The Residence At Crosscreek Homeowners Association , filed a(n) Foreclosure - Property case represented by Nathan A Frazier , against Clifford F Jackson , Julie D Jackson , in the jurisdiction of Manatee County, FL, . Manatee County, FL Superior Courts Circuit with RENEE INMAN presiding.
Manatee County, FL
The Residence At Crosscreek Homeowners Association
Nathan A Frazier
Clifford F Jackson
Julie D Jackson
SUMMONS SERVED JULIE D JACKSON 5/7/2024
CIVIL ATTACHMENT TO STATEMENT OF COMPLAINT -ASSESSMENTS/LETTER/RESIDENCES/CLAIM OF LIEN
CIVIL COVER SHEET
COPY OF STANDING ORDER FOR COUNTY COURT CIVIL CASE MANAGEMENT/SMALL CLAIMS PIP ADDENDUM
FINAL DISPOSITION FORM
RETURN OF SERVICE: SUMMONS RETURNED SERVED ON 5/7/2024 AS TO CLIFFORD F JACKSON
NOTICE OF LIS PENDENS-RECORDED IN OFFICIAL RECORDS
20 DAYS SUMMONS ISSUED TOCLIFFORD F. JACKSON 04/22/2024
VALUE OF REAL PROPERTY OR MORTGAGE FORECLOSURE CLAIM
NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE AND RELEASE OF LIS PENDENS (NOT RECORDED- FEES NOT PAID)
REQUEST FOR DIVISION ASSIGNMENT
Case Number: 24STCV17180 Hearing Date: September 6, 2024 Dept: 73 09/06/2024 Dept. 73 Hon. Rolf Treu, Judge presiding FENIX ENTREPRENEUR, INC. v. SUN DO HONG ( 24STCV17180 ) Counsel for Plaintiff/opposing party: Justin Rodriguez (Justice Law Partners, Inc.) Counsel for Defendant/moving party: Jacob Iloulian (Law Office of Jacob Illoulian) DEMURRER TO COMPLAINT ( filed 8/06/2024) TENTATIVE RULING Defendants demurrer is sustained without leave to amend. I. BACKGROUND On June 11, 2024, Plaintiff Fenix Entrepreneur, Inc. (Plaintiff) filed the instant interpleader action against Defendant Sun Do Hong (Defendant). The Complaint for Interpleader alleges the following. Martin Fierro, in his capacity as officer of Fenix Entrepreneur, Inc ., entered into a Purchase Agreement on or about January 20, 2023 to purchase one-half (1/2) interest in the subject property located at 6836 Crenshaw Blvd. Los Angeles, CA 90043. The property prior to acceptance of Plaintiffs offer to purchase one-half (1/2) interest subject property was vested as Joint Tenants between brother of Sun Do Hong and sister Sun Be Hong. Plaintiff deposited into Escrow a check for $5,000.00. Approximately 6 months after the opening of the Escrow, Sun Do Hong filed a Complaint to Partition the subject property with a corresponding Motion to have a Court Appoint a Referee to oversee the sale. Plaintiff is requesting the court to determine that it has a valid stake in the property based on their purchase agreement dated January 20, 2023. On August 5, 2024, the Court found that t he following cases, Hong v. Hong Case No. 23STCV12280 and Fenix Entrepreneur, Inc. v. Hong Case No. 24STCV17180, are related within the meaning of California Rules of Court, rule 3.300(a). 23STCV12280 is the lead case. On August 6, 2024, Defendant filed the Demurrer to the Complaint, arguing: · Plaintiff fails to state a cause of action for interpleader: o Insufficient allegation of conflicting claims o Lack of proper stakeholder status o Failure to deposit property or money · The Complaint is also uncertain Plaintiff filed an opposition, arguing: · Defense counsel failed to meet and confer · Plaintiff is a stakeholder · The Court should reconsider its May 1, 2024 ruling establishing a court supervised partition Defendant did not file a reply. II.DISCUSSION A. Legal Standard for Demurrer A demurrer tests the sufficiency of whether the complaint states a cause of action. ( Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in contextany 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 pleading alone, and not the evidence or facts alleged. ( E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. ( Id .) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. ( Hahn , supra , 147 Cal.App.4th at p. 747.) B. Meet and Confer Requirement Before filing a demurrer pursuant to this chapter, 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. (Code Civ. Proc., § 430.41, subd. (a).) Here, counsel for Defendant submitted a declaration stating I have reached out to Plaintiff to meet and confer regarding this demurrer. At the time of the signing of this declaration, we have not been able to resolve the issues of the demurrer. (Iloulian Decl., ¶ 4.) Defendants counsel also filed a supplemental declaration attaching an email chain in which he and Plaintiffs counsel emailed regarding scheduling a time to meet and confer. (Iloulian Decl., ¶ 5, Ex. 1.) Plaintiff argues that Defendant failed to meet and confer. Since Defendants counsel failed to meet and confer in person or by telephone, the Court finds the moving party has not met its obligation to meet and confer. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (See Code Civ. Proc., § 430.41(a)(4).) Thus, the Court continues its discussion on the merits of the motion. C. Demurrer to Complaint Defendant demurs to the Complaint for uncertainty and failure to state a cause of action . As a general matter, [d]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. ( Lickiss v. Fin. Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer for uncertainty does not address whether the pleading fails to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made. ( Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Rather, a demurrer is intended to address whether a pleading is so incomprehensible that a defendant cannot understand the allegations actually made. ( Id . at p. 146.) Here, the Complaint is not incomprehensible because it generally alleges that Plaintiff has a stake in the subject property based on the purchase agreement dated January 20, 2023 between Plaintiff and Sun Be Hong. (Complaint, ¶¶ 1-8.) Defendants arguments largely pertain to failure to state sufficient facts. Thus, the demurrer for uncertainty is unsubstantiated and overruled. Next, Defendant asserts that Plaintiff fails to state a cause of action for interpleader. When a person may be subject to conflicting claims for money or property, the person may bring an interpleader action to compel the claimants to litigate their claims among themselves. (CCP § 386(b); City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) Once the person admits liability and deposits the money with the court, he or she is discharged from liability and freed from the obligation of participating in the litigation between the claimants. ( City of Morgan Hill, supra , 71 Cal.App.4th 1114, 1122.) C.C.P. § 386(b) requires only that the stakeholder file a verified pleading disclaiming any interest in the money or property claimed; it is the stakeholder's avowed disinterest in the interpleaded proceeds that gives him the right to interplead. ( Cantu v. Resolution Trust Corp . (1992) 4 Cal.App.4th 857, 873.) CCP § 386 provides in relevant part: (b) Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims. When the person, firm, corporation, association or other entity against whom such claims are made, or may be made, is a defendant in an action brought upon one or more of such claims, it may either file a verified cross-complaint in interpleader, admitting that it has no interest in the money or property claimed, or in only a portion thereof, and alleging that all or such portion is demanded by parties to such action, and apply to the court upon notice to such parties for an order to deliver such money or property or such portion thereof to such person as the court shall direct; or may bring a separate action against the claimants to compel them to interplead and litigate their several claims. The action of interpleader may be maintained although the claims have not a common origin, are not identical but are adverse to and independent of one another, or the claims are unliquidated and no liability on the part of the party bringing the action or filing the cross-complaint has arisen. The applicant or interpleading party may deny liability in whole or in part to any or all of the claimants. The applicant or interpleading party may join as a defendant in such action any other party against whom claims are made by one or more of the claimants or such other party may interplead by cross-complaint; provided, however, that such claims arise out of the same transaction or occurrence. . . . (f) After any such complaint or cross-complaint in interpleader has been filed, the court in which it is filed may enter its order restraining all parties to the action from instituting or further prosecuting any other proceeding in any court in this state affecting the rights and obligations as between the parties to the interpleader until further order of the court The Court does not find that Plaintiff has properly set forth an interpleader claim. A claim for interpleader must be brought by a neutral party seeking to resolve multiple conflicting claims by other parties. C.C.P. § 386(b) requires that the stakeholder file a verified pleading disclaiming any interest in the money or property claimed . Here, Plaintiff has not filed a verified pleading disclaiming any interest in the property. Instead, Plaintiff alleges that it has a stake in the subject property pursuant to the purchase agreement dated January 20, 2023 between Plaintiff and Sun Be Hong. (Complaint, ¶¶ 7-8.) Thus, Plaintiff is not a neutral party and is not the proper party to bring an interpleader claim. Further, there is no indication in the Opposition that Plaintiff would be able to cure the defects of the Complaint. ( Rakestraw v. California Physicians' Service (2000) 81 Cal. App. 4th 39, 43.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. ( Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) There is no basis in law to grant leave to amend where, the facts are not in dispute and the nature of the claim is clear but no liability exists under substantive law. ( Casterson v. Sup. Ct . (2002) 101 Cal.App.4th 177, 190.) Accordingly, Defendants demurrer is sustained without leave to amend. III. CONCLUSION Defendants demurrer is sustained without leave to amend.
Parties, or counsel if represented, are ordered to appear personally or remotely to discuss the status of the case and to set trial dates. Defendants are admonished that the failure to file a Case Management Statement constitutes a violation of CRC rules 3.712-3.715 and 3.721-3.730 and Local Court Rules, Rule 8.05 and 8.06, and subjects the party failing to comply to the imposition of sanctions. You must notify the court and all other parties that you intend to appear remotely using form RA-010. In addition to providing notice, a Zoom link must be requested no later than one (1) court day before the hearing and shall be submitted to the Court through the Court’s website at https://www.amadorcourt.org/gi-zoomRequestForm.aspx. Parties and counsel are ordered to meet and confer in advance regarding mutually available dates for trial.
