SUMMONS + COMPLAINT - Redacted per 22 NYCRR §202.5(e) July 24, 2024 (2024)

Case

Derek Zeccola v. Brookhaven Town Of

Jul 30, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |806731/2024

Case

John Delvecchio v. Brookhaven Town Of

Jul 30, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |806725/2024

Case

Nick Surace v. Brookhaven Town Of

Jul 30, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |806615/2024

Case

Wilmington Savings Fund Society, Fsb, Not In Its Individual Capacity But Solely As Owner Trustee For Verus Securitization Trust 2023-6 v. Akhtar Khan Raju, John Doe #1 Through John Doe #12, The Last Twelve Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The premises, described in the complaint,

Jul 31, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |812052/2024E

Case

James Miller v. Babylon Town Of

Jul 30, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |806381/2024

Case

Jessica Aviles v. Babylon Town Of

Jul 30, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |806303/2024

Case

Lori Laponte v. Brookhaven Town Of

Jul 30, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |806515/2024

Case

David Koehler v. Babylon Town Of

Jul 30, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |806368/2024

Ruling

WEST IDAHO LLC VS CATHERINE ZHANG

Aug 05, 2024 |21SMUD00229

Case Number: 21SMUD00229 Hearing Date: August 5, 2024 Dept: P Tentative Ruling West Idaho, LLC v. Zhang, Case No. 21SMUD00229 Hearing date June 12, 2024, continued to 08/05/2024 Cross-defendant West Idahos Motion for Summary Judgment and/or Summary Adjudication as to Cross-complainant Zhangs -- UNOPPOSED Cross-defendant West Idaho LLC moves for summary judgment as to Zhangs cross complaint. The motion is unopposed. West Idaho sued Zhang for unlawful detainer. Zhang cross-complained, alleging (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) forcible detainer and (4) conversion. The cross-complaint alleges a security guard employed by West Idaho pointed a gun towards her door, and West Idaho changed the locks on her apartment. A party is entitled to bring a motion for summary judgment where there are no triable issues of fact and moving party is entitled to judgment as a matter of law. Code Civ. Proc., § 437c(c). Defendant bears the initial burden of establishing one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Id. subd. (p)(2). Only when this initial burden is met does the burden shift to the opposing party to show a triable issue of material fact. Id. A party may move for summary adjudication as to one or more causes of action if the party contends the cause of action has no merit. Id. subd. (f)(1). A party may move for summary adjudication as an alternative to summary judgment and shall proceed in all procedural respects as a motion for summary judgment. Id. subd. (f)(2). Even though a motion for summary judgment is unopposed, the court cannot grant summary judgment unless defendant meets its initial burden. See Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305. The scope of the defendants initial burden is defined by the pleadings. See 580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal.App.3d 1, 18. Intentional Infliction of Emotional Distress The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted. West Idaho argues Zhang cannot establish the conduct was outrageous. Deciding whether conduct is outrageous is usually a question of fact. So v. Shin (2013) 212 Cal.App.4th 652, 672, as modified on denial of reh'g (Jan. 28, 2013). A defendants conduct is considered to be extreme and outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007; Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. Defendants argue the video footage is undisputed evidence that the security guards conduct was not extreme or outrageous. Video of the incident shows the guard was holding a phone, not a gun (UMF No. 5). The guard Mohseni states when he was at the premises on March 5, 2021, he did not have a gun in his possession. Mohseni Decl. ¶5. Defendant meets the initial burden of showing there was no extreme or outrageous conduct; the burden shifts to plaintiff to show a triable issue of material fact. As no opposition has been filed, Zhang has not established a question of material fact as to any conduct that was extreme or outrageous. Negligent Infliction of Emotional Distress The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588-589. The emotional distress suffered by the plaintiff must be so severe and enduring that no reasonable person could be expected to endure it. Bogard v. Employers Causalty Co. (1985) 164 Cal.App.3d 602, 617-618. A landlord owes a tenant a duty of reasonable care in providing and maintaining the rented premises in a safe condition. Civ. Code §1714(a); Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1189. This means a landlord in caring for the property, must act toward the tenant as a reasonable person under all of the circ*mstances. Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779. West Idaho argues Zhang cannot establish that West Idaho breached any duty. West Idaho presents evidence that Mohseni went to Zhangs apartment to investigate a noise complaint. UMF No. 2. Video evidence demonstrates Mohsenis hand was holding a phone, not a gun. UMF No. 5. Mohseni states that he did not have a gun in possession during the incident. Mohseni Decl. ¶5. Mohseni acted reasonably in investigating the noise complaint by appearing in-person. Moving party meets its initial burden regarding the NIED claim. No opposition has been filed; Zhang has not raised a question of material fact as to the NIED claim. Forcible Detainer A person is guilty of a forcible detainer who either: (1) By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise. (2) Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. Cal. Code Civ. Proc. §1160 Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to retrieve her possessions make it guilty of forcible detainer. West Idaho argues the forcible detainer claim fails because Zhang voluntarily vacated the premises before the locks were changed. It presents evidence of her voluntarily vacating prior to West Idaho changing the locks. UMF No. 10. Zhang returned her key to West Idahos leasing office, and all of her belongings were vacated prior to West Idaho changing the Premises locks. UMF No. 11. Section 1160 does not apply unless the defendant who entered the property, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. West Idaho presents evidence that Zhang returned her key to its leasing office, and all her belongings were vacated before it changed the locks. Zhang was no longer occupying the apartment, and West Idaho did not unlawfully enter the property. Defendant meets its initial burden. As no opposition has been filed, Zhang has not raised a question of material fact as to forcible detainer. Conversion Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to obtain her property constitute a wrongful act or disposition of property rights and makes it liable for conversion. The elements for conversion are: (1) the plaintiff owned or had the right to possess the personal property; (2) the defendant disposed of the property in a manner inconsistent with the plaintiffs property rights; and (3) resulting damages. Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 544, as modified on denial of reh'g (Apr. 10, 1996). West Idaho argues Zhang has not shown ownership or right to possession at the time of the alleged conversion, as per the above analysis. West Idaho meets its initial burden; Zhang has not shown any material facts in dispute. GRANTED.

