Complaint August 23, 2024 (2024)

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BRIDGE WF NC Spring Forest LLC dba Spring Forest VS Kiana Campbell

Aug 26, 2024 |Civil Magistrate Summary Ejectment |Civil Magistrate Summary Ejectment |24CV027081-910

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DHIC - Varina Gateway LLC dba Ascend at Varina Gateway VS Christopher Sharpe

Aug 22, 2024 |Civil Magistrate Summary Ejectment |Civil Magistrate Summary Ejectment |24CV026690-910

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Falls Creek Apartments (NC) Owner LLC dba Falls Creek VS Ariel Burt

Aug 27, 2024 |Civil Magistrate Summary Ejectment |Civil Magistrate Summary Ejectment |24CV027289-910

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Time Investment Corporation T/A Time Financing Service VS Aralis M Silva Gil

Aug 22, 2024 |Civil Magistrate Small Claim Action (Not Summary Ejectment) |Civil Magistrate Small Claim Action (Not Summary Ejectment) |24CV026832-910

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Atlantic pacific Property Management, LLC, Blue Atlantic Harrison, LP VS Natnael Beyene

Aug 22, 2024 |Civil Magistrate Summary Ejectment |Civil Magistrate Summary Ejectment |24CV026829-910

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Provence Real Estate, LLC, agent for owner Raleigh Exchange Apartments, LLC VS Kiara Rosenboro

Aug 27, 2024 |Civil Magistrate Summary Ejectment |Civil Magistrate Summary Ejectment |24CV027335-910

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H2M Investments, LLC dba Real Property Management of Raleigh VS Sharon Ruebesam

Aug 23, 2024 |Civil Magistrate Summary Ejectment |Civil Magistrate Summary Ejectment |24CV026903-910

Case

paul chunn VS Bassem Shehata

Aug 23, 2024 |Civil Magistrate Small Claim Action (Not Summary Ejectment) |Civil Magistrate Small Claim Action (Not Summary Ejectment) |24CV026906-910

Case

USRIG Scenic Club NC Partners LP dba Cortland Cary - Phase 1 VS Tabitha Monet

Aug 28, 2024 |Civil Magistrate Summary Ejectment |Civil Magistrate Summary Ejectment |24CV027511-910

Ruling

- GRESIO, TINA vs MYERS, BEVERLY J

Aug 26, 2024 |CV-24-004770

CV-24-004770 - GRESIO, TINA vs MYERS, BEVERLY J - Plaintiff's Motion For Preliminary Injunction Prohibiting Eviction, Encumbrances,and Sale Of Property Ccp526(A)(1)-(4); 527(A) - CONTINUED, at the moving party’s request, to October 9, 2024 at 8:30 a.m. in Department 23.

Ruling

P.J. McAuliffe Family Partnership, L.P. vs. The Testate or Intestate Successors of Nora McAuliffe, et al.

