SUMMONS + COMPLAINT - Redacted per 22 NYCRR §202.5(e) August 14, 2024 (2025)

Case

Regional Acceptance Corporation v. Amy L Rozelle

Aug 16, 2024 |Other Matters - Consumer Credit (Non-Card) Transaction |Other Matters - Consumer Credit (Non-Card) Transaction |008531/2024

Case

Lvnv Assistance, Llc v. Wilton Re Annuity Service Corporation, Transamerica Life Insurance Company, M. A.

Aug 14, 2024 |James P. Murphy |Special Proceedings - Other (Sale/Transfer) |Special Proceedings - Other (Sale/Transfer) |008415/2024

Case

Lauren M. Monforte v. Taylor M. Wollman

Aug 12, 2024 |Matrimonial - Contested |Matrimonial - Contested |008283/2024

Case

Theresa Araouzos v. Paraskos J. Araouzos

Aug 12, 2024 |Matrimonial - Contested |Matrimonial - Contested |008331/2024

Case

Bankers Healthcare Group, Llc v. Daniel G. Knupp D/B/A Daniel G. Knupp, Sole Proprietor, Daniel Knupp

Aug 14, 2024 |Commercial - Business Entity |Commercial - Business Entity |008411/2024

Case

Discover Bank v. Jeffrey E Krawiec

Aug 12, 2024 |Other Matters - Consumer Credit (Card) Original Creditor Plaintiff |Other Matters - Consumer Credit (Card) Original Creditor Plaintiff |008316/2024

Case

Lvnv Funding Llc v. John Stevens

Aug 14, 2024 |Other Matters - Consumer Credit (Card) Debt Buyer Plaintiff |Other Matters - Consumer Credit (Card) Debt Buyer Plaintiff |008416/2024

Case

Natalie A. Salisbury v. Sam A. Mangano, Bianchi'S Pizza Pad, Inc.

Aug 14, 2024 |Commercial - Contract |Commercial - Contract |008412/2024

Case

Cheryl Toomer IN THE MATTER OF APPLICATION FOR GUARDIAN FOR v. Deshawn Nimmons, Onondaga County Law Department

Jul 18, 2024 |Mary Keib Smith |Special Proceedings - MHL Article 81 |Special Proceedings - MHL Article 81 |001827/2020

Ruling

EUNICE, JENNA KATHLEEN vs. HALBERT, RANDY LEE et al

Aug 26, 2024 |S-CV-0050542

S-CV-0050542 Eunice, Jenna Kathleen vs. Halbert, Randy Lee et al** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue - Need responsive pleading,default or dismissal as to Defendant(s): Mortgage Electronic RegistrationSystems, Inc.

Ruling

COUNTY OF LOS ANGELES VS C.R. LEGAL, SR., ET AL.

Aug 14, 2024 |23AHCV02812

Case Number: 23AHCV02812 Hearing Date: August 14, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT COUNTY OF LOS ANGELES, Plaintiff(s), vs. C.R. LEGAL, SR., et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23AHCV02812 [TENTATIVE] ORDER RE: MOOYA ASSASEPAS MOTION FOR RECONSIDERATION Dept. 3 8:30 a.m. August 14, 2024 ) On December 5, 2023, plaintiff County of Los Angeles (Plaintiff) filed this action for quiet title, slander of title, and declaratory relief relating to property located at 2261 N. Lincoln Avenue in Altadena, California (the Property). The Complaint named C.R. Legal, Sr., House of Prayer International, and all persons unknown, claiming any legal or equitable right, title, estate, lien, or interests in the property adverse to Plaintiffs title, or any cloud on Plaintiffs title to the Property (Unknown Persons). On April 3, 2024, Mooya Assasepa (Defendant) filed a motion to quash service of summons. The Court denied the motion on May 2, 2024. On May 22, 2024, Defendant filed this motion for reconsideration. California Code of Civil Procedure section 1008 states: When an application for an order has been made to a judge, or to a court, and refused in whole or in part & any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. First, Defendants motion is untimely. The County served Notice of the Courts Order on Defendant by mail on May 3, 2024. Service was deemed complete on May 8, 2024, and this motion should have been filed within 10 days after that. However, since Defendant did not file this motion until May 22, 2024, it is untimely. Second, even if the motion were timely filed, there is no affidavit identifying the new or different facts, circumstances, or law which would provide the basis for reconsideration. Accordingly, Defendants motion for reconsideration is DENIED. Dated this 14th day of August, 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Ruling

