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Joseph Kilada v. Glen Cove City Of
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Shoreham Bank v. Amy Jo Klein As Executor Of The Estate Of Philip Russo, Phillip Russo, John Doe #1 through john doe #10, Doe Partnership, Roe Corporation
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Michael Falzarano v. Glen Cove City Of
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Aug 16, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |614574/2024
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Robert Flores v. Glen Cove City Of
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Ruling
VAHRAM SEVACHERIAN, ET AL. VS KHOSROV MADENJIAN
Aug 19, 2024 |19STCV42388
Case Number: 19STCV42388 Hearing Date: August 19, 2024 Dept: 82 Vahram Sevacherian, et al. v. Khosrov Mandenjian Case Number 19STCV42388 Ex Parte Application for Order Modifying Minute Order of July 26, 2024 The court issued a minute order on July 26, 2024, which states as follows: The parties stipulated that Marlene Sevacherian will receive the share of the Sevacherian Family Trust and Plaintiff Vahram Sevacherian, since she is the successor-in-interest. The court granted the stipulation and ordered that this distribution shall be maintained absent an order from the court. Specifically, each of the following shall receive 25% of the proceeds: (1) Ara Sevacherian, (2) Marlene Sevacherian, (3) Cindy S. Madenjian, and (4) Helen H. Madenjian. Plaintiff has filed an ex parte application requesting that the court modify this order to remove any concession that Marlene Sevacherian is the successor-in-interest of her father and his trust, since that is at issue in other litigation. The court orders as follows: 1. The court grants the ex parte application. Plaintiffs counsel is correct that this was not part of the stipulation, and the court simply erred in drafting the minute order. 2. The court removes the sentence: The parties stipulated that Marlene Sevacherian will receive the share of the Sevacherian Family Trust and Plaintiff Vahram Sevacherian, since she is the successor-in-interest. 3. The court replaces the sentence with the following language: During the hearing, the parties stipulated that if a receiver is appointed, they shall maintain the status quo concerning the distribution of proceeds from the building. 4. The court orders the clerk to issue a new minute order nunc pro tunc correcting this error. 5. Plaintiffs counsel shall provide notice and file proof of service with the court.
Ruling
TRAYVON SMITH, SR., ET AL. VS APARTMENT MANAGEMENT GROUP, LLC,, ET AL.
Aug 22, 2024 |22STCV08472
Case Number: 22STCV08472 Hearing Date: August 22, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT TRAYVON SMITH, SR., et al., Plaintiffs, vs. APARTMENT MANAGEMENT GROUP, LLC, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22STCV08472 [TENTATIVE] ORDER CONTINUING PETITIONS TO APPROVE MINORS COMPROMISES Dept. 48 8:30 a.m. August 22, 2024 Claimant Alzae Smith, a minor, by and through guardian ad litem Travon Smith Sr., has agreed to settle claims against Defendant Williams Trust in exchange for $9,166.66. No deductions will be taken from Claimants funds. If approved, the funds will be deposited into a blocked account, subject to withdrawal only upon authorization of the court. Claimant Travon Smith Jr., a minor, by and through guardian ad litem Travon Smith Sr., has agreed to settle claims against Defendant Williams Trust in exchange for $9,166.66. No deductions will be taken from Claimants funds. If approved, the funds will be deposited into a blocked account, subject to withdrawal only upon authorization of the court. Claimant Kordae Mohamed, a minor, by and through guardian ad litem Renee Mohamed, has agreed to settle claims against Defendant Williams Trust in exchange for $9,166.66. No deductions will be taken from Claimants funds. If approved, the funds will be deposited into a blocked account, subject to withdrawal only upon authorization of the court. Court approval is required for all settlements of a minors claim. (Probate Code §§ 3500, 3600, et seq.; Code Civ. Proc. § 372.) The Court has reviewed the proposed settlement and finds that it may be fair and reasonable. However, there is no Defendant named Williams Trust. If the settlements are with Defendants Eloise Williams (as trustee of the Williams Trust Dated August 2, 1988) and/or Gaylord Williams (as trustee of the Williams Trust Dated August 2, 1988), the Petitions should accurately state so. Additionally, the proposed orders are incomplete and do not include the settlement amounts in all required areas. Accordingly, the Petitions to Approve Minors Compromises are CONTINUED to October 10, 2024 at 8:30 a.m. Petitioners are ordered to file Revised Petitions and Revised Proposed Orders no later than September 26, 2024. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 22nd day of August 2024 Hon. Thomas D. Long Judge of the Superior Court
Ruling
BINFORD ROAD LLC VS PAUL DEN BESTE
Aug 15, 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
Sharon Green vs Mary Long Berry
Aug 22, 2024 |Judge Colleen K. Sterne |17CV02282
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Ruling
ABIMAEL G. GARCIA VS BEST FOR YOU MOVING, A CALIFORNIA CORPORATION, ET AL.
Aug 15, 2024 |24NWCV00210
Case Number: 24NWCV00210 Hearing Date: August 15, 2024 Dept: C Abimael G. Garcia vs Best For You Moving, et al., Case No.: 24NWCV00210 This action arises from a breach of rental contract. Defendant Artur Shakhnazarov applies ex parte for an Order enforcing the Settlement Agreement. On August 1, 2024, the Court granted Plaintiff Abimael Garcias unopposed application for right to attach order and writ of attachment. Defendant contends that the order is improper because a settlement was reached during a July 17, 2024 mediation held between the parties. The ex parte application is DENIED. No notice of settlement has been filed, and Defendant fails to show that the terms of any settlement includes a provision under CCP § 664.6 that the Court retains jurisdiction over the parties to enforce settlement. Moving party to give notice.