Sep 01, 2024 |23CV-0202994

SUCCESSORS OF NORA MCAULIFFE, ET AL.Case Number: 23CV-0202994Tentative Ruling on Motion for Judgment on the Pleadings: This is an action to quiet title todormant mineral rights. Plaintiff P.J. McAuliffe Family Partnership, LP brings this motion forjudgment on the pleadings against Defendant John P. “Jack” McAuliffe pursuant to Code of CivilProcedure section 43(c)(1)(A). Plaintiff argues that the First Amended Complaint (FAC) statesfacts sufficient to constitute a cause or causes of action against the Defendant and the Answer doesnot state facts sufficient to constitute a defense to the complaint. The motion is unopposed.Meet and Confer: “The moving party shall file and serve with the motion for judgment on thepleadings a declaration stating” the attempts made to meet and confer. CCP § 439(a)(3). TheDeclaration of Michael Ricks provides sufficient evidence of Plaintiff’s meet and confer efforts.Request for Judicial Notice: The Court GRANTS Plaintiff’s request for judicial notice of the priorOrders in this case, and that certain requests were deemed admitted pursuant to this Court’s Order,pursuant to Evid. Code § 452(d) and 453.Merits of Motion: CCP § 438(c)(1)(A) provides a plaintiff may move for judgment on thepleadings if the complaint states sufficient facts to constitute a cause of action and the answer doesnot state facts sufficient to constitute a defense to the complaint. The grounds for the motion shallappear on the face of the challenged pleading or from any other matter of which the court may takejudicial notice. CCP § 438(d). The Court may take judicial notice of responses to discoveryrecords pursuant to Evidence Code §§ 452(d) and 453. Arce v. Kaiser Foundation Health Plan,Inc. (2010) 181 Cal.App.4th 471, 485. A motion for judgment on the pleadings has the samefunction as a general demurrer but is made after the time for demurrer has expired. Except asprovided by CCP § 438, the rules governing demurrers apply. Cloud v. Northrop Grumman Corp.(1998) 67 CA4th 995, 999.Plaintiff’s First Amended Complaint is the operative pleading. It alleges causes of action for: 1)Quiet Title Against or Termination of Dormant Mineral rights Pursuant to Civ. Code 883.110, etseq., 2) Common Law Abandonment of Mineral Rights, 3) Declaratory Relief.First Cause of Action: Quiet Title or Termination of Dormant Mineral Rights. The owner of realproperty subject to a mineral right may bring an action to terminate the mineral right pursuant tothis article if the mineral right is dormant. Cal. Civ. Code § 883.210. A mineral right is dormantif all of the following conditions are satisfied for a period of 20 years immediately precedingcommencement of the action to terminate the mineral right: (a) There is no production of theminerals and no exploration, drilling, mining, development, or other operations that affect theminerals, whether on or below the surface of the real property or on other property, whether or notunitized or pooled with the real property; (b) No separate property tax assessment is made of themineral right or, if made, no taxes are paid on the assessment; (c) No instrument creating,reserving, transferring, or otherwise evidencing the mineral right is recorded. Cal. Civ. Code §883.220. Plaintiff’s FAC alleges the required conditions have been satisfied. (FAC ¶¶2, 36-39.)Defendant filed a document entitled “Request for Dismissal” on September 20, 2023. The partiesstipulated orally before the Court on March 24, 2024, that this document is deemed the Answerfor both the Original Complaint and the First Amended Complaint. The Answer acknowledgeselement Cal. Civ. Code § 883.220(a) is true and does not address elements (b) or (c). No defensehas been raised. Plaintiff is therefore entitled to judgment on the pleadings as to the First Causeof Action.Second Cause of Action: Common Law Abandonment of Mineral Rights. “Actions to quiet title,like true declaratory relief actions, are generally equitable in nature. A quiet title action is astatutory action that seeks to declare the rights of the parties in realty. The object of the action isto finally settle and determine, as between the parties, all conflicting claims to the property incontroversy, and to decree to each such interest or estate therein as he may be entitled to. Thepurpose of a quiet title action is to determine any adverse claim to the property that the defendantmay assert, and to declare and define any interest held by the defendant, so that the plaintiff mayhave a decree finally adjudicating the extent of his own interest in the property in controversy.”Weeden v. Hoffman (2021) 70 Cal. App. 5th 269, 291 (internal citations omitted).The Supreme Court of California has held that mineral rights are a type of perpetual profit aprendre, which, like easem*nts, are subject to abandonment. Gerhard v. Stephens (1968) 68 Cal.2d 864, 880. “If interests in real property can be and are abandoned, they do not become, as in thecase of personal property, the property of the first appropriator, but instead return to the estate outof which they were carved. The abandonment of a profit a prendre, therefore, because the profitin essence is an easem*nt, does not become subject to the void in ownership that the common lawof land title sought to avoid. If a perpetual right of way or other easem*nt is abandoned, theproperty interest reverts to the servient estate. Similarly, a perpetual right to remove oil and gaswould ordinarily revert to the surface estate, thereby freeing that estate of its burden and permittingits owner more complete utilization and enjoyment of his property.” Id. at 887 (internal citationsomitted).Plaintiff’s FAC alleges Defendants have not produced or attempted to produce the mineral rightsor recorded any instrument evidencing their intention to retain the rights since the 1972 Deed wasrecorded. (FAC ¶ 41.) Plaintiff’s FAC alleges that due to the nonuse and failure to evidence anyintention of retaining the mineral rights, Defendants intended to abandon them. (FAC ¶ 42.)Defendant’s Answer indicates an intent to maintain the mineral rights. (Answer ln.16-18.)However, in its January 25, 2024 Order, this Court deemed admitted Plaintiffs Requests forAdmission, Set One. These admissions establish that Plaintiff conveyed any rights or interestsincluding but not limited to mineral rights in the real property at issue on April 4, 2012. Theadmissions further establish that since April 4, 2012, Defendant has not acquired any rights orinterests, including but not limited to mineral rights, to the real property at issue. These admissionsestablish that Defendant has conveyed any claimed interest in the disputed mineral rights at issue.This does not squarely establish a claim for common law abandonment. Nonetheless, theadmissions do establish that the equitable relief sought by Plaintiff is appropriate.Third Cause of Action: Declaratory Relief. Plaintiffs allege a cause of action for declaratory relief.Declaratory relief is an equitable remedy, not a cause of action. Faunce v. Cate (2013) 222 Cal.App. 4th 166, 173. Plaintiff seeks this Court’s determination that Defendant’s mineral rights inthe subject property have terminated, and have been abandoned, and have therefore merged withthe fee interest in the Property. Based on the foregoing discussion of Plaintiff’s First Cause ofAction for Termination of Dormant Mineral Rights, as well as the Second Cause of Action forAbandonment, the Court finds that Plaintiff is entitled to the relief sought. Additionally, the Courtnotes that its prior Order, dated July 8, 2024, imposed an issue sanction establishing that Defendantindividually and as Trustee of the Leonore McAuliffe 1993 Trust, has no interest in any mineralrights in the Property identified in ¶ 2 of the First Amended Complaint.Where a motion for judgment on the pleadings is granted as to the complaint, the Court normallygrants the opposing side leave to amend its answer unless it appears from the pleadings thatamendment is incapable of otherwise affecting the outcome. Given not just the deficiencies ofMcAuliffe’s answer, but also the Court’s judicially noticed prior orders confirming McAuliffe hasno mineral rights in the property, the Court finds that no amendment will affect the Court’s rulingon this Motion for Judgment on the Pleadings. Leave to amend is therefore not indicated.Plaintiff’s Motion for Judgment on the pleadings is GRANTED without leave to amend. Aproposed order has been lodged with the Court and will be executed.

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 28, 2024 |23CV-0203590

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203590This matter is on calendar for review regarding status of default judgment. The Court notes that Plaintiff’s Requestto Enter Default Judgment was denied without prejudice on June 22, 2024. It appears that no further attemptshave been made to resolve the matter. An appearance is necessary on today’s calendar.

Ruling

Vahid Haghiri vs. Nationstar Mortgage LLC

Aug 22, 2024 |C24-00194

C24-00194CASE NAME: VAHID HAGHIRI VS. NATIONSTAR MORTGAGE LLC *FURTHER CASE MANAGEMENT CONFERENCEFILED BY:*TENTATIVE RULING:*See Line 4.