Ruling

REBECA MAEHARA VS STEVEN f*ckUTO, ET AL.

Jul 30, 2024 |23LBCV00480

Case Number: 23LBCV00480 Hearing Date: July 30, 2024 Dept: S27 1. Background Facts Plaintiff, Rebeca Maehara filed this action against Defendants, Steven f*ckuto, Michael D. Redlew, and Berth 55 Landing Long Beach, Inc. for breach of contract, breach of guarantee, and ejectment. The crux of the complaint is that the entity defendant is in breach of a commercial rental agreement, the individual defendants are in breach of a personal guarantee, and the defendants must vacate the property and pay damages. 2. Motion for Summary Judgment/Adjudication Burdens on Summary Judgment Summary judgment is proper if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim cannot be established because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. (Ibid.) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence&. Aguilar, supra, 25 Cal.4th at 865-66, [A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidenceas through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action. (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (disproving) an essential element of the plaintiff's cause of action. (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103. Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) Analysis While the parties make numerous arguments concerning the statute of limitations, statute of frauds, etc., the motion for summary judgment must be denied because fact 3 in Defendants separate statement is disputed. Defendants, at page 6, lines 10-15 of their moving points and authorities, state, Berth 55 does not dispute that it is obligated to pay rent for the month of January, February and half of March, 2023 and has calculated the rent due for that period as being $13,135.00 (Decl. f*ckuto para 24; UMF 24). However, Plaintiffs are still in possession of the $20,000.00 deposit paid by defendant in 1998 (Decl. f*ckuto para 3, 25; UMF 3; 24; Ex 1), and therefore nothing further is due to Plaintiff under the terms of the oral agreement (Decl. f*ckuto para 25; UMF 3, 24, 25; Ex 1). Defendants fact 3 in their separate statement purports to establish Defendants paid the $20,000 deposit. Plaintiff, however, disputes this fact. She declares they did not do so, and she attaches various bounced check documents showing the $20,000 was not received. She has raised a triable issue of material fact, and therefore the motion must be denied. Summary Adjudication Defendants notice of motion indicates Defendants seek summary adjudication of various issues. Their separate statement, however, fails to comply with CRC 3.1350(b) which requires each issue to be adjudicated to be set forth verbatim in the notice of motion and separate statement. Notably, Defendants separate statement does not break down the issues for adjudication in any way. The alternative motion for summary adjudication is therefore also denied. Final Note Defendants do not seek summary adjudication of the ejectment cause of action in their notice of motion. They do, however, argue the issue is moot, and Plaintiff concedes as much in opposition to the motion. The Court cannot adjudicate the issue because the issue is not noticed for adjudication, but notes for the record that the parties agree the cause of action is moot. Defendants are ordered to give notice. Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.