Sharon Green vs Mary Long Berry

-

Ruling

JASON KRISTAL VS. TRILION CAPITAL FUND, LLC ET AL

Aug 15, 2024 |CGC24613604

Real Property/Housing Court Law and Motion Calendar for August 15, 2024 line 3. DEFENDANT TRILION CAPITAL FUND, LLC, TCF PROPERTIES, LLC, DAVID WEINER DEMURRER to COMPLAINT is SUSTAINED with leave to amend for Plaintiff to address all issues raised by the demurrer in good faith. Oversized opposition is stricken (No Table of Contents or Table of Authorities). Request for Judicial Notice is GRANTED as to all exhibits except 16 and 17. Plaintiff shall have 10 days from the notice of entry of order to file an amended complaint. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.

Ruling

MITRA H. BRAL VS KHOSROW SHOUMER, ET AL.

Aug 14, 2024 |22SMCV01773

Case Number: 22SMCV01773 Hearing Date: August 14, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 MITRA H. BRAL, Plaintiff, v. KHOSROW SHOUMER, et al., Defendants. Case No.: 22SMCV01773 Hearing Date: August 14, 2024 [TENTATIVE] ORDER RE: DEFENDANTS KHOSROW SHOUMER AND FARIBA SHOUMERS DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT BACKGROUND This case arises from a dispute between neighbors. Plaintiff Mitrah Bral owns her home located at 1207 Beverly Estates Drive, Beverly Hills, California 90210 (the Bral Property). Defendants Khosrow Shoumer and Fariba Shoumer, individually and as trustees of the Shoumer Trust, own the property next door, located at 1211 Beverly Estates Drive, Beverly Hills California 90210 (the Shoumer Property). The facts as alleged in the First Amended Complaint (FAC) are as follows: In 2020, Defendants began construction on the Shoumer Property. (FAC ¶ 10.) During construction, Plaintiff alleges Defendants began encroaching onto the Bral Property installing makeshift plywood fences, removing existing wood fencings, and destroying trees, vegetation and landscaping. (Id. at ¶¶10-11.) Defendants construction activities culminated in two block walls, a metal gate, and an artificial paver pathway that Plaintiff claims is encroaching on the Bral Property. (Id. at ¶¶ 12, 13.) Plaintiff claims she obtained surveys that confirm the wrongful encroachments. (Id. at ¶14.) The operative complaint alleges three claims for: (1) trespass to land, (2) trespass to timber and (3) failure to abate artificial condition on land creating nuisance. This hearing is on Defendants demurrer to and motion to strike the FAC. Defendants argue that all of Plaintiffs claims are time-barred because based on the judicially noticed facts, Defendants construction was completed on February 21, 2017; there is a three year statute of limitations for each of Plaintiffs claims, so Plaintiff was required to have brought her claims by February 2020 but Plaintiff did not bring her claims until October 7, 2022, over two years after the statute of limitations had already expired. Defendants also argue that the FAC is a sham pleading because it raises for the first time encroachments related to a metal gate and an artificial paver pathway, both of which were not mentioned in Plaintiffs prior complaint or the declaration of Plaintiffs surveyor. Moreover, Defendants move to strike Plaintiffs prayer for punitive damages because they argue Plaintiff has not sufficiently alleged malice, oppression or fraud. MEET AND CONFER Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) Defendants submit the Declaration of Kelsey Solberg which fails to show the parties met and conferred by telephone or in person. Instead, defense counsel called opposing counsel twice, and opposing counsel was unavailable both times. (Solberg Decl. ¶ 3.) Opposing counsel avers there was no voicemail, and no email requesting a meet and confer or detailing the grounds for the demurrer and motion to strike. (Sandoval Decl. ¶¶ 6-7.) Notwithstanding, the Court cannot overrule a demurrer or deny a motion to strike on the grounds of an insufficient meet and confer. (Code Civ. Proc. §§ 430.41(a)(4), 435.5(a)(4)). REQUEST FOR JUDICIAL NOTICE Defendants request judicial notice of (1) a May 31, 2023 Declaration of Mark Sandstrom, (2) a December 17, 2013 City of Los Angeles Department of Building and Safety Permit, (3) the May 16, 2014 City of Los Angeles Department of Building and Safety Permit, and (4) a July 21, 2017 City of Los Angeles Department of Building and Safety Certificate of Occupancy. The Court grants the request as to the building permits and certificate of occupancy pursuant to Cal. Evid. Code §§ 452(c), 452(h) and 453. But the Court denies the request as to the declaration as it is not a proper subject for judicial notice. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-866 (the court could not properly take judicial notice of the truth of statements made in a declaration); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (courts may not take judicial notice of allegations in affidavits and declarations in court records because such matters are reasonably subject to dispute and therefore require formal proof).) LEGAL STANDARD [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) DISCUSSION Demurrer Defendants argue that Plaintiffs claims are time-barred. The Court disagrees. In California, the¿statute of limitations for bringing a¿trespass claim is¿three years.¿(Code Civ. Proc., § 338, subd. (b).) The same¿three year statute of limitations applies to private nuisance claims. (See¿Holdgrafer v. Unocal Corp.¿(2008) 160 Cal.App.4th 907, 925.) Plaintiff filed her complaint in October 2022, so her claims must have accrued by October 2019 or later to be timely. Defendants argue that Plaintiffs claims accrued in 2017 when a certificate of occupancy was issued by the Los Angeles Department of Building and Safety (LADBS). Defendants argue that the date the certificate of occupancy was issued must be the date all construction was completed. But that is not an inference that the Court can draw from the certificate of occupancy. It could be that, as Plaintiff alleges, the construction was still ongoing as of 2020, and the wrongful encroachments took place in 2020 or later. (FAC ¶10.) On a demurrer, the Court is required to accept Plaintiffs allegations as true. In any event, the Court concludes the alleged trespass and nuisance is continuing, and therefore, the claims are not untimely. Whether a¿trespass or nuisance claim is barred by the statute of limitations turns on whether the wrongdoing is permanent or continuing in nature. (Starrh & Starrh Cotton Growers v. Aera Energy LLC¿(2007) 153 Cal.App.4th 583, 592.) In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Beck Development Co. v. Southern Pacific Transportation Co.¿(1996) 44 Cal.App.4th 1160, 1216.)¿ With respect to a permanent nuisance, the statute of limitations begins to run on the creation of the nuisance and bars all claims after its passage & . (Id.¿at 12161217.) ¿By contrast, each repetition of a continuing nuisance is considered a separate wrong which commences a new period in which to bring an action for recovery based upon the new injury. (Id.¿at 1217.) Thus, if a trespass or nuisance is continuing, an action may be brought at any time to recover the damages¿which have accrued within the statutory period, although the original trespass occurred before that period. (Polin v. Chung Cho¿(1970) 8 Cal.App.3d 673, 678.) The same principles apply whether the wrongdoing is characterized as a nuisance or trespass. (Bookout v. State of California ex. rel. Dept. of Transportation¿(2010) 186 Cal.App.4th 1478, 1489.) When deciding whether a trespass or nuisance is permanent or continuing, the courts consider whether the circumstances of a structures construction indicate an intention that the trespass shall be permanent (Kafka v. Bozio¿(1923) 191 Cal. 746, 750) and whether a trespass or nuisances impact may vary over time. (Field-Escandon v. DeMann¿(1988) 204 Cal.App.3d 228, 234.) Our Supreme Court acknowledged the crucial test of the permanency of a trespass or nuisance is whether the¿trespass or nuisance can be discontinued or abated. (Mangini v. Aerojet-General Corp.¿(1996) 12 Cal.4th 1087, 1097.) Under this test, sometimes referred to as the abatability test (see, e.g.,¿Beck, 44 Cal.App.4th at 1220), a trespass or nuisance is continuing if it can be remedied at a reasonable cost by reasonable means. (Mangini, 12 Cal.4th at 1103.) Our Supreme Court applied a version of the abatability test to determine whether a physical structure constituted a continuing or permanent nuisance in¿Phillips v. Pasadena¿(1945) 27 Cal.2d 104, 107-108. There, the Supreme Court held placement of a locked gate across a road was a continuing nuisance, as the gate could have been removed at any time. (Id.¿at 108.) As in Phillips, here, the fences, block wall, and metal gate can be removed at any time. Because property values have risen to the point where even modest properties represent small fortunes, the cost of relocating a boundary fence or wall pales in comparison to the property value, and thus it is difficult to conceive of a case where relocation of a boundary fence or wall would be so costly as to render it a permanent encroachment. (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 609-610.) Because the encroachments here can be removed at any time, they are a continuing nuisance, and Plaintiffs claims are not untimely. Defendants also argue that the FAC is a sham pleading because Plaintiff did not raise the issue of the metal gate and paver pathway in her original complaint or in the declaration of her surveyor. But it can both be true that Defendants encroached on the Bral Property through a block wall as well as a metal gate and paver pathway. The failure of the original complaint to refer to either the metal gate or paver pathway in no way contradicts the addition of these allegations in the FAC. The sham pleading doctrine does not prevent a plaintiff from adding additional facts to a complaint as long as there is no contradiction with a prior iteration of the complaint. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) As to the declaration of Plaintiffs surveyor, the Court has declined to take judicial notice of the declaration. And in any event, the failure of the surveyors declaration to mention the metal gate or paver pathway does not contradict the new allegations. Accordingly, the Court overrules the demurrer to Plaintiffs first amended complaint. Punitive Damages Defendant moves to strike Plaintiffs claim for punitive damages. Defendant argues Plaintiffs have only made conclusory allegations that they are entitled to punitive damages without stating facts supporting a finding of malice, oppression or fraud. The Court agrees. In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).) Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.) Conclusory characterizations of defendants conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Cal. Civ. Code section 3294 provides the basis upon which punitive damages can be recovered. Punitive damages may only be sought where there is clear and convincing evidence that the defendant has been guilty of malice, oppression or fraud: (c)(1) Malice means conduct which is intended to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (c)(2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. (c)(3) Fraud means an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code §3294.) Section 3294 was amended in 1987 to increase the burden of proof required in order to allege a punitive damages claim as well as to raise the level of misconduct necessary for an award of punitive damages. The California Supreme Court has ruled that the insertion of the word despicable in §3294 created a new substantive limitation on punitive damage awards. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Despicable means conduct that is so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Such conduct has been described as having the character of outrage frequently associated with [a] crime. (Id.) Punitive damages are disfavored by public policy and are allowed only under the most extreme circumstances and in the clearest of cases. (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 9.) To contain the generosity and emotionality of juries, appellate courts have set the threshold high in defining situations in which punitive damages can be given. Conduct which may be characterized as unreasonable, negligent, grossly negligent or reckless does not satisfy the highly culpable state of mind warranting punitive damages. Conduct which warrants punitive damages must be of such severity or shocking character [as] warrants the same treatment as accorded willful misconduct conduct in which defendant intends to cause harm. (Id. at 10 (internal quotations and citations omitted).) Here, the factual allegations in the complaint do not support a finding of malice, oppression or fraud. Plaintiff does not allege fraud. As to malice and oppression, in the absence of intent to injure (which Plaintiff has only plead conclusorily), both require a showing of despicable conduct. (College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, 725.) Here, Plaintiff alleges Defendants erected fences, block walls, and a metal gate that encroached on her property and destroyed her trees and landscaping. This is not vile, base, contemptible, miserable, wretched or loathsome conduct, nor does it have the character of outrage frequently associated with a crime. It is true that a trespass committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship or oppression, may result in an award of punitive damages. (Haun¿v.¿Hyman¿(1963) 223 Cal.App.2d 615, 620.) But no specific facts are alleged in the FAC, beyond the conclusory allegations in paragraphs 28, 31, and 47, that Defendants acted maliciously with willful and conscious disregard when they allegedly trespassed onto Plaintiffs property. Accordingly, the Court grants the motion to strike Plaintiffs prayer for punitive damages. CONCLUSION For the foregoing reasons, the Court OVERRULES Defendants demurrer to the Complaint, and GRANTS Defendants motion to strike with 20 days leave to amend. IT IS SO ORDERED. DATED: August 14, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Ruling