Ruling

Gordon Panzak vs. City of Fowler

Aug 29, 2024 |22CECG01769

Re: Panzak v. City of Fowler, et al. Case No. 22CECG01769Hearing Date: August 29, 2024 (Dept. 502)Motion: Defendants City of Fowler, et al.’s, Special Motion to Strike the First Amended Complaint Pursuant to Code of Civil Procedure Section 425.16 Defendant Gregory Myers’ Special Motion to Strike the First Amended Complaint Pursuant to Code of Civil Procedure Section 425.16 Defendant City of Fowler, et al.’s, Motion to Strike Punitive DamagesTentative Ruling: To grant the special motion to strike filed by the City of Fowler defendants, as tothe entire first amended complaint, without leave to amend. To grant the special motion to strike filed by defendant Gregory Myers as to theentire first amended complaint, without leave to amend. To grant attorney’s fees to Mr.Myers in the amount of $2,580. Plaintiff shall pay sanctions to Mr. Myers within 30 days ofthe date of service of this order. To deny the City’s motion to strike the prayer for punitive damages from the firstamended complaint as moot in light of the court’s ruling on the special motions to strike.Defendants shall submit proposed judgments consistent with the language of the court’sorder within 10 days of the date of service of this order.Explanation: General Principles Regarding Special Motions to Strike: Under Code of CivilProcedure section 425.16, “[a] cause of action against a person arising from any act ofthat person in furtherance of the person's right of petition or free speech under the UnitedStates Constitution or the California Constitution in connection with a public issue shall besubject to a special motion to strike, unless the court determines that the plaintiff hasestablished that there is a probability that the plaintiff will prevail on the claim.” (CodeCiv. Proc., § 425.16, subd. (b)(1).) “In making its determination, the court shall consider the pleadings, andsupporting and opposing affidavits stating the facts upon which the liability or defense isbased.” (Code Civ. Proc., § 425.16, subd. (b)(2).) “As used in this section, ‘act in furtherance of a person's right of petition or freespeech under the United States or California Constitution in connection with a publicissue’ includes: (1) any written or oral statement or writing made before a legislative,executive, or judicial proceeding, or any other official proceeding authorized by law, (2)any written or oral statement or writing made in connection with an issue underconsideration or review by a legislative, executive, or judicial body, or any other officialproceeding authorized by law, (3) any written or oral statement or writing made in aplace open to the public or a public forum in connection with an issue of public interest,or (4) any other conduct in furtherance of the exercise of the constitutional right ofpetition or the constitutional right of free speech in connection with a public issue or anissue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).) Also, “in any action subject to subdivision (b), a prevailing defendant on a specialmotion to strike shall be entitled to recover that defendant's attorney's fees and costs. Ifthe court finds that a special motion to strike is frivolous or is solely intended to causeunnecessary delay, the court shall award costs and reasonable attorney's fees to aplaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16,subd. (c)(1).) “Resolution of an anti-SLAPP motion involves two steps. First, the defendant mustestablish that the challenged claim arises from activity protected by section 425.16. Ifthe defendant makes the required showing, the burden shifts to the plaintiff todemonstrate the merit of the claim by establishing a probability of success. We havedescribed this second step as a ‘summary-judgment-like procedure.’ The court does notweigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether theplaintiff has stated a legally sufficient claim and made a prima facie factual showingsufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, andevaluates the defendant's showing only to determine if it defeats the plaintiff's claim asa matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Baral v.Schnitt (2016) 1 Cal.5th 376, 384–385, citations and footnotes omitted.) “Thus, inevaluating anti-SLAPP motions, ‘courts should consider the elements of the challengedclaim and what actions by the defendant supply those elements and consequently formthe basis for liability.’” (Wong v. Wong (2019) 43 Cal.App.5th 358, 364, quoting Park, supra,at p. 1063.) Timeliness of the Motions and Plaintiff’s Other Procedural Objections: Plaintiff hasargued in his opposition that the City of Fowler defendants’ motion is untimely as it shouldhave been filed within 30 days, and that defendant Myers waived his right to bring themotions because he filed his answer before filing the special motion to strike. However,plaintiff’s objections are misplaced. Under Code of Civil Procedure section 425.16, subdivision (f), “The special motionmay be filed within 60 days of the service of the complaint or, in the court's discretion, atany later time upon terms it deems proper.” (Code Civ. Proc., § 425.16, subd. (f).) Here,the defendants filed their motions within 60 days1 of the date they were served with thecomplaint, so the motions are timely. There is no requirement that the special motion to1 Plaintiff served defendants on April 16, 2024 by personal delivery, so 60 days from the date ofservice was June 15, 2024. However, June 15, 2024 was a Saturday, so the last day to file themotion was Monday, June 17, 2024. Myers filed his special motion to strike on June 14, 2024, andthe City of Fowler filed its motion on June 17, 2024.strike be filed before or concurrently with the defendant’s answer. Therefore, plaintiff’scontention that the motions are untimely or that defendants waived their right to bringthe motions is simply incorrect. In addition, to the extent that plaintiff objects that the defendants failed to meetand confer or discuss filing the special motions to strike with him before filing them, thereis no meet and confer requirement in section 