Ruling

U.S. Bank Trust, N.A. vs. Sells

Aug 02, 2024 |22CV-0200669

U.S. BANK TRUST, N.A. VS. SELLSCase Number: 22CV-0200669This matter is on calendar for review regarding status of proposed judgment. As previouslyordered by this Court, an Amended Proposed Judgement and Declaration have been filed clarifyingthe correct address of the subject property. The proposed judgment will be executed by the Court.No appearance is necessary on today’s calendar.VALDEZ VS. FALL RIVER VALLEY FIRE PROTECTION

Ruling

COPP vs BARANEK

Jul 31, 2024 |CVPS2204703

Motion to be Relieved as Counsel for CONNORCVPS2204703 COPP vs BARANEKBARANEKTentative Ruling: Grant. No opposition was filed. Counsel is ordered to file with the Court within 5days a revised proposed order including all contact information for Defendant in Box 6 of the proposedrevised order, which should include the current or last known address, telephone number, and email forthe client. Counsel is reminded that he will not be relieved until a proof of service of the final signedorder is filed with the Court.

Ruling

Kevin Humphrey vs. Jasvir Singh Shahi

Jul 24, 2024 |C23-01810

C23-01810CASE NAME: KEVIN HUMPHREY VS. JASVIR SINGH SHAHIHEARING ON DEMURRER TO: TO: 2ND AMENDED CROSS-COMPLAINT FROM: CONTRA COSTACOUNTYFILED BY: CONTRA COSTA COUNTY*TENTATIVE RULING:*Before the Court is Defendant Contra Costa County’s Demurrer to the Second Amended Cross-Complaint of Dillard Trucking, Inc. dba Dillard Environmental Services.The County’s Request for Judicial Notice is granted as explained below.For the following reasons, Defendant’s Demurrer is sustained without leave to amend.Factual and Procedural BackgroundThis matter concerns damages claims related to a flooding event that took place in January 2023 at ornear the intersection of Byron Highway and Camino Diablo in Contra Costa County. FAC AllegationsAccording to the FAC, Plaintiffs own a single-family residence located at 3238 Camino Diablo.Defendant Shahi owns and operates a gas station, convenience store, and restaurant located at15031 Byron Highway. Cross-Complainant Dillard Trucking Services, Inc. (“Dillard”) operates atrucking, environmental services, and toxic storage and disposal service located at 3120 CaminoDiablo. For ease of reference only, below is an illustration of the location of the Properties. (The red πindicates Plaintiff’s Property; blue Δ is Defendant’s Property; and Dillard’s Property is underlined inpurple.)It is alleged that a ‘seasonal drainage channel’ is located on the southwestern and southern boundaryof the Defendant’s Property. (¶ 6.) This “Drainage Channel” receives and conveys water thatdischarges from a public drainage system, which collects surface water at and around the intersection SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/24/2024of Byron Highway and Camino Diablo. (Ibid.) This Drainage Channel then conveys the water across theDefendant’s Property – which is immediately adjacent to Plaintiff’s Property. (Ibid.)The Drainage Channel is alleged to be part of the Kellogg & Brushy Creek Watershed, as identified inthe Contra Costa Watershed Atlas. (¶ 7.) The Drainage Channel receives accumulated surface waterfrom the public drainage system at the northwestern corner of Defendant’s Property, then conveys itroughly Southeast along property lines until discharging it into the Clifton Court Forebay. (¶ 7.)Plaintiffs allege that at some unknown time, Defendants modified the portion of the DrainageChannel where it traverses Defendant’s Property by installing two adjacent pipelines within the bedof the Drainage Channel, then burying those pipes and redirecting the water the previously flowedwithin the Drainage Channel into and through the two underground pipes. (¶ 8.) This modificationreduced the capacity of the Drainage Channel, compromising its ability to receive and convey thedrainage water it receives from the surrounding area. (Ibid.) This ‘undergrounding’ of the pipes wasdone without obtaining the necessary permits and approvals from Contra Costa County (or otherpublic entity.) (¶ 10.)At some point in time, Defendant Dillard began improperly storing toxic chemicals and waste on itsProperty. (¶ 11-12.) On or about January 15, 2023 a significant rain event occurred. (¶ 13.) The“Rainstorm” caused a substantial volume of water to accumulate upon the Dillard Property. (¶ 14.)The water became contaminated due to the improper storage of toxic waste. (Ibid.) Thecontaminated water the flowed from the Dillard Property into the public storm drainage system.(Ibid.)This contaminated water was then discharged into the Drainage Channel on Defendant’s Property. (¶16.) Due to the unauthorized ‘undergrounding’ performed by Defendant on his Property, theDrainage Channel did not have sufficient capacity to handle the flow of water. (¶ 17.) As a result, thecontaminated water overflowed the Drainage Channel and entered Plaintiffs’ Property. (Ibid.) Thistoxic water causes damage to structures and contamination of soil on Plaintiffs’ Property. (Ibid.)Based on the above events, Plaintiffs FAC sets forth four causes of action against Defendants Shahiand Dillard: (1) nuisance; (2) trespass; (3) negligence; and (4) injunctive relief. Plaintiffs do not allegeany claims against the County. Cross-ComplaintDefendant/Cross-Complainant Dillard Trucking, Inc. (“Dillard”) filed its Cross-Complaint on November29, 2023, and a First Amended Cross-Complaint on January 30, 2024. The FACC asserted two causes ofaction against the County: (1) equitable indemnity, and (2) contribution. The FACC indicated that thefacts supporting these causes of action were set forth in the allegations of the Plaintiffs’ FAC.Contra Costa County demurred to the FACC on February 27, 2024. In essence, the County argued thatDillard failed to allege any facts indicating that the County owned or controlled the property at issue – SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/24/2024i.e. the Drainage Channel, Watershed, public drainage system, or Forebay.On April 23, 2024, the Court issued a tentative ruling sustaining the County’s demurrer, but grantedDillard leave to amend. As