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EDWARD BABALIANS VS RUSHMORE LOAN MANAGEMENT SERVICES, LLC, ET AL.
Jul 30, 2024 |23CHCV02262
Case Number: 23CHCV02262 Hearing Date: July 30, 2024 Dept: F47 Dept. F47 Date: 7/30/24 Case #23CHCV02262 DEMURRER TO THE SECOND AMENDED COMPLAINT Demurrer filed on 6/20/24. MOVING PARTY: Defendant Rushmore Servicing, formerly known as Rushmore Loan Management Services, LLC RESPONDING PARTY: Plaintiff Hermina Gazmarian as Executor of the Estate of Edward Babalians NOTICE: ok Demurrer is to the Second Amended Complaint: 1. Fraud 2. Violation of Civil Code 2923.5 3. Violation of Civil Code 2923.6 4. Violation of Civil Code 2923.7 5. Violation of Civil Code 2924.17 6. Violation of Business & Professions Code 17200 RULING: The demurrer is sustained with 30 days leave to amend. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of foreclosure proceedings against property owned by Edward Babalians (Babalians). In April 2007, Babalians obtained a mortgage loan on property commonly known as 17239 Chatsworth Street, Unit #1, Granada Hills, CA 91344 (the Property) from Lender Inter Mountain Mortgage in the amount of $143,000.00, memorialized by a Deed of Trust. (SAC ¶¶ 1, 10 and Ex.A thereto). The Second Amended Complaint alleges that in June 2022 Babalians submitted a loss mitigation application to Defendant Rushmore Servicing, formerly known as Rushmore Loan Management Services, LLC (Rushmore). (SAC¶ 14). The Second Amended Complaint alleges that a notice of default was recorded on 8/23/22 and on 12/6/22, a notice of trustees sale was recorded. (SAC ¶¶15, 21 and Ex.B and C thereto). The Second Amended Complaint alleges that Babalians filed bankruptcy on 12/30/22. (SAC ¶25). The Second Amended Complaint alleges that Babalians requested a reinstatement quote from Rushmore but was not provided one until 1/2/23. (SAC ¶26). Babalians December bankruptcy case was dismissed on 1/17/23. (See Request to Take Judicial Notice (RJN), Ex. 1). Babalians filed another bankruptcy case on 1/19/23. (RJN, Ex.2). Babalians 2023 bankruptcy case was dismissed on 2/6/23. (RJN, Ex.2). The foreclosure sale was held on 2/7/23. (SAC, ¶33, Ex.D). The Second Amended Complaint alleges that on 2/7/23, Babalians tendered reinstatement funds in the form of a personal check. (SAC ¶¶29, 32 and Ex.D thereto). Rushmore returned the reinstatement funds on 2/14/23. (SAC ¶31). On 7/31/23, Babalians filed this action against Rushmore and others alleging various causes of action for violation of the Homeowners Bill of Rights. After filing the complaint, Babalians died. In response to Rushmores demurrer to the original complaint, a First Amended Complaint was filed by Plaintiff Hermina Gazmarian as Executor of the Estate of Edward Babalians (Plaintiff). Pursuant to a stipulation between the parties, on 4/24/24, Plaintiff filed the subject Second Amended Complaint alleging causes of action for: (1) Fraud; (2) Violation of Civil Code 2923.5; (3) Violation of Civil Code 2923.6; (4) Violation of Civil Code 2923.7; (5) Violation of Civil Code 2924.17 and (6) Violation of Business & Professions Code 17200. After meet and confer efforts failed to resolve the issues Rushmore has with the Second Amended Complaint, on 6/20/24, Rushmore filed and served the instant demurrer to the entire Second Amended Complaint. Plaintiff has opposed the demurrer and Rushmore has filed a reply to the opposition. ANALYSIS Rushmores Request for Judicial Notice (RJN) is granted. Judicial Estoppel/Bankruptcy Rushmore has failed to establish that Babalians failure to disclose the claims which are the subject of this action in his bankruptcy filings judicially estops Plaintiff from asserting them in this action. Based on the relief sought in the Second Amended Complaint, the damages did not accrue until the foreclosure sale occurred on 2/7/23, after Babalians bankruptcy was dismissed. However, the Second Amended Complaint fails for other reasons as set forth below. Standing Plaintiff has failed to establish her standing to continue this action. Plaintiff has not complied with the requirements of CCP 377.31 and/or CCP 377.32 in order to continue this action after the death of the original plaintiff, Edward Babalians. Plaintiff has also failed to establish that the quit claim deed executed in 2022 whereby Babalians granted title to the Property to Hermina Gazmarian provides Plaintiff with standing to bring this action as a third-party beneficiary of the loan agreement which was executed years before in 2007. Additionally, Plaintiff has not filed the Second Amended Complaint in her individual capacity but rather as the purported Executor of the Estate of Edward Babalians. As noted above, Plaintiff has failed to follow the proper procedures to establish her standing to proceed with this action in place of Babalians. See CCP 377.31; CCP 377.32. 1st cause of action - Fraud The elements of a fraud cause of action are: (1) misrepresentation (a false representation, concealment, or nondisclosure), (2) knowledge of falsity, (3) intent to defraud (to induce reliance), (4) justifiable reliance, and (5) resulting damage. Agosta (2004) 120 CA4th 596, 603. Additionally, a fraud cause of action must be pled with factual specificity including facts showing how, when, where, to whom, and by what means the representations were tendered.. Lazar (1996) 12 C4th 631, 645. When pleading facts against a corporate defendant, a plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote and when it was said or written. Id; Tarmann (1991) 2 CA4th 153, 157. Plaintiff alleges that Defendants made misrepresentations to Babalians that he wont have other options to avoid foreclosure by asking him to submit a mortgage assistance application without even exploring his financials. (SAC ¶48). Additionally, Plaintiff alleges that a Rushmore agents alleged inability to explain why it initiated foreclosure constitutes fraud. (SAC ¶¶59-60). Based on the foregoing, it is not clear what, if any, specific misrepresentations were made to Babalians. Plaintiff also alleges that Defendants misrepresented to Babalians that he would be able to reinstate the past due balance on the loan at any time prior to the 2/7/23, 10:00 A.M. Trustees Sale. (SAC ¶67). With regard to all of the purported misrepresentations, Plaintiff has failed to allege exactly who made the misrepresentations, when, where, by what means, etc. they were made. 2nd cause of action - Violation of Civil Code 2923.5 Civil Code 2923.5 requires a servicer to attempt to contact a borrower, to assess their financial situation and explore options to avoid foreclosure, at least 30 days before a notice of default is recorded. Civil Code 2923.5(a)(2). If the servicer is unable to speak with the borrower, it may satisfy the outreach requirements by sending and making three telephone calls. Civil Code 2913.5(e). In order to state a claim under the Homeowners Bill of Rights (HOBR), a plaintiff must allege facts showing that the alleged statutory violation was material. Civil Code 2924.12(a)-(b); Civil Code 2924.19(a)-(b). Here, it is not clear how the alleged violation of Civil Code 2923.5 was material as Plaintiff admits that in early May of 2022, she contacted Rushmore on behalf of Babalians to inquire about loss mitigation options and was instructed to submit a mortgage assistance application. (SAC ¶13). Therefore, even if Rushmore did not contact Babalians as required, Plaintiff, acting as his agent, communicated with Rushmore and was instructed to submit a loss mitigation application which they did. (SAC ¶¶13-14). The Notice of Default was not recorded against the Property until 8/23/22, more than 30 days later. (SAC ¶15). 3rd cause of action Violation of Civil Code 2923.6 Civil Code 2923.6 requires the submission of a complete loan modification application at least 5 business days before a scheduled foreclosure sale to prevent the sale from proceeding. See Civil Code 2923.6(c). Plaintiff has not sufficiently alleged that a complete loan modification application was submitted. Rather, Plaintiff alleges that Babalians has attempted to apply for loan modifications with Defendants, but agents would repeatedly ask for the same documents. It is not clear whether Plaintiff is alleging a complete application was submitted and despite such, Rushmore repeatedly asked for the same documents. (See SAC ¶93). 4th cause of action Violation of Civil Code 2923.7 Civil Code 2923.7 requires a loan servicer to appoint a single point of contact (SPOC) after a borrower requests a foreclosure prevention alternative. Civil Code 2923.7(a). The SPOC is responsible for providing information to the borrower and for having access to people who can halt the foreclosure sale when appropriate. Civil Code 2923.7(b). The SPOC can be an individual or a team of personnel. Civil Code 2923.7(e). The Court finds that Plaintiff sufficiently alleged Rushmore failed to provide a SPOC in violation of Civil Code 2923.7. (SAC ¶¶106-107). However, the cause of action still fails due to the standing issue noted above. 5th cause of action Violation of Civil Code 2924.17 Civil Code 2924.17 provides that [a] declaration recorded pursuant to Section 2923.5 or ... pursuant to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to the requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding shall be accurate and complete and supported by competent and reliable evidence. Civil Code 2924.17(a). Civil Code 2924.17(b) provides that [b]efore recording or filing any of the documents described in subdivision (a), a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrowers default and the right to foreclose, including the borrowers loan status and loan information. This cause of action is based, at least in part, on Rushmores purported violations of Civil Code 2923.5 and 2923.6, which as noted above are insufficiently pled. (See SAC ¶120). As such, this cause of action is also insufficiently pled. 6th cause of action Violation of Business & Professions Code 17200 This cause of action is based on the statutory violations alleged in the 2nd-5th causes of action. (See SAC ¶¶131, 133, 137-141). Since those claims are deficient, as set forth above, this cause of action also fails to state a claim. CONCLUSION The demurrer is sustained. Although this is already the Second Amended Complaint, since this is the first time the pleading is before the Court and due to the liberal policy of allowing leave to amend, Plaintiff is given the opportunity to try to cure the defects in the Second Amended Complaint. A Third Amended Complaint is due to be filed and served within 30 days.
