DEPARTMENT G LAW AND MOTION RULINGS
The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing. Case Number: 22STCV19883 Hearing Date: March 6, 2025 Dept: G
Plaintiff Jacob Rodriguez’s Motion for Leave to File Amended Complaint Respondent: Defendants Aurora Charter Oak – Los Angeles, LLC; Jovan Thompson; Marc Torres; and Roberto Sotelo TENTATIVE RULING Plaintiff Jacob Rodriguez’s Motion for Leave to File Amended Complaint is DENIED. BACKGROUND This is a personal injury action arising from an alleged attack that occurred in a psychiatric hospital. In July 2019, Plaintiff Jacob Rodriguez was an in-patient at Aurora Charter Oak Hospital which was under the control of Defendants Aurora Charter Oak – Los Angeles, LLC (Aurora) and Signature Healthcare Services, LLC (Signature). On July 25, Rodriguez was participating in a group counseling session at Aurora Charter Oak Hospital when hospital staff asked Rodriguez to leave after Rodriguez allegedly used offensive language. After Rodriguez left the session, Rodriguez alleges three hospital staff members including Defendants Jovan Thompson, Marc Torres, and Roberto Sotelo took Rodriguez back to Rodriguez’s room where they attacked Rodriguez. When Rodriguez’s mother learned of Rodriguez’s injuries, Rodriguez alleges hospital staff told Rodriguez’s mother that the injuries were self-inflicted. Rodriguez’s mother then got law enforcement involved which resulted in Thompson being charged with child abuse and battery. In July 2021, Thompson pled guilty to the battery charge. On June 17, 2022, Rodriguez, by and through guardian ad litem Sabrina Rodriguez, filed a complaint against Aurora, Signature, Thompson, Torres, Sotelo, and Does 1-30, alleging the following causes of action: (1) assault and battery, (2) negligence, (3) negligent hiring, training, supervision, and/or retention of unfit employees, (4) negligence per se, (5) negligent infliction of emotional distress (NIED), (6) intentional infliction of emotional distress (IIED), and (7) false imprisonment. On November 8, 2023, the court granted Aurora and Signature’s motion to strike punitive damages from the Complaint. On April 5, 2024, Rodriguez stipulated to the dismissal of punitive damages against Thompson. Rodriguez also stipulated to the dismissal of punitive damages against Sotelo on April 17, 2024, and Torres on May 10, 2024. On June 14, 2024, Rodriguez filed the present motion. The parties stipulated to a continuance of the motion on August 6, 2024, after which the court set the motion for hearing on January 30, 2025. On January 1, 2025, the court, on its own motion , set the present motion for hearing on March 6, 2025, along with a CMC/discovery plan. REQUEST FOR JUDICIAL NOTICE Rodriguez’s requests for judicial notice of court records are GRANTED pursuant to Evidence Code section 452, subdivision (d). EVIDENTIARY OBJECTIONS Aurora’s evidentiary objections are SUSTAINED as to objections 1, 2, 3, and 4 and OVERRULED as to objections 5 and 6. Sotelo’s evidentiary objections are SUSTAINED as to objections 1, 2, 3, 4, 5, 6, 16, and 19 and OVERRULED as to objections 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, and 18. Torres’s evidentiary objections are SUSTAINED as to objections 1, 2, 3, 4, 5, and 6 and OVERRULED as to objections 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17. Thompson’s evidentiary objections to the declaration of Emily Tejani, M.D. are SUSTAINED as to objections 1, 2, 3, 4, 5, and 6 and OVERRULED as to objections 7, 8, 9, 10, 11, 12, 13, 14, and 15. Thompson’s evidentiary objections to Rodriguez’s request for judicial notice are also OVERRULED. Rodriguez’s evidentiary objections are OVERRULED as to objections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15. ANALYSIS Rodriguez seeks leave to file a First Amended Complaint (FAC) that alleges punitive damages against each defendant. For the following reasons, the court DENIES Rodriguez’s motion. Legal Standard Leave to Amend “A court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1).) The court’s discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) “A motion to amend a pleading before trial must . . . [s]tate what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [s]tate what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” (Cal. Rules of Court, rule 3.1324(a).) The declaration must also specify the amendment’s effect, why it is necessary and proper, when the facts supporting the amended allegations were discovered, and why the request was not made earlier. (Cal. Rules of Court, rule 3.1324(b).) If the party seeking the amendment has needlessly delayed, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend. (See Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation. (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) Punitive Damages Pursuant to Code of Civil Procedure section 425.13, subdivision (a): “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” (Code Civ. Proc., § 425.13, subd. (a).) Civil Code section 3294 allows punitive damages when a plaintiff establishes by clear and convincing evidence that a defendant is guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) For the purposes of determining punitive damages, malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) Lastly, fraud is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) In ruling on a motion pursuant to Code of Civil Procedure section 425.13, subdivision (a), the court must determine whether the plaintiff has adequately established a prima facie claim for punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719 (College Hospital).) Although this statutory provision requires plaintiff to demonstrate “a substantial probability” of success, the court is not authorized to weigh the evidence. (Ibid.) Instead, the court determines whether the claim has been adequately pled and whether the claim has been substantiated by supporting evidence. (Ibid.) “[S]ubstantiation of a proposed punitive damages claim occurs only where the factual recitals are made under penalty of perjury and set forth competent admissible evidence within the personal knowledge of the declarant.” (Id., at p. 719-720.) Discussion In this case, Rodriguez’s proposed FAC alleges Rodriguez is entitled to punitive damages because Thompson, Torres, and Sotelo engaged in malicious or oppressive conduct when they used force against Rodriguez at Aurora’s facility. (Motion, Ex. G, ¶ 14-17, 33, 53, 64, 71.) The specific allegations of the proposed FAC are as follows. On July 25, 2019, Rodriguez was told to leave a group counseling session at Aurora after using language that hospital staff found offensive. (Motion, Ex. G, ¶ 12.) Rodriguez then left and was waiting in a hallway outside of the counseling room when Rodriguez was approached by a female staff member who inquired about Rodriguez’s absence from the therapy session. (Motion, Ex. G, ¶ 12.) After Rodriguez stated he did not know, the staff member then told Thompson, an Aurora employee, that Rodriguez “needed to be taught a lesson.” (Motion, Ex. G, ¶ 9, 12-13.) Thompson then approached Rodriguez and asked why Rodriguez had been removed from the therapy session. (Motion, Ex. G, ¶ 14.) After Rodriguez twice denied knowing why, Thompson became upset and ordered Rodriguez to return to Rodriguez’s room. (Motion, Ex. G, ¶ 14.) While Rodriguez began walking back to Rodriguez’s room, Thompson allegedly kicked Rodriguez in the ankles twice, grabbed Rodriguez by the arms, and pinned Rodriguez against the wall. (Motion, Ex. G, ¶ 14.) Thompson and Torres, another Aurora employee and staff member, then grabbed Rodriguez’s arms and “dragged [Rodriguez] to his room.” (Motion, Ex. G, ¶ 9, 14.) Thompson and Torres were joined in Rodriguez’s room by Sotelo, another Aurora employee. (Motion, Ex. G, ¶ 9, 16.) Thompson, Torres, and Sotelo then had Rodriguez’s roommate leave the room and close the door in violation of hospital protocol. (Motion, Ex. G, ¶ 16.) They then “viciously attacked [Rodriguez] causing him to suffer great physical harm.” (Motion, Ex. G, ¶ 17.) Following the incident, Thompson was charged with child abuse and battery in violation of Penal Code sections 273 and 242. (Motion, Ex. G, ¶ 22.) On July 16, 2021, Thompson pled guilty to the charges of battery. (Motion, Ex. G, ¶ 24.) In the present motion, Rodriguez