EXHIBIT(S) - G (Motion #002) Summons & Complaint and Notice of Pendency Redacted per 22 NYCRR - Summons & Complaint and Notice of Pendency Redacted December 09, 2022 (2024)

Case

WELLS FARGO BANK NA v. MCLOUGHLIN, JANET L.

Mar 24, 2015 |Part 2 Foreclosure |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |001448/2015

Case

Michael Black v. Nassau County

Apr 17, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |ER24716352

Case

BANK OF AMERICA, N.A. v. ARGAMAN REALTY, LLC et al

Jan 16, 2024 |Marber, Hon. Randy Sue |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |600796/2024

Case

Pennymac Loan Services, Llc v. Michael Elliott , Jr. a/k/a Michael A. Elliott, Jr., Secretary Of Housing And Urban Development, John Doe #1 Through John Doe #10, The Last Ten Names Being Fictitious And Unknown To The Plaintiff, The Person Or Parties Intended Being The Persons Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The Mortgaged Premises Described In The Complaint

Aug 27, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |615227/2024

Case

WELLS FARGO BANK v. VILLAFANA, JOSE

Apr 27, 2015 |Jimenez, Hon. Dawn |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |004748/2014

Case

DEUTSCHE BANK NATIONAL TRUST CO v. HIRSCH, ROSELIE

Jan 16, 2024 |Part 2 Foreclosure |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |600799/2024

Case

WELLS FARGO BANK, N.A. v. MILLER, WILLIAM

Mar 31, 2015 |Part 2 Foreclosure |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |000611/2015

Case

BR MADISON LLC v. Zarco-Guadarrama, Mario

Oct 30, 2023 |Carlton, Hon. Gary M. |RP-Tax Foreclosure |RP-Tax Foreclosure |617520/2023

Case

AJAX MORTGAGE LOAN TRUST 2021-B v. LOUIS A. YEARWOOD

May 27, 2021 |Part 2 Foreclosure |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |606762/2021

Ruling

Jules, Scott vs. Galvan, Anais

Sep 09, 2024 |S-CV-0052677

S-CV-0052677 Jules, Scott vs. Galvan, AnaisNo appearance required. CMC is continued to 11/25/24 at 2pm in Dept. 1.Complaint is not at issue. Need status as to ROE Cross Defendants.

Ruling

THOMPSON, SHELDON L vs JAI JALARAM INVESTMENT LLC

Sep 01, 2024 |CV-23-006532

CV-23-006532 – THOMPSON, SHELDON L vs JAI JALARAM INVESTMENT LLC – Plaintiffs’ Motion to Appoint Receiver and for Related Preliminary Injunction – DENIED.The Court finds Defendant Jai Jalaram Investment LLC (JJI) acquired their 50% ownership interest in the real property at issue on December 21, 2021, prior to the expiry of JJI’s said lease on December 31, 2021. Thus, both leasehold and fee simple interests merged on December 21, 2021, and said leasehold interest was thereby extinguished. (Bailey v. Citibank, N.A., (2021) 66 Cal. App. 5th 335). D JJI is therefore not a holdover tenant herein.The Court also finds that Defendant JJI’s admitted refusal to grant Plaintiff’s, co -owners of the real property at issue access to same to operate their proposed housing venture constitutes “the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession by notice in the most open, notorious and unequivocal character” and amounts to an ouster of Plaintiffs. (Hacienda Ranch Homes, Inc. v. Superior Ct., 198 Cal. App. 4th 1122, (2011), as modified on denial of reh'g (Sept. 28, 2011); Miller v. Meyers, (1873) 46 Cal. 538 at 539).The Court additionally finds that a receiver may be appointed herein based on said ouster to preserve Plaintiffs’ rights in said property. (Civ. Proc. Code § 564(b)(9)).However, the appointment of a receiver is based on the facts of the case and lies within the Court’s controlled discretion. It also a very drastic, harsh and costly remedy, that is to be exercised sparingly and with caution (Medipro Medical Staffing LLC v. Certified Nursing Registry (2021) 60 Cal.App. 5th 622; Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869).Furthermore, the appointment of a receiver for a going concern such as JJI’s motel is a drastic remedy.  (McRae v. Superior Court for Los Angeles County (1963) 221 Cal.App.2d 166).  Therefore, in light of the foregoing, and given that JJI is operating a going concern on said premises, has acknowledged Plaintiff’s 50% ownership of the real property at issue and that the parties have reached an agreement regarding including Plaintiff’s as loss payees to JJI’s insurance on said property, the Court is of the view that appointing a receiver herein would be an unduly drastic measure pending the resolution of Plaintiffs’ substantive claims herein.Therefore, Plaintiff’s motion is hereby denied.