JENNIFER MEDINA, ET AL. VS LUIS CHAVEZ

Aug 13, 2024 |24STCV03621

Case Number: 24STCV03621 Hearing Date: August 13, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING JENNIFER MEDINA, et al., Plaintiffs, v. LUIS CHAVEZ, Defendant. Case No: 24STCV03621 Hearing Date: August 13, 2024 Calendar Number: 8 Plaintiffs and Cross-Defendants Jennifer Medina; Jose Salazar; Joseph Medina; Juan Medina; Luis Salazar by and through his Guardian Ad Litem Jennifer Medina; Jose Salazar Jr. by and through his Guardian Ad Litem Jennifer Medina; Aliyah Salazar by and through her Guardian Ad Litem Jennifer Medina; and Ismael Salazar by and through his Guardian Ad Litem Jennifer Medina (collectively, Plaintiffs) demur to the second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth claims in the Cross-Complaint filed by Defendant and Cross-Complainant Luis Chavez (Defendant). The Court SUSTAINS the demurrer WITH LEAVE TO AMEND with respect to the second, third, fourth, seventh, and thirteenth claims. Defendant shall amend within 20 days. The Court SUSTAINS the demurrer WITHOUT LEAVE TO AMEND with respect to the sixth, eighth, ninth, tenth, eleventh, and twelfth claims. None of these claims are standalone claims under California law, and all of them are duplicative of claims or prayers for relief that remain or may be asserted in the cross-complaint. To the extent that there is a need to do so, Defendant may include the allegations from these claims in the remaining claims or prayer for relief of the Cross-Complaint. Background This is a landlord-tenant case. Except where otherwise noted, the following facts are taken from the allegations of the Cross-Complaint, which the Court accepts as true for the purposes of the demurrer. Defendant owns and manages the property located at 10254 California Avenue, #A, South Gate, California 90280 (the Property). Plaintiffs rented the property from Defendant pursuant to an oral rental agreement, for monthly rent of $900.00. Defendant alleges that Plaintiffs failed to pay rent as agreed, resulting in total unpaid rent of $24,300.00. Defendant alleges that Plaintiffs have allowed unauthorized occupants to reside at the Property. Defendant alleges that this is a violation of the rental agreement and has led to additional maintenance costs. Plaintiffs filed this action on February 13, 2024. Plaintiffs allege in the Complaint that the Property has contained substandard conditions, including rodent and roach infestations, lack of heat, visible mold, broken windows, plumbing issues, and defective flooring. The Court does not accept these facts as true for the purposes of this demurrer. On June 20, 2024, Defendant filed the Cross-Complaint, raising claims for (1) breach of contract; (2) fraud; (3) negligent infliction of emotional distress (NIED); (4) malicious prosecution; (5) intentional destruction of property; (6) unauthorized occupants; (7) abuse of process; (8) unpaid rent; (9) property damage; (10) breach of lease; (11) legal fees and court costs; (12) eviction costs; and (13) false allegations and complaints. Plaintiffs demurred to the Cross-Complaint on July 18, 2024. Defendant filed an opposition. Plaintiffs did not file a reply. Legal Standard As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Discussion Fraud Second Claim The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) [Frauds] particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.] (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Defendant alleges that: 21. [Plaintiffs] made false representations to [Defendant], promising to pay the outstanding rent and inducing [Defendant] to dismiss two unlawful detainer actions. [&.] 22. [Plaintiffs] knew these representations were false and made them with the intent to deceive and induce [Defendant] to rely on them. 23. [Defendant] reasonably relied on these false representations and dismissed the unlawful detainer actions based on [Plaintiffs] promises to pay. (Cross-Complaint ¶¶ 21-23.) Defendant has not specifically alleged who made the representations or how, when, and where they were made. Defendants fraud claim is therefore deficient. A promise of future conduct is actionable as fraud only if made without a present intent to perform. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481.) Moreover, something more than nonperformance is required to prove the defendant's intent not to perform his promise. [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, [the plaintiff] will never reach a jury. (Ibid [citation and quotation marks omitted; cleaned up].) Defendant has not alleged additional facts showing lack of intent to perform. This is an additional basis to sustain the demurrer. The Cour sustains the demurrer to this claim with leave to amend. Negligent Infliction of Emotional Distress Third Claim The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the bystander theory and the direct victim theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. (Spates v. Dameron Hosp. Assn (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.) Defendant alleges that he suffered insomnia as a result of Plaintiffs alleged failure to pay rent. This is not a proximate and foreseeable result of failure to pay rent. A landlord in such a position has a readily available remedy to file an unlawful detainer action. The fact that Defendant delayed in pursuing recovery of rent is a matter of Defendants own conduct, and not Plaintiffs. The Cour sustains the demurrer to this claim with leave to amend. Malicious Prosecution Fourth Claim A plaintiff must