fails to substantiate these claims with supporting affidavits as required by Code of Civil Procedure section 425.13, subdivision (a). In fact, the only affidavits provided come from Rodriguez’s counsel and Rodriguez’s expert witness, neither of whom have personal knowledge of the incident between Rodriguez, Thompson, Torres, and Sotelo. (Id., at p. 719-720 [“[I]n light of the ‘affidavit’ requirement and by analogy to summary judgment practice, substantiation of a proposed punitive damages claim occurs only where the factual recitals are made under penalty of perjury and set forth competent admissible evidence within the personal knowledge of the declarant.”].) Instead, the only evidence cited to substantiate the claims against Thompson, Torres, and Sotelo are a police report (Motion, Ex B.), court records from criminal proceedings against Thompson (RJN, Ex. 1-4, 6-7), medical records (Motion, Ex. E), and purported photographs of Rodriguez’s injuries (Motion, Ex. F). (Motion, p. 2:27-4:5, 6:22-7:2.) As to the police report, it is well established that such reports are inadmissible hearsay and Rodriguez fails to establish otherwise here. (See People v. McVey (2018) 24 Cal.App.5th 405, 415.) With regards to the criminal proceedings against Thompson, the court may take judicial notice of the fact that Thompson has pled nolo contendere to the charge of battery in violation of Penal Code section 242. Penal Code section 1016, subdivision (3) states a plea of nolo contendere “and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based” unless the plea involves a felony. Here, the criminal charges against Thompson that resulted in Thompson’s nolo contendere plea involved misdemeanors charges of battery and child abuse. (RJN, Ex. 1, 4.) Thus, Rodriguez cannot rely on Thompson’s plea or any of the findings made by the judicial officer during Thompson’s sentencing to substantiate Rodriguez’s claims in the present action. Excluding inadmissible evidence, all that remains are copies of Rodriguez’s medical records and photographs of Rodriguez’s injuries, neither of which substantiate who caused Rodriguez’s injuries. The only reference to the cause of Rodriguez’s injuries in these records is a statement from Rodriguez in which Rodriguez claims Rodriguez was assaulted outside of Aurora’s facility by unknown assailants. (Motion, Ex. E, p. 72.) As a result, the court finds Rodriguez failed to substantiate Rodriguez’s punitive damages claims against Thompson, Torres, and Sotelo with supporting evidence. Further, Rodriguez’s claims for punitive damages against Aurora fail on the same grounds as they are based on allegations that Aurora allegedly engaged in, ratified, or authorized Thompson, Torres, and Sotelo’s alleged use of force against Rodriguez. (Motion, Ex. G, ¶ 34, 54, 65, 72.) Accordingly, the court DENIES Rodriguez’s motion. CONCLUSION Based on the foregoing, Rodriguez’s motion for leave to amend is DENIED. Case Number: 24PSCV00531 Hearing Date: March 6, 2025 Dept: G
Plaintiff The Club Homeowners Association’s Application
for Default Judgment Respondent: NO OPPOSITION TENTATIVE RULING Plaintiff The Club Homeowners Association’s Application for Default Judgment is GRANTED in the reduced amount of $28,510.92. BACKGROUND This is an action arising from a dispute between a homeowner and a homeowners association. Plaintiff The Club Homeowners Association (The Club HOA) is a homeowners association. Defendant James H. Hamilton is the owner of real property located within the development on Endicott Drive in Claremont. As of November 2023, The Club HOA alleges Hamilton breached their declaration of covenants, conditions, and restrictions (CC&Rs) by failing to pay maintenance assessments and now owes $16,316.34. On February 20, 2024, The Club HOA filed a complaint against Hamilton and Does 1-50, alleging causes of action for (1) breach of covenant and (2) foreclosure of real property assessment lien. From October 25, 2024, to November 15, 2024, The Club HOA served Hamilton by publication. On January 15, 2025, the court entered default against Hamilton after Hamilton failed to file a timely answer. On February 21, 2025, The Club HOA submitted the present application for default judgment. A CMC and OSC Re: Proof of Service/Default is set for March 6, 2025. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.) ANALYSIS The Club HOA seeks default judgment against Hamilton in the total amount of $32,678.38, including $24,917.84 in damages, $5,305.00 in attorney fees, and $2,455.54 in costs. Because the court finds The Club HOA has submitted sufficient evidence, the court GRANTS their application for default judgment with the following modification. While The Club HOA requests the court award $5,305.00 in attorney fees, the court finds this amount excessive and unreasonable considering the routine and default nature of the present action. Instead, the court awards reasonable attorney fees in the amount of $1,137.54 pursuant to Local Rule 3.214 and reduces the total judgment awarded to $28,510.92. CONCLUSION Based on the foregoing, The Club HOA’s application for default judgment is GRANTED in the reduced amount of $28,510.92. Case Number: 24PSCV02185 Hearing Date: March 6, 2025 Dept: G
Plaintiff Mercedes-Benz Vehicle Trust’s Application for Default Judgment Respondent: NO OPPOSITION TENTATIVE RULING Plaintiff Mercedes-Benz Vehicle Trust’s Application for Default Judgment is DENIED without prejudice. BACKGROUND This is a breach of contract action arising from a vehicle lease agreement. In February 2019, Defendants Frank Terkelsen and Michelle Terkelsen executed and delivered a motor vehicle lease agreement for a 2019 Mercedes-Benz E300W to Mercedes-Benz of Laguna Nigel who assigned the lease to Plaintiff Mercedes-Benz Vehicle Trust (Mercedes-Benz). In February 2023, the Terkelsens allegedly defaulted on the terms of the lease agreement by failing to return the subject vehicle upon expiration of their lease. On July 9, 2024, Mercedes-Benz filed a complaint against the Terkelsens and Does 1-20, alleging the following causes of action: (1) breach of contract, (2) money due, (3) claim and delivery, and (4) conversion. On August 9, 2024, Mercedes-Benz’s process server served the Terkelsens with substitute service in Diamond Bar. On August 16, 2024, Mercedes-Benz dismissed Frank Terkelsen. On November 5, 2024, the court granted Mercedes-Benz’s application for a writ of possession against Michelle Terkelsen. On December 2, 2024, the court entered default against Michelle Terkelsen after Michelle Terkelsen failed to file a timely answer. On January 31, 2025, Mercedes-Benz submitted the present application for default judgment. A CMC is set for March 6, 2025. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.) ANALYSIS Mercedes-Benz seeks default judgment against Michelle Terkelsen in the total amount of $69,063.50, including $56,364.75 in damages, $10,205.50 in attorney fees, and $2,493.25 in costs. For the following reasons, the court denies their application. A party may not obtain damages in a default judgment that exceed the amount requested in the complaint. (Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) In determining the maximum amount of damages allowable, “courts must look to the prayer of the complaint or to ‘allegations in the body of the complaint of the damages sought’ to determine whether a defendant has been informed of the ‘maximum liability’ he or she will face for choosing to default.” (People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 667, quoting National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417-418.) Allegations “according to proof” are insufficient in a default judgment proceeding as they do not inform defendants of their maximum liability. (Yu v. Liberty Surplus Ins. Corp. (2018) 30 Cal.App.5th 1024, 1032.) In this case, the Complaint seeks $39,881.35 in damages plus monthly damages of $750.40 from February 28, 2023, to the date of recovery. (Complaint, ¶ 14.) Because Mercedes-Benz recovered the subject vehicle on December 6, 2024, Mercedes-Benz is entitled to an additional $15,758.40 in damages for a total amount of $55,639.75. (McClurg Decl., ¶ 27-28.) But the present application also seeks to recover an additional $725.00 in recovery costs. Although the Complaint generally requested repossession, transportation, and sale fees, the Complaint did not allege the specific amounts. Because this amount exceeds the request in the Complaint, the court DENIES Mercedes-Benz’s application without prejudice. Further, the court finds the amount requested by Plaintiff for attorney fees is excessive and unreasonable considering the routine and default nature of the present action. Instead, the court will award reasonable attorney fees pursuant to Local Rule 3.214. CONCLUSION Based on the foregoing, Mercedes-Benz’s application for default judgment is DENIED without prejudice. Plaintiff is directed to resubmit its default judgment application with consideration of the issues highlighted above by the court. Case Number: 24PSCV03259 Hearing Date: March 6, 2025 Dept: G
