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Ruling
Billman vs Harmon
Aug 16, 2024 |23CV47101
23CV47101PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINTThis action arises out of a dispute between Jamie Billman and Myrna Ray Reynolds,LLC (“Plaintiffs”) and Krystal Harmon (“Defendant”), regarding the title andownership of the real property located at 3968 S. Burson Road, Valley Springs, CA95252 (“Property”).Plaintiffs filed their complaint on December 6, 2023, and are now before the Courtseeking leave to file a First Amended Complaint (“FAC”) to allege new acts andomissions on the part of Defendant. Defendant has not filed an opposition.“The court may, in furtherance of justice, and on such terms as may be proper, allow aparty to amend any pleading …” (Code Civ. Proc., § 473, subd. (a)(1).) The court'sdiscretion will usually be exercised liberally to permit amendment of the pleadings.(Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) The policy favoring amendment isso strong that it is a rare case in which denial of leave to amend can be justified: If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend; and, where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530.)At this stage, the Defendants would not be prejudiced by allowing the amendmentsought since a trial has not yet been set and the FAC adds new facts and theoriesarising out of the same circ*mstances as the original complaint.Based on the foregoing, the Court GRANTS the Motion. Plaintiff shall have 10 days’leave to file a first amended complaint.The Clerk shall provide notice of the Ruling forthwith. No further formal Order isrequired. RIGUERO v MENDEZ, et al
Ruling
MARIA ELENA ESTRADA VS JUAN MONCADA ET AL
Aug 14, 2024 |BC696401
Case Number: BC696401 Hearing Date: August 14, 2024 Dept: 61 MARIA ELENA ESTRADA VS JUAN MONCADA ET ALTENTATIVE Plaintiff Maria Elena Estrada (Plaintiff) move to appoint an elisor for Defendant and Judgment Debtor Antonio Morales (Morales), to execute documents and transfers that Morales was ordered to execute to effectuate this courts quiet title judgment. (Motion at p. 9.) At issue here is the court's authority and reasonableness in issuing the order appointing the elisor. As used in the case at bar, consistent with its common legal meaning, an elisor is a person appointed by the court to perform functions like the execution of a deed or document. (Rayan v. Dykeman (1990) 224 Cal.App.3d 1629, 1635, fn. 2, [274 Cal.Rptr. 672] (Rayan).) A court typically appoints an elisor to sign documents on behalf of a recalcitrant party in order to effectuate its judgments or orders, where the party refuses to execute such documents. (See Ibid.) We note that under Code of Civil Procedure section 262.8, elisor specifically means a person designated by the court to execute process or orders in an action or proceeding involving the sheriff *1021 and/or coroner. Code of Civil Procedure's use of the term is not at issue in this case. Courts use elisors in matters like this one to enforce their orders. Under section 128, subdivision (a)(4), [e]very court shall have the power .... [¶] ... [¶] [t]o compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein. This statute has codified the principle of [t]he inherent power of the trial court to exercise reasonable control over litigation before it, as well as the inherent and equitable power to achieve justice and prevent misuse of processes lawfully issued.... (Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72 Cal.App.3d 675, 679, [140 Cal.Rptr. 361].) In Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 10201021, the court held that the trial court did not err in appointing the clerk of the court as an elisor to sign the escrow documents on behalf of the defendant. (Id. at p. 1020.) This courts judgment of August 12, 2020, directed Defendant Morales to convey to Plaintiff any and all interest in the property on Naomi Avenue in Los Angeles that is the subject of this action. Prior to judgment, Plaintiff obtained an order to serve Morales by publication because they were unable to locate him. (Estrada Decl. ¶¶ 1521.) Since judgment, Plaintiff is still unable to locate Morales, has not been contacted by him, and has been unable to secure his conveyance as ordered by the court. (Estrada Decl. ¶¶ 2730.) Because of the inability to contact Morales, Plaintiff has shown that appointment of an elisor is necessary to effectuate this courts judgment under Code of Civil Procedure § 128, subd. (a)(4). The motion is therefore GRANTED.