425.16. The moving party simply needs tobring the motion within 60 days of service of the complaint or pleading that it seeks tostrike. (Code Civ. Proc., § 425.16, subd. (f).) Likewise, there is no requirement that themoving party state that the motion is being brought in “good faith” or that it is not broughtfor the purpose of delay or harassment. Also, to the extent that plaintiff objects to the City’s motion on the ground that itfails to specify the items in the first amended complaint that the City is objecting to,plaintiff appears to be confusing a special motion to strike under section 425.16 with a“standard” motion to strike under section 435 or 436. Unlike a standard motion to strike,which targets specific allegations or prayers for relief that are improperly alleged, aspecial motion to strike seeks to strike out whole causes of action or entire complaints onthe ground that they are improper SLAPP actions. (Code Civ. Proc., § 425.16, subd.(b)(1).) Therefore, when a defendant brings a special motion to strike, it is not requiredto specify each allegation or prayer that is being challenged, and instead they shouldmove to dismiss the entire complaint or one or more causes of action within thecomplaint. As a result, plaintiff’s objection here is misplaced. Plaintiff also raises a number of other evidentiary or procedural objections to theCity’s motion, but the objections are not well taken and the court intends to overrulethem. (See Plaintiff’s Objections to the City’s Motion, p. 2.) The City of Fowler Defendants’ Motion: The court intends to grant the City of Fowlerdefendants’ special motion to strike the entire first amended complaint. The City has metit* burden of showing that the entire FAC is based on protected conduct by the City. In particular, plaintiff has alleged that he had previously filed an action againstthe City of Fowler, which placed the City on notice that plaintiff suffered from healthissues and physical vulnerability. (FAC, p. 2, seventh to twelfth paragraphs.) Defendantswere also aware of the fact that plaintiff’s property rights were “grandfathered in” undera California Supreme Court ruling and the 1977 Fowler City Code. (FAC, p. 2, lastparagraph.) The parties had agreed to submit the dispute over whether there was apublic right of way on plaintiff’s property to the Superior Court in the underlying casenumber 17CECG02635. (FAC, p. 3, second paragraph.) Nevertheless, “On or about June 14, 2021, under the guise of doing a waterimprovement on Adams Ave, City of Fowler, the Defendants, entered and excavatedthe Plaintiff's property and placed 2 large handicap sidewalk ramps on the propertylocated at 405 E. Adams Ave.” (FAC, p. 3, third paragraph.) “Despite the fact that theissue of the Public Right of Way's existence and other related issues were before theFresno County Superior Court, the Defendant's [sic] gave no advanced notice of theiraction to the Plaintiff, nor did the Defendants seek permission of the Superior Court toobtain permission to do the entry, excavation, and placement of the concrete ramps onPlaintiff’s property.” (FAC, p. 3, fourth paragraph.) After plaintiff called the City’s attorneyand the contractor to complain about the intrusion on his property, no further work tookplace for another four days. However, on the fifth day, the defendants returned with apolice escort and “recommenced their trespass and vandalism on the Plaintiff’sproperty.” (FAC, p. 3, fifth to seventh paragraphs.) Plaintiff then contacted attorney Gregory Myers to discuss a settlement of theunderlying case. (FAC, p. 3, last paragraph.) Myers asked plaintiff to call him and discussthe matter. (Ibid.) However, during the phone conversation, Myers allegedly stated thathe was recording the conversation. (Ibid.) Plaintiff contends that the recording wasmade without his prior knowledge and consent, which violated the Penal Code. He thenimmediately terminated the conversation. (FAC, p. 4, first paragraph.) Plaintiff’s offerwas rejected, and then then filed his current complaint. (FAC, p. 4, second paragraph.) However, plaintiff’s entire first amended complaint is based on protected conductby the City of Fowler and its councilmembers, officers, and staff. As discussed above,section 426.16 states that “‘act in furtherance of a person's right of petition or free speechunder the United States or California Constitution in connection with a public issue’includes: (1) any written or oral statement or writing made before a legislative, executive,or judicial proceeding, or any other official proceeding authorized by law, (2) any writtenor oral statement or writing made in connection with an issue under consideration orreview by a legislative, executive, or judicial body, or any other official proceedingauthorized by law, (3) any written or oral statement or writing made in a place open tothe public or a public forum in connection with an issue of public interest, or (4) any otherconduct in furtherance of the exercise of the constitutional right of petition or theconstitutional right of free speech in connection with a public issue or an issue of publicinterest.” (Code Civ. Proc., § 425.16, subd. (e).) Here, the City Council’s decision to approve the project to install sidewalks andhandicap ramps on plaintiff’s property was an act in furtherance of the right to petitionor free speech, as the City Council conducted a public hearing and debated whetherto approve the public works project, and then granted its approval of the project. (SeeCity’s Request for Judicial Notice, Walls decl., Exhibits A, B, C, D, E. The court intends totake judicial notice of the documents as official acts of the City.) The City caused aRecord of Survey to be conducted with regard to the property lines surrounding plaintiff’sproperty, which indicated that there was a public right of way next to the property.