Case Number: 19STCV42388 Hearing Date: September 10, 2024 Dept: 17 Superior Court of California County of Los Angeles DEPARTMENT 17 TENTATIVE RULING VAHRAM SEVACHERIAN, et al. vs. KHOSROV MADENJIAN, trustee of the MADENJIAN FAMILY TRUST Case No.: 19STCV42388 Hearing Date: September 10, 2024 Plaintiffs motion for summary judgment is GRANTED. On 11/25/2019, Plaintiffs Vahram (Vahram) [1] and Ara Sevacherian (Ara) (collectively, Plaintiffs) initiated this action. On 12/6/2019, Plaintiffs filed a first amended complaint (FAC) against Khosrov Madenjian, trustee of the Madenjian Family Trust (Defendant), seeking partition. On 5/22/2024, Plaintiff Ara Sevacherian moves for summary judgment of the FAC. The motion is unopposed. Discussion Plaintiff argues that she is entitled to partition as a matter of law. A co-owner of real or personal property may bring an action for partition. (CCP § 872.210.) The primary purpose of a partition suit is, as the terminology implies, to partition the property, that is, to sever the unity of possession. ( Schwartz v. Shapiro (1964) 229 Cal.App.2d 238, 257.) Partition is a remedy much favored by the law. ( LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) A co-owner of property has an absolute right to partition unless barred by a valid waiver. (CCP § 872.710, subd. (b).) ( LEG Investments v. Boxler , supra , 183 Cal.App.4th at p. 493.) The two real properties at issue in this partition action are the San Gabriel Property and the Greenwood Property. The San Gabriel Property is an apartment building located in the City of San Gabriel, California, commonly known as 6230 North San Gabriel Blvd., San Gabriel, California, A.P.N. 5374-001-021, and legally described as follows: THAT PORTION OF LOT A OF TRACT NO. 2254, AS PER MAP RECORDED IN BOOK 23, PAGE 36 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE WESTERLY LINE OF SAID LOT, DISTANT THEREON 511 FEET SOUTHERLY FROM THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH 89° 58 25 EAST PARALLEL WITH THE NORTH LINE OF SAID LOT, 300 FEET; THENCE SOUTHERLY PARALLEL WITH THE WEST LINE OF SAID LOT, 95 FEET; THENCE WESTERLY PARALLEL WITH SAID NORTHERLY LINE, 300 FEET TO A POINT IN THE WESTERLY LINE OF SAID LOT; THENCE NORTHERLY ALONG SAID. (SS No. 3.) The Greenwood Property is an industrial building located in the City of Montebello, California, commonly known as 1125 S. Greenwood Avenue, Montebello, CA 90640, and legally described as follows: ALL THAT PORTION OF LOT 53 OF EL CARMEL TRACT, IN THE CITY OF MONTEBELLO, AS PER MAP RECORDED IN BOOK 7, PAGES 134 AND 135 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING SOUTHWESTERLY OF THE SOUTHWESTERLY LINE OF THE NORTHEASTERLY 306.62 FEET OF SAID LOT. EXCEPT THE NORTHWESTERLY 93.80 FEET OF SAID LAND. ALSO EXCEPT ONE-HALF OF ALL OIL AND MINERAL RIGHTS BUT WITHOUT RIGHT OF ENTRY AS RESERVED IN DEED DATED MARCH 10, 1956 AND RECORDED MARCH 15, 1956, IN BOOK 50607, PAGE 265, OFFICIAL RECORDS. SAID LAND IS SHOWN AS PARCEL 1 ON PARCEL MAP RECORDED IN BOOK 1, PAGE 58 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY APN: 6353-019-013 (SS No. 11.) Plaintiff submitted evidence that the owners of the fee simple interest in the San Gabriel Property and the respective percentage interests are as follows: - ARA SEVACHERIAN, Trustee of the Ara Sevacherian Irrevocable Trust u/t/d April 26, 2007: Twenty-five Percent (25%) (SS No. 6); - HELEN MADENJIAN and CINDY MADENJIAN, successors in interest of defendants KHOSROV MADENJIAN and ANNIE MADENJIAN, Trustees of THE MADENJIAN FAMILY TRUST, Schedule 2 Assets, dated June 14, 2007: Fifty Percent (50%) (SS No. 7); and - The successor in interest of VAHRAM SEVACHERIAN, to be determined: twenty-five percent (25%) (SS No. 8). Plaintiff submitted evidence that the owners of the fee simple interest in the Greenwood Property and the respective percentage interests are as follows: - ARA SEVACHERIAN: thirty-three percent (33%) (SS No. 14); - HELEN MADENJIAN and CINDY MADENJIAN, successors in interest of defendants KHOSROV MADENJIAN and ANNIE MADENJIAN, Trustees of THE MADENJIAN FAMILY TRUST, Schedule 2 Assets, dated June 14, 2007: thirty-three percent (33%) (SS No. 15); and - The successor in interest of VAHRAM SEVACHERIAN to be determined: thirty-three percent (33%) (SS No. 16.) If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition. (CCP § 872.720, subd. (a).) In lieu of dividing the property among the parties, the court shall order the property be sold and the proceeds divided among the parties in accordance with their interests in the property if the parties agree to such relief or the court determines sale and division of the proceeds would be more equitable than a division of the property. (CCP § 872.820.) Here, Plaintiff submitted evidence that all parties have admitted that sale of the Subject Properties by private sale and division of the net proceeds is more equitable than division of those properties in kind, which is not feasible in the present case because the Subject Properties are not physically divisible. (SS Nos. 9 and 17.) The motion is unopposed, and thus the Court considers this a concession by Defendants to the merits of the motion. As such, the Court enters an interlocutory judgment ordering partition of the Subject Properties by sale and division of the proceeds among the owners according to their interests. (CCP. § 872.820.) Based on the foregoing, Plaintiffs motion for summary judgment is granted. It is so ordered. Dated: September , 2024 Hon. Jon R. Takasugi Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org . If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar . For more information, please contact the court clerk at (213) 633-0517. [1] Vahram passed away on October 24, 2023, and his successor has not yet been determined and substituted into this action. (UDMF Nos. 4 and 10.) An action is presently pending in Department 29 of the Probate Department of the Los Angeles County Superior Court, Los Angeles Superior Court Case No. 23STPB14158 seeking, among other things, a judicial determination of Vahrams rightful successor in interest. (UDMF Nos. 5 and 11.)