Ruling
Ismael Ramirez vs. Laura Santos
Aug 15, 2024 |23CECG04611
Re: Ismael Ramirez v. Laura Santos. Superior Court Case No. 23CECG04611Hearing Date: August 15, 2024 (Dept. 502)Motion: Defendants Laura Santos, Carrie Simmons, Juan Francisco Alvarez and Envision Realty Inc.’s Demurrer and Motion to Strike the First Amended Complaint. If timely requested, oral argument will be entertained on Thursday, August 15, 2024 at 1:00 PM in Department 502.Tentative Ruling: To deny the motion to strike the first and second causes of action of the FirstAmended Complaint. To overrule the general demurrer to the First Amended Complaint. (Code Civ.Proc. §430.10, subd. (e).) Defendants Laura Santos, Carrie Simmons, Juan FranciscoAlvarez, and Envision Realty, Inc. to file an answer to the First Amended Complaint. Thetime in which the answer can be filed will run from service by the clerk of the minuteorder.Explanation: As a threshold matter, the court will address the motion to strike the addition oftwo causes of action in order to define the scope of the demurrer to the first amendedcomplaint. The addition of two new causes of action was not directly specified within thescope of leave granted in the court’s ruling on the April 25, 2024 demurrer to thecomplaint. However, the two additional causes of action for fraud and fraudulenttransfer directly respond to the deficiencies identified in the April 25, 2024 ruling. (Patrickv. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) The additional causes of actionaddress absence of allegations to support plaintiffs’ standing to bring their quiet titleclaim and provide the basis of for the alleged financial elder abuse. Accordingly, themotion to strike is denied. Defendants’ general demurrer to the verified first amended complaint asserts thefirst amended complaint “fails to state facts sufficient to constitute a cause of actionagainst all moving defendants, in that the First Amended Complaint fails to plead factsestablishing there was any valid written agreement by Plaintiffs to obtain legal title to thesubject property and that the Plaintiffs’ [sic] lack standing to bring such action.”(Demurrer to Plaintiffs’ Verified First Amended Complaint, ¶ 1.) Defendants have notraised arguments as to the specificity of the allegations as plead in the First AmendedComplaint. There is no general demurrer directed at any specified cause of action, ratherdefendants’ demurrer is directed at the entire first amended complaint. Where there areseveral causes of action in the complaint, a demurrer to the entire complaint may beoverruled if any cause of action is properly stated. (Warren v. Atchison, Topeka & SantaFe Ry. Co. (1971) 19 Cal.App.3d 24, 36.) The stated basis for defendants’ argument as to why the first amended complaintfails to state a cause of action is focused on plaintiffs’ standing to bring their quiet titleclaim. Plaintiffs allege they have standing to quiet title of defendant Santos because sheacquired title to the property by fraudulent transfer. Accordingly, the focus of the court’sanalysis will be plaintiffs’ second cause of action against defendants Ramirez and Santosalleging fraudulent transfer. “A fraudulent conveyance is a transfer by the debtor of property to a third personundertaken with the intent to prevent a creditor from reaching that interest to satisfy itsclaim.” (Yaesu Electronics Corp. v. Tamura (1994) 28 Cal.App.4th 8, 13.) The UniformVoidable Transactions Act (UFTA), Civil Code section 3439, et seq., states the elements ofa claim of fraudulent transfer that would void such a transfer: A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor. (2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either: (A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. (B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due.(Civ. Code § 3439.04, subd. (a).) Defendants argue the first amended complaint does not satisfy the elements of afraudulent transfer under the UFTA because plaintiffs have not alleged facts to supporttheir standing as creditors. In opposition, plaintiffs identify the allegations of the complaintdemonstrating plaintiffs provided a total of $56,000 to defendant Ramirez toward thepurchase of the Corona property and additionally paid the mortgage payments directlyto Ramirez for twenty years. (FAC, ¶¶ 20-23, 26.) The payment of this money to Ramirezwith the understanding it was secured as equity in the Corona property, as alleged,supports finding plaintiffs have a right to payment of these sums and qualifies them ascreditors as defined by the UFTA. (Civ. Code § 3439.01, subd. (b)-(c). Defendants additionally argue plaintiffs have failed to allege a claim of fraud inhaving made the transfer in order to satisfy the element of actual intent to defraud inCivil Code section 3439.04, subdivision (a)(1). Defendants interpret the element to requirea showing of all elements of a claim for fraud: (1) a misrepresentation, (2) knowledge offalsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resultingdamage. This interpretation is not supported by the statute. The statute defines how to determine actual intent, as used in Civil Code section3439.04, subdivision (a)(1), by listing factors (1) through (11) for consideration. (Civ. Code§ 3439.04, subd. (b).) Here, plaintiffs have alleged facts that support several of the factors.Defendant Santos is alleged to have paid $0 in exchange for the grant deed to theCorona property. (FAC ¶¶ 38, 58.) This would speak to “[w]hether the value ofconsideration received by the debtor was reasonably equivalent to the value of theasset transferred ….” (Civ. Code § 3439.04, subd. (b)(8).) Santos is alleged to haveconspired with defendant Ramirez in transferring the property and sale of the property todefraud plaintiffs, which would characterize her role as one of an insider. (FAC ¶¶ 57-58.)This is consistent with considering “[w]hether the transfer or obligation was to an insider.”(Civ. Code, §3439.04, subd. (b)(1). Indeed, all defendants are alleged to have conspired,aided and abetted, and ratified these acts with the intent to defraud plaintiffs1. (FAC, ¶¶12-16) Accordingly, the allegations of the first amended complaint are sufficient to statea cause of action for fraudulent transfer against defendants Ramirez and Santos. Havingfound the allegations of the fraudulent transfer are sufficient, plaintiffs have adequatelyalleged facts to support their standing to bring an action for quiet title. Further, theallegations support the cause of action for financial elder abuse based on the fraudulenttransfer of the property. (FAC, ¶ 93.) Plaintiffs’ first amended complaint properly states the challenged causes of actionfor fraudulent transfer, quiet title, and financial elder abuse. As a result, the demurrer tothe entire first amended complaint is overruled. 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 08/14/24 . (Judge’s initials) (Date)1These allegations go to defendants’ argument that defendants Simmons, Alvarez and Envisiondid not assist in the fraudulent conveyance that serves as the basis for the fourth cause of actionfor financial elder abuse.