(Exhibit A to Walls decl.) The City then conducted a hearing2 and approved theconstruction project for reconstruction of Adams Avenue, which was awarded to DonBerry Construction. (Exhibit B to Walls decl., p. 2, ¶ 8 (C).) City Manager Wilma Quansigned the contract with Don Berry Construction shortly after the City Council approvedthe project. (Exhibit C to Walls decl., p. 5.) Deputy City Clerk Angela Vasquez witnessedthe execution of the agreement. (Ibid.) Thus, it is apparent from the allegations of the first amended complaint thatplaintiff is suing the City of Fowler, the City Council members, and the City’s staff basedon their decision to approve the project to install sidewalks and handicap ramps on ornear his property. Yet such conduct is clearly “an act in furtherance of the right of freespeech of petition” under section 425.16, so the burden shifts to plaintiff to show by2Due to the ongoing Covid pandemic, the public was not allowed to attend the hearing inperson. However, the public was allowed to access the meeting via teleconference. (Exhibit B,p. 1, first paragraph.)admissible evidence that he has a probability of prevailing on his claims against the City.(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Here, plaintiff has not met his burden of showing that he has a probability ofprevailing on his claims. Plaintiff has not submitted any admissible evidence that wouldtend to show that he can prevail on any of his claims. Most of his opposition consists ofprocedural legal arguments, which are without merit as discussed above. He argues inconclusory fashion that “the acts related to enforcement, of Legislative Acts are notProtected Acts.” (Opposition, p. 2, ¶ 11.) However, this argument is unsupported by anyevidence or legal authority, and the court intends to disregard it. Plaintiff also submits his own declaration, in which he repeats the same factualallegations that form the basis for his complaint. (Panzak decl., ¶¶ 4-13.) He claims thatthe City and the other defendants were aware of the pending litigation against them incase number 17CECG02635, but they decided to use “self-help” against his property. (Id.at ¶ 5.) The City’s attorney, Mr. Velez, also allegedly told plaintiff that he had advised theCity to refrain from any actions against plaintiff’s property while the litigation waspending, but the defendants did not heed his advice. (Id. at ¶¶ 6-8.) The defendantssubmitted the boundary dispute to the court in the underlying case, and they did notgive plaintiff any notice or an opportunity to be heard before they went forward with theproject. (Id. at ¶¶ 9, 10.) “The City employees, contractors, and other unknown partiesentered into a criminal conspiracy to violate Penal Code section 182.(5), conspiracy topervert or obstruct justice or the due Administration of the Law.” (Id. at ¶ 11.) “Criminalconduct is not protected by SLAPP or any other Provision of Law.” (Id. at ¶ 12.) “Thedefendants were aware that the 1977 City of Fowler Municipal Code ‘grandfathered’the property use of the Plaintiff no later than 1978.” (Id. at ¶ 13.)3 None of plaintiff’s allegations in his declaration constitute evidence that tends toshow that he has a probability of prevailing on his claims. Plaintiff’s primary contentionseems to be that the City and its councilmembers and staff ignored the fact that therewas a pending case regarding the property boundary dispute, and that they hadallegedly agreed to submit the dispute to the court in the underlying action rather thanengage in “self-help” by going forward with the project to improve Adams Avenue.Plaintiff claims that the City engaged in a criminal conspiracy to obstruct justice bymoving forward with the project without notice to plaintiff or approval from the court.Yet plaintiff never alleges that there was any binding court order or stipulation in effectin the underlying case that forbade the City from moving forward with the project.Without a court order or binding stipulation that barred the City from going forward withthe project, the fact that the City approved the project and hired a contractor toconstruct the improvements does not appear to support any type of claim against theCity or its agents or employees. Nor does plaintiff’s evidence show that the City engagedin a criminal conspiracy to obstruct justice, as again there was no court order or bindingagreement that the City violated by approving and moving forward with the project.Plaintiff’s unsupported arguments and legal conclusions are not sufficient to meet hisburden of showing that he has a likelihood of prevailing on his claims.3 The City has objected to plaintiff’s declaration, and the court intends to sustain most of theobjections as they lack foundation and appear to be largely based on hearsay, are improperlegal opinions, and lack personal knowledge. The court will sustain all objections except objections2 and 7, which are overruled. Therefore, since the plaintiff has not met his burden of showing by admissibleevidence that he has a probability of prevailing on his claims, the court intends to grantthe City’s special motion to strike the entire FAC against it, without leave to amend. Myers’ Special Motion to Strike: The court also intends to grant Mr. Myers’ specialmotion to strike the entire first amended complaint against him. The plaintiff’s first amended complaint does not clearly state which causes ofaction are being brought against which defendants. Instead, most of the causes ofaction only vaguely allege that “defendants” committed various acts against him.However, to the extent that plaintiff seeks to state claims against Mr. Myers for the allegedtrespass onto his property and taking of a portion of his property for the purpose ofconstructing a public works project, namely installing a sidewalk and handicap ramps,the first amended complaint is subject to being stricken for the same reasons discussedabove with regard to the City defendants. Plaintiff’s claims against Myers appear to be based on his role as attorney for theCity, but plaintiff has not alleged any facts showing that Mr. Myers was involved in thedecision to approve the project, or that he participated in the project in any way. Evenif he had alleged such facts, Myers’ conduct was protected activity for the same reasonsthat the other City employees’ conduct was protected. Nor has plaintiff presented anyadmissible evidence that Myers did anything to violate