Ruling
Phillips vs. Murphy, et al.
Aug 04, 2024 |22CV-0201197
PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197Tentative Ruling on Motion for Court Order Appointing Real Estate Appraiser: KathrynPhillips, as successor trustee of the Ronald Leroy Smith Living Trust, seeks an order appointing areal estate appraiser pursuant to CCP § 874.311 et seq. Phillips, in her capacity as Trustee of theTrust, has a 50% interest in real property commonly known as 9786 Old Oregon Trail (“Property”)in Redding. The remaining 50% interest is held by Darlene Clark, who is deceased. Clark’s knownheirs are her four sons: Jim Murphy, Johnny Murphy, Terry Murphy, and Roger Murphy. Thefour sons as well as the unknown testate and intestate successors, as well as any other unknownparties claiming any interest in the property, have been served notice of this suit either personallyor by publication, pursuant to this Court’s order. Default was entered as to all Defendants on April29, 2024.The Court finds that the appropriate manner to determine the value of the real property under thecirc*mstances presented is to order an appraisal by a “disinterested real estate appraiser.” CCP §874.316(a) & (d). The Court appoints Sprenkel Appraisals as proposed by the Plaintiff.The motion is GRANTED. A proposed order was lodged with the Court and will be executed.This matter is set for Monday, September 9, 2024, at 9:00 a.m. in Department 64 forconfirmation of filing of the Appraisal.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************
Ruling
HEIDI A CHRISTIANSEN VS CARMIEL COHEN ET AL
Jul 29, 2024 |BC594264
Case Number: BC594264 Hearing Date: July 29, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: July 29, 2024 TRIAL DATE: N/A CASE: Heidi A. Christiansen v. Carmiel Cohen, et al. CASE NO.: BC594264 MOTION TO ENFORCE SETTLEMENT MOVING PARTY: Plaintiff Heidi Lindegaard Brask RESPONDING PARTY: Defendant Carmiel Cohen I. BACKGROUND This is a quiet title action. On November 22, 2016, Plaintiff Heidi Lindegaard Brask (formerly known as Heidi Annette Christiansen) filed a Notice of Settlement of Entire Case. On January 19, 2017, Plaintiff and Defendant Carmiel Cohen entered into a Settlement Agreement and Release (the Agreement). The court dismissed the action pursuant to the Agreement on February 16, 2017. The parties, who have two children together, agreed that Defendant was to make child support payments until the parties youngest child turned 18 years of age on July 25, 2021, and to pay Plaintiff the sum of $600,000. Within 90 days of July 25, 2021, Defendant was to make an additional payment of $862,000 for the benefit of the two children. As security for the payment of child support, Defendant was to execute a Deed of Trust in the amount of $350,000 on the property located at 6460 Colgate Avenue, Los Angeles, CA 90048 (the Subject Property). As to the $600,000 payment, Defendant was to make the payment within 90 days of July 25, 2021. As security, Defendant was to provide Plaintiff with a Second Deed of Trust in the amount of $600,000, to be reconveyed to Defendant upon receipt of the $600,000 payment. Defendants obligation to pay the sums of $862,000 and $600,000 to Plaintiff was due on October 23, 2021. Defendant did not make the payments. As required by the Agreement, on January 26, 2024, Plaintiff sent Defendant a Notice of Default and Opportunity to Cure. Under the Notice, Defendant had 15 days to cure the default. Defendant did not cure the default. On February 14, 2024, Plaintiff filed this Motion to Enforce Settlement Agreement. Plaintiff also seeks an award of attorneys fees and costs. The motion was heard on May 16, 2024. The court continued the hearing for the motion to June 28, 2024 to allow Plaintiff file a copy of the Agreement and the proposed order. Plaintiff has provided the court with the Agreement and proposed order. Having reviewed the submissions, the court now rules as follows. II. LEGAL STANDARD If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.¿ If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.¿ (Code Civ. Proc., § 664.6.)¿¿¿ In hearing a section 664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment.¿ (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732.)¿ The court may interpret the terms and conditions to settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810).¿ The party seeking to enforce a settlement must first establish the agreement at issue was set forth in a writing signed by the parties (§ 664.6) or was made orally before the court. [Citation.]¿ (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 304 [holding that a letter confirming the essential terms of a settlement agreement was not a writing signed by the parties sufficient to satisfy the requirements of Section 664.6].)¿ III. DISCUSSION A. Retention of Jurisdiction [V]oluntary dismissal of an action or special proceeding terminates the courts jurisdiction over the matter. (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 867) [12 Cal.Rptr.3d 142.) If requested by the parties, however, the [trial] court may retain jurisdiction over the parties to enforce [a] settlement until performance in full of the terms of the settlement. (§ 664.6, italics added.) (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917.) Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement. (Ibid. (quoting Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37).) A request for the trial court to retain jurisdiction under section 664.6 must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court. (Ibid. (quoting Wackeen v. Malis (2002) 97 Cal.App.4th 429, 440).) The request must be express, not implied from other language, and it must be clear and unambiguous. (Ibid. (quoting Wackeen, supra, 97 Cal.App.4th at p. 440).) Here, the Agreement expressly provides for the court to retain jurisdiction of this case until the Parties have fully performed all obligations set forth herein in order to enforce this Agreement. (Suppl. to Motion, Ex. 1, Agreement, § 20.0.) The court has jurisdiction to rule on this matter. B. Entry of Judgment Plaintiff argues that Defendant has breached three terms of the Agreement and seeks an order granting relief as set forth in the Proposed Order. According to Plaintiff, Defendant breached the Agreement as follows: 1. Failure to make payment of $862,000 for the benefit of the parties children, to be deposited with a fiduciary selected by Plaintiff from the membership roster of the Professional Fiduciary Association of California (PFAC) within 90 days of Defendants last child support payment; 2. Failure to make child support payments in accordance with the child support agreement between the parties until the parties youngest child turns eighteen (18); 3. Failure to make payment of $600,000 to Plaintiff. The child support payments were secured by a Deed of Trust on the Subject Property in the sum of $350,000. The $600,000 settlement payment to Plaintiff was secured by a Second Deed of Trust to the Subject Property in the sum of $600,000. The court has now had the opportunity to review the settlement agreement. The agreement contemplates cash payments, not equivalent payments by real property. Defendant is in breach. The $600,000: Defendants failure to pay $600,000 violates the agreement. The remedy appears to be foreclosure. Child Support: Plaintiff alleges Defendant failed to make the child support payments. Defendant does not contest this point. However, Plaintiff fails to state the amount owing. The remedy for such a breach also appears to be foreclosure. The $862,000: Defendant seeks to satisfy his obligation by and through an alleged transfer of title to property to his children. Doing so is in contravention of the settlement agreement. Indeed, the settlement agreement specifically requires a lump sum cash payment and contemplates staggered payments by the fiduciary to the children according to their age. Based upon the evidence presented, Defendant is in breach of the agreement. How wide and far is unclear as are the potential remedies. The court will hear from the parties. IV. CONCLUSION The court will hear from the parties regarding the issues noted herein. Moving party to give notice. Dated: July 29, 2024 Kerry Bensinger Judge of the Superior Court
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.