Ruling
Ben Haddad vs. Monroe RE, LLC
Aug 09, 2024 |C23-02292
C23-02292 CASE NAME: BEN HADDAD VS. MONROE RE, LLC HEARING ON DEMURRER TO: COMPLAINT OF CA DEPT. OF SOCIAL SERVICES FILED BY: *TENTATIVE RULING:*The Demurrer of the California Department of Social Services to the first amended complaint of PlaintiffsBen Haddad and Joni Haddad is sustained. Because this is the first time the complaint is being tested bydemurrer, Plaintiffs have leave to amend.Plaintiffs have until August 19, 2024 to file and serve a second amended complaint. If Defendant intendsto demur, the demurrer hearing will take place on October 11, 2024 at 9:00 a.m. in Department 18. Thedemurrer must be filed sufficiently in advance of the October 11 hearing date to comply with CCP SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024section 1005(b). Opposition and reply briefing shall be pursuant to code. Defendant must call the clerk’sattention to this order when filing the demurrer. This may be done in the comment box if the documentis e-filed.BACKGROUNDPlaintiffs bought 5536 Johnston Road (the Haddad Property) on January 28, 2005 for use as a residence.(FAC ¶¶ 1, 3.) The Haddad Property is subject to a non-exclusive easem*nt in favor of an adjacentproperty owned by Defendant Monroe Operations, LLC (the Monroe Property), which consists of a rightof way used as a roadway (the easem*nt). (Id. ¶¶ 9, 10.) The easem*nt is the only route of access toeither property from a public street. (Ibid.)On or about July 30, 2021, Defendant Monroe Operations applied to Defendant California Departmentof Social Services (the Department) for a license to operate a group home, called the “NewportAcademy-Arena,” (the Facility), at the Monroe Property. (FAC ¶ 15.) The application included arepresentation that Monroe Operations owned the Monroe Property via a grant deed from DefendantMonroe RE, LLC. (Ibid.) The Department granted the License, which allows the operation of a facilitywith up to six children as residents, on or about August 4, 2021. (Id., ¶16 and Exh. 6.)Plaintiffs allege traffic along the easem*nt has increased to approximately 70 to 80 trips per day, upfrom six-to-twelve trips per day, since the License (FAC ¶¶ 20, 22.) Plaintiffs allege that the “reasonableprojected increase in the volume of traffic” would be “twelve to twenty-four trips per day, primarilyduring daylight hours.” (Id. ¶ 21.) The traffic on the easem*nt includes Monroe staff members,commercial food delivery trucks, including traffic generated for the benefit of other Monroe facilities.(Id. at 23.) Plaintiffs further allege that traffic associated with the Facility on a “stand alone” basis andproviding “no services or support to other facilities, would still “exceed by multiples the volume of trafficprojected to result from the potential growth” described in paragraph 21 of the FAC. (FAC ¶ 25.)Plaintiffs allege the increase in traffic has interfered with their use and enjoyment of the HaddadProperty and has accelerated the wear and tear of the asphalt on the easem*nt. (FAC ¶ 31, 32.)Plaintiffs allege the Department issued the License in error because California regulations require anapplicant to “control” the property where the property will be located. Plaintiffs claim that Monroelacked the required control of the Monroe Property when it applied for the License because Monroe’sonly access to the property is via the easem*nt.The operative first amended complaint filed on December 29, 2023 contains the following causes ofaction against the Monroe defendants and the Department: (1) declaratory relief (Monroe Defendants);(2) declaratory relief (the Department); (3) “Petition for Writ of Mandate” (the Department); (4) quiettitle (Monroe Defendants); (5) “Injunction and Damages” (Monroe Defendants); and (6) inversecondemnation (the Department).The Department now demurs to the second, third and sixth causes of action. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024STANDARDS ON DEMURRERA demurrer challenges the legal sufficiency of the complaint on the ground it fails to state factssufficient to constitute a cause of action. (CCP § 430.10(e); Rakestraw v. California Physicians' Service(2000) 81 Cal.App.4th 39, 42-43.) "[W]e are guided by long-settled rules. 