Ruling
763 Las Olas Drive, LLC, et al vs John Voris, et al
Aug 15, 2024 |22CV01609
22CV01609763 LAS OLAS DRIVE LLC v. JOHN VORIS, et al. SUPPLEMENT BRIEFING RE EQUITABLE SERVITUDE - DEFENDANTS VORIS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION SUPPLEMENT BRIEFING RE EQUITABLE SERVITUDE - PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION I. SUMMARY OF PREVIOUS RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION: On 3/28/24, the parties’ cross-motions for summary judgment/adjudication were heard.The court’s summary ruling on those motions was: Defendants’ motion for summary judgment/adjudication is denied on the grounds there are material facts in dispute as to all four issues presented in the motion: (1) if the Elworthy Deed adequately describes the dominant tenement to be benefited by its deed restrictions; (2) if the Elworthy Deed states any obligation of the grantor to impose restrictions on any portion of the Beach Land for the benefit of the Voris Property; (3) if plaintiffs’ have a real property right to protected views; and (4) if the Vorises acted or failed to act in any manner that substantially interferes with plaintiffs’ real property interests. Plaintiffs’ motion for summary adjudication as to its first cause of action for breach of equitable servitude is denied on the grounds there are material facts in dispute as to if there are applicable deed restrictions that are enforceable as equitable servitudes. As to defendants’ laches defense, the motion for summary adjudication is also denied; a trier of fact could determine based upon admissible evidence presented by defendants that plaintiffs did unreasonably delay in bringing the action and they were prejudiced. Following the court’s denial of both motions, the parties stipulated to vacate the trial dateand submit the equitable servitude issue to the court for determination. The question before thecourt in the parties’ supplemental briefing is whether an equitable servitude restricting buildingbeyond a particular point on the seaward side of the parcel burdens defendants’ property. As explained below, the court finds that all elements of an equitable servitude regarding abuilding setback are met and therefore grants plaintiffs’ motion for summary adjudication as totheir first cause of action. Page 5 of 14 II. EQUITABLE SERVITUDE ISSUE BEFORE THE COURT Is defendants’ property burdened by an equitable servitude that restricts building past aspecific seaward setback line? Defendants say no and argue that an expired seaward setbackrestriction in a prior grant deed is unenforceable. Since the parties’ renewed separate statements rely on their respective requests forjudicial notice and historical documents related to the properties at issue (763 Las Olas Drive and761 Las Olas Drive), and since the parties’ seek the court’s final determination on this issue, thecourt is able to determine the issue as a matter of law. A. Plaintiffs’ evidence supporting that Las Olas Drive homes are burdened by an equitable servitude restricting building past a seaward setback Plaintiffs provide the following undisputed facts: Plaintiffs and defendants ownresidential properties adjacent to each other on Las Olas Drive, in Aptos. (UMF 1.) Theseproperties are two of 29 residential parcels in a subdivision located on Las Olas Drive, whichextends west from Seacliff State Beach. (UMF 2.) SCLTC was the common grantor of the parcels in the subdivision. (UMF 3.)1 A recorded1927 SCLTC agreement (the “1927 Agreement”) shows that SCLTC intended a general plan forthe subdivision. The 1927 Agreement, related to the sale of land on Seacliff Beach, provides that“certain portions of the above described land” … “known as the ‘westerly portion’, being about2400 feet in length…” could be subdivided and sold. (UMF 4.) It further provides that the deedsrecording the sales of any such subdivided property must be substantially similar to the oneattached to the agreement as Exhibit B. (UMF 5.) That model deed called for several restrictionslimiting the owners’ use of the property, and states that the restrictions are “part of a general planfor the benefit of the whole of its so-called ‘Beach Land’.” (UMF 6.) Between 1927 and 1944, SCLTC or its officers recorded deeds transferring the lots onwhich 28 of the 29 current residential properties are located. (UMF 7.) Each of the deeds forthese 28 properties reference numbered lots on an “unrecorded map” either “of Beach LandsSubdivision, Seacliff Park” or “Seacliff Beach Subdivision” to refer to the land being conveyed.(UMF 8). The County keeps an unrecorded map, numbered A80-474, dated May 1928, drawn bythe County surveyor, titled “Beach Lands Subdivision, Seacliff Park” (the “1928 Map”) availableon the County surveyor’s website. (UMF 9.) The 1928 Map depicts lots numbered 1-48. (UMF10). Defendants’ surveyor mapped the deeds referring to all 29 residential properties on Las Olas1 Defendants attempt to dispute several of plaintiffs’ UMFs: “Disputed insofar as Plaintiffs’ UMF is an inaccurate,incomplete, argumentative characterization. The deeds speak for themselves.” (See UMFs 3-8, 11, 13, 16, 17.) Thecourt agrees that the deeds speak for themselves and finds that these facts are not truly disputed. Defendants’responses are not sufficiently unequivocal as required by California Rules of Court, rule 3.1350(h). Page 6 of 14Drive and uniformly showed they correspond with the numbered lots 14-48 on the 1928 Map.(UMF 11.) Defendants’ preliminary title report, prepared when they purchased their property,included the County Tax Assessor’s Map, which depicts the “Beachlands Sub,” and refers toproperties with lot numbers consistent with the 1928 Map. (UMF 12.) Several recorded maps citethe 1928 Map by number (A80-474) in reference to the “Beach Lands,” and the County’s April19, 2024 agenda for the Zoning Administrator referred to the property at 753 Las Olas Drive as“located in ‘Beach Lands’, a gated beach community lying at the base of a steep, coastal bluffthat is located to the west of Seacliff State Park.” (UMF 13 & 15.) Defendants’ surveyor alsomapped “the ‘westerly portion’, being about 2400 feet in length” that the 1927 Agreement calledto subdivide and showed that it is consistent with the area of land depicted on the 1928 Map.