Ruling
HADAS DIMENTSTEIN VS ECHO PARK INVESTMENT, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Aug 01, 2024 |24STCV03072
Case Number: 24STCV03072 Hearing Date: August 1, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 1, 2024 TRIAL DATE: Not set CASE: Hadas Dimentstein v. Echo Park Investment, LLC CASE NO.: 24STCV03072 DEMURRER WITH MOTION TO STRIKE MOVING PARTY: Defendant Echo Park Investment LLC RESPONDING PARTY: Plaintiff Hadas Dimentstein I. BACKGROUND Plaintiff Hadas Dimentstein is a tenant of the property located at 1820 N. Park Avenue, Unit #5, Los Angeles, CA 90026 (Subject Unit). In 2012, Defendant Echo Park Investment, LLC became the owner of the Subject Unit and assumed performance of Plaintiffs lease agreement. On February 6, 2024, Plaintiff filed a verified Complaint against Defendant for: 1. Contractual and Tortious Breach of Implied Warranty of Habitability; 2. Violation of Cal. Civ. Code §§ 1941, 1941.1, and 1942.4 (Statutory Breach of the Implied Warranty of Habitability); 3. Contractual and Tortious Breach of the Covenant of Quiet Enjoyment; 4. Nuisance; 5. Intentional Infliction of Emotional Distress; 6. Negligence; 7. Violation of California Civil Code § 1940.2 (Influencing a Wrongful Eviction); 8. Violation of Code of Civil Procedure § 1159 (Forcible Entry); 9. Violation of Bus. & Prof. Code § 17200 Et Seq. Unfair, Unlawful, and Deceptive Business Practices; 10. Violation of Cal. Welf. & Inst. Code § 15610.30 (Financial Abuse of Elders and Disabled Persons); 11. Negligent Hiring, Training, and Supervision; 12. Violation of L.A.M.C. § 151.04 (Unlawful Rent Increase); 13. Violation of L.A.M.C. § 151.33 and 45.33 (Tenant Harassment); 14. Violation of the Fair Employment and Housing Act (Cal. Gov. Code § 12900, et seq.). Defendant now demurs to all causes of action (with the exception of the 12th and 13th causes of action) and seeks an order striking punitive damages from the Complaint. Plaintiff has filed oppositions. Defendant filed replies. II. DISCUSSION RE DEMURRER A. Legal Standard A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.] (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [the facts alleged in the pleading are deemed to be true, however improbable they may be].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Malys of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) B. Application Meet and Confer Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.¿ (Code Civ. Proc., § 430.41, subd. (a).) Defense counsel has satisfied this requirement. (See Declaration of Parisa Saleki, ¶¶ 3-5.) Analysis Defendant demurs to the first through the eleventh and the fourteenth causes of action. The court addresses each cause of action in turn. 1. First and Second Causes of Action The first two causes of action are (1) Contractual and Tortious Breach of Implied Warranty of Habitability and (2) Violation of Cal. Civ. Code §§ 1941, 1941.1, and 1942.4 (Statutory Breach of the Implied Warranty of Habitability). The causes of action are based upon inadequate heating, improperly sealed and/or rotting window frames, dilapidated flooring which presented tripping hazards, and clogged drains. (Complaint, ¶¶ 17-26.) Plaintiff seeks punitive damages for each of these claims. Defendant argues these causes of action fail for two reasons: (1) the claims are uncertain because the Complaint references dates beyond the relevant statute of limitations; and (2) Plaintiff improperly attempts to convert contract claims into tort claims.[1] First, the statute of limitations for claims arising out of a contract is four years after the breach. (Civ. Proc. Code §§ 337.2, 339.5.) Here, Plaintiff alleges that she notified Defendant of the inadequate heating and window issues in 2013 and 2019. (Complaint, ¶¶ 17, 18.) In 2019, Defendant refused to repair or upgrade the heater in the Subject Unit, or to conduct an inspection for damaged windows. (Id. at ¶ 18.) As to the drainage issue, Plaintiff requested repair in 2019 and Defendant insisted that Plaintiff pay for the repair. The Complaint is silent on the time period of the flooring issue. Using the later of the two dates, 2019, Plaintiffs claims accrued more than four years ago. Under a strict application of the statute of limitations, the first two causes of action appear to be time-barred. In opposition, Plaintiff argues that Defendant is liable for all violations mentioned from the date Plaintiff moved into the unit as long as they continued unabated through to a period within the applicable statute of limitations, so long as they constitute a continuing pattern and course of conduct as opposed to unrelated discrete acts. (Opp., p. 8:16-20.) Plaintiff articulates an equitable exception of accrual known as the continuing violation doctrine. Under that doctrine, [a]llegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period. (Aryeh v. Canon Bus. Sols., Inc. (2013) 55 Cal.4th 1185, 1198.) The continuing violation doctrine serves a number of equitable purposes. Some injuries are the product of a series of small harms, any one of which may not be actionable on its own. [Citation.] Those injured in such a fashion should not be handicapped by the inability to identify with certainty when harm has occurred or has risen to a level sufficient to warrant action. (Id. at pp. 1197-98.) Here, however, Plaintiff does not allege a series of discrete acts that warrants application of the continuing violation doctrine. Rather, Plaintiff alleges one violation: failing to remedy inhabitable conditions. Plaintiff recognized Defendants breach as early as 2013. Although not discussed by the parties, a better fit to the present facts is the theory of continuous accrual. The theory [of continuous accrual] is a response to the inequities that would arise if the expiration of the limitations period following a first breach of duty or instance of misconduct were treated as sufficient to bar suit for any subsequent breach or misconduct; parties engaged in long-standing misfeasance would thereby obtain immunity in perpetuity from suit even for recent and ongoing misfeasance. In addition, where misfeasance is ongoing, a defendant's claim to repose, the principal justification underlying the limitations defense, is vitiated. (Aryeh, at p. 1198.) Under this theory, Plaintiff may be able to recover for ongoing breaches from February 7, 2020 to February 6, 2024 (the filing of the Complaint). The Complaint alleges breaches that fall within this applicable period. Although not the model of clarity,[2] the court finds that the first two causes of action do not fail for a lack of certainty. Defendant next argues that Plaintiff improperly seeks tort damages for contract claims. [T]here is a warranty of habitability implied in residential leases in California[.] (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1296.) Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law. The law imposes the obligation that every person is bound without contract to abstain from injuring the person or property of another, or infringing upon any of his rights. ( [Civ. Code, § 1708].) This duty is independent of the contract.... [A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty. [Citation.] [¶].... [¶] ... [P]unitive or exemplary damages, which are designed to punish and deter statutorily defined types of wrongful conduct, are available only in actions for breach of an obligation not arising from contract. (Civ. Code, § 3294, subd. (a).) In the absence of an independent tort, punitive damages may not be awarded for breach of contract even where the defendant's conduct in breaching the contract was willful, fraudulent, or malicious. [Citations.] (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515-16.) Here, Plaintiff does not allege any independent duty that Defendant owed to her beyond any obligations arising from the lease agreement. Plaintiff is not entitled to recover punitive damages for these claims. However, Defendants argument is meritorious insofar as it entitles Defendant to an order striking punitive damages in connection to these claims. Defendant does not demonstrate that the first two causes of action are otherwise deficiently pleaded. Accordingly, the Demurrer to the First and Second Causes of Action is OVERRULED. 2. Third Cause of Action for Breach of the Implied Covenant of Quiet Enjoyment The Third Cause of Action is based upon Defendants failure to maintain basic conditions of habitability and provisions stated in the Lease Agreement, such as laundry facilities, harassing Plaintiff with unwarranted surveillance, inspections, notices of lease violations, entry without proper notice, discrimination against her disability and refusal to provide reasonable accommodations, illegal attempts to increase rent, and multiple wrongful attempts at eviction. (Complaint, ¶¶ 30-47, 66.) Defendant argues this cause of action fails for two reasons: (1) the claim is uncertain because the Complaint references dates beyond the relevant statute of limitations; and (2) Plaintiff improperly attempts to convert contract claims into tort claims. First, Plaintiff properly invokes the continuing violation doctrine as to the quiet enjoyment claim. Plaintiff alleges conduct which has occurred within and beyond the statute of limitations, including in July 2020 (accusations of falsifying disability), late 2020 (entering the Subject Unit without proper notice) until present, and 2022 (entering without proper notice and filing unlawful detainer actions). (Complaint, ¶¶ 30-32, 36, 46.) The claim is not uncertain. Second, the court agrees with Defendant that punitive damages cannot be obtained on a quiet enjoyment claim. The implied covenant of quiet enjoyment implies a term in a contract, and a breach of the covenant gives rise to an action in contract. As such, the damages available for a breach of the covenant are contract damages. (Ginsberg, 205 Cal.App.4th at pp. 89697.) But as discussed above, Plaintiffs punitive damages claim is subject to strike, not demurrer. Defendant does not demonstrate how Plaintiffs quiet enjoyment claim is insufficiently pleaded. Accordingly, the Demurrer to the Third Cause of Action is OVERRULED. 3. Fourth Cause of Action for Nuisance Civil Code section 3479 defines nuisance as [a]nything which is injurious to health, including, but not limited to & an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, &.. Plaintiffs nuisance claim is based on the same substandard conditions described above, as well as Defendants harassment, unwarranted inspections, surveillance, attempts at eviction, refusal to provide access to the laundry machine, and accusations of falsifying her disability. (Complaint, ¶¶ 80-81.) Defendant argues that the nuisance claims fails because it is uncertain and duplicative of the Sixth Cause of Action for negligence. The nuisance claim is uncertain. The claim is based, in part, on Defendants conduct which occurred in 2022, including entry into the Subject Unit without providing the requisite 24 hour notice or obtaining her permission; serving an improper 3-Day Notice to Quit; and filing an unlawful detainer action which was ultimately dismissed with prejudice. (Complaint, ¶¶ 32-36.) Further, this alleged conduct occurred within the statute of limitations. Nuisance claims must be brought within three years. (Civ. Proc. Code § 338.) The nuisance does not fail on these grounds. However, the court agrees with Defendants second observation. The nuisance claim is duplicative of the negligence claim. Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) Plaintiff relies on paragraph 81 to distinguish the nuisance and negligence claims, but succeeds only in showing the claims are twins. Paragraph 81 states, Defendants harassment, unwarranted inspections, surveillance, attempts at eviction, refusal to provide access to the laundry machine, accusations of falsifying her disability continued despite Plaintiffs repeated efforts to enforce her rights and notify Defendants of the impropriety of their actions. These allegations appear in some form or fashion in support of Plaintiffs negligence claims. (See Complaint, ¶¶ 92-94.) Accordingly, the demurrer to the Fourth Cause of Action is SUSTAINED. 4. Fifth Cause of Action for Intentional Infliction of Emotional Distress (IIED) The elements of an IIED cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendants conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Moncada, 221 Cal.App.4th at p. 780, quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)¿¿¿ Plaintiffs IIED claim is based on the following allegations: Defendants repeatedly and regularly attempted to cite or punish Plaintiff for actions well within her rights as a tenant and as a party to the Lease Agreement, entered her residence without proper notice, attempted to wrongfully evict her, accused her of falsifying a physical disability, and surveilled her and her guests. Defendants filed a frivolous unlawful detainer action against Plaintiff and the Court dismissed the matter for nonsuit for lack of evidence. Defendants intended to cause Plaintiff emotional distress and influence her to vacate the premises, as dealing with accusations, inspections, surveillance, and a jury trial with potential eviction was extraordinarily stressful for Plaintiff. (Complaint, ¶ 87.) Defendant argues that the IIED claim fails to allege conduct that is extreme or outrageous or that Defendant, through its agents or employees, acted with the intent to cause Plaintiff emotional distress. Moreover, Defendant argues that there are no allegations showing Plaintiff suffered severe emotional distress. However, at the demurrer stage, the court accepts as true all well-pleaded facts. (See Mitchell, supra, 1 Cal.App.5th at p. 1007.) Here, Plaintiff provides sufficient allegations to support an allegation that Defendants conduct was extreme or outrageous. (See Complaint, ¶ 87.) That conduct includes attempting to wrongfully evict Plaintiff, repeatedly citing or punishing Plaintiff for taking actions afforded her as a tenant, among others, with the intent to cause Plaintiff to vacate the Subject Unit. As a result, Plaintiff suffered severe emotional distress. (Complaint, ¶ 88.) Further, these allegations, as well as the allegations common to all causes of action (Complaint, ¶¶ 10-47), are sufficiently specific to allow the parties to ascertain during discovery which of Defendants agents or employees, if any, committed the complained-of conduct. Accordingly, the Demurrer to the Fifth Cause of Action is OVERRULED. 5. Sixth Cause of Action for Negligence The elements for a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) The negligence claim is based upon Defendants failure to ensure the Subject Unit was safe for habitation, not repairing substandard or hazardous conditions, discriminating against Plaintiff, unlawfully entering the Subject Unit, retaliating against her, unlawfully trying to evict Plaintiff, and for failing to provide basic systems that worked properly, or were provided at all. (Complaint, ¶¶ 92-94.) Defendant argues the Sixth Cause of Action is uncertain because it is unclear when the alleged breaches occurred. However, as discussed above, Plaintiff alleges sufficiently the dates to apprise Defendant of the relevant time periods. (See Complaint, ¶¶ 17, 18, 30-32, 36, 46.) The Sixth Cause of Action is not uncertain. The demurrer to the Sixth Cause of Action is OVERRULED. 6. The Seventh Cause of Action for Violation of California Civil Code § 1940.2 (Influencing a Wrongful Eviction) Civil Code section 1940.2 provides, It is unlawful for a landlord to, for the purpose of influencing a tenant to vacate a dwelling: (1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code. (2) Engage in conduct that violates Section 518 of the Penal Code. (3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenants quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief. (4) Commit a significant and intentional violation of Section 1954. (5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief. (Civil Code, § 1940.2, subds. (a)(1)-(5).) Plaintiff alleges that Defendants engaged in unlawful conduct in an effort to influence Plaintiff to vacate the Subject Unit by entering Plaintiffs residence without proper notice, surveilling Plaintiff, accusing her of faking a disability, and filing a frivolous Unlawful Detainer case. (Complaint, ¶ 99.) Defendant argues the Seventh Cause of Action is devoid of allegations showing that Defendant used extortion, theft, or threats of any kind that would create an apprehension of harm in a reasonable person. Further, there are no allegations showing that Defendant threatened to disclose information relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. The court agrees. There are no factual allegations of the kind to state a claim for violation of Civil Code section 1940.2. Plaintiff argues that the allegations that Defendant (1) entered her residence without permission, (2) persistently surveilled her, (3) levied baseless accusations, and (4) pursued unwarranted legal actions would commonly create apprehension in reasonable people. This generally might be true, but the Complaint does not allege that any of the foregoing conduct created in Plaintiff a reasonable apprehension of harm. The Complaint is silent on this point. Accordingly, the demurrer to the Seventh Cause of Action is SUSTAINED. 7. The Eighth Cause of Action for Violation of Code of Code Procedure § 1159 (Forcible Entry) Code of Civil Procedure section 1159 states that every person is guilty of a forcible entry who either: (1) by breaking open doors, windows, or other parts of a house, or by any kind of violence or circ*mstance of terror enters upon or into any real property, or (2) who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. (Code Civ. Proc., § 1159, subd. (a).) Any unauthorized opening of a closed door is a breaking open of the door within the meaning of section 1159. (Jordan v. Talbot (1961) 55 Cal.2d 597, 606.) Plaintiffs Eighth Cause of Action is based on the allegation that Defendant entered Plaintiffs residence on October 27, 2022, without providing 24-hour notice and to address a non-emergency. (Complaint, ¶¶ 31, 105.) Further, Plaintiff notified Defendant that she needed sufficient notice. (Id.) Defendant argues this claim fails because Plaintiff admits Defendant entered her unit for repairs and she was given advance notice of the entry. The thrust of Plaintiffs claim is that Defendant entered the Subject Unit without authorization. In other words, it does not matter that Defendant gave Plaintiff advance notice of the entry given Plaintiff did not consent to the entry. The Complaint sufficiently alleges facts to state a violation of Code of Civil Procedure section 1159. Accordingly, the demurrer to the Eighth Cause of Action is OVERRULED. 8. The Ninth Cause of Action for Violation of Bus. & Prof. Code § 17200 Et Seq. Unfair, Unlawful, and Deceptive Business Practices The Unfair Competition Law (UCL) is codified at Business and Professions Code section 17200 et seq.¿ Section 17204 of the UCL provides that a private person who has suffered injury in fact and has lost money or property as a result of the unfair competition may bring a 17200 action.¿ (Bus. & Prof. Code, § 17204.)¿ To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. [Citation.]¿ Because the UCL is written in the disjunctive, it establishes three varieties of unfair competitionacts or practices which are unlawful, or unfair, or fraudulent.¿ (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970, citations and quotations omitted.)¿ Plaintiff alleges that in leasing residential property that was unfit for occupancy by Plaintiff, Defendant engaged in unlawful, unfair and deceptive business practices. Defendant leased the Subject Unit without having prepared, cleaned, or repaired it to place it in a habitable condition. (Complaint, ¶ 111.) Further, Defendant knowingly collected and demanded more money from Plaintiff than Plaintiff was lawfully required to tender to Defendant. Defendants unlawful demands and collections of monies from Plaintiff constitute an unfair and unlawful business practice as Plaintiff paid Defendant more than the reasonable fair market value of the Subject Property. (Complaint, ¶ 112.) Additionally, in light of the uninhabitable conditions of the Subject Unit, Defendants decision to lease the Subject Unit and collect revenues in the form of rental payments constitutes an unfair and unlawful business practice. (Complaint, ¶ 114.) The acts of Defendant as alleged throughout the Complaint, and in each cause of action above, constitute unlawful, unfair, and fraudulent business practices. (Complaint, ¶ 115.) Defendant argues that the UCL claim is uncertain and fails to state a claim because the allegations do not detail sufficiently severe conduct to state a UCL claim. Moreover, the Complaint readily admits that her rent is less than market value. (See Complaint, ¶ 16.) Defendants demurrer misses the mark. As Plaintiff points out, the unlawful prong of the UCL borrows violations of other laws and makes those unlawful practices actionable under the UCL. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.) Here, Plaintiff has alleged that Defendant has violated numerous statutes, including Civil Code sections 1941, 1941.1, and 1942.4, and Welfare and Institutions Code section 15610.30 while being engaged in the business of landlording. (Complaint, ¶¶ 60-63, 110, 118-127.) Violations of these statutory provisions satisfy the unlawful prong of Plaintiffs UCL claim. Accordingly, the demurrer to the Eighth Cause of Action is OVERRULED. 