'We treat the demurrer asadmitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact orlaw. We also consider matters which may be judicially noticed.' Further, we give the complaint areasonable interpretation reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39Cal.3d 311, 318 [citations omitted].)ANALYSIS(1) Second Cause of Action for Declaratory ReliefThe second cause of action seeks “a declaration that the License conferred on MonroeOperations is invalid or, if the status it confers on Monroe Operations as licensee of the NewportAcademy Arena Facility pursuant to Division 2, Chapter 3, Article 7 (§§ 1566.3 and 1566.5) of the Healthand Safety Code does not extend to the use of the Easem*nt by Monroe Operations or anyone actingunder its authority or direction.” (FAC pages 19-20, Prayer as to Second Cause of Action; see also FAC¶¶17, 42, 43.) The Department argues the second cause of action fails because, among other reasons, aplaintiff may not seek review of an administrative decision through a declaratory relief action. The Courtagrees.It is established that "an action for declaratory relief is not appropriate to review an administrativedecision." (State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 249; Selby Realty Co. v. Cityof San Buenaventura (1973) 10 Cal.3d 110, 127 [same]; Tejon Real Estate, LLC v. City of Los Angeles(2014) 223 Cal.App.4th 149, 155 [same].) Moreover, a complaint that improperly seeks declaratory reliefto review an administrative decision may be dismissed on that ground alone. (Veta, supra, 12 Cal.3d at249; Tejon, supra, 223 Cal.App.4th at 155.)Consistent with these authorities, the demurrer to the second cause of action is sustained. The courtdoes need not address the Department’s remaining arguments as to the sufficiency of the declaratoryrelief cause of action at this time.(2) Third Cause of Action for Writ of MandateIn their third cause of action, Plaintiffs seek a writ of mandate pursuant to CCP section 1085. A writ ofmandate under CCP section 1085 is the method of compelling the performance of a legal, ministerialduty. (Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584.) Mandamuswill lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has aduty to perform, and (3) the petitioner has a clear and beneficial right to performance. (Id. at 584.) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024The Department argues the third cause of action fails because plaintiffs cannot satisfy the requirementsfor writ relief. In particular, the Department argues that Plaintiffs do not identify any ministerial duty theDepartment was bound to perform. The Department claims that licensing decisions involve discretionand are not strictly “ministerial.” (See, e.g., MacDonald v. California (1991) 230 Cal.App.3d 319, 330[licensing of day care facilities is “generally considered to be discretionary rather than mandatory… [i]tis, however, clear that the predominant character of licensing is discretionary.”].)In opposition, Plaintiffs confirm that they do not seek to compel the Department to perform aministerial duty. Plaintiffs state: “CDSS is correct that "[Plaintiffs'] allegations do not identify a'ministerial' duty which CDSS did not perform" and that "No statute compels notice to adjacent propertyowners such as the Haddads as to the issuance of a [group home] license." (Opp. p. 4:1-4.) Plaintiffsclarify instead that the third cause of action is premised on the theory that certain land use decisionshave such a significant impact on nearby property owners so as to constitute a deprivation of propertyrights in violation of the due process clause in the California Constitution, thereby entitling themPlaintiffs to notice and an opportunity to be heard. The Plaintiffs assert, and the Department does notdispute, that procedural unfairness is actionable under section 1085.In arguing the right to a hearing, Plaintiffs rely on Calvert v. County of Yuba (2006) 145 CalApp.4th 613,which they claim is “identical” to this case. Plaintiffs do not allege facts showing that the act ofapproving Monroe’s license was an "adjudicatory" function that required a due process hearing.Assuming that it was, the Court finds that the Monroe license approval does not clear the legal bar set inCalvert for special, personalized notice: the "'significant' or 'substantial' deprivation[] of property."