(UMF 14.) Each of the original deeds for the 28 Las Olas Drive properties (dating from 1927-1944),including the deeds conveying plaintiffs’ and defendants’ properties, are substantially consistentwith the model deed attached as Exhibit B to the 1927 Agreement and contain property userestrictions, including the setback restriction that is the subject of this lawsuit: “It is expresslyconditioned…that no portion of any building on said property shall extend further towards theBay of Monterey than a line described as follows: [description].” (UMF 16.) Each of the deeds also state: The Grantor hereby declares that the foregoing are part of a general plan for the benefit of the whole of its so-called ‘Beach Land[s]’; that the same are not covenants, but conditions subsequent running with the land; that they intend hereby to convey a conditional estate; and that on breach of any such conditions they reserve the right to re- enter said property, and without notice to remove any such prohibited structure, animal or person and to institute and prosecute an action to cancel this deed and to quiet title to said property. Provided that no such breach no re-entry, nor anything herein contained, shall defeat the lien of any mortgage, or any deed of trust to secure a debt, but said conditions shall remain in force as against any owner of said property acquiring same under foreclosure of mortgage or sale under deed of trust. (UMF 17.) The original deed conveying defendants’ property (Elworthy Deed) from November 1944includes language appearing to restrict building past a particular seaward point: “…that noportion of any building on said property shall extend further towards the Bay of Monterey than aline described as follows: [metes and bounds].” (Plaintiffs’ RJN Ex. 1 (Appendix of Evidence inSupport of Plaintiffs’ Motion for Summary Adjudication, filed 1/4/24).) Defendants purchasedtheir property in late 2019; the deed related to this transfer contains language identifying the Page 7 of 14unrecorded map of the Beach Lands Subdivision in the legal description, but no otherrestrictions. (Plaintiffs’ RJN Ex. 30.) B. Defendants’ facts supporting no equitable servitude Defendants’ primary contention is that the original grantor, Santa Cruz Land TitleCompany (“SCLTC”), entered into a three-year installment contract in 1927 permitting thesubdivision of the area known as the Seacliff Beach Subdivision. During that three-year period,any lots sold were to use one of two form deeds, both of which included language limitingbuilding beyond a line parallel with and 70 feet southerly from the northern lot boundary.Following that three-year period in the 1940’s, some of the lots – including plaintiffs’ anddefendants’ – were transferred back to SCLTC following a probate order and the title to thoselots were transferred by four separate deeds, one of which is the 1944 Elworthy Deed(defendants’ parcel). Defendants insist that the restrictions were only for the benefit of SCLTCwhile it held title and following the three-year period, parcels could be and were transferredwithout restrictions. (Defendants’ Exs. 41, 42, 50, 53, and 61.) They opine that the restrictionsexpired by the terms of the original grant installment contract. Noteworthy is that the Elworthy Deed conforms to the model deed and contains languagelimiting building beyond a particular point towards the ocean, the setback at issue. (Defendants’RJN 1.) Despite this, defendants argue the deed fails to create an equitable servitude because itonly describes that its restrictions are for the benefit of the “Beach Lands,” which they claim istoo vague to describe the dominant tenement, and that it does not apply the restrictions for thebenefit of all other parcels and those other parcels are subject to a like restriction for the benefitof defendants. III. LEGAL STANDARDS A. Deed interpretation "[A]ll presumptions are in favor of the validity of a deed when it is regular on its face andrecorded or acknowledged…. these presumptions are not conclusive but the burden ofovercoming them is on the one who disputes them." (Du Bois v. Larke (1959) 175 Cal.App.2d737, 745.) Extrinsic evidence is only admissible to aid in the interpretation of a deed where theambiguity appears on the face of the deed. (See, e.g., Baker v. Ramirez (1987) 190 Cal.App.3d1123, 1133.) B. Equitable servitudes A covenant that does not run with the land “may be enforceable in equity against atransferee of the covenantor who takes with knowledge of its terms under circumstances which Page 8 of 14would make it inequitable to permit him to avoid the restriction.” (Marra v. Aetna Const. Co.(1940) 15 Cal.2d 375, 378 (Marra).) An equitable servitude does not require that the property to be benefitted be identified inthe deed to be enforceable, and does not require a written agreement between plaintiff anddefendants. (MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693,699-700; Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 354 (Citizens);Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 375-381.)“[B]urdensome covenants which do not run with the land may be enforced on behalf of theoriginal grantor or his assigns as equitable servitudes against transferees acquiring property withactual or constructive notice of the restrictions, when failure to enforce the restrictions wouldproduce an inequitable result. [Citations.]” (MacDonald Properties, Inc., supra, 72 Cal.App.3dat 700.) The doctrine of equitable servitudes makes enforceable at equity a covenant appurtenantto other benefited property that might be otherwise unenforceable. (Marra, supra, 15 Cal.2d at378-379; Committee to Save Beverly Highlands Homes Ass'n v. Beverly Highlands HomesAss'n (2001) 92 Cal.App.4th 1247, 1269; Citizens, supra, 12 Cal.4th at 354-355.) Equitableservitudes are enforceable “although they benefit or restrict only a single parcel of land.” (Marra,supra, 15 Cal.2d at 378; see also S. California Sch. of Theology v. Claremont GraduateUniv. (2021) 60 Cal.App.5th 1, 8.) Equitable servitudes are enforceable provided the person bound by the restrictions hadnotice of their existence, and such notice is necessarily accomplished by the recording of adeed. (Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 507; Nahrstedt v.Lakeside Vill. Condo. Assn. (1994) 8 Cal.4th 361, 375; Citizens, supra, 12 Cal.4th at 355.) “Case law has established several requirements for the creation of an enforceableequitable servitude. Generally, equitable servitudes must be created by a recorded deed orwritten agreement between landowners; the dominant tenement to be benefited by the restrictionsmust be described; the intent of both parties (the common grantor and the initial grantee) tocreate a common general plan of restrictions must be demonstrated; and a subsequent granteemust have record or actual notice of the restriction when he receives title to the property. (Miller& Starr, Current Law of Cal. Real Estate, Covenants and Restrictions, § 22.7 to 22.12, pp. 546-557.) Equitable servitudes are also required to be strictly construed. (Wing v. Forest LawnCemetery Assn. (1940) 15 Cal.2d 472, 479 [Citation.].)” (Soman Properties v. Rikuo Corp.