MOTION FOR JUDGMENT ON THE PLEADINGS ON COMPLAINT FOR CVRI2403099 SIDDIQI-ENGLE VS SIDDIQI OTHER REAL PROPERTY (OVER $35,000) OF AZRA SIDDIQI-ENGLE BY SHAKIR A. SIDDIQI Tentative Ruling: The Court denies the motion for Judgment on the Pleadings. Analysis This is a partition action. Plaintiff Azra Siddiqi-Engle and defendants Zakir A. Siddiqi (“Zakir”), Shakir A. Siddiqi (“Shakir” or “Defendant”) and Asma Siddiqi are siblings. Plaintiff alleges that their late mother, Sarwath S. Siddiqi executed a revocable transfer on death deed on November 22, 2022, bequeathing property located at 13162 58th Street in Eastvale to plaintiff and defendants equally as beneficiaries. On June 5, 2024, Plaintiff filed the Complaint for partition of the subject property. On June 20, 2024, Plaintiff recorded the Notice of Pendency of Action. Defendants Zakir and Shakir, who represent themselves in pro per, each filed the Answer on August 19, 2024. On August 16, 2024, the Court denied Defendant Shakir’s motion to expunge lis pendens. That same day, Shakir filed the instant motion for judgment on the pleadings. The motion is procedurally defective for a number of reasons. Though titled a “motion for judgment on the pleadings,” the substance of the motion is no different than the “motion to expunge lis pendens” that the Court has denied. In fact, Defendant filed an identical memorandum of points and authorities in support of the motion for judgment on the pleadings as he did in support of the motion to expunge lis pendens. To the extent Defendant intended to file a motion for judgment on the pleadings, it is procedurally improper because he relies on extrinsic facts (i.e., his declaration and evidence) instead of facts alleged in the pleadings or judicially noticeable facts. (CCP § 438(d).) Indeed, a motion for judgment on the pleadings is akin to a demurrer in that the Court must accept as true all allegations made in the complaint. Simply put, there is no basis to conclude that Defendants’ motion is meritorious. To the extent Defendant intended to file a motion for reconsideration, the motion is procedurally defective because it fails to comply with CCP § 1008(a), i.e., it is not supported by a declaration stating what new or different facts, circumstances or law exist than those before the court at the time of the original ruling. For these reasons, the Court denies the motion for Judgment on the Pleadings.
Case Number: 23VECV03535 Hearing Date: September 9, 2024 Dept: O SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTHWEST DISTRICT TOMO JD, LLC, Plaintiff, vs. DAVID E. GUEST, JOHN A. HALLORAN, and DOES 1 TO 10, INCLUSIVE , Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23VECV03535 ORDER GRANTING PLAINTIFFS MOTION TO COMPEL DEFENDANT DAVID GUESTS RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS ORDER GRANTING PLAINTIFFS MOTIONS TO COMPEL DEFENDANT DAVID GUESTS RESPONSES TO SPECIAL AND FORM INTERROGATORIES ORDER GRANTING PLAINTIFFS MOTION FOR AN ORDER DEEMING THE TRUTH OF MATTERS ADMITTED IN PLAINTIFFS REQUESTS FOR ADMISSIONS I. BACKGROUND This case arises out of a commercial lease agreement dispute between Plaintiff Tomo JD, LLC (Plaintiff) and Defendants David Guest (Guest) and John Halloran (Halloran)(collectively, Defendants). Plaintiff alleges Defendants entered into a three-year lease agreement, commencing on September 1, 2018, for the property located at 300 Westminster Ave., Venice CA 90291 (Premises). ( See Complaint, ¶¶ 4, 7.) Plaintiff further alleges Defendants stopped paying their rent on April 1, 2020, and abandoned the Premises on July 10, 2021. ( See id . at ¶¶ 17-18.) Halloran defaulted on October 24, 2023. Plaintiff now seeks to compel Guests discovery responses. II. PROCEDURAL HISTORY On August 11, 2023, Plaintiff filed its Complaint, alleging (1) Breach of Contract Lease Agreement; (2) Account Stated; (3) Book Account; and (4) Quantum Meruit. On October 24, 2023, the Clerk entered default against Halloran and Guest. On April 3, 2024, this Court set aside Guests default. On April 18, 2024, Guest filed his Answer. On June 10, 2024, Plaintiff filed the instant Motion to Compel Defendant David Guests Responses to Form Interrogatories (Motion Form Interrogatories). On June 14, 2024, Plaintiff filed the instant Motion to Compel Defendant David Guests Responses to Special Interrogatories (Motion Special Interrogatories). On July 26, 2024, Plaintiff filed the instant Motion to Compel Defendant David Guests Responses to Requests for Production (Motion RFPs). On July 26, 2024, Plaintiff filed the instant Motion for Order That Genuineness of Documents and Truth of Matters Specified in Plaintiff's Request for Admissions Be Deemed Admitted as Against Defendant, David Guest (Motion RFAs). On August 26, 2024, Guest filed his Opposition. On August 27, 2024, Plaintiff filed its Reply. III. LEGAL STANDARD A. Request for Production A party upon whom a demand for the production of documents has been made has 30 days after service of the demand to respond. ( See Code Civ. Proc. § 2031.260(a).) [1] The propounding and responding parties may agree to extend the time for response. ( See Code Civ. Proc. § 2031.270(a).) When a party fails to serve a timely response, the propounding partys remedy is to seek a motion to compel response. ( See Code Civ. Proc. § 2031.300(b).) A responding party that does not provide responses waives the right to object to the demand, including objections based on privilege or work product. ( See Code Civ. Proc. § 2031.300(a).) B. Interrogatories If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. ( See Code Civ. Proc. § 2030.290(b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. ( See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) C. Requests for Admission Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties. (Code Civ. Proc. § 2033.010.) Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared& (Code Civ. Proc. § 2033.250(a).) If a party to whom request for admissions are served fails to provide a timely response, the party to whom the request was directed waives any objections, including based on privilege or the work product doctrine. ( See Code Civ. Proc. § 2033.280(a).) The requesting party can move for an order that the genuineness of any documents and the truth of any matters specified in the request be deemed admitted, as well as for monetary sanctions. ( See Code Civ. Proc. § 2033.280(b).) The court shall issue this order unless the party to whom the request was made serves a response in substantial compliance prior to the hearing on the motion. ( See Code Civ. Proc. § 2033.280(c).) IV. ANALYSIS Four motions are presently before the Court. The ruling will first address Plaintiffs Motion RFPs. The Court will next address Plaintiffs Motion Form Interrogatories and Motion Special Interrogatories. The Court will address Plaintiffs Motion RFAs last. A. Plaintiffs Motion RFPs is Granted. On February 29, 2024, Plaintiff served its Requests for Production, Set One (RFPs), on Guest. ( See Motion RFPs, pg. 1.) Despite multiple extensions and promises to serve responses without objections, Plaintiffs counsel declares he has not received any responses to Plaintiffs RFPs [the Court notes Plaintiff refers to Special Interrogatories in its declaration it attached to its Motion RFPs. The Court believes this to be in error based on the substance of the Motion RFPs and Exhibits]. ( See RFPs Declaration of Philip Landsman filed July 26, 2024, ¶¶ 10-21.) In opposition, Guest filed his Partial Opposition in which he stated Defendant will be providing actual responses to the Requests for Admission before the Hearing Date of September 9, 2024 and will be providing Responses to the Form Interrogatories, Special Interrogatories, and Requests for Production by October 1, 2024. Defendant and his Wife have recently given birth to their first child and Defendant's ability to fully participate in the discovery responses has been compromised. ( See Opposition, pp. 1-2.) In reply, Plaintiff argues Guest has been using the recent birth excuse since at least May 2024 and requests Guest be ordered to respond by September 12, 2024. ( See Reply, pp. 2-3.) Plaintiff also says he has attached the email proof of Guests excuses but didnt actually attach anything to his motion or separately filed declaration. The Court finds Plaintiff is entitled to an order compelling Guests responses to its RFPs. Accordingly, the Court GRANTS Plaintiffs Motion RFPs and orders Guest to serve code compliant responses without objection to Plaintiffs RFPs on or before September 30, 2024. B. Plaintiffs Motion Form Interrogatories and Motion Special Interrogatories are Granted. On February 29, 2024, Plaintiff served its Form and Special Interrogatories on Guest. ( See Motion Form Interrogatories, pg. 3; see also Motion Special Interrogatories, pg. 3.) As discussed above, Plaintiffs counsel declares he has not received any responses to Plaintiffs Form or Special Interrogatories. ( See Declaration of Philip Landsman filed June 10, 2024, ¶¶ 10-21; see Declaration of Philip Landsman filed June 14, 2024, ¶¶ 10-21.) Guests Opposition and Plaintiffs Reply, also discussed above, are applicable to each of Plaintiffs discovery motions. For the same reasons the Court relied upon in granting Plaintiffs Motion RFPs, the Court also finds Plaintiff is entitled to an order compelling Guests responses to its Form and Special Interrogatories. Accordingly, the Court GRANTS Plaintiffs Motion Form Interrogatories and Motion Special Interrogatories and orders Guest to serve code compliant responses without objection to Plaintiffs Form and Special Interrogatories on or before September 30, 2024. C. Plaintiffs Motion RFAs is Granted. On February 29, 2024, Plaintiff served its Requests for Admission, Set One (RFAs), on Guest. ( See Motion RFAs, pg. 3.) As discussed above, Plaintiffs counsel declares he has not received any responses to Plaintiffs RFAs. ( See RFAs Declaration of Philip Landsman filed July 26, 2024, ¶¶ 10-21.) Guests Opposition and Plaintiffs Reply, also discussed above, are applicable to each of Plaintiffs discovery motions. For the same reasons expressed above, the Court finds Plaintiff is entitled to an order deeming the truth of matters admitted in Plaintiffs RFAs. Accordingly, the Court GRANTS Plaintiffs Motion RFAs and deems the RFAs admitted. V. SANCTIONS The court shall impose a monetary sanction ¿ . . . ¿ against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel ¿ . . . responses to interrogatories or production demands, absent substantial justification or other circumstances that make imposing the sanctions unjust. ¿ (Code Civ. Proc. § 2030.290(c).) The court shall also impose a monetary sanction&on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc. § 2033.280(c).) Similarly, ¿ [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.030(a).) Misuse of the discovery process includes [f]ailing to respond or to submit to an authorized method of discovery, and [d]isobeying ¿ a court order to provide discovery. (Code Civ. Proc. § 2023.010(d), (g).) Plaintiff seeks $980.00 in discovery sanctions for each of its four motions, accounting for 1.0 hour of collective meet and confer efforts, 1.2 hours to prepare and file each motion, 0.9 hour to prepare for and attend the hearing on the motions (2.3 