Ruling

Jason Neel vs United States Real Estate Corporation, et al

Aug 26, 2024 |22CV01758

22CV01758NEEL v. SUPERIOR LOAN SERVICING, et al CROSS-DEFENDANT DONALD SCHWARTZ’S SPECIAL MOTION TO STRIKE As discussed below, the motion is denied. I. BACKGROUND This is a convoluted fact pattern, which stems from plaintiff Neel’s efforts to forestall theforeclosure of his home and unwind allegedly fraudulent conveyances encumbering his home.Plaintiff’s allegations are as follows: Plaintiff owns property which was purchased “free and clear” in 2018, located at 144Palo Verde Terrace, Santa Cruz. Plaintiff has cognitive impairments. In January and March2018, plaintiff committed various criminal offenses. In March 2018, plaintiff hired DonaldSchwartz and Ed Russo to represent him. In addition to his criminal charges, plaintiff’s erraticbehavior also caused the HOA where his home is located to bring a civil suit against him.Schwartz was his attorney in that matter as well. (FAC ¶¶ 18-20.) According to the allegations in the FAC, from January 2018 to August 2020, plaintiff wasunable to manage his financial affairs, unable to contract with knowledge or understanding, andsusceptible to financial abuse. Between April 2019 and November 2019, plaintiff was declaredincompetent to stand trial for certain criminal offenses. During a portion of this period, plaintiffwas a patient at Napa State Mental Hospital. Plaintiff has been diagnosed with Psychotic orSchizoaffective Disorder, Bipolar II, Dissociative Disorder, and Social Anxiety. Attorney Schwartz raised the issue of plaintiff’s lack of capacity in the HOA civil actionand at one point, requested the court name a guardian ad litem. The guardian ad litemrecommended by Schwartz was Cody Molica. Plaintiff granted a power of attorney (“POA”) to Page 6 of 14Molica to pay his expenses while incarcerated. Molica, a law school graduate who had workedwith both Schwartz and Russo, agreed to serve as plaintiff’s attorney in fact. On 3/17/19,plaintiff executed a POA in favor of Molica. Plaintiff thought his powers were limited to payingbills. (FAC ¶ 21.) Prior to the execution of POA #1, Molica and co-conspirator Derek Wheat had alreadyarranged with defendant CNA Equities Group, LLC (“CNA”) to borrow money againstplaintiff’s residence, which was debt-free. This loan was taken out without either plaintiff’sconsent or knowledge. Molica engaged CNA to broker a loan of $367,500. The lender was Yeva,Inc. dba Saxe Mortgage Co. The escrow was handled by Fidelity Escrow Co. (FAC ¶ 23.) Molica allegedly orchestrated a fraudulent lease agreement between plaintiff and NathanPerry to characterize the loan as one for business purposes. The lease was dated retroactively forthe three-year period of 10/1/17-10/1/20 and called for $2,500/month rent. Neel does not knowPerry and Perry never lived at the residence and ultimately received $10,430 in checks from the2019 loan proceeds. The lease agreement predated Neel’s January 2018 purchase of the Property.(FAC ¶ 24.) Molica is alleged to have completed fraudulent and inaccurate Uniform ResidentialLoan Applications on behalf of Neel, which reported that Neel received $2,500/month in rentalincome from the property. (FAC ¶25.) The net proceeds of the loan were distributed to Schwartz’s Trust account on 3/27/19,where Molica directed Schwartz to distribute the funds. None of the funds were used forplaintiff’s benefit. One check of $60,000 was paid to Jeffrey Vieyre of Funding Solutions. (FAC¶ 26.) On 5/1/19, Schwartz drafted a new POA requiring both Schwartz’s and Molica’ssignatures and stated the POA was only for paying bills and HOA issues and not for aspects ofthe house. At the time the second POA was executed, plaintiff was unaware Molica already usedthe POA to affect his home via the new loan. (FAC ¶ 27.) Molica withdrew over $1,000,000 from plaintiff’s bank account, using the two POAs. Athird POA was executed on 5/28/20. On 9/9/20, Molica refinanced the property for $439,000which paid off the 2019 loan; two days later it was mortgaged for an additional $35,000. (FAC¶¶ 28-30.) Plaintiff contends the refinance was done for no valid financial reason and actuallycost Molica money to obtain. CNA’s files contain another Residential Loan Application signed by Molica withnumerous fraudulent statements. (FAC ¶ 32.) Defendants CNA and Rushmyfile (“RMF”) co-brokered the 2020 Loan. Defendants United States Real Estate Corporation (“USREC”), CNA,and RMF knew Molica had failed to make any of the payments on the 2019 loan, that the Page 7 of 14refinance was fraudulent, that none of the loans were for business purposes, and that the 2020loans were also fraudulently obtained. (FAC ¶34.) After Molica failed to make payments on the 2020 Loan, USREC instructed DefendantSuperior Loan Servicing to commence foreclosure proceedings. Neel has delivered notices ofrecission. USREC filed a Notice of Default and election to sell on 4/16/21. On 7/23/21, USRECfiled a