(1994) 24 Cal.App.4th 471, 484.) "For such a servitude to exist, the three requirements under Werner are: (1) that the deedsevidence an intention on the part of both the grantor and the grantee that the land conveyed is tobe restricted pursuant to a general plan; (2) that the deeds show that the parcel conveyed issubject to the restriction at issue in accordance with the plan for the benefit of all the other Page 9 of 14parcels in the subdivision and such other parcels are subject to like restriction for its benefit; and(3) that the dominant and servient tenements be adequately shown." (Greater Middleton Assn. v.Holmes Lumber Co. (1990) 222 Cal.App.3d 980, 991, referring to Werner v. Graham (1919) 181Cal. 174.) “If these conditions are met, the grantee of the first deed from the developer as well assubsequent grantees are entitled to enforce the covenants as to all the remaining area placedunder equitable servitude.” (McCaffrey v. Preston (1984) 154 Cal.App.3d 422, 437.) “If a declaration establishing a common plan for the ownership of property in asubdivision and containing restrictions upon the use of the property as part of the common plan,is recorded before the execution of the contract of sale, describes the property it is to govern, andstates that it is to bind all purchasers and their successors, subsequent purchasers who haveconstructive notice of the recorded declaration are deemed to intend and agree to be bound by,and to accept the benefits of, the common plan; the restrictions, therefore, are not unenforceablemerely because they are not additionally cited in a deed or other document at the time of thesale.” (Citizens, supra, 12 Cal.4th at 349, emphasis in original.) C. Constructive notice “Civil Code section 1213 provides that every ‘conveyance’ of real property recorded asprescribed by law provides ‘constructive notice’ of its contents to subsequent purchasers. Theterm ‘conveyance’ is broadly defined to include ‘every instrument in writing … by which thetitle to any real property may be affected....’ [Citation.] Constructive notice ‘is the equivalent ofactual knowledge; i.e., knowledge of its contents is conclusively presumed.’ [Citation.]”(Citizens, supra, 12 Cal.4th at 355.) “[I]t is reasonable to conclude that property conveyed after the restrictions are recorded issubject to those restrictions even without further mention in the deed. ‘The issue in these cases isthe intent of the grantors and grantees at the time of the conveyance.’ (Fig Garden Park etc.Assn. v. Assemi Corp., supra, 233 Cal. App. 3d at p. 1709.) This intent can be inferred from therecorded uniform plan. It is express on the part of the seller, implied on the part of thepurchaser. The law may readily conclude that a purchaser who has constructive notice, andtherefore knowledge, of the restrictions, takes the property with the understanding that it, as wellas all other lots in the tract, is subject to the restrictions, and intends and agrees to accept theirburdens and benefits, even if there is no additional documentation evidencing the intent at thetime of the conveyance. ‘If future takers purchase a piece of property with notice of arestriction made by a predecessor, then, in the absence of duress or fraud, they may ordinarily bethought to have bargained for the property with the restriction in mind, and to have shownthemselves willing to abide by it.’ (Rose, Servitudes, Security, and Assent: Some Comments onProfessors French and Reichman (1982) 55 So.Cal.L.Rev. 1403, 1405.)” (Citizens, supra, 12Ca1.4th at 365-366.) Page 10 of 14 IV. DISCUSSION The parties agree that Werner and Greater Middleton establish the factors needed tocreate an equitable servitude. (Werner, supra, 181 Cal. At 180-181; Greater Middleton, supra,222 Cal.App.3d at 991.) Applying those factors here, the court finds that an equitable servituderestricting building past a particular seaward boundary does exist and applies to the Las OlasDrive subdivision which includes plaintiffs’ and defendants’ properties. A. Mutual intent to restrict pursuant to a general plan Here, a general plan and mutual intent is evidenced by the plain language of the deeds. The general plan is the Beach Lands Subdivision or “Beach Lands,” which is described indefendants’ deed/Elworthy Deed and the other 27 deeds for parcels on Las Olas Drive. Thosedeeds also contain the same restriction on building past a particular seaward point. Defendantsargue the deeds only describe the grantor’s intent but concede that their deed is the finalexpression of the grantor (SCLTC) and grantee (Elworthy). (See Defendants’ SupplementalMemorandum, p. 9.) Deeds constitute “the final and exclusive memorial of their [grantor andgrantee’s] joint intent.” (Werner, supra, 181 Cal. at 182.) The deeds also plainly bind successors by including the following language: • “conditions subsequent running with the land” (Monterey/Santa Cruz etc. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, 1519 [“‘run with the land’ is a term of art used ‘to express an intent to bind successors’”]; Civil Code § 1460 [covenants that run with the land bind the assigns of the covenantor]; • “conditions shall remain in force as against any owner of said property” • “shall never be constructed” indicating an intent to bind future grantees Where deeds in a common tract contain similar restrictions, courts have found equitableservitudes even where the restrictions were not explicitly made in every single deed. (SeeGamble v. Fierman (1927) 82 Cal.App. 180, 182-187; Robertson v. Nichols (1949) 92 Cal.Ap.2d201, 203, 206; Mock v. Shulman (1964) 226 Cal.App.2d 263, 267; and Greater Middleton, supra,222 Cal.App.3d at 992 [despite 14 of 77 deeds failing to reference the general plan and 13 of 77deeds failing to include the restriction, the court found that the “general scheme of restrictionsmust be uniform in character to indicate unmistakably a designated and adopted plan…somevariety is to be expected….”].) Page 11 of 14 B. Like restrictions The deeds must also show that the parcels conveyed are subject to the restriction inaccordance with the plan for the benefit of all the other parcels, and such other parcels aresubject to like restriction for its benefit. Each deed, including the Elworthy Deed, plainly identifies the setback restriction andstates “that the foregoing [restrictions] are part of a general plan for the benefit of the whole ofits so called ‘Beach Land.’” Deeds for 27 of the other 28 properties in the subdivision, whichinclude these restrictions and the common statement that they are “part of a general plan for thebenefit of the whole,” confirm that the other parcels are subject to the same restriction. While thecourt finds the 28 deeds and their restrictions uniform enough, even if there was more variety inthe restriction or general plan language, Greater Middleton instructs that equitable servitudesmay still be found. “The general scheme of restrictions must be sufficiently uniform in characterto indicate unmistakably a designated and adopted plan throughout common to all purchasers oflots…[,] [but] some variety is to be expected inasmuch as it is common to plan for thedevelopment of some parcels in a manner different from but complementary to the majority ofthe parcels.” (Greater Middleton, supra, 222 Cal.App.3d at 992 (citations omitted).) While the court need not rely on extrinsic evidence for this finding, it notes that thehomeowners’ association for the Las Olas Drive properties (the Sea Cliff Beach Association) hasacknowledged and enforced an approximate 75-foot setback from the ocean for years anddefendants’ architect, surveyor and previous attorney all understood a setback existed. (BeachDeclaration, Exs. F, R, S, T, Y, AA, BB, CC, FF, HH.) C. Dominant and servient tenements Finally, both the dominant and servient tenements must be shown in the deeds. Here,defendants’ deed, and its original predecessor the Elworthy Deed, both identify the parcel by lotnumber, the same metes and bounds, and reference to the unrecorded 1928 map of the BeachLands Subdivision. (UMF 1, 8.) This adequately describes the burdened property, i.e. theservient tenement. The deed also describes the dominant tenement – “the foregoing are part of a general planfor the benefit of the whole of its so-called “Beach Land.” Naming the benefited tract of land orsubdivision alone is sufficient to identify it. (Robertson v. Nichols (1949) 92 Cal.App.2d 201,206; Ames v. Prodon (1967) 252 Cal.App.2d 94, 100 (“where land has a descriptive name, it maybe adequately described by its name alone”); Anderson Cottonwood Irr. Dist. v. Zinzer (1942) 51Cal.App.2d 587, 590 (where no “other parcel of land in [the county] answers to” the same name,merely using the name is enough).) Page 12 of 14 Defendants’ argument that “Beach Lands” is ambiguous and therefore cannot describethe dominant tenement is not supported by the evidence. They argue that the Elworthy Deed failsto define or describe with any certainty the real property that comprises the Beach Lands and sotherefore fails to define the dominant tenement. However, even with variation and withoutspecific metes and bounds or legal descriptions, dominant tenements can be established. “Considering the uniformity and consistency in the vast majority of the deeds relative to the statement of the general plan and the restrictive covenants restricting the use of the land conveyed therein; considering the fact that the first 17 deeds which contain statements of the general plan in conjunction with the restrictive covenants, uniformly describe the dominant tenement in terms of the entire Middleton Tract; considering the significant variation in the description of the dominant tenement in the deeds thereafter and such obvious and blatant errors in these descriptions as the designation of township 8 as township 3; considering the number of deeds wherein it is erroneously stated following a description of the dominant tenement that the property "herein conveyed" is a part of the tract described; and, finally, considering the aforementioned extrinsic evidence, it is clear that the dominant tenement which both the grantor and grantee had in mind, in each and every instance, was and had to be -- Middleton Tract.” (Greater Middleton, supra, 222 Cal.App.3d at 994-995.) Here, the deeds all refer to an unrecorded 1928 map labeled either the “Beach LandsSubdivision” or “Seacliff Beach Subdivision.” (UMF 17.) The 1928 map fits this description.“When a lot conveyed by a deed is described by reference to a map, such map becomes a part ofthe deed.” (Danielson v. Sykes (1910) 157 Cal. 686, 690.) Plaintiffs also point out thatDefendants’ own surveyor mapped the properties on Las Olas Drive and showed that thenumbered parcels in the deeds match the numbered parcels on the 1928 map, and that thesubdivided area in the 1927 SCLTC agreement matches the 1928 map. (UMF 11, 14.) Severalrecorded maps, including the County Tax Assessor’s map, refer to the 1928 map as the mapdescribing Beach Lands. (UMF 13.) This evidence is sufficient to describe the dominanttenement – that of the Beach Lands, now identified as Las Olas Drive. Since all elements of finding an equitable servitude are met here, the court grantssummary adjudication for plaintiffs as to their first cause of action. V. REQUESTS FOR JUDICIAL NOTICE Plaintiffs’ Supplemental Request for Judicial Notice: 1. Articles of Incorporation, Santa Cruz Land Title Company, 6/6/1923: Granted. 2. Grant deed, Santa Cruz Land Title Company to Foote, 1/9/1933: Granted. Page 13 of 14 3. County of Santa Cruz Planning Dept., Staff Report re Sea For Yourself LLC, APN 038-461-18, 753 Las Olas Drive, Aptos, 4/19/24: Deny; unrelated to the properties at issue. The court incorporates its rulings on the parties’ respective requests for judicial noticefrom their original motions for summary judgment/adjudication.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 14 of 14
Ruling
VIANEY ELIZABETH SANDERSON VS BROADWAY EXCHANGE BUILDING, LP
Aug 14, 2024 |21STCV01409