Petitioner City of Baldwin Park’s Motion to Appoint a
Receiver Respondent: NO OPPOSITION TENTATIVE RULING Petitioner City of Baldwin Park’s Motion to Appoint a Receiver is GRANTED BACKGROUND This is a nuisance action brought by the City of Baldwin Park (the City) to appoint a receiver. On September 30, 2024, the City filed a complaint against Respondent Yean Wu as an individual and as trustee of the Yean Wu Living Trust (Wu Trust) and Does 1-25, alleging causes of action for (1) nuisance per se and (2) appointment of receiver. On December 11, 2024, the City filed the present motion. A hearing on the present motion is set for March 6, 2025, along with a CMC. ANALYSIS The City moves the court for the appointment of GS Strategies, Inc. (GS Strategies) as receiver for Wu’s property. For the following reasons, the court GRANTS the City’s motion. Legal Standard Pursuant to Health and Safety Code section 17980.7, the City may petition the court for the appointment of a receiver in the following manner: “In its petition to the court, the enforcement
agency, tenant, or tenant association or organization shall include proof
that notice of the petition was posted in a prominent place on the
substandard building and mailed first-class mail to all persons with a
recorded interest in the real property upon which the substandard building
exists not less than three days prior to filing the petition. The
petition shall be served on the owner pursuant to Article 3 (commencing with
Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil
Procedure.” (Health & Safety Code, § 17980.7, subd. (c) (emphasis added).) Discussion In this case, the court first considers whether the City gave proper notice. Although Health and Safety Code section 17980.7, subdivision (c) requires a petition to include proof that notice of the petition was mailed to the owners of the property at issue and posted to the property at issue at least three (3) days prior to the petition being filed, the court notes the present petition does not appear to have met such requirements. Nonetheless, because Wu has appeared in the present action and filed an answer to the City’s petition on December 6, 2024, any such defects are waived by Wu. The court next considers whether Wu failed to comply with the City’s violation notices within a reasonable time. On December 9, 2023, the City issued a notice of violation to Wu for a property at 12723 Bess Avenue in Baldwin Park. (Ordonez Decl., ¶ 7; Ex. B.) The notice of violation listed violations that included illegal occupancy and unpermitted modifications with a correction date of December 21, 2023. (Ordonez Decl., Ex. B.) After the City conducted another inspection of Wu’s property on January 9, 2024, the City issued a declaration of substandard or dangerous conditions and posted notice at Wu’s property on January 25, 2024. (Ordonez Decl., ¶ 12, Ex. D.) The declaration noted structural hazards, life and safety hazards, and zoning standard violations. (Ordonez Decl., Ex. D.) The declaration also required all tenants to vacate Wu’s property within thirty (30) days and instructed Wu to secure services of a state-licensed professional or schedule an appointment with the City’s inspectors to address the violations within fourteen (14) calendar days. (Ordonez Decl., Ex. D.) On March 2, 2024, the City’s code enforcement officers hand delivered and posted a copy of the City’s request for consent to inspect Wu’s property by March 7, 2024. (Ordonez Decl., ¶ 13-14, Ex. E.) On the same day, the City also issued a notice and order to repair or abate violations that included structure hazards, unsafe electrical wiring, unsafe plumbing, and hazardous mechanical equipment. (Ordonez Decl., ¶ 15-16, Ex. F.) The notice required Wu to begin abatement of the conditions within ten (10) days. (Ordonez Decl., ¶ 15, Ex. F.) On March 6, 2024, the City posted a final notice that ordered Wu to vacate the property within seven (7) days. (Ordonez Decl., ¶ 17, Ex. G.) On March 21, 2024, the City inspected Wu’s property pursuant to an inspection warrant and issued another legal notice and order to repair or abate violations the same violations and a lack of smoke detectors and carbon monoxide alarms. (Ordonez Decl., ¶ 20, 22, Ex. I.) The notice gave Wu thirty (30) days to comply. (Ordonez Decl., ¶ 22, Ex. I.) On May 10, 2024, the City recorded a notice of violation against Wu’s property, declaring the property a public nuisance. (Ordonez Decl., ¶ 23.) As of the filing of the present motion, the City claims the nuisance remains unabated. (Ordonez Decl., ¶ 24.) Based on the City’s evidence and Wu’s numerous opportunities to correct the alleged code violations, the court finds Wu failed to comply with the City’s violation notices within a reasonable time. Last, the court determines whether GS Strategies is qualified to be appointed as receiver. An applicant qualifies for appointment as a receiver if they have “demonstrated to the court their capacity and expertise to develop and supervise a viable financial and construction plan for the satisfactory rehabilitation of the building.” (Health & Safety Code, § 17980.7, subd. (c)(2).) In this case, Kevin K. Randolph provided a declaration on behalf of GS Strategies. Randolph states Randolph has been appointed as receiver or receiver’s representative in over two hundred (200) receivership cases that involve single-family, multi-family, and retail/commercial properties. (Randolph Decl., ¶ 4.) Randolph also states Randolph is a member of the California Receivers Forum and has been licensed as a member of the bar since 1990. (Randolph Decl., ¶ 3.) Based on these representations, the court finds GS Strategies is qualified to be appointed as a receiver in this action. Accordingly, the court GRANTS the City’s motion for the appointment of a receiver. CONCLUSION Based on the foregoing, the City’s motion to appoint a receiver is GRANTED. |
DEPARTMENT G LAW AND MOTION RULINGS
The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing. Case Number: 19PSCV00880 Hearing Date: March 11, 2025 Dept: G
Defendant Agnes Nwapa-Jourdan’s Motion to Quash Service of Summons; Vacate and Set Aside Default and Default Judgment; Recall and Quash Writs of Execution and Abstracts of Judgment; Dismissing the Action Pursuant to CCP Sec. 583.210 and 250 et seq. Respondent: Plaintiffs Tony To Chong Loo, Cui Ping Loo, Danny Weising Loo, and William Loo Defendant M. Zha’s Motion to Set Aside Default and Amended Default Judgment Respondent: Plaintiffs Tony To Chong Loo, Cui Ping Loo, Danny Weising Loo, and William Loo Defendant Weishi Xie’s Motion to Amend Judgment Respondent: NO OPPOSITION TENTATIVE RULING Defendant Agnes Nwapa-Jourdan’s Motion to Quash Service of Summons; Vacate and Set Aside Default and Default Judgment; Recall and Quash Writs of Execution and Abstracts of Judgment; Dismissing the Action Pursuant to CCP Sec. 583.210 and 250 et seq. is DENIED. Defendant M. Zha’s Motion to Set Aside Default and Amended Default Judgment is GRANTED. Defendant Weishi Xie’s Motion to Amend Judgment is DENIED WITHOUT PREJUDICE. BACKGROUND This is a consolidated action to quiet title. Plaintiffs Tony To Chong Loo, Cui Ping Loo, Danny Weising Loo, and William Loo allege that Defendant Zixi Li acted in concert with others to use the Loos’ names to forge, present, and notarize false powers of attorney and deeds of trust to obtain loans. On October 2, 2019, the Loos, with the exception of William Loo, filed a complaint alleging the following causes of action against Li, LC