total hours per motion), and the $60.00 filing fee. Plaintiffs counsel bills at $400.00 an hour. In total, Plaintiff seeks $3,920.00 in discovery sanctions. The Court finds Plaintiffs counsels hourly rate of $400 reasonable given the prevailing rates in the Greater Los Angeles Area for attorneys with his level of experience. However, given the similarity of each motion and the efficiency with which this Court expects an attorney of Plaintiffs counsels experience should work, the Court finds it appropriate to reduce the discovery sanctions award to $1,560.00, accounting for 1.0 hour of meet and confer efforts, 1.4 hours to prepare all four motions, 0.9 hour to prepare for and attend the hearing (3.3 hours x $400.00/hr = $1,320.00), and the $60.00 per motion filing fee ($60.00 x 4 = $240.00, $240.00 + $1,320.00 = $1,560.00). Since Guests failure to timely respond is more likely client driven than counsel driven, the Court orders Guest to pay Plaintiffs counsel discovery sanctions in the amount of $1,560.00 on or before October 31, 2024. VI. CONCLUSION Based on the foregoing, the Court GRANTS Plaintiffs Motion to Compel Defendant David Guests Responses to Requests for Production, Responses to Form Interrogatories, Responses to Special Interrogatories, and its Motion for Order That Genuineness of Documents and Truth of Matters Specified in Plaintiff's Request for Admissions Be Deemed Admitted. As a result, the Court orders Guest to serve Plaintiff code compliant responses without objection to Plaintiffs RFPs, Form Interrogatories, and Special Interrogatories on or before September 30, 2024. The Court also GRANTS Plaintiffs request for discovery sanctions in the amount of $1,560.00. Guest shall pay Plaintiffs counsel discovery sanctions in the amount of $1,560.00 on or before October 31, 2024. IT IS SO ORDERED. DATED: September 6, 2024 Hon. Michael R. Amerian Judge, Superior Court [1] All statutory references are to California codes unless stated otherwise.
Case Number: 23STCV23671 Hearing Date: September 9, 2024 Dept: 78 BLAIR COBB, Plaintiff(s), vs. ELSIE I. WYNN, et al., Defendant(s). Case No.: 23STCV23671 Hearing Date: September 9, 2024 [TENTATIVE] ORDER GRANTING MOTION TO COMPEL DEPOSITION I. BACKGROUND Plaintiffs Blair Cobb and Adam Eatroff (collectively, Plaintiffs) filed a First Amended Complaint against defendants Elsie I. Wynn (Wynn), 3557 Stoner, LLC, Thomas James Capital, Inc., Thomas Beadel, and Does 1 to 25 for damages arising from construction and destruction of a stone retaining wall, resulting in loss of use and loss of value of property. The complaint sets forth two causes of action for negligence and nuisance. Plaintiffs move to compel the deposition of Wynn, arguing that Wunn and her counsel have refused all reasonable meet and confer efforts, and that her counsel continues to assert Wynn has dementia without providing evidence. In opposition, Wynn, Thomas James Capital, Inc. and Thomas Beadel (collectively, Defendants) argue that her condition and age makes her deposition an unreasonable burden, and that Plaintiffs will not agree to take Wynns deposition off-calendar. In reply, Plaintiffs contend this Court denied Defendants motion for protective order, and had found that there was no evidence of Wynns incompetency. II. LEGAL STANDARD Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿ (Code Civ. Proc., § 2025.010.)¿ A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿ (Code Civ. Proc., § 2025.280, subd. (a).) The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.¿ (Code Civ. Proc., § 2025.410, subd. (a).)¿ In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.¿ (Code Civ. Proc., § 2025.410, subd. (c).) If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponents attendance and testimony, and the production . . . of any document . . . described in the deposition notice.¿ (Code Civ. Proc., § 2025.450, subd. (a).) As for protective orders, the court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may direct that the deposition not be taken at all.¿ (Code Civ. Proc. § 2025.420 (b)(1).) III. DISCUSSION Indeed, this Court had Defendants motion for a protective order that Wynns deposition not be taken at all, finding that Defendants have not provided sufficient evidence establishing Wynns incompetency. (Min. Order, Aug 2, 2024.) As such, Defendants objection resting on those grounds is not valid. To date, there remains no medical evidence establishing Wynns incompetency, nor is there any evidence that Plaintiffs are attempting to use the deposition to take advantage of Wynns fragile condition and poor memory to coerce her into confessing to liability in relation to a technical construction issue. (Opp. 6:14-15.) An unsupported accusation is not a demonstration that there has been a clear abuse of the discovery process, (Opp. 6:15-16), especially in light of this Court having already denied Defendants motion for protective order. Plaintiffs previously asserted that they are aware of Wynns age, and that Plaintiffs will take care in seeking her testimony by having offered to take her deposition at her home. (Min. Order, Aug. 2, 2024.) This assertion that Plaintiffs will depose Wynn at a location most comfortable for her, including at her home, was expressed in the meet and confer efforts between the parties. (Mot. Cosico Decl. ¶ 3; Exh. A.) Thus, the motion will be granted, with those concessions in mind. In terms of the request to compel production of documents, the issue appears to be moot given the parties participation at IDC with Judge Feeney, and the stipulation to authenticity and admissibility of documents produced in response to Wynn deposition notice. (Stip. & Order, Aug. 