Case Number: 21STCV01409 Hearing Date: August 14, 2024 Dept: 55 NATURE OF PROCEEDINGS: Motion for Terminating Sanctions The Motion for Terminating Sanctions is DENIED. On January 13, 2021, Plaintiff Vianey Elizabeth Sanderson (Plaintiff) filed a Complaint against Broadway Exchange Building, LP (Defendant), alleging causes of action for forcibly entry and forcible detainer. On March 15, 2021, Plaintiff filed the first amended complaint (FAC) alleging the same causes of action. The FAC alleges that on or about January 1, 2021, Defendant forcibly entered the Property without plaintiffs consent and not pursuant to legal process. Plaintiff alleges she has been deprived of possession of the Property and its contents. This case has been deemed related with Broadway Exchange Building, LP v. Vianey 20STCV35154. Defendant filed a motion for terminating sanctions. Plaintiff opposes the motion. Terminating Sanctions Defendant moves for terminating sanctions on the ground that Plaintiff has repeatedly failed to comply with this courts orders to pay monetary sanctions to Defendant. Defendant also seeks monetary sanctions against Plaintiff. Plaintiff argues in opposition that is an abuse of discretion for a trial court to issue a terminating sanction for failure to pay the sanction. (Newland v. Sup.Ct. (Sugasawara) (1995) 40 Cal. App. 4th 608, 610.) The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Ibid.) [C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Ibid.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. (Ibid.) A decision to order terminating sanctions should not be made lightly. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial courts order to impose terminating sanctions will be reversed only if it was arbitrary, capricious, or whimsical. (Id. at 702.) [W]here a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Id. at p. 702.) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions are warranted when a partys lack of compliance with the discovery process has caused the opposing party prejudice. (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 989.) The court notes that the motion is moot as Plaintiff has stated that she paid the sanctions and no reply has been filed to dispute this assertion. In any event, even if it were not moot, Plaintiff is correct that a court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿(Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, CCP §§680.010, et seq. (Id. at 615.) These orders have the force and effect of a money judgment, and are immediately enforceable through execution. (Id.) Lastly, as Defendant could have enforced the sanctions order as a money judgment, the court declines to impose additional monetary sanctions for Plaintiffs failure to pay court ordered sanctions. As a result, the motion for terminating and monetary sanctions is denied as moot. Contempt Defendant also argues that Plaintiff Sanderson and her counsel should be held in contempt for their failure to pay the sanctions. Plaintiff argues to the extent that Defendant seeks to hold Plaintiff in contempt, it has not followed the required procedure and the Court has not issued an OSC Re: Contempt. Further, Plaintiff argues she paid the sanctions. The contempt at issue is indirect, which requires a more elaborate procedure to notify the person(s) sought to be charged and to allow him or her an opportunity to be heard. (Code Civ. Proc., §§ 12111218; see also Hanson v. Superior Court, supra, 91 Cal.App.4th at p. 81.) An affidavit must be presented to the court stating the facts constituting the contempt, an order to show cause must be issued, and hearing on the facts must be held by the judge. (Arthur v. Superior Court (1965) 62 Cal.2d 404, 407-408.) Since the acts involved did not occur in the courts presence, the affidavit (declaration) must cover each element of the commission of the contempt. (Code Civ. Proc., § 1211.5.) This affidavit serves as the complaint in indirect contempt proceeding (Lyon v. Superior Court (1968) 68 Cal.2d 446, 452) and must contain factual allegations based on firsthand knowledge. In indirect contempt proceedings based on disobedience of a prior court order, a valid judgment must meet strict requirements.¿ Each of the following must be established: (1) the rendition of a valid court order; (2) actual knowledge of the order; (3) ability to comply; and (4) willful disobedience of the order. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784 [repeated failures to turn over documents as ordered].) Upon receipt of the affidavit, the court usually issues an order to show cause (OSC) why the person should not be held in contempt. (Code Civ. Proc., § 1212.) Although not required, the alleged contemnor may respond to the affidavit and OSC by counteraffidavits or declarations. These affidavits serve as the answer to the charging allegations in the original affidavit. (Lyon v. Superior Court, supra, 68 Cal.2d at p. 452.) Such affidavits are not mandatory, however. The alleged contemnor may assert his or her defenses entirely at the hearing. (Code Civ. Proc., § 1217.) Here, there is no evidence showing Plaintiff had the ability to comply with the court orders and whether she willfully disobeyed the court order. Further, as noted above, the motion is moot because Plaintiff has paid the sanctions. Additionally, the court notes that contempt would not be proper here when the issue is a failure to pay monetary sanctions, which does not tend to impede, embarrass, or obstruct the courts discharge of its duties. (In re Shortridge (1893) 99 Cal. 526, 532.) Rather, as noted above for the motion for terminating sanctions, the proper recourse to recover sanctions would be for Defendant to enforce the sanctions order as a money judgment pursuant to the Enforcement of Judgments Law (CCP sections 680.010, et seq.). (See Newland, supra 40 Cal.App.4th at 615 (stating that monetary sanction orders are enforceable as money judgments through the execution of judgment laws); Jones v. Otero (1984) 156 Cal.App.3d 754, 759; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group, June 2020 Update), ¶ 8:2031.) Accordingly, the motion to hold Plaintiff in contempt is denied. Conclusion The motion for terminating and monetary sanctions and to hold Plaintiff in contempt is denied as Plaintiff has paid the sanctions, and even if she had not, the proper recourse to recover sanctions would be for Defendant to enforce the sanctions order as a money judgment pursuant to the Enforcement of Judgments Law.