no party contested that tentative ruling, it became the order of the Court.Dillard filed its Second Amended Cross-Complaint on May 8, 2024. The County again demurred toDillard’s pleading, again arguing that the pleading fails to allege that the County owns or controls theproperty at issue in this matter.The SACC is exactly the same as the FACC but for the addition of paragraphs 7-13 in SACC. Theseadditional paragraphs appear to be Dillard’s attempt to remedy the lack of allegations connecting theCounty to the property at issue in this matter.Legal Standard for Demurrer“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (HolidayMatinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) “The function of a demurrer is totest the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004)118 Cal.App.4th 1413, 1420.) The Court treats the demurrer as admitting all material facts properlypleaded but disregards contentions, deductions, or conclusions of law. (City of Atascadero v. MerrillLynch, Pierce, Fenner, & Smith, Inc. (1984) 68 Cal.App.4th 445, 459.) A demurrer lies only for defectsappearing on the face of the complaint or from matters of which the court must or may take judicialnotice. (CCP 430.40; see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” (Doe v. City of Los Angeles(2007) 42 Cal.4th 531, 550 (“Doe”)), but the plaintiff must set forth the essential facts of his or hercase “with reasonable precision and with particularity sufficient to acquaint [the] defendant with thenature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn., Inc. v.Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 quoting Ludgate Ins. Co. v. Lockheed MartinCorp. (2000) 82 Cal.App.4th 592, 608.)AnalysisAs noted above, Dillard added seven new paragraphs of allegations to the SACC to address thedeficiencies identified by the Court’s ruling on the County’s first demurrer. The new allegationsattempt to explain how the water moves across the various parts of the intersection at issue. Inessence, it is alleged that the public drainage system collects surface water from the intersection ofByron Highway and Camino Diablo and conveys it into the Drainage Channel, which is ‘immediatelyadjacent to Plaintiffs’ property.’ (¶ 7.) The Drainage Channel is part of the Watershed, and conveysthis water “roughly Southwest along property lines until discharging it into the Clifton Court Forebay.”(Ibid.)On information and belief, it is alleged that “the Drainage Channel, the Kellogg & Brushy CreekWatershed, the public drainage system, and the Clifton Court Forebay are all owned and controlled by SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/24/2024Cross-Defendant County.” (¶ 8.) The Drainage Channel and public drainage system are alleged to bedefective, and County had notice of the dangerous condition caused by these defects. (¶ 9-10.)Dillard also alleges that the County had a duty to maintain the Drainage Channel and public drainagesystem under Contra Costa County Code 1010-2.006 and 1010-2.102. (¶ 11-13.) By failing to abide bythis duty, the County contributed to the Plaintiffs’ injuries.Dillard puts forth two theories of liability against the County. These are based on alleged violation ofGovernment Code sections 815.6 and 835. Each will be discussed below. Government Code Section 815.6Government Code section 815.6 “generally provides for direct liability of a government entity forfailure to discharge a mandatory duty.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450,1458.) Claims brought under section 815.6 must meet a three-pronged test for “determining whetherliability may be imposed on a public entity: (1) an enactment must impose a mandatory, notdiscretionary, duty …’ (2) the enactment must intend to protect against the kind of risk of injurysuffered by the party asserting section 815.6 as a basis for liability…’ and (3) breach of the mandatoryduty must be a proximate cause of the injury suffered.’” (Ibid. quoting State of California v. SuperiorCourt (1984) 150 Cal.App.3d 848, 854.)“One of the essential elements that must be plead is the existence of a specific statutory duty.” (Ibid.)Such a duty cannot be alleged generally, but the “facts showing the existence of the claimed dutymust be alleged.” (Ibid.) “Since the duty of a governmental agency can only be created by statute or‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least beidentified.” (Ibid.)The SACC alleges that the County “had a duty to maintain the Drainage Channel and public drainagesystem in good working order under Contra Costa County Code 1010-2.006 and 1010-2.102.” (¶ 11.)Section 1010-2.006 states, in pertinent part: No person, firm, corporation, municipality or public district shall allow on its property or commit or cause to be committed any of the [following] acts …: (1) Impair or impede the natural flow of storm waters, or other water running in a defined channel, natural or man-made, or allow on its property or cause or permit the obstruction of such channel;Section 1010-2.012 provides, in pertinent part, that “the public works department is charged with theresponsibility for the administration of the provisions of this division.”By its own terms, Section 1010-2.006 applies to any “person, firm, corporation, municipality or pubicdistrict…” As noted by the County, the Contra Costa County Code defines the term “County” to meanthe county of Contra Costa, California. (Contra Costa County Code 16-4.010.) That section also makesclear that “[n]otwitstanding any other provision of this code, its sections, chapters or articles shall be SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/24/2024applicable to the county only where they expressly specify such county application.” (Ibid.)Section 1010-2.006 does not specifically express that it applies to the County. As such, it does not. Government Code Section 835“Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on thecondition of public property.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) “Undersection 835, a public entity may be liable if it creates an injury-producing dangerous condition on itsproperty or if it fails to remedy a dangerous condition despite having notice and sufficient time toprotect against it.” (Ibid. emphasis added.)