his property rights, so he has notmet his burden under the second prong of the anti-SLAPP statute. Myers himself deniesthat he ever entered plaintiff’s property, and plaintiff has not presented any evidence torebut Myers’ denial. (Myers decl., ¶ 5.) Therefore, the court intends to grant the motionto strike the first seven causes of action against Myers. However, the eighth and ninth causes of action are specifically alleged againstMr. Myers. The eight cause of action, which alleges a claim for invasion of privacy, statesthat “The Defendant Gregory Myers did repeatedly and continuously recordconversations with the Plaintiff wherein the Plaintiff had reasonable expectation that theconversation was private and Myers did admit that he had recorded a discussionregarding an offer in settlement and compromise, in violation of the California PenalCode and the right of privacy enjoyed by the Plaintiff.” The ninth cause of action alleges a claim for fraud and deceit. Plaintiff allegesthat “The defendant Gregory Myers did in Bad Faith and in derogation of his duties as anofficer of the court filed unsuccessfully, 2 Demurrers, 21 Motions to Compel Discovery,and a Summary Judgement action. All of the motions were denied by the Court and aspart of the Summary Judgement Proceedings Myers asked the Superior Court to applyBad Faith Sanctions to the Plaintiff to the extent of $20,000. The Sanctions were notauthorized by Law and this was a Bad Faith attempt to discredit the Plaintiff with theCalifornia State Bar and to unlawfully seek an order to have the Plaintiff pay the claimed$20,000 cost directly to defendants. There was no provision in the applicable statute andcases to authorize such action. Thereby attempting and perpetrating a Fraud and Deceiton the Fresno County Superior Court and the Plaintiff’s rights under statute and case law,and his clients who paid his fees, causing the Plaintiff to spend time and effort to respondto frivolous allegations and frivolous motions of the Defendant Myers.” Again, however, Myers has met his burden of showing that the alleged acts andstatements that form the basis for plaintiff’s claims against him were protected speech orpetitioning activity. Plaintiff admits that Myers was acting as the attorney for the City ofFowler and its councilmembers and staff when he filed the motions and engaged insettlement discussions with plaintiff. Filing motions, requesting sanctions, and engagingin settlement negotiations in a pending civil case are an integral part of an attorney’srepresentation of his or her clients, and are therefore “protected activity” under section425.16. Under section 425.16, subdivision (e), “protected activity” includes “any written ororal statement or writing made before a … judicial proceeding…”, as well as “any writtenor oral statement or writing made in connection with an issue under consideration orreview by a …. judicial body...” “‘Any act’ includes communicative conduct such as thefiling, funding, and prosecution of a civil action. This includes qualifying acts committedby attorneys in representing clients in litigation.” (Rusheen v. Cohen (2006) 37 Cal.4th1048, 1056, citations omitted.) Here, Myers’ filings were clearly made in a judicial proceeding and were made inconnection with issues under consideration by a judicial body, as he was representingthe City and its officers, agents and employees in the pending civil action plaintiff hadfiled against them. Also, any statements he made during the settlement negotiationswere made in connection with the pending case, and thus were protected speech. While plaintiff argues in his opposition that Myers’ acts were negligent orfraudulent, and thus were not “protected activity”, he cites to no authorities in support ofhis position. He claims that Myers engaged in various incompetent conduct, includingfiling unsuccessful motions, seeking sanctions without any legal support, and failing topresent settlement offers to his clients. He also contends that Myers made fraudulentstatements and failed to disclose facts that he was under a duty to disclose, includingfailing to convey plaintiff’s settlement offers to his clients. He also points out that the court“chastised” him several times in its tentative rulings on the various motions that he broughtin the underlying action for failing to meet and confer before bringing motions, and forrequesting sanctions without legal support. However, even assuming that plaintiff is correct and that Myers engaged inincompetent representation of his clients, plaintiff has no standing to bring a claimagainst Myers for malpractice, as he was not one of Myers’ clients. In fact, he was theperson who was suing Myers’ clients in the underlying action. Therefore, the alleged factthat Myers may have been incompetent in his representation of his clients does not meanthat his statements and actions in representing them was not “protected activity” undersection 425.16. Likewise, while plaintiff contends that Myers engaged in fraud and therefore hisconduct is not protected, he has not cited to any authorities that hold that allegationsthat an attorney committed fraud during his representation of a client in a civil actionremove the claim from the scope of the anti-SLAPP statute. Simply alleging that anattorney committed fraud during the course of his representation of his clients in apending case is not enough to escape the protections of the anti-SLAPP statute.Otherwise, a plaintiff could always allege that an attorney committed fraud and therebyavoid having his case against the attorney dismissed as a SLAPP action. In any event, here plaintiff has not even alleged the basic elements of a fraudcause of action, including a false statement made by the defendant with knowledge ofits falsity, intent to deceive, justifiable reliance on the statement by the plaintiff, andresulting harm to the plaintiff. (Lim v. The. TV Corp. Internat. (2002) 99 Cal.App.4th 684,694.) Plaintiff does not allege that Myers made intentionally false statements, that heintended to deceive plaintiff, that plaintiff actually and reasonably relied on anystatements made by Myers, or that he