14, 2024.) Lastly, CCP § 2025.450(g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust. Here, the Court finds no substantial justification for this continuing issue after Defendants motion for protective order had been denied. Plaintiffs here request monetary sanctions against Wynn and her counsel in the amount of $2,2640.85. A court has discretion to award sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but they should not be punitive in nature or levied for the purposes of punishing an offending party. ( Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The Court will grant monetary sanctions, but not to the full extent requested, as provided below. IV. CONCLUSION Based on the foregoing, the motion to compel Wynns deposition is GRANTED. (CCP § 2025.450(a).) The parties are ordered to meet and confer on a date, time, and location most convenient to conduct Wynns deposition, and Wynn is ordered to appear for her deposition at a date, time, and location mutually agreed upon by the parties. If Wynns counsel does not meaningfully participate in the meet and confer discussion, then Plaintiffs may unilaterally notice Wynns deposition and Wynn is ordered to appear for deposition at a date, time, and location at Plaintiffs election. However, Plaintiffs must give at least ten days notice of the deposition (notice extended per Code if by other than personal service). As for monetary sanctions, Plaintiffs are awarded two hours collectively for the moving papers and reply, and one hour to appear at the hearing, at a requested rate of $400 per hour, for a total of $1,200.00 in attorney fees. Sanctions are imposed against Wynn and her counsel, jointly and severally. Wynn and/or her counsel are ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,200.00, within twenty (20) days Moving Party is ordered to give notice. DATED: September 6, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Case Number: 22CHCV00226 Hearing Date: September 4, 2024 Dept: F47 Dept. F47 Date: 9/4/24 TRIAL DATE: 8/18/25 Case #22CHCV00226 MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT & FOR SANCTIONS Motion filed on 7/24/24. MOVING PARTY: Defendant/Cross-Complainant Jack Shut RESPONDING PARTY: Defendant/Cross-Defendant Daria Stepanenko aka Darya Malomuzh (defaulted) NOTICE: ok RELIEF REQUESTED : An order to show cause re contempt and for sanctions against defaulted Defendant/Cross-Defendant Daria Stepanenko aka Darya Malomuzh for her refusal to comply with a Deposition Subpoena for Personal Appearance and Production of Documents and Things, and for an award of sanctions in the amount of $3,304.00 against Daria Stepanenko. RULING : The motion is granted as set forth below. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of Plaintiff Tyler Raynes (Plaintiff) claim that Defendants/Cross-Defendants Ignat (Ignat) and Daria (Daria) Stepanenko, husband and wife, forged a grant deed conveying Plaintiffs one-half interest in their deceased mothers residential property to Ignat. Thereafter, Ignat gave Defendant/Cross-Complainant Jack Shut (Shut) a deed of trust to secure a $247,000.00 mortgage against the property. In his complaint, Plaintiff alleges that his and Ignats mother, Yelena Stepanenko (Yelena) acquired the fee simple title interest in the subject residential real property in Canoga Park (commonly known as 23774 Burton Street, Los Angeles, California 91304) (the Property) via a Grant Deed recorded on 9/27/13. (Complaint ¶16; Shuts Request for Judicial Notice (RJN), Ex. 1, 9/27/13 Grant Deed). After a series of conveyances in 2019, title to the Property vested in Yelena, as Trustee of the Yelena Stepanenko Revocable Trust Dated September 17, 2015 (Yelena Trust) and Plaintiff by way of a Quitclaim Deed recorded on 9/25/19. (RJN, Ex.2-5, 9/18/15 Grant Deed, 5/10/19 Grant Deed, 7/19/19 Grant Deed, 9/24/19 Quitclaim Deed). Yelena died on 5/18/21. (RJN, Ex.6). Plaintiff alleges that Defendant IGNAT STEPANENKO unlawfully converted the Subject Property and the funds that he received as a result of the Trust Deed in the amount of two-hundred thousand dollars ($200,000) as the borrower without Plaintiffs knowledge, authorization or consent. (Complaint, ¶ 64). Plaintiff further alleges that Defendants caused a false Grant Deed to be recorded purporting to have been executed on November 19, 2021 by Plaintiff, a single man, and further purporting to grant all of his interest in the Real Property to Defendant IGNAT STEPANENKO, a married man as his sole and separate property. (Complaint ¶65). This Grant Deed, recorded on 11/23/21, conveyed the fee simple interest in the Property from both Ignat, as Successor Trustee of the Yelena Trust, and Plaintiff to Ignat alone. (RJN, Ex.7, 11/23/21 Grant Deed; Complaint ¶19). Plaintiff contends that his signature on this Grant Deed is a forgery. (Complaint ¶¶21-24). On 11/23/21, a Deed of Trust in favor of beneficiary Shut was recorded to secure a $200,000.00 loan from Shut to Ignat. (RJN, Ex.8, 11/23/21 Deed of Trust). By way of his complaint filed on 4/1/22, Plaintiff seeks to void the 11/23/21 Grant Deed and Deed of Trust. (Complaint ¶¶28-29). On 6/30/22, Shut filed an answer to Plaintiffs complaint and a cross-complaint which seeks to affirm the validity of the 11/23/21 Deed of Trust as a lien against the Property or in the alternative to establish an equitable lien for the amount Shuts loan proceeds paid off existing liens on the Property, as well as reforming an erroneous legal description in the 11/21/22 Grant Deed and Deed of Trust. ( See 6/30/22 Cross-Complaint, generally). Having failed to respond to either the complaint or cross-complaint, Ignat and Darias