Equity Group (LC Equity), Ress Financial Corporation (Ress Financial), First American Title Company (First American), Weishi Xie, Agnes N. Nwapa-Jourdan, all persons known and unknown, and Does 1-25: (1) declaratory relief, (2) cancellation of instruments, (3) slander of title, (4) quiet title, and (5) unjust enrichment. Subsequently, the following Defendants were added to the action: Sunwest Trust FBO David W. Free (Free Trust); Steven Goldenberg; Michael J. Tannenbaum; Oxnard Street, LLC (Oxnard Street); ZVI Gutentag and Michael Gutentag, Trustees of the Gutentag Family Trust (Gutentag Trust); Sunwest Trust FBO Joseph Davis (Davis Trust); Eyal Gutentag and Diane Gutentag, Trustees of the Gutentag Revocable Trust, Dated June 4, 2019 (2019 Gutentag Trust); The Bernard Rothschild Pension Plan, by and through Bernard Rothschild and James Bernard Rothshild as Trustees (Rothschild Pension Plan); Summit Capital LLC (Summit), and CDG Investments, LLC (CDG). On December 5, 2019, Tannenbaum filed a cross-complaint against Li, Xie, and Roes 1-20, alleging causes of action for (1) indemnity, (2) contribution, (3) intentional misrepresentation, (4) concealment, and (5) negligence of a notary public. On the same day, the Davis Trust, Goldenberg, the 2019 Gutentag Trust, the Free Trust, the Gutentag Trust, Oxnard Street, CDG, and LC Equity filed a cross-complaint against the same defendants and alleging the same causes of action. On October 2, 2019, William Loo filed a verified complaint alleging the following causes of action against Li, M. Zha, Nwapa-Jourdan, Summit, the Rothschild Pension Plan, JMR Investments (JMR), Does 1-25, and all persons unknown, alleging the following causes of action: (1) declaratory relief, (2) cancellation of instruments, (3) slander of title, (4) quiet title, and (5) unjust enrichment. On December 5, 2019, Summit and the Rothschild Pension Plan filed a cross-complaint against Li, Zha, and Roes 1-20 for (1) indemnity, (2) contribution, (3) fraud by intentional misrepresentation, (4) fraud by concealment, and (5) negligence of a notary public. On June 7, 2023, the separate actions by the Loos and William Loo were consolidated into the present action. On May 23, 2024, the court entered a judgment in favor of the Loos against Xie, Zha, Li, and Nwapa-Jourdan. On June 28, 2024, the court granted the Loos’ motion for the award of attorney fees. On September 6, 2024, Xie filed a notice of appeal. On September 25, 2024, Xie filed a motion to amend judgment. On October 8, 2024, Nwapa-Jourdan filed the present motion to quash the service of summons. On October 28, 2024, Xie filed a notice abandoning Xie’s appeal. On November 12, 2024, Zha filed the present motion. On the same day, the court denied Xie’s motion to amend judgment and continued the hearing on Nwapa-Jourdan’s motion for the parties to provide supplemental briefing. On November 21, 2024, Xie filed the present motion. On January 13, 2025, the court continued the hearing on Zha’s motion for the parties to provide supplemental briefing. A hearing on the present motions is set for March 11, 2025. REQUESTS FOR JUDICIAL NOTICE Nwapa-Jourdan, the Loos, and Zha’s requests for the court to take judicial notice of its own records are GRANTED. NWAPA-JOURDAN’S MOTION TO QUASH SERVICE OF SUMMONS AND VACATE DEFAULT JUDGMENT Nwapa-Jourdan moves to (1) quash the service of summons on Nwapa-Jourdan pursuant to Code of Civil Procedure section 418.10, (2) vacate and set aside the entry of default and default judgment pursuant to the court’s equitable authority to vacate void judgments, and (3) dismiss the present action pursuant to Code of Civil Procedure section 583 et seq. For the following reasons, the court DENIES Nwapa-Jourdan’s motion. Legal Standard Motion to Quash Pursuant to Code of Civil Procedure section 418.10, “[a] defendant, on or before the last day of [their] time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over [them].” (Code Civ. Proc., § 418.10, subd. (a)(1).) “When a defendant argues that service of summons did not bring [them] within the trial court’s jurisdiction, the plaintiff has ‘the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.’” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.) The filing of a proof of service declaration ordinarily creates a rebuttable presumption that the service was proper, but only if the service declaration complies with the statutory requirements regarding such proofs.” (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163 [internal quotations omitted].) Equitable Relief from Judgment Because compliance with the statutory requirements for service of the summons and the complaint establishes the court’s personal jurisdiction, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “A trial court has an inherent equity power under which, apart from statutory authority, it may grant relief from a default judgment obtained through extrinsic fraud or mistake.” (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181 (Munoz).) “While the grounds for an equitable action to set aside a default judgment are commonly stated as being those of extrinsic fraud or mistake, the terms are given a very broad meaning which tends to encompass all circumstances that deprive an adversary of fair notice of hearing whether or not those circumstances would qualify as fraudulent or mistaken in the strict sense. Thus a false recital of service although not deliberate is treated as extrinsic fraud or mistake in the context of an equitable action to set aside a default judgment.” (Ibid.) In addition to establishing extrinsic fraud or mistake, “a party seeking equitable relief from a default judgment must satisfy three elements: ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.’” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 315, quoting Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148.) But when the underlying judgment is void for lack of proper service, due process does not require a showing of a meritorious case. (See Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86; see also Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 199, 206 [holding a motion to vacate a renewed judgment pursuant to Code of Civil Procedure section 683.170 did not require meritorious defense when defendant was never properly served].) Discussion As an initial matter, the Loos argue Nwapa-Jourdan cannot quash the service of summons before the default entered against Nwapa-Jourdan is vacated. (Opp., p. 4:17-5:11.) The court agrees since Nwapa-Jourdan failed to point to any authority that allows Nwapa-Jourdan to seek relief pursuant to Code of Civil Procedure section 418.10 while in default. Nonetheless, a defaulted defendant may still challenge the service of summons on the grounds of extrinsic fraud or mistake pursuant to the court’s equitable powers. The court addresses this issue next. Here, Nwapa-Jourdan argues the proof of service at issue is demonstrably false. (Motion, p. 6:27-8:5.) On October 17, 2019, the Loos filed a proof of service purporting to have personally served Nwapa-Jourdan. (Nwapa-Jourdan Decl., Ex. A.) In it, their process server, “E Ratliff,” states Ratliff personally served Nwapa-Jourdan on October 9, 2019, at 2217 Patricia Avenue in Los Angeles. (Nwapa-Jourdan Decl., Ex. A.) Ratliff describes Nwapa-Jourdan as “Blk Male 50-60 5’7 250 Drk Hair.” (Nwapa-Jourdan Decl., Ex. A.) Nwapa-Jourdan argues the proof of service is defective as Nwapa-Jourdan is not the individual described. To support this argument, Nwapa-Jourdan provides a declaration denying ever receiving personal service of summons. (Nwapa-Jourdan Decl., ¶ 3.) Nwapa-Jourdan also states, “I am a female, and it is not reasonable to mistake me for a male.” (Nwapa-Jourdan Decl., ¶ 3.) In opposition, the Loos provide a declaration from their process server, Eric Ratliff. In the declaration, Ratliff admits to not remembering the exact details of the service conducted on October 9. (Ratliff Suppl. Decl., ¶ 7.) Instead, Ratliff testifies as to Ratliff’s usual process for personal service which includes first asking “Mr. (or Ms.) So and so?” and then verifying the first name of the subject. (Ratliff Suppl. Decl., ¶ 7.) Based on this process and Ratliff’s proof of service, Ratliff believes the individual served identified themselves as “Agnes