9. The Tenth Cause of Action for Violation of Cal. Welf. & Inst. Code § 15610.30 (Financial Abuse of Elders and Disabled Persons) To establish financial abuse of a dependent adult, the plaintiff must allege that the defendant took or retained the plaintiffs property; that the plaintiff was a dependent adult; that the defendant took or retained the property for a wrongful use or with the intent to defraud; that the plaintiff was harmed; and that the defendants conduct was a substantial factor in causing the plaintiffs harm. (See CACI No. 3100.)¿ Financial abuse of a dependent adult occurs when a person takes the property of a dependent adult for a wrongful use or with intent to defraud or by undue influence. (Welf. & Inst. Code §¿15610.30, subd. (a).) A person is deemed to have taken the property when he or she has deprived a dependent adult of any property right. (Welf. & Inst. Code §¿15610.30, subd. (c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley¿v. Litton Loan Servicing, LLP¿(2011) 202 Cal.App.4th 522, 527-28.) A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person¿ . . . takes¿ . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the & dependent adult. (Welf. & Inst. Code ¿§¿15610.30, subd. (b).) Dependent adult means a person, regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. (Welf. & Inst. Code ¿§¿15610.23.) Plaintiff alleges that she is a dependent adult. (Complaint, ¶ 120.) Plaintiff further alleges that Defendants taking of Plaintiffs rent money in exchange for the possession of uninhabitable property was a wrongful use. (Complaint, ¶ 121.) And, in taking Plaintiffs rent money, Defendant deprived Plaintiff of the right to a habitable home and the right to quiet possession of ones home. (Complaint, ¶ 122.) Defendant argues the financial abuse claim fails because there are no allegations showing that Plaintiff is a dependent adult, or that Defendant took, secreted, appropriated, obtained, or retained Plaintiffs real or personal property for a wrongful use or with intent to defraud. Plaintiff alleges that her physical therapist issued a Certificate of Disability regarding the limits in Plaintiffs ability to use her injured arm for daily chores such as carrying laundry. (See Complaint, p. 14.) Plaintiff also alleges that Defendant obtained Plaintiffs rent money in exchange for possession of an uninhabitable unit. Plaintiff likewise alleges wrongful use. The financial abuse claim is sufficiently pleaded. The demurrer to the Tenth Cause of Action is OVERRULED. 10. The Eleventh Cause of Action for Negligent Hiring, Training and Supervision The elements of a claim for Negligent Hiring, Supervision, or Retention of an employee are: (1) that the defendant hired the employee; (2) that the employee was/became unfit to perform the work for which they were hired; (3) that the employer knew or should have known that the employee was/became unfit and that they created a particular risk to others; (4) that the employees unfitness harmed the plaintiff; and (5) that the employers negligence in hiring or retaining the employee was a substantial factor in causing plaintiffs harm.¿ (CACI No. 426.) Negligence liability will be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. ¿ (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)¿ Plaintiff alleges that Defendant had a duty to Plaintiff to supervise their agents who were responsible for the maintenance of the Subject Unit and ensure that they were fit to perform their jobs and that they were properly trained in the laws governing the landlord tenant relationship. (Complaint, ¶ 129.) Defendant argues that none of the elements of a negligent hiring claim have been pleaded. The court agrees. The Complaint is devoid of factual allegations that an employee whom Defendant hired was or became unfit or incompetent to perform a job, that Defendant knew or should have known the employee was unfit or incompetent and that the unfit or incompetent employee created a particular risk which ultimately harmed Plaintiff. Plaintiff contends that the Complaint specifically references employees and agents of Defendant and that the violations and unlawful actions being perpetrated by Defendants (in the plural) are alleged throughout the Complaint. That may be so, but this general allegation fails to satisfy the elements of a negligent hiring claim. The Eleventh Cause of Action is factually deficient. Accordingly, the demurrer to the Eleventh Cause of Action is SUSTAINED. 11. The Fourteenth Cause of Action for Violation of The Fair Employment and Housing Act (Cal. Gov. Code §12900, Et Seq.) In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation. (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1592; see also CACI No. 2548.) Plaintiffs FEHA claim is based on the following allegations: Defendant refused to consider, or to provide, the reasonable accommodations requested by Plaintiff (the use of her own laundry machine) and prevented Plaintiff from accessing the onsite laundry machine; refused to engage in a good faith interactive process to determine if the requested reasonable accommodations could be made; and harassed Plaintiff in retaliation for requesting accommodations by surveilling her and accusing her of faking her disability. (Complaint, ¶¶ 149-152.) Defendant argues the FEHA claim fails because, as the Complaint acknowledges, (1) Defendant issued a Notice of Violation to Plaintiff for installing a laundry machine in her Unit without permission (Complaint, ¶ 39), and (2) Defendant gave Plaintiff credit to a fluff and fold laundry service (Complaint, ¶ 44). In other words, the Complaint demonstrates that Defendant engaged in an interactive process with Plaintiff and provided her with an accommodation. To state a FEHA claim for discrimination in housing, a plaintiff must allege that the defendant refused an accommodation request that was necessary to afford an equal opportunity to use and enjoy the dwelling. Plaintiff alleges this very fact. Plaintiff had a disability which impaired her ability to do laundry. Plaintiff requested that she be permitted to use her own laundry machine, which was stored in the Subject Unit. Defendant refused and further, did not afford Plaintiff access to an on-site laundry facility. Plaintiff sufficiently pleads that Defendant denied a reasonable accommodation request that would have afforded Plaintiff equal opportunity to enjoy her dwelling. Accordingly, the demurrer to the Fourteenth Cause of Action is OVERRULED. III. DISCUSSION RE MOTION TO STRIKE A. Legal Standard Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.). (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.) B. Application Defendant moves to strike references to and requests for exemplary and punitive damages in the Complaint. Defendant cites two grounds for its motion: (1) there are no allegations demonstrating that Defendant acted with malice, oppression or fraud; (2) there are no allegations that an officer, director, or managing agent of Defendant had advance knowledge of or consciously disregarded, authorized, or ratified an act of oppression fraud or malice. In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code, § 3294, subd. (a).) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).) The court agrees in considerable part with Defendants second argument. Here, the Complaint does not allege that any officer director, or managing agent of Defendant, a corporation, had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. Defendant is entitled to an order striking punitive damages from the Complaint.[3] IV. CONCLUSION The demurrer to the First, Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Causes of Action is Overruled. The demurrer to the Fourth, Seventh, and Eleventh Causes of Action is Sustained. Leave to amend is Granted. The motion to strike exemplary and punitive damages is Granted. With the exception of the First and Third Causes of Action, leave to amend is granted. Plaintiff is ordered to serve and file the First Amended Complaint within 30 days of the date of this order. Defendant to give notice. Dated: August 1, 2024 Kerry Bensinger Judge of the Superior Court [1] Defendant raises the same arguments with respect to the Third Cause of Action. Because that cause of action is based upon additional factual allegations, the court addresses it separately. [2] The court makes the following observations about the Complaint. Plaintiff employs a chain letter or cumulative pleading practice, as well as a shotgun pleading practice. These practices are disfavored. In Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, the court defined a pleading practice that it termed chain letter or cumulative pleading and explained that the practice should be avoided because it causes ambiguity and creates redundancy. [The p]laintiff employs in part a chain letter or cumulative type of pleading. That is, [the] plaintiff's cause of action for negligent infliction of emotional distress, the second cause of action in the second amended complaint, incorporates by reference the entire first cause of action. This type of pleading should be avoided as it tends to cause ambiguity and creates redundancy. (Id. at p. 285.) In Sollberger v. Wachovia Securities, LLC (C.D. Cal. June 30, 2010, No. SACV 090766 AG) 2010 U.S. Dist. LEXIS 66233 at *1112, 2010 WL 2674456, the court defined a related pleading practice that it termed shotgun pleading and explained why that practice should not be tolerated by trial courts. Shotgun pleadings are pleadings that overwhelm defendants with an unclear mass of allegations and make it difficult or impossible for defendants to make informed responses to the plaintiff's allegations. They are unacceptable.... The Court has recognized that allowing shotgun pleadings would lead to many negative consequences. See Mason v. County of Orange, 251 F.R.D. 562, 56364 (C.D. Cal. 2008) (quoting Anderson v. District Board of Trustees, 77 F.3d 364, 36667 (11th Cir.1996)) ([E]xperience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.); see also Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001) (Cases framed by shotgun pleadings consume an inordinate amount of a court's time. As a result, justice is delayed, if not denied, for litigants who are standing in the queue waiting to be heard. Their impression of the court's ability to take care of its business can hardly be favorable. As the public becomes aware of the harm suffered by the victims of shotgun pleading, it, too, cannot help but lose respect for the system.) [3] Plaintiff seeks punitive damages in connection with her First Cause of Action for Breach of the Implied Warranty of Habitability and Third Cause of Action for Breach of the Covenant of Quiet Enjoyment. These claims are based in contract. As discussed in Section II(B)(1)-(2) of this ruling, punitive damages are not recoverable for contract claims. Accordingly, the motion to strike punitive damages from the First and Third Causes of Action is meritorious on this separate ground.
Ruling
NOSHIN KHOBIAN VS MORTEZA FARZADMEHR, ET AL.