was harmed as a result of his reliance. It appearsthat plaintiff is alleging that Myers made statements that were false to the court, butplaintiff himself was not deceived and did not rely on those statements to his detriment.Therefore, plaintiff’s fraud claim is insufficiently alleged as well as being based entirely onMyers’ protected conduct. As a result, the burden shifts to plaintiff to show by admissible evidence that he hasa probability of prevailing on his claims for fraud and invasion of privacy. However,plaintiff has not presented any evidence to support his opposition to Myers’ motion. Heonly submits legal arguments, not separate evidence to show that he may be able toprevail on his claims. He has therefore failed to meet his burden of showing by admissibleevidence that he has a likelihood of prevailing. Nor does it appear that plaintiff could prevail on his claims against Myers, sincethe claims are based on conduct that is protected under the litigation privilege set forthin Civil Code section 47(2). “The principal purpose of section 47(2) is to afford litigantsand witnesses the utmost freedom of access to the courts without fear of being harassedsubsequently by derivative tort actions.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 213,citations omitted.) “To effectuate its vital purposes, the litigation privilege is held to be absolute innature. In Albertson, Justice Traynor, speaking for the court, reasoned that the policy ofencouraging free access to the courts was so important as to require application of theprivilege to torts other than defamation. Accordingly, in the years since Albertson,section 47(2) has been held to immunize defendants from tort liability based on theoriesof abuse of process, intentional infliction of emotional distress, intentional inducement ofbreach of contract, intentional interference with prospective economic advantage, andfraud. The only exception to application of section 47(2) to tort suits has been formalicious prosecution actions. Malicious prosecution actions are permitted because‘[t]he policy of encouraging free access to the courts ... is outweighed by the policy ofaffording redress for individual wrongs when the requirements of favorable termination,lack of probable cause, and malice are satisfied.’” (Id. at pp. 215–216, citations omitted.) “The usual formulation is that the privilege applies to any communication (1) madein judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized bylaw; (3) to achieve the objects of the litigation; and (4) that have some connection orlogical relation to the action.” (Id. at p. 212.) Where the litigation privilege applies, it can show that the plaintiff has noprobability of prevailing on his claims as part of the second prong of the anti-SLAPPmotion analysis. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) In the present case, the litigation privilege clearly applies to the claims againstMyers, as any communications that he made while he was representing the City and itsofficers and employees were privileged. Again, plaintiff’s claims are based on Myers’filing of motions, requests for sanctions, and statements made during settlementnegotiations with plaintiff as part of his representation of the City in the underlying case.Thus, the statements, filings, or other communications were made by Myers as part of theunderlying civil action against the City, they were made by Myers on behalf of his clients,they were made to achieve the objects of the litigation, and they were clearlyconnected to the litigation. Consequently, the communications were absolutelyprivileged under Civil Code section 47(2), and there is no possibility that plaintiff canprevail on his claims based on the communications. As a result, the court intends to grantMyers’ special motion to strike the entire FAC against him. Finally, the court intends to grant Myers’ request for an award of attorney’s feesagainst plaintiff. Under section 425.16, subdivision (c)(1), “Except as provided inparagraph (2), in any action subject to subdivision (b), a prevailing defendant on aspecial motion to strike shall be entitled to recover that defendant's attorney's fees andcosts.” Here, Myers is the prevailing defendant on his special motion to strike, so he isentitled to an award of his fees and costs. Myers has submitted a declaration from his attorney, Laura Riparbelli, in which shestates that she spent 7.9 hours preparing the special motion to strike at a discountedinsurance rate of $300 per hour. (Riparbelli decl., ¶ 3.) Her standard hourly rate is $450.(Ibid.) Another attorney, Alison Buchanan, spent .4 hours evaluating and revising themotion. (Ibid.) Her discounted hourly rate is $400, so her total billing for the motion was$160. (Ibid.) Her standard hourly rate is $650. (Ibid.) In addition, counsel expects tospend another six hours evaluating plaintiff’s opposition, preparing a reply, andappearing at the hearing. (Ibid.) Therefore, counsel requests at least $4,930 in attorney’sfees for the cost of bringing the motion. (Ibid.) Plaintiff complains that the request for fees is excessive, but provides no argument,authorities, or evidence to support his contention. Nevertheless, it does appear thatspending over 14 hours of attorney time to draft and argue a nine-page special motionto strike is somewhat excessive. Although anti-SLAPP motions can be complex anddifficult to brief and argue, the motion in this case was relatively simple andstraightforward, and therefore should not have required over 14 hours to prepare andargue. As a result, the court intends to reduce the amount of fees to $2,580 based oneight hours of attorney time billed at $300 per hour and .4 hours of attorney time billed at$450 per hour. The City’s Motion to Strike Punitive Damages: Finally, since the court intends togrant the special motions to strike the entire FAC against the City and Myers, there is noneed to also grant the City’s motion to strike the prayer for punitive damages. Therefore,the court intends to deny the motion to strike as moot. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 08/28/24 . (Judge’s initials) (Date)