Nwapa-Jourdan.” (Ratliff Suppl. Decl., ¶ 4, 6-7.) Ratliff also took a photograph of the individual served and provided a copy as Exhibit 7 to Ratliff’s declaration. (Ratliff Suppl. Decl., ¶ 5, Ex. 7.) In a reply declaration, Nwapa-Jourdan identifies the individual in the photograph as Nwapa-Jourdan’s husband, Augustine Nwapa-Jourdan. (Nwapa-Jourdan 2nd Suppl. Decl., ¶ 2-3.) Nwapa-Jourdan also provided a copy of Nwapa-Jourdan’s driver license with Nwapa-Jourdan’s photograph. (Nwapa-Jourdan Decl., Ex. B.) Upon review, it is readily apparent that the individual served on October 9 was not Nwapa-Jourdan. This fact was never directly contested by the Loos. Thus, the court finds Nwapa-Jourdan adequately established extrinsic fraud since the proof of service was demonstrably false. Although there is no evidence Ratliff intentionally misrepresented the identity of the subject served or lacked a subjective and reasonable belief that the individual served was Nwapa-Jourdan, Munoz establishes the definition of “extrinsic fraud” here goes beyond the strict definition of fraud and that “a false recital of service although not deliberate is treated as extrinsic fraud or mistake in the context of an equitable action to set aside a default judgment.” (Munoz, supra, 275 Cal.App.2d at p. 181 (emphasis added).) Because the false proof of service renders void the underlying judgment, Nwapa-Jourdan need not establish a meritorious defense. Thus, the only remaining issue is for the court to determine if Nwapa-Jourdan timely requested relief. The time limit for filing the present motion “is a reasonable time from discovery of the default judgment irrespective of when it may actually have been entered.” (Id., at p. 182.) Here, Nwapa-Jourdan states Nwapa-Jourdan first became aware of the present action when Nwapa-Jourdan was subpoenaed to testify at a hearing on April 11, 2024. (Nwapa-Jourdan Decl., ¶ 5; Nwapa-Jourdan Suppl. Decl., ¶ 14.) At the hearing, Nwapa-Jourdan states the court informed Nwapa-Jourdan that default had been entered against Nwapa-Jourdan. (Nwapa-Jourdan Suppl. Decl., ¶ 14.) The present motion was filed on October 8, 2024, which is only five (5) months and twenty-seven (27) days later. Nwapa-Jourdan filed the present motion within four (4) months and fifteen (15) days of the court’s entry of judgment on May 23, 2024. Notwithstanding the Loos’ arguments to the contrary, the court finds Nwapa-Jourdan filed the present motion within a reasonable time after discovering the entry of default and default judgment. The Loos also argue Nwapa-Jourdan has waived any jurisdictional issues by making a general appearance. (Opp., p. 9:4-10:28.) “Where a person makes a general appearance, such appearance operates as a consent to jurisdiction of his person. [Citations.] A general appearance occurs when a defendant takes part in the action or in some manner recognizes the authority of the court to proceed. [Citations.] A request for a continuance constitutes a general appearance because the relief could only be requested on a theory that a defendant was submitting to general jurisdiction of the court.” (City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 679-680.) In this case, at the conclusion of Nwapa-Jourdan’s testimony on April 15, 2024, Nwapa-Jourdan asked the court to have “the default continued” which the court denied on the grounds that Nwapa-Jourdan lacked standing due to the entry of default against Nwapa-Jourdan. (Loo Decl., Ex. 9, p. 1356:11-24.) Pointing to this language, the Loos suggest Nwapa-Jourdan had requested a continuance of the proceedings against Nwapa-Jourdan and thus made a general appearance. In other words, by asking the court to continue the default, Nwapa-Jourdan recognized the court’s personal jurisdiction over Nwapa-Jourdan. As a result, Nwapa-Jourdan cannot now deny such jurisdiction due to previous proof of service defects. In response, Nwapa-Jourdan failed to address this issue in Nwapa-Jourdan’s reply brief, supplemental brief, and supplemental reply brief. And while Nwapa-Jourdan may very well have been unaware that requesting a continuance would constitute a general appearance and waive any personal jurisdiction challenges, “[s]elf-represented defendants are ‘held to the same standard of knowledge of law and procedure as is an attorney.’” (People v. Frederickson (2020) 8 Cal.5th 963, 1000, quoting People v. Clark (1990) 50 Cal.3d 583, 625.) As a result, Nwapa-Jourdan cannot establish the default judgment is void due to a lack of personal service as such defects were waived by Nwapa-Jourdan’s general appearance on April 15. Accordingly, the court DENIES Nwapa-Jourdan’s motion. ZHA’S MOTION TO SET ASIDE DEFAULT Zha moves to set aside the entry of default and default judgment against Zha pursuant to Code of Civil Procedure sections 473, subdivision (d) and 473.5 as well as the doctrine of extrinsic mistake. For the following reasons, the court GRANTS Zha’s motion. Legal Standard Code of Civil Procedure § 473, subd. (d) Pursuant to Code of Civil Procedure section 473, subdivision (d), “The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order.” “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Thus, pursuant to Code of Civil Procedure section 473, subdivision (d), “the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Code of Civil Procedure § 473.5 Pursuant to Code of Civil Procedure section 473.5, subdivision (a), “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” A party must also establish that the lack of actual notice was “not caused by his or her avoidance of service or inexcusable neglect.” (Code Civ. Proc., § 473.5, subd. (b), (c).) Equitable Relief from Judgment Because compliance with the statutory requirements for service of the summons and the complaint establishes the court’s personal jurisdiction, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “A trial court has an inherent equity power under which, apart from statutory authority, it may grant relief from a default judgment obtained through extrinsic fraud or mistake.” (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181 (Munoz).) “While the grounds for an equitable action to set aside a default judgment are commonly stated as being those of extrinsic fraud or mistake, the terms are given a very broad meaning which tends to encompass all circumstances that deprive an adversary of fair notice of hearing whether or not those circumstances would qualify as fraudulent or mistaken in the strict sense. Thus a false recital of service although not deliberate is treated as extrinsic fraud or mistake in the context of an equitable action to set aside a default judgment.” (Ibid.) In addition to establishing extrinsic fraud or mistake, “a party seeking equitable relief from a default judgment must satisfy three elements: ‘First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.’” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 315, quoting Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148.) But when the underlying judgment is void for lack of proper service, due process does not require a showing of a meritorious case. (See Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86; see also Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 199, 206 [holding a motion to vacate a renewed judgment pursuant to Code of Civil Procedure section 683.170 did not require meritorious defense when defendant was never properly served].) Discussion Here, the Loos filed a proof of service on January 31, 2020, that stated Zha was served with substitute service on January 22, 2020. (Zha RJN, Ex. 2.)The proof of service states the Loos’ process server served Zha through Dominic Mestas, a co-occupant at Zha’s home address on Cork Tree Drive in Orange. (Zha RJN, Ex. 2.) The Loos’ process server had previously attempted to serve Zha twelve times at this address without success. (Zha RJN, Ex. 2.) In arguing this service was improper and void, Zha claims the Cork Tree address was not Zha’s dwelling house, usual place of abode, usual place of business, or usual mailing address at the time of service. (Motion, p. 7:9-16.) In support of this argument, Zha provided a declaration in which Zha denies receiving actual notice of the present action until Zha was served with an amended judgment. (Zha Decl., ¶ 2-5.) Starting in