Aug 05, 2024 |22SMCV01860
Case Number: 22SMCV01860 Hearing Date: August 5, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 5, 2024 CASE NUMBER 22SMCV01860 MOTION Motion for Summary Judgment/Adjudication MOVING PARTIES Defendants Morteza Farzadmehr; Shahla Farzadmehr Delijani; and Morteza Farzadmehr, as the Trustee of Progressive Trust OPPOSING PARTY Plaintiff Noshin Khobian, as Trustee of JNK Family Trust MOVING PAPERS: Notice of Motion and Motion for Summary Judgment/Adjudication; Memorandum of Points and Authorities Declaration of Mohamad Ali Molai Declaration of Morteza Farzadmehr Declaration of Arsen Margossian Declaration of Shahla Farzadmehr Delijani Declaration of Afshin Farzadmehr Declaration of Saul Reiss Request for Judicial Notice Notice of Lodging of Deposition Transcript Deposition Transcript Changes Separate Statement of Undisputed Material Facts OPPOSITION PAPERS: Opposition to Motion for Summary Judgment/Adjudication; Memorandum of Points and Authorities Declaration of Ali R. Moghaddami Declaration of Charlie Tzeng Declaration of Cyrus Azarmy Declaration of Noshin Khobian Declaration of Jacob Khobian Separate Statement of Undisputed Material Facts REPLY PAPERS: Reply to Plaintiffs Opposition to Motion for Summary Judgment/Adjudication Evidentiary Objections Request for Judicial Notice BACKGROUND On October 14, 2022, Plaintiff Noshin Khobian as Trustee of JNK Family Trust (Plaintiff) filed the verified complaint against Defendants Morteza Farzadmehr, both individually and as Trustee of Progressive Trust, and Shahla Farzadmehr Delijani (Defendants) alleging three causes of action for (1) negligence; (2) nuisance; and (3) trespass. Defendants now move for summary judgment, or in the alternative, adjudication, as to the following issues: Issue No. 1: Summary Adjudication should be granted as to the First Cause of Action of the Complaint for Negligence because the claim is time barred. Issue No. 2: Summary Adjudication should be granted as to the Second Cause of Action of the Complaint for Nuisance because the claim is time barred. Issue No. 3: Summary Adjudication should be granted as to the Third Cause of Action of the Complaint for Trespass because the claim is time barred. Issue No. 4: Summary Adjudication should be granted as to the First Cause of Action of the Complaint for Negligence because Defendants owed no duty to Plaintiff. Issue No. 5: Summary Adjudication should be granted as to the Second Cause of Action of the Complaint for Nuisance because Defendants did not create a nuisance. Issue No. 6: Summary Adjudication should be granted as to the Third Cause of Action of the Complaint for Trespass because Defendants did not trespass into Plaintiffs property. Issue No. 7: Summary Adjudication should be granted as to the First Cause of Action of the Complaint for Negligence because the claim is barred by the doctrines of laches and unclean hands. Issue No. 8: Summary Adjudication should be granted as to the Second Cause of Action of the Complaint for Nuisance because the claim is barred by the doctrines of laches and unclean hands. Issue No. 9: Summary Adjudication should be granted as to the Third Cause of Action of the Complaint for Trespass because the claim is barred by the doctrines of laches and unclean hands. Plaintiff opposes the motion and Defendants reply. REQUESTS FOR JUDICIAL NOTICE In connection with the motion, Plaintiff requests judicial notice of the following: Exhibit 1: Grant Deed, Instrument Number 20100064168 Exhibit 2: Verified Complaint filed in this action Exhibit 3: Grant Deed Instrument Number 01 1201991 Exhibit 4: Defendants Verified Answer to Plaintiffs Verified Complaint Exhibit 5: Plaintiffs Ex Parte Application for Mandatory Injunction Exhibit 6: Minute Order, dated March 6, 2023 Exhibit 7: Minute Order, dated March 14, 2023 Exhibit 8: Minute Order dated February 2, 2023 Regarding Exhibits 2, 4, 5, 6, 7, and 8, Judicial notice may be taken of records of any court in this State. (Evid. Code, § 452, subd. (d)(1).) Because the requested documents are part of the Courts record for this case, the Court may take judicial notice of them. (Ibid.) However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) Accordingly, the Court takes judicial notice of the existence of Plaintiffs Ex Parte Application for Mandatory Injunction, the Verified Complaint and Verified Answer filed in this matter as a court record, but not the truth of the allegations contained therein. The Court may, however, consider the allegations of the verified pleadings as evidence. Similarly, the Court takes judicial notice of the Minute Orders, and the truth of the results reached therein. Regarding Exhibits 1 and 3, Courts can take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-65.) The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorders office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute. (Ibid.) Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions. (Ibid.) Therefore, the Court similarly takes judicial notice of Exhibits 1 and 3. In connection with the reply, Defendants requests judicial notice of the following: Exhibit 9: The search result of Charles Tzeng on the Department of Consumer Affairs website Exhibit 10: The search result of Charles Tzeng on the Department of Consumer Affairs website Exhibit 11: The search result conducted on the Department of Consumer Affairs website as to the requirements for becoming a licensed structural engineer. The Court does not generally consider reply evidence, as it deprives the opposing party of a fair opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.) Therefore, the Court does not take judicial notice of Exhibits 9, 10, or 11. EVIDENTIARY OBJECTIONS A. DECLARATION OF NOSHIN KHOBIAN · Paragraph 7, 3:19-20: Sustained Foundation · Paragraph 7, 3:20-22: Sustained Foundation · Paragraph 7, Exhibit 17: Sustained Relevance · Paragraph 8: Sustained Foundation/Inadmissible Hearsay · Paragraph 10: Overruled · Paragraph 11: Sustained Relevance · Paragraph 14, 4:24-5:2: Sustained Foundation · Paragraph 14, 5:5-8: Sustained - Foundation · Paragraph 15: Overruled · Paragraph 17: Overruled · Paragraph 18: Sustained - Foundation B. DECLARATION OF JACOB KHOBIAN · Paragraph 3: Sustained Foundation/Declaration is incomplete. · Paragraph 4: Sustained Foundation C. DECLARATION OF CYRUS AZARAMY · Paragraph 7: Sustained DAmico v. Board of Med. Examiners[1] D. DECLARATION OF CHARLIE TZENG · Entire Declaration: Sustained Relevance/Immaterial to the issues raised by the moving parties. E. DECLARATION OF ALI R. MOGHADDAMI · Entire Declaration: Overruled · Paragraph 5: Sustained Foundation · Paragraph 6: Sustained - Foundation · Paragraph 7: Sustained - Foundation · Paragraph 9: Sustained - Foundation · Paragraph 10: Sustained Foundation · Paragraph 12: Sustained Foundation/Inadmissible Hearsay · Paragraph 13: Sustained Foundation/Relevance · Paragraph 15: Sustained - Foundation · Paragraph 16, 3:7 Sustained Inadmissible Hearsay · Paragraph 16, 3:9-10: Sustained - Relevance · Paragraph 19: Sustained - Foundation · Paragraph 21: Sustained - Foundation · Paragraph 22: Sustained - Foundation · Paragraph 24: Sustained - Foundation · Paragraph 25: Sustained - Foundation LEGAL STANDARDS MOTION FOR SUMMARY JUDGMENT/ADJUDICATION [T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter Aguilar).) ¿[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility. (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party].) A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) Additionally, in line with Aguilar, [o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) DISCUSSION 1. ISSUE 1-3: STATUTE OF LIMITATIONS The statute of limitations for [a]n action for trespass upon or injury to real property is three years. (Civ. Code, § 338, subd. (b).) All three of Plaintiffs causes of action for negligence, nuisance, and trespass, allege damage to Plaintiffs property. Therefore, the statute of limitations for all three causes of action is three years. Defendants Evidence In support of their argument that the 3-year statute of limitations has lapsed, Defendants point to the verified complaint, which provides Plaintiff first noticed damage to the retaining wall and the tree roots raising the driveway blocks sometime in or about March 2010. (Complaint at ¶ 17.) Yet Plaintiff did not file the instant lawsuit until twelve and a half years later, on October 14, 2022. This issue previously addressed on a demurrer, where Plaintiff argued that the alleged trespass and nuisance was continuing, as opposed to permanent, such that the statute of limitations does not bar the claims. The Court explained: Whether a trespass or nuisance claim for an encroachment is barred by the statute of limitations turns on whether the encroachment is continuing or permanent. For permanent encroachments, the three-year statute of limitations begins to run on the date the encroachment began, and bars all claims brought after its passage. For continuing encroachments, a plaintiff may assert a claim even if the encroachment began outside the limitations period, but is limited to recovering damages incurred in the preceding three-year period. (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 605.) Courts consider several factors in determining whether an encroachment is continuing or permanent: [W]hen deciding whether a trespass or nuisance is permanent or continuing, previously considered whether the circ*mstances of a structures construction indicate an intention that the trespass shall be permanent (Kafka v. Bozio (1923) 191 Cal. 746, 750) and whether a trespass or nuisance's impact may vary over time. (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 234.) More recently, however, our Supreme Court acknowledged the crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated. [Citation]. (Mangini, supra, 12 Cal.4th at p. 1097.) Under this test, sometimes referred to as the abatability test (see, e.g., Beck, supra, 44 Cal.App.4th at p. 1220), a trespass or nuisance is continuing if it can be remedied at a reasonable cost by reasonable means. (Mangini, supra, 12 Cal.4th at p. 1103.) (Id. at 608-609.) (Minute Order, Feb. 2, 2023 at pp. 2-3.) The Court further explained, Where a nuisance is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created. [&] On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character. (Minute Order, Feb. 2, 2023 at p. 3 [quoting Phillipsi v. Pasadena (1945) 27 Cal.2d 104, 107.) Applying the law to the Verified Complaint, the Court noted: Plaintiffs Complaint alleges continuing and worsening damage from the encroachment of Defendants trees which can be abated at any time through the removal or maintenance of Defendants trees. (See Complaint at ¶17 [alleging roots caused extensive damage to plaintiffs property and caused a raised crack in the foundation of plaintiffs house leading to multiple raised and uneven cracks with the interior walls and floor of Plaintiffs house]; ¶¶26-27 [alleging Plaintiffs property has and will continue to be damaged by the encroachment]; ¶31 [alleging ongoing damages]; ¶32 [alleging damages to the main structure will continue to worsen and increase]; ¶40 [alleging the roots will grow and expand and further damage Plaintiff[sic] Property; ¶¶30, 44 [alleging encroachment could be abated with removal and maintenance of the trees].) (Minute Order, Feb. 2, 2023 at p. 3.) Ultimately, the Court held that Whether an encroachment is continuing or permanent is a question of fact, not law and, construing the allegations of the Verified Complaint most favorably to Plaintiff, determined that it could not sustain the demurrer on the grounds that the statute of limitations barred the claims. (Ibid.) Defendants contend that while the Court was required to accept as true the allegations of the Complaint on demurrer that the Ficus tree was a boundary line tree or was on Defendants property, such that the nature of the harm was a continuing nuisance, as opposed to a permanent trespass, the evidence demonstrates the Ficus tree belongs to Plaintiff and is completely on Plaintiffs property. (UMF Nos. 13-14, 42, 55-59, 81-83, 87-91, 95.) However, Defendants arguments go to the merits of the claim, not whether the trees interference with Plaintiffs property was continuing, as opposed to permanent, in nature. As such, Defendants have not met their burdens of production and persuasion that the interference with Plaintiffs property was permanent, as opposed to continuing. Therefore, the Court denies summary adjudication as to Issues 1-3. 