“To state a cause of action against a public entity under section 835, a plaintiff must plead: (1) adangerous condition existed on the public property at the time of the injury; (2) the conditionproximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind ofinjury sustained; and (4) the public entity had actual or constructive notice of the dangerous conditionof the property in sufficient time to have taken measures to protect against it.” (Ibid.)“For purposes of this section, property of a public entity means real or personal property ‘owned orcontrolled by the public entity.’” (Goddard v. Department of Fish & Wildlife (2015) 243 Cal.App.4th350, 359.) “A public entity may not be held liable under section 835 for a dangerous condition ofproperty that it does not own or control.” (Ibid. citations omitted.)As noted above, the SACC alleges, on information and belief, that “the Drainage Channel, the Kellogg& Brushy Creek Watershed, the public drainage system, and the Clifton Court Foreby are all ownedand controlled by Cross-Defendant County.” (¶ 8.) Dillard contends these allegations are sufficient atthe pleading stage.To begin with, the above allegations are merely contentions or conclusions of law made by Dillard –not facts. When reviewing a demurrer, the court treats the demurrer as admitting all material factsproperly pleaded but “it does not admit contentions, deductions, or conclusions of fact or law allegedin the challenged pleading. (City of Atascadero, supra, 68 Cal.App.4th at 459.)Even if those assertions are considered to be ‘facts,’ when ruling on a demurrer, the Court canconsider matters which are subject to judicial notice. (Blank, supra, 39 Cal.3d at 318.) “Judicial noticeis the recognition and acceptance by the court, for use by the trier of fact or by the court, of theexistence of a matter of law or fact that is relevant to an issue in the action without requiring formalproof of the matter.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 quotingPoseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)“When ruling on a demurrer, ‘[a] court may take judicial notice of something that cannot reasonablybe controverted, even if it negates an express allegation of the pleading.’” (Ibid.)Pursuant to the Evidence Code, “courts have taken judicial notice of the existence and recordation ofreal property records, including deeds of trust, when the authenticity of the documents is not SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/24/2024challenged.” (Fontenot, 198 Cal.App.4th at 264 multiple citations omitted.) “The official act ofrecordation and the common use of a notary public in the execution of such documents assure theirreliability, and the maintenance of the documents in the recorder’s office makes their existence andtext capable of ready confirmation, thereby placing such documents beyond reasonable dispute.”(Ibid.)“[A] court may take judicial notice of the fact of a document’s recordation, the date the documentwas recorded and executed, the parties to the transaction reflected in a recorded document, and thedocument’s legally operative language, assuming there is no genuine dispute regarding thedocument’s authenticity.” (Id. at 265.) “From this, the court may deduce and rely upon the legaleffect of the recorded document, when the effect is clear from its face.” (Ibid.)As noted by the County, the SACC makes clear that the Drainage Channel is solely located onDefendant Shahi’s property. The County submits the deeds of trust for both Plaintiffs’ property aswell as Defendant Shahi’s property. Neither of those deeds show any interest in the properties by theCounty – either by easem*nt, right or way, or other encumbrance. (RJN Exs. F, G.)In addition, the SACC is uncertain regarding what, specifically, Dillard is alleging to support its claimthat the County has some ownership interest in the property at issue in this matter. There arereferences to the Drainage Channel, the Kellogg & Brushy Creek Watershed, a ‘public drainagesystem’ and the “Clifton Court Forebay,” but no explanation as what these things are, how theyinteract, how the County owned or controlled them, and how that allege ownership/control lead orcontributed to the damages alleged by Plaintiffs. There are just unsupported assertions that theCounty “owned and controlled” those undefined things and therefore it contributed to the floodingthat occurred on Plaintiffs’ property. Such vague allegations do not provide the County with sufficientinformation to properly respond to Dillard’s complaint.Based on the above, the SACC fails to allege sufficient facts to impose liability upon the County undersection 835, as it fails to indicate that any property at issue is owned or controlled by the County.Leave to Amend“[T]he burden is on the plaintiff to show in what manner he or she can amend the complaint, andhow that amendment will change the legal effect of the pleading.” (Medina v. Safe-Guard Products,Internat., Inc. (2008) 164 Cal.App.4th 105, 112 fn. 8.) (citation omitted.) A trial court does not abuseits discretion in denying leave to amend when the moving party “merely stated in its opposition to[the] demurrer [or motion to strike] that ‘if the Court finds the operative complaint deficient, Plaintiffrespectfully requests leave to amend….” (Major Clients Agency v. Diemer (1998) 67 Cal.App.4th 1116,1133.)Here, Dillard’s only reference to a request for leave to amend is in its conclusion when it states:“[S]hould the Court sustain any portion of Cross-Defendant’s Demurrer, Cross-Complainantrespectfully request that this Court allow it leave to amend those portions of the SACC.” (Opp. at SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/24/20245:28-6:2.) Dillard was already given leave to amend once. It has failed to make any showing at thistime as to how it could amend its pleading to properly assert a claim against the County. As such,leave to amend is denied at this time.ConclusionBased on the above, the County’s demurrer is sustained without leave to amend.

