation of Business and Professions Code § 17200. Plaintiff has also failed to oppose this demurrer or otherwise demonstrate how he could amend his complaint to allege this cause of action. Accordingly, Defendants demurrer to Plaintiffs First Cause of Action is sustained without leave to amend. Conclusion Defendants demurrer to Plaintiffs First Cause of Action is sustained without leave to amend. Defendants FCI Lender Services, Inc., and Puerto Loreto, LLC, are dismissed from this action. Only Defendant California TD Specialists remains as a defendant to this action, though this Court previously signed an order on June 11, 2024, that California TD shall have no further obligation to file any further responsive pleadings or otherwise respond in this matter and shall not be subject to any monetary awards, damages, or attorneys fees and costs. Moving party to give notice.
Ruling
LAURA ORIHUELA, ET AL. VS LOS ANGELES GROWTH GROUP LLC, A LIMITED LIABILITY COMPANY, ET AL.
Aug 20, 2024 |23STCV12404
Case Number: 23STCV12404 Hearing Date: August 20, 2024 Dept: 68 Dept. 68 Date: 8-20-24 Case #23STCV12404 MINORS COMPROMISE PETITIONER: Laura Orihuela MINORS NAME: Maritza Yaralyn Martinez RESPONDING PARTY: Unopposed/Defendant, Los Angeles Growth Group LLC, et al. RELIEF REQUESTED Minors Compromise SUMMARY OF ACTION Plaintiffs Laura Orihuela, et al. were residents 325 Witmer St., Unit 11. The property is owned and/or managed by defendants Los Angeles Growth Group LLC, et al. Plaintiffs allege substandard conditions in the unit. On June 1, 2023, Plaintiffs filed a complaint for Breach of Warranty of Habitability, Breach of Covenant of Quiet Enjoyment, Negligence, and Breach of Contract. RULING: Granted. Plaintiffs settled with defendants Los Angeles Growth Group LLC, et al. for $80,000 described as $35,000 to the adult plaintiffs and $5,000 to each minor. The complaint lists two (2) adult plaintiffs, and three (3) minor children, which creates a $5,000 disparity in the total. Notwithstanding, for 17 year old Maritza Yaralyn Martinez, the petition indicates a total settlement of $5,000, with $1,250 in attorney fees, and $737.14 in costs (an amount representing a one-fifth split amongst the Plaintiffs). Total net recovery of $3,012.86. The disparity in the total in no way appears to impact the settlement for the minor. The petition is granted. The $3,012.86 payment to be provided to parent, Laura Orihuela. (Probate Code § 3401, 3611, subd. (a).) Petitions for minors compromise scheduled for August 21, and 22, 2023, respectively. Trial on calendar for October 7, 2024. Moving party to provide notice.
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Susan Mcclare, Brian Mcclare, 178 Selborne Chase, Llc v. Christian Curts, Curts Properties, Llc, 178 Selborne Llc
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