November 2019, Zha moved to and began residing at a property on Oval Road in Irvine after separating from Zha’s husband in September 2019. (Zha Decl., ¶ 6.) In an initial opposition, the Loos argue Zha’s declaration is self-serving and lacks any supporting exhibits. (Opp., p. 1:6-12, 3:14-15.) After failing to serve Zha at an address in San Gabriel, the Loos’ counsel and process server discovered Zha was married to Dominic Mestas and decided to serve Zha at the Cork Tree address where Mestas resided. (Ensberg Decl., ¶ 2-7; Ratliff Decl., ¶ 2-5.) When the Loos’ process server purportedly served Zha through Mestas, Mestas had identified himself as Zha’s co-occupant. (Ratliff Decl., ¶ 7.) Although Mestas’s statement contradicts Zha’s statement with regards to whether Zha lived at the Cork Tree address, Zha’s statement is made in a sworn declaration while Mestas’s statement is unsworn hearsay. Furthermore, Zha provided a supplemental declaration with supporting exhibits. Zha provided a lease agreement for the Oval Road property that lists Zha as the tenant with a start date of November 23, 2019. (Suppl. Zha Decl., Ex. A.) Zha also provided copies of emails that show Zha’s mailing address as the Oval Road property. (Suppl. Zha Decl., Ex. B.) They include an email from the Skin Store on November 30, 2019; the Hut Group on December 2, 2019; and USCIS on January 9, 2020. And in supplemental briefing, Zha provides additional evidence to establish Zha was residing at the Oval Road address and not the Cork Tree address when the Loos’ process server effected service. Zha’s evidence includes bank statements and checks evidencing rent payments (Zha 2nd Suppl Decl., Ex. B) as well as a separate declaration from Yi Zhou, who leased the Oval Road property to Zha. Zhou states Zha resided at the property from November 23, 2019, to July 2020 when Zhou retook possession of the property. (Zhou Decl., ¶ 4.) In July 2020, Zha moved to a property on Willowbend in Irvine where Zha lived until Zha moved to a property on Christamon West in late July or early August of 2024. (Zha 2nd Suppl Decl., ¶ 6-9.) Based on Zha’s testimony and supporting evidence provided, Zha’s dwelling house and usual place of abode was the Oval Road address and not the Cork Tree address when the Loos’ process server attempted service in January 2020. As a result, the court finds Zha was not properly served and any resulting entry of default and default judgment are void. In opposition, the Loos argue the present motion is untimely because Zha did not diligently bring the present motion upon learning of the default. (Opp., p. 15:8-16:5.) Zha states Zha first discovered Zha’s status as a defendant in this action when Zha was served with a notice of entry of judgment by mail on September 17, 2024. (Zha 2nd Suppl Decl., ¶ 10.) Although Zha admits to being personally served with a subpoena to attend trial in March 2024, Zha claims Zha believed the subpoena was based on Zha being a witness. (Zha 2nd Suppl Decl., ¶ 8.) As the Loos note in their supplemental opposition, Zha fails to provide a copy of the actual subpoena to establish that Zha’s belief was reasonable. But, the Loos also failed to provide a copy of the subpoena to the court for consideration. Ultimately, Zha did not appear as a witness in any of the trial proceedings before the court. (See 4/8/24 Minute Order; 4/9/24 Minute Order; 4/10/24 Minute Order; 4/11/24 Minute Order; 4/15/24 Minute Order; 4/16/24 Minute Order; 4/17/24 Minute Order; 5/10/24 Minute Order.) The Loos also note that Zha failed to explain why Zha did not receive any one of six litigation documents mailed to the business address that Zha reported to the California Secretary of State. (Opp. RJN, Ex. 2, 3, 4, 5, 7, 8.) Ultimately, the court finds Zha sought relief within a reasonable period of time since Zha filed this motion in November 2024 after receiving notice of Zha’s default for the first time in September 2014. The Loos also argue Zha has unclean hands because Zha has avoided service. (Opp., p. 16:8-23.) But the only evidence the Loos provide of such alleged avoidance is Zha’s failure to respond to other parties’ service attempts at the Oval Road address. (Opp., p. 3:16-4:2.) It is unclear to the court how Zha can avoid the Loos’ attempts to serve Zha when the Loos never attempted service at the correct address in the first place. In supplemental briefing, the Loos argue the doctrine of unclean hands or disentitlement should bar relief for Zha because Zha ignored a subpoena. The Loos failed to establish, however, what Zha actually ignored since no copies of the subpoena were provided to the court. Accordingly, the court GRANTS Zha’s motion. XIE’S MOTION TO AMEND JUDGMENT Xie moves the court to amend its previous judgment with a more detailed explanation of the legal grounds and reasoning. The present motion is defective for the same reasons noted in the court’s ruling on Xie’s previous motion to amend judgment as Xie failed to properly serve notice of this motion on the other parties in this action. (11/12/2024 Ruling, p. 2.) Accordingly, the court summarily DENIES Xie’s motion without prejudice. CONCLUSION Based on the foregoing, the court makes the following rulings on the present motions. Nwapa-Jourdan’s motion to quash summons and vacate the entry of default judgment is DENIED. Zha’s motion to set aside the entry of default and default judgment is GRANTED. Xie’s motion to amend judgment is DENIED WITHOUT PREJUDICE. Case Number: 23PSCV01954 Hearing Date: March 11, 2025 Dept: G
Plaintiff Jessica De Leon’s Motion for Mandatory
Relief Pursuant to CCP § 473(b) Respondent: NO OPPOSITION TENTATIVE RULING Plaintiff Jessica De Leon’s Motion for Mandatory Relief Pursuant to CCP § 473(b) is CONTINUED to a date to be determined at the hearing set in Department G (Pomona). The Court orders Plaintiff Jessica De Leon’s Counsel to submit a supplemental declaration from Mary Guirguis that provides additional detail on why Mary Guirguis is responsible. In the alternative, Plaintiff Jessica De Leon may instead provide a declaration from Delina Yasmeh. In either instance, such supplemental declarations must be submitted no later than nine (9) court days before the next scheduled hearing on the present motion. BACKGROUND This is a premises liability action. On June 29, 2023, Plaintiff Jessica De Leon filed a complaint against Defendants Five Star Inn One LLC (Five Star Inn One) and Five Star Inn Two LLC (Five Star Inn Two, collectively the Five Star Inns), alleging causes of action for (1) general negligent and (2) premises liability. On November 19, 2024, De Leon’s counsel failed to appear for a CMC and OSC Re: Dismissal for Failure to Prosecute. After De Leon’s counsel failed to appear on December 3, 2024, the court dismissed De Leon’s Complaint without prejudice pursuant to Code of Civil Procedure section 575.2. On December 18, 2024, De Leon filed the present motion. A hearing on the motion is set for March 11, 2025. ANALYSIS De Leon seeks to vacate the court’s dismissal of De Leon’s action on the grounds of counsel’s neglect, mistake, or inadvertence. For the following reasons, the court CONTINUES the hearing on De Leon’s motion. Legal Standard Whenever an application for relief from dismissal is made no more than six (6) months after entry of the judgment of dismissal, is in proper form, and is accompanied by the moving party’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or excusable neglect, the court may vacate any dismissal entered against the moving party unless the court finds that the dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) The court shall grant relief if the moving party’s counsel provides a “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) “The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Discussion In this case, De Leon’s counsel, Mary Guirguis, states De Leon’s other counsel, Delina Yasmeh, failed to appear due to severe medical issues and hospitalization. (Guirguis Decl., ¶ 5-6.) Guirguis states Yasmeh failed to calendar the hearings at issue and communicate these dates to others at counsel’s firm. (Guirguis Decl., ¶ 5-6.) Guirguis also admits to full responsibility for the dismissal, even though Guirguis fails to state how Guirguis bore responsibility for the dismissal. (Guirguis Decl., ¶ 7.) Accordingly, the court CONTINUES the hearing on De Leon’s motion and orders De Leon’s counsel to submit a supplemental declaration from Guirguis that provides additional detail on why Guirguis is responsible. In the alternative, De Leon may instead provide a declaration from Yasmeh setting forth Yasmeh’s reasons for failing to appear and to prosecute the case. In either instance, such supplemental declarations must be submitted no later than nine (9) court days before the next scheduled hearing on the present motion. Case Number: 24PSCV01221 Hearing Date: March 11, 2025 Dept: G