Ruling

U.S. Bank Trust, N.A. vs. Sells

Aug 01, 2024 |22CV-0200669

U.S. BANK TRUST, N.A. VS. SELLSCase Number: 22CV-0200669This matter is on calendar for review regarding status of proposed judgment. As previouslyordered by this Court, an Amended Proposed Judgement and Declaration have been filed clarifyingthe correct address of the subject property. The proposed judgment will be executed by the Court.No appearance is necessary on today’s calendar.VALDEZ VS. FALL RIVER VALLEY FIRE PROTECTION

Ruling

CREATIVE RECOVERY CONCEPTS, INC. VS 8424 WESTERN PLAZA, LLC., ET AL.

Aug 01, 2024 |20STCV34671

Case Number: 20STCV34671 Hearing Date: August 1, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 CREATIVE RECOVERY CONCEPTS, Plaintiff, vs. 8242 WESTERN PLAZA, LLC, et al., Defendants. Case No.: 20STCV34671 [c/w 22STCV13629] Hearing Date: August 1, 2024 Hearing Time: 10:00 a.m. [TENTATIVE] ORDER RE: MOTION OF DEFENDANT M STEPHEN CHO FOR FEES PURSUANT TO CCP § 425.16 Background On September 10, 2020, Creative Recovery Concepts, Inc. filed the instant action against Defendants 8424 Western Plaza, LLC and Kathleen Janet Haywood aka Kathleen Robinson. The Complaint alleges causes of action for (1) breach of contract and (2) to set aside fraudulent transfer. On April 25, 2022, a Complaint was filed in the matter Janet Haywood, et al. v. Stephen Cho, et al., Case No. 22STCV13629 (herein, the Haywood Action). On February 9, 2023, Janet Haywood (Haywood) filed the operative First Amended Complaint (FAC) in the Haywood Action against Defendants Stephen Cho and Creative Recovery Concepts. The FAC alleges causes of action for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, and (3) conspiracy to defraud. On July 6, 2023, M. Stephen Cho (erroneously sued as Stephen Cho) (herein, Cho) filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 in the Haywood Action. On October 31, 2023, the Court issued a minute order in the Haywood Action providing, inter alia, that the Court grants Chos special motion to strike as to the third cause of action of the FAC. Chos motion is otherwise denied. On October 9, 2023, the Court issued a Nunc Pro Tunc Order in the Haywood Action providing, inter alia, as follows: It appearing to the Court that through inadvertence and/or clerical error, the minute order of 10/09/2023 in the above-entitled action does not properly reflect the Courts order. At the direction of the Judicial Officer, said minute order is corrected nunc pro tunc as of 10/09/2023, as follows: By adding: The Court orders the following cases, 22STCV13629 and 20STCV34671, consolidated and assigned to Department 50 in Stanley Mosk Courthouse for all purposes. The Court designates 20stcv34671 as the lead case. All future documents must be filed under 20stcv34671 (CREATIVE RECOVERY CONCEPTS, INC. vs 8424 WESTERN PLAZA, LLC., et al.). Case numbers on all subsequent filings should be reflected under the lead case. (Emphasis added.) Cho now moves for attorneys fees and costs incurred by Cho in connection with his special motion to strike. Haywood opposes. Discussion The anti-SLAPP statute provides that a prevailing defendant on a special motion to strike shall be entitled to recover that defendants attorneys fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1).) [A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) An award of fees may also include the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16. (Id. at p. 1141.) It is well established that the amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [internal quotations and brackets omitted].) Under the lodestar method, the court tabulates the attorney fee lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work. (Ibid.) With regard to the number of hours reasonably expended, the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) In determining the reasonable hourly rate, the burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar. (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys efforts are unorganized or duplicative. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.) Here, Cho states that he is seeking an award of $19,160.00, derived as follows: $11,600.00 for the anti-SLAPP motion + $7,560.00 as fees costs [sic] for the instant motion& (Notice of Mot. at p. 2:3-4.) As an initial matter, Haywood asserts in the opposition that the motion should be denied because the partially successful anti-SLAPP motion has no practical effect on the remaining causes of action to be litigated. (Oppn at p. 3:16-17.) Haywood cites to City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 782, where the Court of Appeal noted that [t]he anti-SLAPP statute reflects the Legislatures strong preference for awarding attorney fees to successful defendants. The term prevailing party must be interpreted broadly to favor an award of attorney fees to a partially successful defendant. However, a fee award is not required when the motion, though partially successful, was of no practical effect. [A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of [the] trial court. (Internal quotations and references to [Citation.] omitted.) As set forth above, the Court granted Chos special motion to strike as to the third cause of action of the FAC for conspiracy to defraud. (See October 31, 2023 Minute Order.) In the opposition to the instant motion, Haywood cites to IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652, where the Court of Appeal noted that [c]onspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another. Haywood contends that a conspiracy cause of action is dependent on the success of the underlying cause of action. Here, no underlying claim was alleged -- fraud was not alleged; malicious prosecution was not alleged. In brief, striking the third cause of action has no value or practical effect on the remaining causes of action alleged and pending for breach of contract and breach of implied covenant of good faith and fair dealing causes of action. (Oppn at p. 4:8-12.) Haywood also contends that [i]t would have been different if striking the cause of