2. ISSUE 4-6: WHETHER THE CAUSES OF ACTON FOR NEGLIGENCE, NUISANCE OR TRESPASS ARE MERITORIOUS Defendants argue that they owed no duty to Plaintiff, did not create a nuisance, and did not commit trespass, because the trunk of the Ficus tree sits entirely on Plaintiffs property, 611 North Camden Avenue, not Defendants property, and the only portion of Ficus the tree on Defendants property are portions of the roots and branches that have encroached upon Defendants property. Further, Defendants contend that they owed no duty to Plaintiff, did not create a nuisance and did not commit trespass, because contend that no other trees, including the Eugenia Tress, caused or contributed to the alleged damage to Plaintiffs property. In short, Defendants assert that there is no merit to Plaintiffs first, second or third causes of action. Defendants Evidence In support, Defendants have produced the declaration of Mohamad Ali Molai, a professional land surveyor who prepared a topographic survey of Defendants property. (Molai Decl. ¶¶ 2-6.) Mr. Molai declares, As indicated in my Survey (Exhibit A), the trunk of the subject Ficus tree is located entirely on 611 N. Camden Drive. Although certain roots and branches of the Ficus tree had crossed the property line, the trunk of the tree was entirely located on 611 N. Camden Drive. (Molai Decl. ¶ 7.) 611 N. Camden Drive is Plaintiffs property. (See Verified Complaint ¶ 2.) Defendants have also produced the declaration of Arsen Margossian, a Certified Consulting Arborist, who conducted a tree assessment on Defendants property. (Margossian Decl. ¶¶ 2-6.) Margossians report indicates: 1/ According to the provided survey plan, the wrought iron fence is located exactly on the property line and the five feet tall brick columns between each section of the wrought iron fence are completely on the abutting property, at 611 N. Camden Dr. The subject tree, a mature multi-stem Weeping Fig (Ficus benjamina) tree, has been planted at the center of the brick column, to which is anchored a steel gate that gives access to the south side yard of the property. Over time, as the tree grew, some of its stems and buttresses encroached onto the 609 N. Camden Dr. The reason for that encroachment is the fact that toward the 609 N. Camden Dr., the stems could grow into the wrought iron fence, while on the opposite side, the concrete walkway has prevented that. I should also confirm that on the 609 N. Camden Dr., roots of this Weeping Fig tree have reached into the narrow planter along the north side of the drive way, past the gate. [&] -Over the 609 N. Camden Dr., the branches reach a distance of 27 feet. -And toward the northwest side, or the 611 N. Camden Dr., all the branches have been cut close to the wrought iron fence. I also observed the presence of another Weeping Fig tree, at the opposite side of the house front, planted by the brick column to which is anchored the steel gate that gives access to the north side yard. And because that tree is very close to a mature American Sweetgum (Liquidambar styraciflua) tree, and a hedgerow of mature Indian Laurel Fig (Ficus macrocarpa) trees, both of which are known to have invasive root systems, that Weeping Fig tree has not grown like the other one and its main crown has even been cut down sometime in the past. 2/ As for the hedgerow past the gate on the north side of the 609 N. Camden Dr. driveway, it consists of Brush Cherry (Eugenia Spp.) trees, planted at various distances, but averaging about 16-18 inches apart. The smallest of these trees has a DBH of two inches, and the biggest has a DBH of 14 inches. But the majority average between five to seven inches DBH. These trees are not known to have aggressive roots like the Fig and Sweetgum trees. The masonry wall on the north side of these trees consists of an old section in the middle, and newer ones at both ends. The section of this old wall which starts opposite the first Brush Cherry tree, is slightly tilted toward the north side, and various cracks are observed quite high from the soil surface grade. It appears that a good section of this old wall has failed sometime in the past, and the masonry blocks have been put back in place, using rough mortar. Without excavating and without a masonry report which can assess accurately the structural integrity of the old wall, my professional opinion is that damage to the old wall is not from the Brush Cherry trees. (Ex. A to Margossian Decl.) Thus, Defendants have met their initial burdens of production and persuasion that they owed no duty to maintain the tree or abate the nuisance, and that they did not commit trespass, because the Ficus tree sits entirely on Plaintiffs property, except for the roots and branches that have encroached upon Defendants property. Further, Defendants have proffered evidence including Margossians report to establish that the Eugenia Trees are not causing damage to Plaintiffs property. (See UMFs 102, 163, 164, 177, 238, 239, 252, 313, 314.) Plaintiffs Evidence Plaintiff produces the testimony and report of Cyrus Azarmy, a professional land surveyor, who indicates, The trunk and roots of the Ficus tree are partially located in each property, but the majority of it is on the 611 Camden Drive property. (Azarmy Decl. ¶ 7.) But Azarmys statement as set forth in paragraph 7 of his declaration: are partially located in each property is not competent evidence. (See Evidentiary Objections, fn. 1 above.) But even if Azarmys statement is competent evidence, Plaintiff has not satisfied her burden of creating a triable issue of material fact. That the trunk and roots of the Ficus tree are partially located in each property, but the majority of it is on Plaintiffs property is consistent with Defendants expert evidence that the trunk is located entirely on Plaintiffs property, and some of the roots and branches have encroached upon Defendants property. In addition, concerning UMFs 105, 158, 159, 160, 167, 180, 233, 234, 235, 242, 255, 308, 309, 310 and 317, Plaintiff failed to raised triable issues of material fact because Plaintiff failed to support the purported disputes concerning such UMFs with either competent evidence (see Evidentiary Objections vis-à-vis Plaintiffs Opposition Separate Statement regarding UMFs 105, 158, 159, 160, 167, 180, 233, 234, 235, 242, 255, 308, 309, 310 and 317), or evidence that substantiates the disputes. In particular, the Court finds Exhibit A to Margossians Declaration and the Deposition Testimony of Plaintiff, 14:12-25, do not support Plaintiffs contentions that the UMFs are in dispute. In addition, Plaintiff has not advanced any other competent evidence to counter Defendants evidence in support of UMFs 102, 163, 164, 177, 238, 239, 252, 313, 314 that none of the trees, including the Eugenia Trees, located on Defendants property caused any damage to Plaintiffs property. (See Evidentiary Objections vis-à-vis Plaintiffs Opposition Separate Statement regarding UMFs 102, 163, 164, 177, 238, 239, 252, 313, 314.) And the only verified assertions in this regard are made on information and belief: 12. Additionally, Plaintiff is informed and believes, and thereon alleges, that there are roughly 22 additional trees Syzigium Paniculatum or Eugenia trees (Hereinafter Eugenia Trees) on the defendants property which have caused major damage to Plaintiff retaining/border wall, separating the wall from its foundation, causing the wall to dangerously lean onto plaintiff's property, creating an imminent risk of harm and peril to any pedestrian 9 walking along the side this wall. (Verified Complaint at ¶ 12.) But Plaintiffs assertions as set forth in paragraph 12 of the complaint have no probative value. (See, e.g., Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 105, fn. 9 [affidavits on information and belief lack probative value and are permitted only when the facts to be established are incapable of positive averment].) Therefore, the Court grants summary adjudication as to Issues 4, 5 and 6. CONCLUSION AND ORDER The Court grants in part and denies in part Defendants Motion for Summary Adjudication. Finding Defendants failed to meet their burdens of production and persuasion to demonstrate that the harm caused by the tree was permanent, as opposed to continuous, the Court denies summary adjudication as to Issues 1, 2, and 3. Finding Defendants met their burden to demonstrate that the trunk of the Ficus tree sits entirely on Plaintiffs property, and none of the other trees, including the Eugenia Trees, on Defendants property caused or contributed damage to Plaintiffs property, and finding Plaintiff has not created any triable issues of material fact, the Court grants summary adjudication as to Issues 4, 5 and 6. Because the Court grants summary adjudication as to Issues 4, 5, and 6, the Court need not address Issues 7, 8 or 9 of Defendants Motion for Summary Adjudication. Further, because the Court denied summary adjudication as to Issues 1, 2 and 3, the Court denies Defendants Motion for Summary Judgment.[2] Defendants shall prepare and file a proposed Order in conformity with the Courts ruling on or before August 19, 2024. Defendants shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: August 5, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court [1] When discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, controverting affidavits submitted by that party may be disregarded. (DAmico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 20-22.) Admissions or concessions made during the course of [deposition testimony] govern and control over contrary declarations lodged at a hearing on a motion for summary judgment. (Visueta v. General Motors Corp. (1991) 234 Cal.3d 1609, 1613.) [A]bsent a credible explanation, a court may disregard a self-serving, conclusory declaration that clearly contradicts deposition testimony, filed in opposition to summary judgment. (Vulk v. State Farm Gen. Ins. Co. (2021) 69 Cal.App.5th 243, 258.) Here, Plaintiff has not proffered a credible explanation regarding the discrepancy between Cyrus Azarmys deposition testimony and declaration regarding the location of the subject Ficus tree. Accordingly, the Court disregards Cyrus Azarmys statement as set forth in paragraph 7 of his declaration: are partially located in each property. [2] The Court notes that Defendants Motion for Summary Judgment is based upon Issues 1 -3 and 7-9 only. (See Defendants Notice of Motion and Motion for Summary Judgment, or in the alternative, for Summary Adjudication.)