(Calvert, 145 CalApp.4th at 618; Scott, 6 Cal.3d at 544-45.)Calvert was in regard to a county's approval of a mining operator's request for a “vested rights”determination allowing the right to mine “‘aggregate’ (sand, gravel and rock for construction) fromapproximately 3,430 acres” in the 10,000 acres of the “Yuba Goldfields.” (Calvert, supra, 145 Cal.App.4that p. 618.) The petitioners were found to be constitutionally entitled to notice and hearing as theadministrative procedure for a “vested rights” determination was similar to the basic procedure fordetermination of a surface mining permit, which was concededly “‘adjudicatory in nature and thereforesubject to notice and hearing requirements.’” (Id. at p. 625.) The court analyzed whether there were"'significant' or 'substantial' deprivations of property" and concluded that because the approval allowedthe mining company an almost "threefold increase" in mining, and the description of the miningoperation expansion "itself [was] enough to envision significant environmental consequences andadverse effects to adjacent properties," the property owners living adjacent to the mining expansionhad "significant property interests at stake." (Id. at 626.) Therefore, the court found that the petitionershad "adequately described a property deprivation 'substantial' enough to require procedural dueprocess protection" and were "entitled to reasonable notice and an opportunity to be heard" before thecounty made the vested rights determination. (Id. at 627.)Scott v. City of Indian Wells (1972) 6 Cal.3d 54, another “adjacent landowner” case, is also instructive.There, the court addressed the question of whether a city must provide the same notice to nonresidentsliving adjacent to a large development project that it provided to similarly-situated city residents and SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024found that it did. (Scott, 6 Cal.3d at 548.) The Scott plaintiffs owned property just outside the city limitsand adjacent to property within the city. The city approved a large development project that included"two golf courses, tennis courts, clubhouses, . . . 90 individual lots," as well as "a seven-story apartmentbuilding, liquor store, rental office, and heliport." (Id. at 543-45.) The city provided mailed notice only tothose landowners within 300 feet of the development parcel (as required by the city's municipal code)and within city limits. (Id. at 545.) And the plaintiffs, property owners with land just outside the citylimits, argued that the city should have provided them with notice as well since they too lived within 300feet of the development. (Id.)The court held that "development of a parcel on the city's edge [would] substantially affect the valueand usability of an adjacent parcel on the other side of the municipal line" and that "the 'rootrequirement' of the due process clause is 'that an individual be given an opportunity for a hearingbefore he is deprived of any significant property interest.'" (Id. at 548-49 [citation omitted].) Therefore,the city owed "adjoining landowners who are not city residents a duty of notice to the extent given tosimilarly situated city residents." (Id. at 549.)It is hard to see how the above cases are analogous since issuance of the License did not and could nothave been expected to result in anything close to the massive increase in adjacent residentialdevelopment or industrial mining operations as in Calvert and Scott. Even when property owners allegeimpacts to their property interests and values, the court may find that as a matter of law there is nosignificant deprivation of property that triggered due process rights. (See Robinson v. City and County ofSan Francisco (2012) 208 Cal.App.4th 950, 963.)McCaffrey v. Preston (1984) 154 Cal.App.3d 422 also supports that Plaintiffs were not entitled to ahearing on Monroe’s license application. In McCaffrey, the neighbors of a residential facility sought aninjunction enjoining the defendants' operation of the home based upon a restrictive covenant imposedprior to 1979 which stated: "'This property shall be used for single family residential purposes only . . . .[A] breach of any of the foregoing conditions and restrictions shall cause the premises to revert tograntors, their heirs or assigns, each of whom respectively shall have the right of immediate entry uponthe premises . . . .'" (Id., at p. 428.) The trial court refused to grant the injunction, holding the covenantwas personal and enforceable only through the original grantor's reversionary interest, which had sincebeen extinguished. The court held that the neighbors had no right to notice and hearing prior tolicensing the residential care facility because in passing Health & Safety code section 1566, requiringthat licensing residential facilities serving six or fewer persons be treated as any other single-familydwelling for zoning purposes, the legislature determined that such facilities housing six or fewer personshave only a de minimis effect on land. (McCaffrey at 433 [citation omitted].) The court stated thatlicensing those facilities “changes neither the character nor the intensity of the use” and is “dissimilar toland use decisions where notice and an opportunity to be heard are constitutionally required.” (Ibid.