plead and prove three elements to establish the tort of malicious prosecution: a lawsuit (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice. (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872, quotation marks omitted.) Defendant does not allege an action that has terminated in his favor. Although it is not entirely clear from the face of the Cross-Complaint, it appears that this is because the action that forms the basis of Defendants claim is this case, which is ongoing. In any event, Defendant fails to allege the first element. The Cour sustains the demurrer to this claim with leave to amend. Unauthorized Occupants Sixth Claim California defines a cause of action in accord with Pomeroy's primary right theory. [Citation] A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. (Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1658.) The primary right and wrong at issue in this claim are Plaintiffs alleged breaches of the lease. The same is true for Defendants claims for unpaid rent, property damage, legal fees and court costs, and eviction costs. These are all either forms of alleged breach, or remedies which Defendant claims for Plaintiffs alleged breaches. They do not exist as separate causes of action. The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can incorporate allegations from this claim into the remaining claim or prayer for relief. Abuse of Process Seventh Claim There are two main elements of a cause of action for abuse of process: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Process is action taken pursuant to judicial authority. Merely obtaining or seeking process is not enough; there must be subsequent abuse, by a misuse of the judicial process for a purpose other than that which it was intended to serve. The gist of the tort is the improper use of the process after it is issued. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1580, quotation marks, citations, ellipses, and paragraph breaks omitted.) Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments [&] or improper use of discovery[.] (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40 [citation omitted].) Defendant has not alleged that Plaintiffs engaged in any process other than filing the Complaint in this case. Defendant has therefore failed to allege that Plaintiffs misused the tools of litigation. The Cour sustains the demurrer to this claim with leave to amend. Unpaid Rent Eighth Claim As discussed above, this claim is duplicative of Defendants breach of contract claim. The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can incorporate allegations from this claim into the remaining claim or prayer for relief. Property Damage Ninth Claim As discussed above, this claim is duplicative of Defendants breach of contract claim. The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can incorporate allegations from this claim into the remaining claim or prayer for relief. Breach of Lease Tenth Claim As discussed above, this claim is duplicative of Defendants breach of contract claim. The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can incorporate allegations from this claim into the remaining claim or prayer for relief. Legel Fees and Court Costs Eleventh Claim As discussed above, this claim is duplicative of Defendants breach of contract claim. The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can incorporate allegations from this claim into the remaining claim or prayer for relief. Eviction Costs Twelfth Claim As discussed above, this claim is duplicative of Defendants breach of contract claim. The Court sustains the demurrer without leave to amend. To the extent necessary, Defendant can incorporate allegations from this claim into the remaining claim or prayer for relief. False Allegations and Complaints Thirteenth Claim Plaintiffs argue that this claim is duplicative of Defendants fraud claim. To the extent that that is the case, this claim fails for the same reason as Defendants fraud claim. Defendant appears to characterize this claim as a defamation claim, although it is unclear. Defendant does not lay out specific statements by Plaintiffs that are alleged to be defamatory. The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff. (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 [quotation marks and citation omitted].) California law does not permit liability for communications relating to lawsuits, except in the case of malicious prosecution. (See Civ. Code, § 47.) The litigation privilege applies to any communication: (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objectives of the litigation; and (4) that have some reasonable relevancy to the subject matter of the action. (Silberg v. Anderson (1990) 50 Cal. 3d 205, 212.) It is also well settled that the absolute privilege & extends to preliminary conversations and interviews between a prospective witness and an attorney if they are some way related to or connected with a pending or contemplated action. (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865.) Thus, it is unclear whether Defendant has stated a claim for defamation. At a minimum, if this is a defamation claim, Defendant must clarify that it has asserted such a claim and plead it in a manner that is legally sufficient. Accordingly, the Court sustains the demurrer with leave to amend.

Ruling

763 Las Olas Drive, LLC, et al vs John Voris, et al

Aug 14, 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

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.

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