action also removed a significant amount of damages prayed against Cho. However, this is not the case, as there really is no practical effect or benefit to Cho in striking the conspiracy cause of action. (Oppn at p. 4:4-6.) But as noted by Cho in the reply, the third cause of action accused Mr. Cho of engaging in a conspiracy to commit fraud, the act, thus potentially exposing him to punitive damages& (Reply at p. 4:10-11.) Indeed, Haywood seeks [p]unitive and exemplary damages in the prayer for relief of the FAC. (FAC, p. 8:10.) Cho also asserts that dismissal of the third cause of action impacted&whether the same factual allegations remain to be litigated - they are not; whether discovery and motion practice have been narrowed - it has been; and the extent to which future litigation expenses and strategy were impacted by the motion -most certainly reduced. (Reply at pp. 4:12-5:2.) The Court agrees with Cho that he achieved a practical benefit from bringing the anti-SLAPP motion. Chos counsel Dilip Vithlani states in his supporting declaration that [i]n connection with the anti-SLAPP motion, I have expended in excess of 16 hours in preparing the anti-SLAPP motion, appearing in person at the hearing on ex parte application to (1) Set aside this courts Tentative Order granting Defendants anti-SLAPP motion and (2) to continue the hearing on the anti-SLAPP motion to allow Plaintiff to file her Opposition to the anti-SLAPP motion, and the hearing on the anti-SLAPP motion. (Vithlani Decl., ¶ 8.) Mr. Vithlani further states that [i]n connection with the instant motion for fees, Mr. Cho will accept an award of 10 hours of fees. The hours include preparing and filing this motion, reviewing of the Opposition and preparing a Reply and appearing at the hearing on the instant motion&Costs incurred in connection with the anti-SLAPP are $60.00. (Vithlani Decl., ¶¶ 20-21.) Mr. Vithlanis requested hourly rate is $725.00 per hour. (Vithlani Decl., ¶ 9.) Mr. Vithlanis states that he has been practicing law since January 1999, and his background and experience are set forth in the supporting declaration. (Vithlani Decl., ¶¶ 10-12.) Mr. Vithlani asserts that [b]ased on the Laffey Matrix for 2022, the accepted billing rate for attorneys with my experience in the Los Angeles area is in excess of $900.00 per hour. My rate of $725.00 per hour is well below that range. (Vithlani Decl., ¶ 9.)[1] In the opposition, Haywood asserts that Cho has failed to submit declarations by other attorneys with respect to the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation& (Oppn at p. 5:20-22.) However, Haywood does not appear to cite to legal authority demonstrating that such declarations are required. Haywood also argues that [t]he Legal Trends Report published annually by Clio, a billing service used by thousands of legal professionals and attorneys found that $344 was the average hourly rate for civil litigation attorneys in California. (Oppn at p. 6:9-11.) However, this assertion is not supported by competent evidence. No declaration was filed in connection with the opposition. The Court finds that Cho has demonstrated that his counsels hourly billing rate is reasonable. In the opposition, Haywood also asserts that Cho has failed to submit any billing statements from Vilthani in order for the Court to determine if fees were reasonably generated. (Oppn at p. 5:22-24.) In the motion, Cho cites to Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 237-238, where the Court of Appeal noted that [t]he declaration of an attorney as to the number of hours worked on a particular case may be sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. Indeed, sufficient evidence to support an attorney fee award may include [d]eclarations of counsel setting forth the reasonable hourly rate, the number of hours worked and the tasks performed. There is no requirement that an attorney provide time records or billing statements. (Internal quotations and citations omitted.) As discussed, Chos counsel states that he expended in excess of 16 hours in preparing the anti-SLAPP motion, appearing in person at the hearing on ex parte application to (1) Set aside this courts Tentative Order granting Defendants anti-SLAPP motion and (2) to continue the hearing on the anti-SLAPP motion to allow Plaintiff to file her Opposition to the anti-SLAPP motion, and the hearing on the anti-SLAPP motion. (Vithlani Decl., ¶ 8.) Chos counsel further states that [i]n connection with the instant motion for fees, Mr. Cho will accept an award of 10 hours of fees. The hours include preparing and filing this motion, reviewing of the Opposition and preparing a Reply and appearing at the hearing on the instant motion. (Vithlani Decl., ¶ 20.) The Court finds that Mr. Vithlanis declaration is sufficient and that the requested time is reasonable. Lastly, Cho states in the notice of motion that he seeks $7,560.00 as fees costs for the instant motion. (Notice of Mot. at p. 2:4.) However, as noted by Haywood and as set forth above, Mr. Vithlani states that [i]n connection with the instant motion for fees, Mr. Cho will accept an award of 10 hours of fees. (Vithlani Decl., ¶ 20.) 10 hours multiplied by the requested hourly rate of $725/hour is $7,250.00. Adding the requested $60.00 in costs to this amount results in a total of $7,310.00, not $7,560.00. Thus, the Court deducts $250.00 from the total amount requested. Conclusion Based on the foregoing, Chos motion for attorneys fees and costs is granted in part. The Court awards Cho a total of $18,910.00 in attorneys fees and costs. Cho is to provide notice of this Order. DATED: August 1, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court [1]Cho notes that [t]he Laffey Matrix is a United States Department of Justice billing matrix that provides billing rates for attorneys at various experience levels in the Washington, D.C., area and can be adjusted to establish comparable billing rates in other areas using data from the United States Bureau of Labor Statistics. (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1057, fn. 5.)