[emphasis added].)The foregoing authorities persuade this Court that the licensing decision at issue in this case did notimplicate the right to a due process hearing. Plaintiffs have not alleged sufficient facts showing the SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024Department should have anticipated that granting the License would deprive Plaintiffs of a significantproperty interest because Monroe’s grant deed may have identified an access easem*nt.As an additional reason the demurrer is sustained, “[t]he extraordinary remedy of mandate is notavailable when other remedies at law are adequate.” (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 336.) The License having been granted,Plaintiffs have an adequate remedy at law. Plaintiffs seek a writ commanding the Department to revokeMonroe’s license and provide a hearing at which they can argue the License should not be reinstated.Plaintiffs could not obtain this exact relief in their action against Monroe. However, Plaintiffs appear toacknowledge that they don’t need it. Plaintiffs state in opposition to Monroe’s demurrer that the “neverdisputed the right of Monroe to operate a residential facility. What they dispute is that . . .Monroe . . . isentitled to use the easem*nt . . . at the scale Monroe is using it, which is more than ten times thevolume of traffic that any prior owner of Monroe's property generated or that would have beencontemplated in 1978 when the parties' predecessors…created the easem*nt….” (See Opp to MonroeDemurrer, p. 3:1-7.)If Plaintiffs prove their claims against the Monroe defendants and the Court enjoins the conduct theyclaim violates their rights, this will provide Plaintiffs with an adequate remedy for the harm alleged inthe third cause of action. Therefore, even if Plaintiffs could otherwise show entitlement to mandamusrelief, the third cause of action is barred because Plaintiffs have adequate remedies in their actionagainst Monroe for an injunction (or equivalent monetary damages).For these reasons, the Department’s demurrer to the third cause of action is sustained.(3) Sixth Cause of Action for Inverse CondemnationTo establish liability for inverse condemnation, the plaintiff must prove that: (1) there was a taking ordamaging by a public entity of a valuable property right; (2) that the taking or damaging was for a publicuse; and (3) that the invasion or appropriation directly and specifically affected the property owner tohis or her injury. (City of Los Angeles (2011) 194 Cal. App. 4th 210, 221.)In the sixth cause of action, Plaintiffs do not allege the Department has asserted eminent domain orcondemned any property belonging to them. Instead, Plaintiffs’ theory is that the Department’s act ofapproving Monroe’s permit authorized Monroe to engage in activities that overburden the easem*ntthereby amounting to a taking of Plaintiffs’ property.Where to start. Plaintiffs do not plead a cognizable inverse condemnation claim because, at a minimum,they do not allege any facts showing the purported “taking” of their property was a for a public purpose.Plaintiffs acknowledge that Monroe is a private entity operating a private business. Just becauseCalifornia has passed laws regarding group homes and residential use for purposes of restrictivecovenants and zoning laws does not mean that any alleged taking of property in this case was for apublic purpose. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024Plaintiffs argue this act constitutes a taking, citing Cedar Point Nursery v. Hassid (2021) 141 S. Ct. 2063, arecent Supreme Court case holding that a California regulation granting union organizers access toprivate property constituted a per se physical taking, as distinguished from a regulatory taking. TheSupreme Court held that “government-authorized invasions of property—whether by plane, boat, cable,or beachcomber—are . . . per se physical takings.” (Id. at 2074.) Here, the Department granted a licenseto operate a group home. Unlike in Cedar Point, it did not adopt a regulation or law granting anyone“formal entitlement” to enter Plaintiffs' property for any reason. Accordingly, such circ*mstances ofphysical invasion of property are not present here.If plaintiffs reassert this cause of action in their second amended complaint, and the Departmentdemurs, the Court anticipates having the benefit of a thoughtful analysis as to why Cedar Point Nurseryapplies.
Ruling
Frances Semoes, et al. vs Josh Reingeisen, et al.
Aug 13, 2024 |20CV-03468
20CV-03468 Frances Semoes, et al. v.Josh Reingeisen, et al.Order to Show Cause re: Dismissal-Notice of SettlementDropped from Calendar, Order granting joint request for dismissal filed April 5, 2024.