Ruling

JAMES LEE VS EMAAR LA PROPERTIES, LLC

Aug 27, 2024 |SC129270

Case Number: SC129270 Hearing Date: August 27, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 27, 2024 CASE NUMBER SC129270 MOTION Motion for Attorneys Fees MOVING PARTIES Cross-Complainants Emaar LA Properties, LLC and EJL Homes Realty and Construction, Inc. OPPOSING PARTY none MOTION Cross-Complainants Emaar LA Properties, LLC (Emaar) and EJL Homes Realty & Construction, Inc. (EJL) (together, Cross-Complainants) filed the operative Second Amended Cross-Complaint (SACC) against Cross-Defendant JCL Contractors, Inc. (JCL) alleging five causes of action for (1) Breach of Written Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranties; (4) Negligence; and (5) Declaratory Relief stemming from a dispute over JCLs improper work on a 22-story luxury high rise condominium project called Beverly West. Default was entered against JCL on July 11, 2024, and Cross-Complaints have requested entry of Default Judgment against JCL. Cross-Complainants separately request their attorneys fees incurred in the amount of $277,822.75 to Lee, Landrum & Ingle and $49,845.90 to Pursiano Law, LLP. JCL has defaulted and has therefore not opposed the motion. LEGAL STANDARD Code of Civil Procedure section 1033.5, which outlines recoverable costs to a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys fees when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Code of Civil Procedure section 1021 provides [e]xcept as attorneys fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [&.] Similarly, Civil Code section 1717 provides [i]n any action on a contract, where the contract specifically provides that attorneys fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs. (Civ. Code, § 1717, subd. (a).) The Code of Civil Procedure defines the prevailing party as follows: [T]he party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the prevailing party shall be as determined by the court, and under those circ*mstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (Code Civ. Proc., § 1032, subd. (a)(4).) ANALYSIS Provision 14.1.9 of the parties contract provides: 14.1 Events of Default. The occurrence of any one or more of the following events and the continuation thereof for a period of forty-eight (48) hours following written or oral notice thereof by Contractor to Trade Contractor shall constitute an "Event of Default" by Trade Contractor: 14.1.1 Trade Contractor fails to complete the whole or any portion of the Work in a timely manner, or in the opinion of Contractor, Trade Contractor is not making sufficient progress with the Work, either due to lack of material, personnel or otherwise [. . .] 14.1.3 Contractor or any other trade contractor(s) shall be unable to proceed with the Project or any portion thereof because of any action of Trade Contractor or any employee, agent, subcontractor, supplier or invitee of Trade Contractor or by any person or labor organization purporting or attempting to represent any employee of Trade Contractor or the presence of Trade Contractor or its subcontractors on the Project causes any labor relations problems, including but not limited to picketing, strikes, slowdowns or interference with the operations of Contractor; 14.1.4 Trade Contractor fails to remedy any defect of material or workmanship furnished by it when and as required by Contractor or Contractor's third party peer reviewers [. . .] 14.1.7 Trade Contractor substitutes materials without Contractor's written consent; 14.1.8 Trade Contractor assigns its obligations, or any part thereof, to another trade contractor or supplier without Contractor's prior written consent; or 14.1.9 Trade Contractor violates any other provision of this Agreement; UPON AN EVENT OF DEFAULT, CONTRACTOR MAY, WITHOUT FURTHER NOTICE TO TRADE CONTRACTOR, TERMINATE THIS AGREEMENT IN WHOLE OR IN PART AND, EITHER THROUGH ITS OWN EMPLOYEES OR THROUGH ANY TRADE CONTRACTOR OF ITS CHOICE, COMPLETE THE WORK OR REMEDY ANY DEFECT OF MATERIAL OR WORKMANSHIP AND UPON SUCH TERMINATION, TRADE CONTRACTOR SHALL BE LIABLE TO CONTRACTOR FOR ANY AND ALL LOSS, DAMAGE OR EXPENSE, DIRECTLY OR INDIRECTLY SUFFERED BY CONTRACTOR FROM SUCH EVENT OF DEFAULT, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES INCURRED OR PAID BY CONTRACTOR. THE COSTS AND DAMAGES INCURRED BY CONTRACTOR AS A RESULT OF THE ABOVE ACTIONS MAY BE DEDUCTED FROM ALL AMOUNT DUE OR TO BECOME DUE TO TRADE CONTRACTOR UNDER THIS AGREEMENT, OR ANY OTHER AGREEMENT BETWEEN CONTRACTOR OR ITS AFFILIATES AND TRADE CONTRACTOR, HOWEVER SUCH DEDUCTION SHALL NOT BE DEEMED A WAIVER OR RELEASE OF ANY OBLIGATIONS OF TRADE CONTRACTOR, INCLUDING, WITHOUT LIMITATION, RESPONSIBILITY FOR ANY LOSS OR LIABILITY OF TRADE CONTRACTOR IN EXCESS OF ANY SUCH DEDUCTION. IF CONTRACTOR MUST USE ITS OWN LABOR TO COMPLETE ALL OR ANY PORTION OF THE WORK OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO WARRANTY SERVICE WORK, CONTRACTOR'S LABOR SHALL BE CHARGED AT THE RATE OF FIFTY ($50) DOLLARS PER HOUR. IF CONTRACTOR, THROUGH ITS OWN EMPLOYEES OR THROUGH ANY SUCH TRADE CONTRACTOR OF ITS CHOICE, COMPLETES THE WORK PURSUANT TO THE PROVISIONS OF THIS SUBSECTION, IT MAY USE OR PERMIT ANY SUCH TRADE CONTRACTOR TO USE ALL MATERIAL AND EQUIPMENT OF TRADE CONTRACTOR ON THE SITE ON THE DATE OF GIVING SUCH NOTICE. (Exhibit 1.) In connection with the request for default judgment, Cross-Complainants provided proof that JCL failed to remedy defective workmanship it performed. Therefore, Cross-Complainants are generally entitled to recover their reasonable attorneys fees as the prevailing parties in the action. In support of the request, Cross-Complainants have provided the attorney declarations of David S. Lee and David T. Pursiano, along with invoices, demonstrating that Pursiano Law, LLP incurred $49,845.90 in attorneys fees. Cross-Complainants also request $277,822.75 in attorneys fees for Lee, Landrum & Ingle, but the Declaration of David S. Lee and attached invoices only add up to $277,522.75 in attorneys fees. CONCLUSION For the foregoing reasons, the Court grants Cross-Complainants motion for attorneys fees in the amount of $49,845.90 for Pursiano Law, LLP and $277,522.75 for Lee, Landrum & Ingle. Further, the Court will incorporate the attorneys fees award into the final Default Judgment entered against JCL. DATED: August 27, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 26, 2024 |23CV-0203590

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203590This matter is on calendar for review regarding status of default judgment. The Court notes that Plaintiff’s Requestto Enter Default Judgment was denied without prejudice on June 22, 2024. It appears that no further attemptshave been made to resolve the matter. An appearance is necessary on today’s calendar.

Ruling

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MOTION TO COMPEL INITIALRESPONSES TO SPECIALCVRI2306588 RULLAN VS DOUCET INTERROGATORIES, SET ONE BYLARON DOUCET, JR., LENORRECLARKETentative Ruling: No tentative will be given.

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