Ruling
PEOPLE OF THE STATE OF CALIFORNIA EX REL. WILLIAM WYNDER, CITY ATTORNEY FOR THE CITY OF RANCHO PALOS VERDES, ET AL. VS JOHN STEPHEN RICO
Aug 14, 2024 |23TRCV03110
Case Number: 23TRCV03110 Hearing Date: August 14, 2024 Dept: B PEOPLE OF THE STATE OF CALIFORNIA ex rel. WILLIAM WYNDER, City Attorney for the City of Rancho Palos Verdes, and CITY OF RANCHOS PALOS VERDES, a general law city, Plaintiff v. JOHN STEPHEN RICO, an individual, and DOES 1-10, inclusive, Defendant; COMMUNITY MORTGAGE FUNDING, LLC,; COUNTY OF LOS ANGELES DEPARTMENT OF CHILD SUPPORT SERVICES; STATE OF CALIFORNIA EMPLOYMENT DEVELOPMENT DEPARTMENT, and ROES 1-10, inclusive, Real Parties in Interest Case No. 23TRCV03110 The Health and Safety Problem at 2105 Noble View This action was commenced by Plaintiff City of Rancho Palos Verdes to abate a public health and safety nuisance at the real property located at 2105 Noble View Dr., Rancho Palos Verdes, California (2015 Noble View). Defendant John Stephen Rico is the owner of that property. Community Mortgage Funding, LLC is the servicer on a loan and Deed of Trust dated June 28, 2012 in the face amount of $252,600. Intervenor Federal Housing Finance Agency (FHFA), as the conservator for Fannie Mae, pursuant to an act of Congress, is the owner of the debt evidenced by the June 28, 2012 Deed of Trust which is serviced by Community Mortgage Funding, LLC. On January 26, 2024 Plaintiff filed a Petition for Appointment of Receiver and Requiring Reimbursements Pursuant to Health & Safety Code §§ 17980 et seq. Plaintiff sought the appointment of California Receivership Group, Inc. and Mark Adams as a Receiver in order to remediate the substantial problems with 2105 Noble View. On April 17, 2024 this Court granted the application for the appointment of the Receiver. Among other things, this Courts Order provided in paragraphs 3.G. and 3.H. that the Receiver had the power to: G. To borrow funds as necessary to pay for the cost of the rehabilitation work, relocation benefits, design and engineering work, permits, property management and maintenance, taxes, insurance, legal fees, receivers fees and interim fees, and other costs of the Receivership, and to secure that debt with a recorded first priority lien on the Property for the amount borrowed. As allowed by Health and Safety Code § 17980.7, the Receiver may also record at the County Recorders Office a first lien (also known as Receivers Certificate of Indebtedness) on the Property that shall have super priority as to any preexisting private lien(s) and encumbrance(s), except against federal, state, and county tax lien(s), for any monies owed to the Receiver for the estimated costs of operating the receivership, including receivers fees and costs advanced or expended by the Receiver for the purposes authorized by this order or subsequent orders issued in this action. H. To issue and record Receivers Certificates of Indebtedness and/or a Deed of Trust against the Property to evidence and secure the above debt, which shall become a first lien on the Property with super-priority over all preexisting private liens and encumbrances, except for federal, state, and county tax liens. The Receivers Certificate shall be issued for such amounts and for such items as the Court may hereafter expressly authorize, upon notice and after hearing as herein provided. The debt evidenced by said Certificates shall be due and payable upon the completion of the Receivers duties hereunder with respect to the rehabilitation of the Property and, if applicable, the issuance of a Certificate of Occupancy by the City of Rancho Palos Verdes. If at the time this debt is not satisfied, the Receiver or the holder of the Certificate may apply to this Court on notice and hearing to sell the Property pursuant to the California Code of Civil Procedure § 568.5 free and clear of subordinate liens and encumbrances. (Bold added.) The Receiver was granted the authority in paragraph 7 of the Order to issue a Certificate of Indebtedness with super-priority in the amount of $30,000. On May 23, 2024 the Receiver filed his First Report of Receiver; etc. The Report detailed the dangers and substantial deficiencies at 2105 Noble View, and requested that the Court increase the amount that the Receiver was authorized to borrow with a super-priority by $644,712, to a total of $674,712. In the Report the Receiver detailed the authority of this Court to grant the super-priority under California state law. The Court agrees that as a matter of California law, it has the authority to grant a super-priority in this case. That is, unless federal law precludes such action. And it does. The Objection of Community Mortgage and Intervenor Federal Housing Finance Agency On July 25, 2024 Defendant Community Mortgage Funding, LLC and Intervenor FHFA jointly filed their Objection to the Receivers First Report. They objected to this Court granting a super-priority on the basis that this Court lacked the power to do so as a result of the federal Housing and Economic Recovery Act of 2008 (HERA). Objectors contend that 12 USC §4617(f) and 12 USC § 4617(j)(3) preclude this Court from granting this encumbrance against 2105 Noble View. They argue that as the supreme law of the land, the two statutes do not allow this Court to exercise the state law power to allow the Receiver to create a super-priority lien as FHFA is protected by these statutes. Intervenor FHFA is the conservator for Fannie Mae. It has succeeded to the rights and interest of Fanny Mae as a result. Fannie Mae held the debt created by the June 28, 2012 Deed of Trust. The debt was originally in the principal amount of $252,600. According to the schedule attached to the declaration of Robert Morgan, the debt had been reduced to $194,496.67 as of April 2022. The schedule does not show any reduction in the balance owed after that date. Nor does it reflect any increase resulting from accrued interest or other amounts that would undoubtedly have increased the outstanding balance on the debt. At present, the existing debt held by FHFA is in the range of approximately $220,000. The Court agrees with FHFA that both 12 USC §4617(f) and 12 USC § 4617(j)(3) preclude this Court from granting the Receiver the ability to create a super-priority lien as the statutes are the supreme law of the land and limit this Courts authority to grant such a lien. Of particular value is Perry Capital LLC v. Mnuchin, 864 F.3d 591, 604-606 (D.C. Cir. 2017). In that decision the court noted the Recovery Act's far-reaching limitation on judicial review. It observed that Congress was explicit in Section 4617(f) that no court can take any action that would restrain or affect FHFA's exercise of its powers or functions * * * as a conservator or a receiver. 