Defendants Yuning Su and Plus & Beyond Express, LLC’s Demurrer to Plaintiff’s First Amended Complaint Respondent: Plaintiffs Dynatrans, Inc, and Shaoyue Li TENTATIVE RULING Defendants Yuning Su and Plus & Beyond Express, LLC’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED IN PART without leave to amend as to the seventh and tenth causes of action and OVERRULED IN PART as to the eleventh cause of action. BACKGROUND This is an action for fraud and conversion. In 2017, Plaintiff Dynatrans, Inc, (Dynatrans) hired Defendant Yuning Su. From 2022 to 2023, Dynatrans alleges Su mishandled and embezzled Dynatrans’s funds. After Su quit in November 2023, Su allegedly attempted to steal Dynatrans’s business for Defendant Plus & Beyond Express, LLC (P&B). On April 16, 2024, Dynatrans and Shaoyue Li filed a complaint against Su, P&B, and Does 1-100, alleging the following causes of action: (1) actual interference with contractual relations, (2) intentional interference with prospective economic advantage, (3) negligent interference with prospective economic relations, (4) conversion, (5) Penal Code section 496, (6) breach of loyalty pursuant to Labor Code sections 2860 and 2863, (7) intentional misrepresentation, (8) concealment, (9) false promise, (10) negligent misrepresentation, and (11) cancellation of instrument. On September 12, 2024, the court sustained Su and P&B’s demurrer to the Complaint in part with leave to amend. On October 14, 2024, Dynatrans and Li filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On November 15, 2024, Su and P&B filed the present demurrer. On January 27, 2025, Su and P&B’s counsel telephonically met and conferred with Dynatrans and Li’s counsel. (Gross Suppl. Decl., ¶ 3.) A hearing on the present demurrer is set for March 11, 2025, along with a CMC. ANALYSIS Su and P&B demur to Dynatrans and Li’s seventh cause of action (intentional misrepresentation), tenth cause of action (negligent misrepresentation), and eleventh cause of action (cancellation of instrument). For the following reasons, the court SUSTAINS the demurrer as to the seventh and tenth causes of action without leave to amend and OVERRULES the demurrer as to the eleventh cause of action. Legal Standard A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.) Intentional Misrepresentation (Seventh Cause of Action) Su argues Dynatrans and Li’s seventh cause of action for intentional misrepresentation fails to plead sufficient facts to state a claim. The court agrees. Legal Standard “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778.) Concealment also requires that “defendant must have been under a duty to disclose the fact to the plaintiff” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 665-666) while false promise requires the defendant to have had no intention of performing at the time the promise was made. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar).) In alleging a cause of action for fraud, “[t]he specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.) Discussion In previously sustaining Su’s demurrer to this cause of action, the court found the Complaint failed to allege Su made representations of material fact to Dynatrans and instead alleged Su made promises (1) to manage the business and financial affairs of Dynatrans, (2) to not make any unauthorized transactions, and (3) to remain loyal to Dynatrans. (9/12/2024 Ruling, p. 5, citing Complaint, ¶ 101.) Promises do not constitute representations as “an actionable misrepresentation must be made about past or existing facts; statements regarding future events are merely deemed opinions.” (San Francisco Design Center Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 44 (SFDCA).) The FAC does not cure this defect and instead repeats the same alleged promises. (FAC, ¶ 103.) That the FAC refers to these promises as “representations” does not make them so as they do not make statements about present and or existing facts. Accordingly, the court SUSTAINS the demurrer to this cause of action without leave to amend. Negligent Misrepresentation (Tenth Cause of Action) Su contends Dynatrans and Li’s tenth cause of action for negligent misrepresentation fails to plead sufficient facts to state a claim. The court agrees. Legal Standard “The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’” (National Union Fire Ins. Co. of Pittsburg, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 (National Union), quoting Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar, supra, 12 Cal.4th at p. 645.) “While there is some conflict in the case law discussing the precise degree of particularity required in the pleading of a claim for negligent misrepresentation, there is a consensus that the causal elements, particularly the allegations of reliance, must be specifically pleaded.” (National Union, supra, 171 Cal.App.4th at p. 50.) Discussion In previously sustaining Su’s demurrer to this cause of action, the court found the Complaint failed to allege representations of past or present facts and instead relies on the same promises alleged in the seventh cause of action. (9/12/2024 Ruling, p. 6.) The FAC contains the same defects and again references promises of future conduct or behavior by Su as opposed to representations of past or present facts. (FAC, ¶ 138.) Accordingly, the court SUSTAINS the demurrer to this cause of action without leave to amend. Cancellation of Instrument (Eleventh Cause of Action) Su maintains Li’s eleventh cause of action for cancellation of instrument fails to plead sufficient facts to state a claim. The court disagrees. Legal Standard Pursuant to Civil Code section 3412, “[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” “To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position.” (U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778.) “In actions to cancel a certain instrument it is necessary for the complaint to state a case within the code sections for which reason it is essential to allege the facts affecting the validity and invalidity of the instrument which is attacked.” (Kroeker v. Hurlbert (1940) 38 Cal.App.2d 261, 266.) Discussion In previously sustaining Su’s demurrer to this cause of action, the court found the Complaint failed to identify the specific instrument being challenged and failed to adequately allege how that instrument was voided by fraud with the required specificity. (9/12/2024 Ruling, p. 6.) The FAC cures the first defect by alleging the instrument at issue was a “Grant Deed registered under number 20230265425 in the Los Angeles County Registrar’s Office on or around April 25, 2023, relating to the property commonly known as 3502 S. Oak Valley Place, Diamond Bar, California, 91765.” (FAC, ¶ 155.) As to the second issue, the FAC alleges two instances of fraud. First, the FAC alleges Su made a statement to Li by text on February 9, 2023, that if Li bought the subject property in Su’s name, it would improve Li’s credit. (SAC, ¶ 153.) This allegation is problematic for multiple reasons. First, although the FAC alleges this is an “untrue statement,” the FAC is unclear about how this alleged representation was false. Second, Su’s statement about Li’s future credit appears to be an opinion about future events as opposed to representation of past or present facts. (See SFDCA, supra, 41 Cal.App.4th at p. 44.) And third, even if this was a representation, the FAC fails to allege justifiable reliance. The other instance of alleged fraud appears to involve concealment. “[T]he elements of a cause of action for fraud based on concealment are: ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’” (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850, quoting Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 665-666.) One party’s failure to disclose material facts unknown to another party is not fraud unless “unless there is some relationship between the parties which gives rise to a duty to disclose such known facts.” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 337, quoting BAJI No. 12.36 (8th ed. 1994.) “A duty to disclose facts arises only when the parties are in a relationship that gives rise to the duty, such as ‘seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.’” (Shin v. Kong (2000) 80 Cal.App.4th 498, 509, quoting Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1082.) “In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.) In this case, a transactional relationship appears to exist between Li and Su in the form of borrower and lender. The FAC alleges Su “verbally disclosed to Li the fact that as the source of the loan to plaintiff Li, Su could have her name placed on the Grant Deed.” (FAC, ¶ 159.) The FAC alleges Su failed to disclose the fact that placing Su’s name on the grant deed granted Su an ownership interest in the subject property and that Su had no knowledge of this fact. (FAC, ¶ 159-160.) Last, the FAC alleges this concealment caused damage to Li as Su now has an ownership interest in the subject property as opposed to a security interest. (FAC, ¶ 162-165.) Based on these facts, the court finds the FAC adequately alleged a cause of action for cancellation of the deed based on concealment. Su maintains the FAC failed to allege Li tendered payment of the loan to Su and that Li seeks to remove Su from the deed without payment. (Opp., p. 10:5-11:5.) But the FAC also requests modification as a potential remedy. (FAC, ¶ 166.) Ultimately, in fashioning a remedy, the court may have the option to both cancel the transfer of ownership to Su and to reform the deed to reflect Su’s security interest in the property. Accordingly, the court OVERRULES the demurrer to this cause of action. CONCLUSION Based on the foregoing, Su and P&B’s demurrer to Dynatrans and Li’s FAC is SUSTAINED IN PART without leave to amend as to the seventh and tenth causes of action and OVERRULED IN PART as to the eleventh cause of action. Case Number: 24PSCV03392 Hearing Date: March 11, 2025 Dept: G
Plaintiff American Express National Bank’s Application
for Default Judgment Respondent: NO OPPOSITION TENTATIVE RULING Plaintiff American Express National Bank’s Application for Default Judgment is GRANTED. BACKGROUND This is a collections action arising from a credit card agreement. In May 2016, Plaintiff American Express National Bank (American Express) extended credit through a credit card account to Defendant Raymond Mendoza. Subsequently, American Express alleges Mendoza became indebted in the amount of $38,217.86. On October 9, 2024, American Express filed a complaint against Mendoza and Does 1-10, alleging two causes of action for breach of contract. On November 4, 2024, American Express’s process server served Mendoza with substitute service in La Puente. On February 7, 2025, the court entered default against Mendoza after Mendoza failed to timely file an answer. On the same day, American Express submitted the present application for default judgment. A CMC is set for March 11, 2025. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has filed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court 3.1800.) ANALYSIS American Express seeks default judgment against Mendoza in the total amount of $38,732.86, including $38,217.86 in damages and $515.00 in costs. Because the court finds American Express has submitted sufficient evidence, the court GRANTS their application for default judgment. CONCLUSION Based on the foregoing, American Express’s application for default judgment is GRANTED. |
DEPARTMENT G LAW AND MOTION RULINGS
The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing. Case Number: 22PSCV01739 Hearing Date: March 10, 2025 Dept: G
Plaintiffs Quanyi Wang and Ruoxuan Li’s Motion for Attorneys’ Respondent: Defendants Ford TENTATIVE RULING Plaintiffs Quanyi Wang and Ruoxuan Li’s Motion for BACKGROUND This On On On October EVIDENTIARY OBJECTIONS Wang and Li’s evidentiary ANALYSIS Wang Legal Pursuant to the Song-Beverly Consumer Calculation of attorney fees “It is appropriate for a Discussion In this case, Wang and Li argue Reasonableness of Wang and Li’s counsel
To determine if an hourly Reasonableness of Hours Wang and Li request attorney Although Demurrer to Negligent Ford and Hemborg Ford first “When a cause of action for Here, Wang and Li’s counsel In contending apportionment Excessive and Unnecessary Ford and Hemborg Ford contend Ford and Hemborg Ford also To the extent Ford and Motion for Attorney Ford and Hemborg Ford contend The court agrees that these Reasonableness of Wang and Li contend their Here, while Wang and Li point Costs Wang and Li also request the CONCLUSION Based on the foregoing, Wang [1] The court will not address additional arguments raised Case Number: 24PSCV03965 Hearing Date: March 10, 2025 Dept: G
Defendant Jeffrey B. Crevoiserat’s Demurrer to Complaint Respondent: Plaintiff Adhara Aerospace and Defense, LLC TENTATIVE
RULING Defendant Jeffrey B. Crevoiserat’s Demurrer to Complaint
is CONTINUED to a date to be determined
at the hearing in Department G (Pomona). Defendant Jeffrey B. Crevoiserat’s Counsel is also
ordered to meet and confer with Plaintiff Adhara Aerospace and Defense, LLC’s Counsel
regarding the Demurrer and to file a supplemental declaration describing such
meet and confer efforts, including whether the attempts were made by
telephone, video conference, or in person, at least nine (9) court days
before the next scheduled hearing on the Demurrer. BACKGROUND This is a breach of guaranty action. On November 15, 2024, Plaintiff
Adhara Aerospace and Defense, LLC (Adhara) filed a complaint against Defendant
Jeffrey B. Crevoiserat and Does 1-10, alleging a single cause of action for
breach of guaranty. On January 22, 2025, Crevoiserat filed the present
demurrer. A hearing on the present demurrer is set for March 10, 2025, along
with a CMC and OSC Re: Failure to File Proof of Service on April 17, 2025. ANALYSIS Crevoiserat demurs to Adhara’s cause of action for breach
of guaranty. For the following reasons, the court finds parties did not
adequately meet and confer. Legal Standard Pursuant to Code of Civil Procedure section 430.41,
subdivision (a), prior to filing a demurrer, “the demurring party shall meet
and confer in person or by telephone 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.”
This section further provides that “the demurring party shall identify all of
the specific causes of action that it believes are subject to demurrer and
identify with legal support the basis of the deficiencies.” (Code Civ. Proc., §
430.41, subd. (a)(1).) While Code of Civil Procedure section 430.41, subdivision
(a)(4) makes clear failing to meet and confer is not grounds to overrule a
demurrer, courts “are not required to ignore defects in the meet and confer
process” and if the court determines “no meet and confer has taken place, or
concludes further conferences between counsel would likely be productive, it
retains discretion to order counsel to meaningfully discuss the pleadings with
an eye toward reducing the number of issues or eliminating the need for a
demurrer, and to continue the hearing date to facilitate that effort.” (Dumas
v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355
& fn. 3.) Discussion In
this case, Crevoiserat’s
counsel provided a declaration stating counsel met and conferred with
Adhara’s counsel by emailing a letter on January 10, 2025. (Gordon Decl., ¶ 1.)
Because emails and written correspondence are not code-compliant forms of
meeting and conferring, a continuance of the hearing on the demurrer is
appropriate for the parties to further meet and confer. CONCLUSION Based on the foregoing, Crevoiserat’s demurrer is CONTINUED
to a date to be determined at the hearing in Department G (Pomona). Crevoiserat’s
counsel is also ordered to meet and confer with Adhara’s counsel
regarding the present demurrer and to file a supplemental declaration
describing such meet and confer efforts, including whether the attempts were
made by telephone, video conference, or in person, at least nine (9) court
days before the next scheduled hearing on the demurrer. |