defaults on both pleadings have been entered. ( See Default entered 5/27/22 on Complaint; Default entered 11/23/22 on Cross-Complaint). On 8/7/23, Shut caused Daria to be personally served with a Deposition Subpoena For Personal Appearance And Production Of Documents And Things (Subpoena) at the Property which Shut contends is Ignat and Darias residence. (Leonhardt Decl., Ex.9, Subpoena). The Subpoena ordered Darias appearance for deposition on 9/1/23. Id . Pursuant to CCP 2025.220(b), on 8/15/23, Shuts counsel served a Notice of Deposition for the Subpoena served on Daria to the parties in the action. (Leonhardt Decl., Ex.10, Notice of Deposition). On 9/1/23, Daria failed to appear for her deposition. (Leonhardt Decl. ¶16, Ex.11, Affidavit Of Certified Shorthand Reporter Re Nonappearance Of Witness of Witness, dated 9/1/23). Daria failed to contact Shuts counsel to request rescheduling of the deposition. ( Id . at ¶16). On 10/16/23, Shuts counsel sent Daria a meet and confer letter addressing her non-compliance with the Subpoena. (Leonhardt Decl., Ex.12, Letter to Daria, dated 10/16.23). Shuts counsel received no response. (Leonhardt Decl. ¶17). Therefore, on 2/13/24, Shut filed and served on the other parties who have appeared in this action a motion seeking an order to show cause re contempt and for sanctions against defaulted Defendant/Cross-Defendant Daria Stepanenko for her refusal to comply with a Deposition Subpoena for Personal Appearance and Production of Documents and Things, and for an award of sanctions in the amount of $3,304.00 against Daria Stepanenko. On 2/16/24, Shut filed a proof of service indicating the motion was served by U.S. Mail on Ignat and Daria on 2/16/24. On 7/19/24, the Court placed the motion filed on 2/13/24 off calendar due to insufficient notice. ( See 7/19/24 Minute Order). On 7/24/24, Shut filed and served on the other parties who have appeared in this action the instant motion seeking an order to show cause re contempt and for sanctions against defaulted Defendant/Cross-Defendant Daria Stepanenko for her refusal to comply with a Deposition Subpoena for Personal Appearance and Production of Documents and Things, and for an award of sanctions in the amount of $3,304.00 against Daria Stepanenko. Specifically, Shut requests that the Court order Daria to immediately comply in appearing for deposition by a date certain or be subject to imprisonment. ( See Motion, p.1:27-p.2:1). On 7/27/24, Shut personally served the above motion on Daria. ( See Proof of Service filed 8/7/24). No opposition or other response to the motion has been filed. ANALYSIS Shuts Request for Judicial Notice (RJN) is granted. An indirect contempt proceeding is commenced by the filing of an affidavit and a request for an order to show cause. Cedars-Sinai Imaging Medical Group (2000) 83 CA4th 1281, 1286 citing CCP 1211(a). It has been held that after notice to the opposing partys counsel, if the court is satisfied with the sufficiency of the affidavit, it must sign an Order to Show Cause re Contempt in which the date and time of the hearing are set forth. Id . citing CCP 1212. Since Daria is in default and not represented by counsel, Shut properly personally served her with notice of the 9/4/24 hearing on this matter. ( See Proof of Service filed 8/7/24). The attendance and testimony of a deponent who is not a party to the action, as well as the production by the deponent of any document, electronically stored information, or tangible thing for inspection and copying, requires the service on the deponent of a deposition subpoena. CCP 2025.280(b); See also Terry (2009) 175 CA4th 352, 357. A deponent who disobeys a deposition subpoena may be punished for contempt, without the necessity of a prior court order directing compliance by the witness or any showing of good cause. CCP 1209(a)(10), CCP 1991, CCP 1991.1, CCP 2020.240, CCP 2023.030(e). Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court issuing the subpoena. CCP 1991. Disobedience means a conscious refusal to attend the deposition. It must be shown that the witness had knowledge of the subpoena, the ability to comply with it, and deliberately failed to do so. Weil & Brown, California Practice Guide Civil Procedure Before Trial Ch. 8E-6, ¶ 8:535. A person found guilty of contempt is subject to a fine (up to $1,000) or imprisonment (up to 5 days), or both. CCP 1218(a); See People v. Gonzalez (1996) 12 C4th 804, 816. A court may also impose civil contempt sanctions: i.e., imprisonment until the party complies (or as a practical matter, agrees to comply). CCP 1219(a). Monetary sanctions may also be imposed on non-parties who disobey the discovery process. Temple Community Hospital (1999) 20 C4th 464, 476-477; Sears, Roebuck & Co. (2005) 131 CA4th 1342, 1350-1351; CCP 2023.010(d), (g), (i); CCP 2023.030(a). Here, Shut has incurred fees and costs in the amount of $3,304.00 in relation to Darias failed deposition and the instant motion. (Leonhardt Decl. ¶¶19-21). CONCLUSION The Court finds the declaration of attorney Donald E. Leonhardt sufficient to support the issuance of an Order to Show Cause Re Contempt and Sanctions against Daria. Therefore, the Court will issue/sign an Order to Show Cause as to why Daria Stepanenko aka Darya Malomuzh should not be held in contempt for failing to comply with the Deposition Subpoena for Personal Appearance served on 8/7/23 and why monetary sanctions should not be imposed against Daria Stepanenko aka Darya Malomuzh. Shut must personally serve Daria Stepanenko with the affidavit filed in support of this motion and the Order to Show Cause. See Cedars-Sinai Imaging Medical Group (2000) 83 CA4th 1281, 1286-1287