Ruling
Horacio Gutierrez vs. Shon Talley
Aug 01, 2024 |21CECG00967
Re: Gutierrez v. Talley, et al. Superior Court Case No. 21CECG00967Hearing Date: August 1, 2024 (Dept. 501)Motion: Default Prove-UpTentative Ruling: To deny without prejudice. Alternatively, should plaintiff’s counsel believe that thedefects identified below are curable, he is instructed to call for oral argument to presentadmissible evidence of plaintiff’s basis for the judgment requested and present proof thedefects have been cured.Explanation: Where a cause of action is stated in the complaint, plaintiff merely needs tointroduce evidence establishing a prima facie case for damages. (Johnson v. Stanhiser(1999) 72 Cal.App.4th 357, 361.) A defaulting defendant admits only facts well pleadedin the complaint. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.) It iserroneous to grant a default judgment where the complaint fails to state a cause ofaction. (Rose v. Lawton (1963) 215 Cal.App.2d 18, 19-20; Williams v. Foss (1924) 69 Cal.App. 705, 707-708.) In the case at bench, plaintiff Horatio Gutierrez is seeking a judgment of quiet titleas to the property located at 1835 E. Adams Ave., Fresno, California. Plaintiff filed hisComplaint on April 6, 2021, and subsequently filed his First Amended Complaint onJanuary 29, 2024, naming as defendants Shon Talley, All Persons Unknown Claiming AnyLegal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in theComplaint, or Any Cloud Upon Plaintiff’s Title Thereto, and Does 1 through 35. The firstamended complaint alleged causes of action for (1) Quiet Title, (2) Breach of OralContract, (3) False Promise, (4) Unjust Enrichment, (5) Constructive Trust, (6) DeclaratoryRelief, and (7) Equitable Estoppel. Defendant Talley was served with the First Amended Complaint by substituteservice on February 19, 2024. Defendant Talley’s default was entered April 22, 2024. Does1 through 35 have been dismissed from the action as of May 21, 2024. Defendants “AllPersons Unknown” have neither been served summons through publication nor dismissedfrom the first amended complaint. The request for default judgment presently before thecourt seeks judgment of quiet title against defendant Talley only. (Request for CourtJudgment, ¶ 1.d.) When two or more persons have adverse claims to the same property, any of theclaimants may initiate a quiet title action. The purpose of the action is to eliminate anadverse claim and to establish, perfect, or “quiet” the title of the property in one or moreof the claimants. A complaint to quiet title must be verified and must include: (1) a description ofthe property including both its legal description and its street address or commondesignation; (2) plaintiff's title and the basis upon which it is asserted; (3) the adverseclaims as against which a determination is sought; (4) the date as of which adetermination is sought and, if other than the date the complaint is filed, a statementwhy the determination is sought as of that date; and (5) a prayer for determination ofplaintiff's title against the adverse claims. (Code Civ. Proc., § 761.020.) Plaintiff’s First Amended Complaint includes allegations describing the property atissue (¶ 3), his claim to title (¶¶ 23-26, 31, 38-48), the adverse claims of all defendants (¶¶47, 50-51), the determination is sought as of the date of the filing of the complaint (¶ 49),and a prayer for the determination of plaintiff’s title against defendants’ claims (Prayer,¶ 1). The basis of plaintiff’s claim to title, as alleged, is an oral contract between himselfand defendant Talley in May 2013. (FAC, ¶ 23.) Pursuant to that agreement, Talley was totransfer title of the property to plaintiff if plaintiff prevented the foreclosure of theproperty. (Ibid.) Plaintiff performed on the oral contract by paying $46,053.07 to take theproperty out of foreclosure and has paid off the property’s mortgage and paid $754.58in back taxes. (Id. at ¶¶ 24-26.) Plaintiff thereafter moved into the home on the propertyand has paid for improvements, maintenance and property taxes up to the date of thefiling of the complaint. (Id. at ¶¶ 27-31.) Defendant Talley has lived on the property rent-free since 2013. (Id. at ¶ 32.) Following Talley’s August 2023 release from jail, defendantinformed plaintiff he was the rightful title holder after having inherited the property andtold plaintiff to remove his belonging s from the property. (Id. at ¶¶ 33-35.) DefendantTalley has since locked the property gates. (Id. at ¶ 36.) The allegations supporting plaintiff’s claim to title do not include that legal title wasever transferred to him pursuant to the oral contract with defendant Talley. Thus, anyclaim to title by plaintiff is equitable based on his performance of the oral contract asalleged. The allegations and evidence regarding defendant Talley’s claim to titleindicate he is presently the holder of legal title as the heir of Judy Merle Andrews, whocurrently holds legal title. (FAC, ¶¶ 4-8, Exh. A and B; RJN1 Exh. A-C.) The holder of an equitable interest cannot maintain an action to quiet title againstthe owner of legal title. (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 294-295.) Asplead, plaintiff does not have standing to quiet title of defendant Talley and thereforedoes not state a cause of action to quiet title to the property. Therefore, the requested judgment to quiet title of defendant Talley and nameplaintiff to be sole title holder is denied. Moreover, the proposed order submitted with plaintiff’s request for defaultjudgment includes the order that plaintiff be declared the sole title holder to the property.An in rem judgment quieting title against the whole world, is allowed where plaintiffnames “all persons unknown, claiming any legal or equitable right, title, estate, lien, or1 Plaintiffs Requests for Judicial Notice 1-6 are granted.interest in the property described in the complaint adverse to plaintiff's title, or any cloudupon plaintiff's title thereto.” (Code Civ. Proc., § 762.060, subd. (a).) This statutorylanguage is required if an in rem judgment is sought. However, in that case, plaintiff mustserve such defendant (or class of defendant) by publication of the summons, afterobtaining an order therefor. (Code Civ. Proc., §§ 763.010, subd. (b), 764.030.) Otherwise,any judgment obtained cannot include (cannot be rendered against) this class ofdefendant. Persons not made parties to the action are not bound by the judgment.(Gerhard v. Stephens (1968) 68 Cal.2d 864; Taliaferro v. Riddle (1958) 166 Cal.App.2d 124.) Plaintiff’s complaint includes as defendants “all persons” claiming an interest in thesubject property. To the extent plaintiff seeks in rem judgment against this class ofdefendants, proof of service by publication has not been sought and such judgmentcannot be granted. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 7/29/2024 . (Judge’s initials) (Date)
Ruling
Montezuma Lodge No. 172, I.O.O.F., of California, a California Public Benefit Corporation vs. Connie Jean Lewis, Trustee, Lewis Family Trust
Aug 03, 2024 |CU23-05966
CU23-05966Demurrer by Defendant CONNIE LEWIS, Trustee of the Lewis Family Trust, toComplaintTENTATIVE RULINGThe papers filed in support of this demurrer include a declaration by counsel as to meetand confer efforts preceding the filing. That declaration purported to attach as anexhibit a copy of the meet and confer letter counsel claimed to have mailed to opposingcounsel. But no letter was attached.More importantly, the request for judicial notice also claimed to be attaching copies ofthe two documents for which judicial notice was being requested. These documentswere to be a copy of a page of the Assessors Map Book, “showing the propertiesalleged to be at issue in this matter”; and a copy of a Google Map page showing certainaddresses. But again, no documents were attached.The request for judicial notice was intended to support the uncertainty basis for thisdemurrer to the entirety of the complaint, and thus the court cannot find the complaint isuncertain.The demurrer to the trespass, nuisance and negligence causes of action is alsooverruled. Page 2 of 4One of the elements of trespass is satisfied by a negligent act of the defendant causingentry onto the plaintiff’s property.The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2)the defendant's intentional, reckless, or negligent entry onto the property; (3) lack ofpermission for the entry or acts in excess of permission; (4) harm; and (5) thedefendant's conduct was a substantial factor in causing the harm. (See CACI No. 2000.)Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.Likewise, an element of nuisance is met by negligent conduct causing interference withanother’s real property. Lussier v. San Lorenzo Valley Water Dist. (1988) 206Cal.App.3d 92, 102 [“a nuisance requires some sort of conduct, i.e. intentional andunreasonable, reckless, negligent, or ultrahazardous, that unreasonably interferes withanother's use and enjoyment of his property”].The complaint alleged that the Demurring Party “without approval by or permits from theCity of Dixon, personally directed an individual to pave the entire Parking Area byadding a layer of tar and gravel, (commonly called “blacktop”) [Complaint, ¶24]; that“The added layer did not maintain the previously existing grading but instead directssurface waters towards and onto the Oddfellow Property where it gathers and pools . . .[Complaint, ¶25], and causes damage [Complaint, ¶¶26-29].The court finds that the complaint gives the defendant “fair notice” of the nature, scopeand extent of the claims, by implying that the decision to pave the parking lot causedrainwater to be diverted from its historical path, to therefore pool in greater quantitiesnear the Oddfellow property. Edmon & Karnow (Weil & Brown), Civil Procedure BeforeTrial, §§6:128 and 6:129, p. 6-44.The court therefore overrules in its entirety the demurrer to complaint, and directs theDemurring Party to file and serve an answer within 30 days, to avoid the possibility ofdefault thereafter being entered.The parties are reminded to appear for the case management conference concurrentlyset for July 31 at 8:30 a.m., and the court will also conduct the OSC as to sanctions atthat time.PETITION OF ARTEFFECT XD, LLCCU24-04410Petition for Approval of Transfer of Structured Settlement Payment RightsTENTATIVE RULINGThe payee and counsel for the petitioning proposed transferee are to appear for hearingas scheduled. Zoom appearance is approved. Page 3 of 4
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