Notice of Trustee’s Sale. II. PLEADINGS A. Complaint and amended complaint Plaintiff originally filed this action in Alameda County on 8/13/21 to halt USREC’spending non-judicial foreclosure. Scwhartz was plaintiff’s original attorney of record, butsubstituted out in favor of plaintiff’s current counsel on 11/19/22. The action was subsequentlytransferred to Santa Cruz Superior Court by stipulation, and thereafter, plaintiff filed hisoperative first amended complaint (“FAC”) on 10/11/22. The FAC added new causes of actionand new party defendants, among others, including the brokers involved in the USREC Loan,CNA Equities Group, LLC (“CNA”) and Rushmyfile, Inc. (“RMF”). The FAC alleges thatplaintiff is a dependent adult who lacks mental capacity, that plaintiff was fraudulently inducedto sign the subject powers of attorney, and that plaintiff had no knowledge of either of the loans.The FAC further alleges that the subject loans were part of an extended scheme to convert andsteal the equity in plaintiff’s property. (FAC ¶¶ 21-38.) The fraud scheme was allegedly directedby unnamed third parties and Molica, the attorney-in-fact appointed in the powers of attorney,who has been defaulted under USREC’s cross-complaint. (FAC ¶¶ 22-23, 28.) The FAC allegesthat the broker and lender defendants facilitated the fraud by accepting fraudulent loanapplications and documentation. (FAC ¶¶ 24-25, 29-35, 40-41.) B. Cross-complaint On 12/13/22, USREC cross-complained against Neel, CNA, RMF, and Molica fordeclaratory relief, reformation, quiet title, equitable subrogation, equitable lien, judicialforeclosure, implied contractual indemnity and equitable indemnity. USREC claims to be a bonafide encumbrancer who made the loan to plaintiff in good faith without knowledge of plaintiff’salleged lack of capacity or the scheme. The cross-complaint seeks to affirm the validity of theUSREC Deed of Trust or, alternatively, force judicial foreclosure of a lien by equitablesubrogation in the amount of at least $407,328, representing the amount of the USREC loanproceeds used to satisfy in full all prior liens against the property. USREC’s Cross-Complaintalso seeks indemnity against brokers CNA and RMF, Molica and Roes 25-50. (Cross-Complaint¶¶41-49.) Page 8 of 14 C. Doe amendment adding Schwartz as defendant On 11/20/23, plaintiff Neel named Schwartz as Doe 1 under his causes of action forabuse of a dependent adult, conversion, and aiding and abetting. Plaintiff alleges that Schwartz,who was plaintiff’s attorney from 2018 to 2022 and had raised plaintiff’s lack of mental capacityin various proceedings, caused Molica to be appointed plaintiff’s guardian ad litem, suggestedplaintiff give Molica the power of attorney for the 2019 loan, drafted at least one other power ofattorney plaintiff signed in favor of Molica and Schwartz, and facilitated distribution of loanproceeds for the benefit of third parties other than plaintiff. (FAC ¶¶ 19-23, 26-30.) Schwartzanswered on 11/27/23. D. Roe amendment adding Schwartz as cross-defendant On 1/26/24, USREC named Donald Schwartz as Roe 25 to the cross-complaint for theseventh cause of action for implied contractual indemnity and for the eighth cause of action forequitable indemnity. (Cross-Complaint, 12/13/22.) On 6/4/24, USREC voluntarily dismissed Schwartz from the implied contractualindemnity cause of action, leaving Schwartz as a Roe for equitable indemnity only. (Dismissal,6/4/24.) III. MOTION A. Moving papers Cross-defendant Schwartz moves to strike the cross-complaint for equitable indemnitypursuant to CCP § 425.16(b)(1), “A cause of action against a person arising from any act of thatperson in furtherance of the person’s right of petition or free speech under the United StatesConstitution or the California Constitution in connection with a public issue shall be subject to aspecial motion to strike, unless the court determines that the plaintiff has established that there isa probability that the plaintiff will prevail on the claim.” (Emphasis added.) Moving party fails to identify the type of free speech allegedly at issue here. Undersection 425.16(e), there are four types of petitioning or speech: (1) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, Page 9 of 14 (3) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) Any other conduct in furtherance of the exercise of constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (CCP §425.16(e).) The only protected activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)This would fall under categories (1) and (2), above. Schwartz contends that his filing of the underlying complaint on Neel’s behalf againstUSREC is petitioning or free speech activity and that USREC cannot succeed on its claim ofequitable indemnity against Schwartz since it is procedurally defective and cannot overcome thelitigation privilege or an attorney’s absolute immunity when acting as an agent. Schwartz relieson Navellier v. Sletten (2002) 29 Cal.4th 82, 