Ruling
BINFORD ROAD LLC VS PAUL DEN BESTE
Aug 17, 2024 |CV2104251
DATE: 08/13/24 TIME: 1:30 P.M. DEPT: A CASE NO: CV2104251PRESIDING: HON. STEPHEN P. FRECCEROREPORTER: CLERK: RON BAKERPLAINTIFF: BINFORD ROAD LLC vs.DEFENDANT: PAUL DEN BESTENATURE OF PROCEEDINGS: MOTION — OTHER: TO APPOINT SUCCESSORRECEIVER, ETC. RULINGBefore the Court is Defendant Paul Den Beste’s (“Defendant”) motion for the appointment of asuccessor receiver. The parties appeared for a case management conference on August 9, 2024and agreed that the motion should be granted. The hearing set for August 13, 2024 is thereforeVACATED and the motion is GRANTED.The Court notes, however, Defendant asserts in his moving papers that the receiver is an“indispensable” party to this litigation. To the extent Defendant seeks to join any party to thislitigation, whether indispensable or otherwise, or to the extent he seeks other relief, he may onlydo so only through a properly noticed motion set for hearing before the Court. The Court’spresent order is limited to granting the request for appointment of a successor trustee.As set forth at the case management conference, the parties shall file and serve their nominationsfor a receiver and proposed order for the receivership as follows: 1 The parties submit nominations, together with a summary of qualifications for the nominee, along with a proposed order for the receivership on August 16, 2024. 2. Any objections or response to the opposing side’s submission on August 23, 2024.Unless otherwise ordered, the Court will take the matter under submission and issue an orderwithout a hearing.CV2104251 All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B)to contest the tentative decision. Parties who request oral argument are required to appear inperson or remotely by ZOOM. Regardless of whether a party requests oral argument inaccordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with theannounced ruling as required by Marin County Superior Court Local Rules, Rule 2.11. The Zoom appearance information for August, 2024 is as follows: https:/Avww.zoomgov.com/j/1602925171?pwd=NUdsaVlabHNrNjZGZjFsVjVSTUVqQT09 Meeting ID: 160 292 5171 Passcode: 868745 If you are unable to join by video, you may join by telephone by calling (669) 254-5252and using the above-provided passcode, Zoom appearance information may also be found onthe Court’s website: https:/Avww.marin.courts.ca.go'Page 2 of 2
Ruling
COWELL TERRACE TOWNHOMES OWNERS ASSOCIATION vs. KENNETH GALLARDO
Aug 12, 2024 |C23-01108
C23-01108CASE NAME: COWELL TERRACE TOWNHOMES OWNERS ASSOCIATION VS. KENNETH GALLARDO *HEARING ON MOTION IN RE: TO SET ASIDE DEFAULT JUDGEMENTFILED BY: GALLARDO, KENNETH*TENTATIVE RULING:*Before the Court is Defendant Kenneth Gallardo’s Motion to Set Aside Default Judgment (“Motion”).Procedural BackgroundPlaintiff filed its Complaint on May 9, 2023. Defendant Gallardo was personally served on October 23,2023. As such, Defendant had until November 22, 2023 to respond to the Complaint.As no responsive pleadings was filed, Plaintiff requested and received entry of default on December27, 2023. A case management conference was held on January 11, 2024. Defendant Gallardo andcounsel for Plaintiff appeared via Zoom. Defendant was notified that he was in default and wasreferred to the law library. On January 29, 2024 Defendant filed a motion to set aside defaultjudgment. No proof of service of that motion was ever filed, so the Court denied the motion on April22, 2024, without prejudice to refiling and properly serving Defendant.A case management conference was held on April 25, 2024. Defendant and counsel for Plaintiff bothappeared viz Zoom. Defendant was reminded of the denial of the motion to dismiss based on thefailure to serve Defendant with the motion. Defendant stated that he would file another motion toset aside that day – i.e. on April 25, 2024.Defendant waited until May 29, 2024 - over one month after the CMC – to file his second motion toset aside. It should be noted that the second motion to set aside is exactly the same as the initialmotion filed in January 2024.Since the entry of default, Defendant obtained a Judgment on March 12, 2024. Given some errors byDefendant, on July 22, 2024 it filed a motion to amend the Judgment, which is set for hearing onOctober 14, 2024.StandardDefendant moves to set aside the default judgment pursuant to California Code of Civil ProcedureSection 473 (b).Code of Civil Procedure 473(b) provides, in relevant part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.When moving to set aside a default under CCP §473(b), the moving party has the burden of proof. (Inre Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88.)However, section 473 is often applied liberally when a party in default moves promptly to seek reliefand the party opposing the motion will not suffer prejudice if relief is granted. (Elston v. City ofTurlock (1985) 38 Cal.3d 227, 233.) “In such situations, ‘very slight evidence will be required to justifya court in setting aside the default.’” (Ibid. quoting Bailey v. Taaffe (1866) 29 Cal.423, 424.) “Unlessinexcusable neglect is clear, the policy favoring trial on the merits prevails." (Minick v. City ofPetaluma (2016) 3 Cal.App.5th 15, 24, quoting Elston v. City of Turlock (1985) 38 Cal.3d 227, 235[emphasis added].) “Moreover, because the law strongly favors trial and disposition on the merits,any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.”