Ruling

MICHAEL CORCORAN VS DAVID RAYMOND STECKEL, ET AL.

Jul 30, 2024 |23STCV31788

Case Number: 23STCV31788 Hearing Date: July 30, 2024 Dept: 54 Superior Court of California County of Los Angeles Michael Corcoran Plaintiff, Case No.: 23STCV31788 vs. Ruling David Raymond Steckel, et al., Defendants. Hearing Date: July 30, 2024 Department 54, Judge Maurice A. Leiter Motion to Be Relieved as Counsel Moving Party: Steven S. Vahidi of Vahidi Law Group, counsel of record for Defendant David Raymond Steckel Responding Party: None T/R: THE MOTION IS GRANTED. COUNSEL TO FILE PROOF OF SERVICE OF ORDER ON DEFENDANT WITHIN 5 DAYS OF NOTICE OF RULING. COUNSEL WILL BE RELIEVED UPON FILING OF PROOF OF SERVICE OF ORDER. COUNSEL TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. The Court considers the moving papers. No opposition has been received. The Court may issue an order allowing an attorney to withdraw from representation, after notice to the client. (CCP § 284.) The attorney may withdraw from representation when the withdrawal would not result in undue prejudice to the clients interestfor example, counsel cannot withdraw at a critical point in the litigation. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; see California Rule of Professional Conduct 3-700.) Steven S. Vahidi of Vahidi Law Group, counsel of record for Defendant David Raymond Steckel, seeks to withdraw from representation of Defendant. Counsel states the attorney-client relationship has broken down. Trial is set for July 21, 2025; no prejudice will result from counsels withdrawal. Counsel has complied with CRC 3.1362. The Court finds good cause for counsels withdrawal. The motion is GRANTED.

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