12 U.S.C. § 4617(f). At 604. Drawing on the interpretation of the nearly identical statutory limitation on judicial review in [section 1821(j) of] the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) the court held that: The rationale of those decisions applies with equal force to Section 4617(f)s indistinguishable operative language. The plain statutory text draws a sharp line in the sand against litigative interferencethrough judicial injunctions, declaratory judgments, or other equitable reliefwith FHFA's statutorily permitted actions as conservator or receiver. And, as with FIRREA, Congress adopted Section 4617(f) to protect FHFA as it addressed a critical aspect of one of the greatest financial crises in the Nation's modern history. At 606. So too, section 4617(j)(3) precludes this Court from granting a super-priority for debt created by the Receiver. No property of [an FHFA conservatorship] shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of [FHFA], nor shall any involuntary lien attach to the property of [FHFA]. The Receiver-created lien would be an involuntary lien. To the extent that it has a super-priority, it impacts the property interest of FHFA. (See Reverse Mortgage Solutions, Inc. Moore, (No. 2014-CA-07660-R(RP), 2023 WL 3975088, at *4 (D.C. Super. Ct. Jun. 7, 2023). It does not matter that there may be adequate equity to cover both the super-priority debt sought and the debt held by FHFA. The Receiver argues that that this Court should construe section 4617(j)(3) as not precluding the creation of the lien, but only the enforcement of a remedy such as foreclosure to collect the lien created by the super-priority. Such an interpretation is far too narrow. First, the statute precludes the creation of an involuntary lien. Thus, it does not limit itself to actions to obtain the benefit of the lien, such as foreclosure or sale. Nor would it make sense to construe the statute so narrowly. What would be the value of a lien if there was no right to move against the property secured by the lien? Indeed, it is difficult to believe that any lender, understanding that enforcement against the property is precluded, would be willing to make a loan and obtain a lien that could not be enforced by foreclosure or other sale mechanism. (Is a lien that can not be enforced against the property securing the lien even really a lien?) Equity is Irrelevant to the Analysis The Court recognizes that the FHFA debt is a small fraction of the likely value of 2105 Noble View. In fact, were the Court to grant the Receivers request to allow up to $675,000 of new, super-priority debt, the total debt on that property would very likely still result in there being net equity such that all debt could be satisfied by any foreclosure. However, this Court is not empowered to conduct such an analysis and then decide that FHFA should have to suffer the new lien on 2105 Noble View. The prohibition created by the cited statutes makes such inquiry improper. Congress has chosen to insulate FHFA from interference by the Court. In short, the determination is left entirely to FHFA to make the call. FHFA, but not the Court, is entitled to determine if it desires to make an arrangement impacting its property interest in 2105 Nobel View. The Receiver notes that: in its current physical condition as well as its regulatory condition due to the Citys enforcement actions, the Property has a considerably depreciated value. But with the requested Court-approved funding, the Receiver will increase the value far more than the cost of the remediation. While the Court appreciates this argument, the Court is not entitled under the statutes to make its own evaluation and displace the discretionary decision of FHFA regarding what is in its best interest to protect its property interest. No doubt the present situation is untenable. The property is in a very distressed condition. It is a health and safety hazard. But the statutes preclude this Court from imposing a new lien without the consent of FHFA. FHFA and Community Mortgage Funding have not Waived their Right to Assert the Statutes, Nor is their Objection Untimely The Receiver argues that the objectors have both waived their right to assert the benefit of the statutes and that their objection is untimely. The Court disagrees. The above quoted statutes show a clear legislative choice to preclude this Court from entertaining such arguments. Congress has simply removed from this Court the ability to exercise its general equitable powers or otherwise interfere with the exercise of the discretion of FHFA to determine how best to protect its property interest. The Receiver contends that the objections are untimely. The Court disagrees. Even if the Court were to deem the objection untimely as to the initial request for authority to create a super-priority of $30,000, the Court cannot construe the failure to object to that $30,000 super-priority lien as constituting a waiver to the Receivers request to create a super-priority lien for an additional $644,000. Objectors timely responded to the request to increase the lien over 20 times the original request. More importantly, the Court construes the statutes as precluding this Court from interfering with the discretion of FHFA regarding its decision as to what is in its best interest with respect to the debt it holds. The Failure of FHFA to have Acted to Remediate the Blight is Irrelevant to the Analysis The Receiver suggests that objectors have been derelict in their duty in allowing 2105 Nobel View to fall into disrepair for such an extended period of time without them having taken steps to either foreclose or remediate the health and safety concerns. (The foreclosure has been impacted by Defendant Ricos bankruptcy filing.) No doubt it is unfortunate that 2105 Noble View is in its present distressed condition. The Receiver has identified significant dangers and deficiencies that need to be addressed at this time. The problems found by the Receiver are significant. That said, the federal statutes still preclude this Court from taking the action requested by the Receiver. ORDER: Based upon the foregoing, the Court DENIES the request of the Receiver that the Court increase the existing super-priority Certificate by $644,712. The Court orders the parties to meet and confer in an effort to reach an agreement that may allow the Receiver to proceed with the necessary remediation efforts. Given what has been represented to this Court as the likely value of 2105 Noble View, the existing debt held by FHFA and the amount necessary to remediate the property, the Court hopes that the parties are capable of reaching an agreement that will allow the remediation to move forward in a timely manner.
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