(Ibid.)AnalysisAs noted by Defendant, in order to satisfy the requirements for relief under section 473(b), themotion “shall be accompanied by a copy of the answer or other pleading proposed to filed therein,otherwise the application shall not be granted…” (Cal. Code Civ. Proc. § 473 (b) emphasis added.)Even if a motion to set aside is timely, it is “nonetheless properly denied [if] it was unaccompanied bya proposed responsive pleading.” (Jimenez v. Chavez (20123) 97 Cal.App.5th 50, 63.) The purpose ofneeding to file a proposed response “is to compel the delinquent party to demonstrate his or hergood faith and readiness to proceed on the merits,’ and to ensure that ‘courts do not become asanctuary for chronic procrastination and irresponsibility on the part of either litigants or theirattorneys.’” (Ibid. citations omitted.)While it is recommended that the proposed pleadings accompany the motion, “[t]he objectives of the‘accompanied by’ requirement, i.e., a screening determination that the relief is not sought simply todelay the proceedings, are satisfied by the filing of a proposed answer at any time before thehearing.” (Hu v. Fang (2002) 104 Cal.App.4th 61, 65 quoting County of Stanislaus v. Johnson (1996) 43Cal.App.4th 832, 838.)As of the date of the drafting of this tentative ruling Defendant has failed to file any proposedresponsive pleading. On that basis alone, his motion must be denied.While it is true that the “statute’s ‘broad remedial provisions’ are to be ‘liberally applied to carry outthe policy of permitted trial on the merits,’ the party seeking relief “bears the burden of proof inestablishing a right to relief.” (Hopkins v. Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 citationsomitted.) “The burden is a ‘double one: the moving party must show a satisfactory excuse for hisdefault, and he must show diligence in making the motion after discovery of the default.’” (Ibid.internal quotations omitted.)While there is no declaration from Defendant, there is a single paragraph in the Motion that attemptsto explain his position. Defendant contends that he was served “shortly before the Thanksgivingholidays in 2023,” and that he was unable to obtain counsel “due to the various holidays in this timeperiod.” (Motion at 2:9-13.) He also claims he was confused by the notice of a case managementconference (set for January 11, 2024) and ADR information packet that accompanied the complaint.He claims he was “surprised and unfamiliar with the procedures and unable to retain counsel due tothe November and December holidays, Respondent/Defendant relief upon the JANUARY 11, 2024date as the first court appearance after service.” (Id. at 2:16-20.)To begin with, Defendant was not served ‘shortly before the Thanksgiving holiday.’ Instead, he wasserved on October 23 – a full month before the Thanksgiving holiday. In fact, his response was due onNovember 22, 2023 – the day before Thanksgiving. There were no holidays during the time periodbetween when Defendant was served and when he should have filed a responsive pleading.Defendant’s other argument that he was ‘surprised and unfamiliar with the procedures’ does notafford any relief. “An ‘honest mistake of law’ can provide ‘a valid ground for relief,’ at least ‘where aproblem is complex and debatable,’ but relief may be properly denied where the record shows only‘ignorance of the law coupled with negligence in ascertaining it.’” (Hopkins & Carley, supra, 200Cal.App.4th at 1412-13 citation omitted.) Being self-represented “is not a ground from exceptionallylenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) “Except when a particular ruleprovides otherwise, the rules of civil procedure must apply equally to parties represented by counseland those who forgo attorney representation.” (Id. at 984-85.) To avoid the unjust reward ofignorance, a pro per “litigant is restricted to the same rules of procedure as is required of thosequalified to practice before our courts.” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055.) Defendant does indicate what efforts he made to obtain counsel after being served with the Complaint. It has now been over nine months since he was served and Defendant still does not have counsel. No explanation has been provided for this delay – nor any statement indicating that he may retain counsel anytime in the near future. Nor does Defendant explain what steps he took in the intervening months to determine how he should properly respond to the Complaint or defend himself. As for being timely, while he initially filed a motion to set aside shortly after the default was entered, he failed to serve the motion on Defendant. Accordingly, it was denied. Then, at the CMC on April 25, 2024 – he said he would file a new motion that day. Instead, he waited over one month to file his motion to set aside. A motion which was identical to his first motion, without any explanation for the delay. If anything, Defendant’s actions show that his intention is to delay these proceedings. They do not show that he is being diligent in making efforts to properly respond to the Complaint and follow the proper procedures for defending the claims made therein. Based on the above, Defendant’s motion to set aside is denied. *** If oral argument is requested, please notify the department and all parties. Oral argumentand hearings requiring an appearance will be heard on August 14, 2024 at 9:00 am.
Ruling
WAGNER VS. LLOYD
Aug 12, 2024 |CVCV21-0198602
WAGNER VS. LLOYDCase Number: CVCV21-0198602This matter is on calendar for review regarding trial setting. The previous trial date was vacated by the Court’sorder dated April 2, 2024. The Court previously designated this matter exempt from plan designation. Neitherside has posted jury fees. The parties are granted 10 days leave to post jury fees. A failure to post jury fees inthat time will be deemed a waiver of the right to a jury. The parties are ordered to appear to provide theCourt with available trial dates.
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