89, to support his claim. Under Navellier, “thecritical consideration is whether the cause of action is based on the defendant’s protected freespeech or petitioning activity.” (Navellier v. Slettin, supra, 29 Cal.4th at 89.) Schwartz alsoargues the equitable indemnity cause of action “insinuates a conspiracy” between Neel andSchwartz and so must comply with CCP § 1714.10 which requires a showing of reasonableprobability of prevailing in the action with supporting affidavits. He contends no suchcompliance with section 1714.10 can be found in the cross-complaint and it is therefore “doomedto failure.” Schwartz contends that the cross-complaint is an end run around the attorney clientrelationship (between him and Neel) and USREC seeks to force him to testify against his client. B. Opposition USREC argues that Schwartz cannot meet the first prong of the anti-SLAPP analysissince the indemnity cross-complaint is not based on Schwartz’s right of petitioning or freespeech. It contends that Schwartz has been sued by plaintiff for the fraudulent scheme and byUSREC only for contribution as an alleged joint tortfeasor. It argues that an anti-SLAPP motionis justified only when the conduct upon which the claim is based is an act in furtherance of theright to petition. Merely because some protected activity may have occurred preceding thecomplaint is not enough; the conduct constituting the protected activity is itself the wrongcomplained of. (Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 1057, 1060.) Essentially, USREC argues that no petitioning activity is involved at all in its claim forindemnity in the event it is liable. The Cross-Complaint alleges: “In the event it is determined that the USREC Deed of Trust is invalid, in whole or inpart, such resulting loss to Cross-Complainant will arise solely by reasons of the cross-defendants’ intentional or negligent conduct,” and “if Cross-Complainant suffers loss or damages Page 10 of 14as a result of Plaintiff’s claims, such damages were caused entirely or partly by the breach ofcontract, violation of statutory duty, negligence, fraud, or other tortious conduct of the cross-defendants.” (Cross-Complaint ¶¶ 42, 46.) USREC argues these allegations fail to mention nor rely upon protected petitioning orfree speech activity by Schwartz and instead, they allege a straightforward claim for equitableindemnity against Schwartz and USREC’s other alleged joint tortfeasors based on plaintiff’sallegations of a fraudulent power of attorney and mortgage loan scheme. USREC points out this is Schwartz’s second anti-SLAPP motion in an apparent effort tostall discovery and prevent his deposition from proceeding. The first motion was brought justprior to Schwartz’s noticed deposition, then Schwartz filed for bankruptcy and withdrew the firstmotion. Once the bankruptcy was dismissed, meaning this case’s discovery could proceed,Schwartz filed this second anti-SLAPP motion, effectively staying this case’s discovery again. C. Reply Cross-defendant’s reply argues the cross-complaint against him was filed to gainadvantage and should be viewed with distrust. He contends he never owed any duty to USRECand actually secured restraining orders against it to stop the foreclosure of Mr. Neel’s home. Inshort, the reply does not persuade this Court that petitioning activity arises from USREC’s cross-complaint against Schwartz. III. LEGAL STANDARDS A. Anti-SLAPP The Legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action thatare brought to chill the valid exercise of the constitutional rights to free speech and to petition thegovernment for redress of grievances. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The court must engage in a two-prong analysis on an anti-SLAPP motion, with shiftingburdens of proof as to each prong. In prong one, the court determines whether the conductunderlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speechor petition. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) This is a threshold issue; if moving partyfails to show the conduct is constitutionally protected, the court need not address prongtwo. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Under the second prong,the burden shifts to plaintiff to prove a legally sufficient claim and to prove with admissibleevidence a reasonable probability of prevailing. (Navellier v. Sletten (2002) 29 Cal.4th 82,88.) Plaintiff cannot rely on the allegations of the complaint but must produce evidence Page 11 of 14admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)To defeat the motion, plaintiff need only demonstrate a prima facie case as to either part of theclaim. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570; Weil & Brown, CaliforniaProcedure Before Trial (The Rutter Group) §§ 7:1005, 7:1020.) If the anti-SLAPP is granted, the court may not grant leave to amend to allege or omitfacts demonstrating the complaint is not subject to the anti-SLAPP statute. (Simmons v.Allstate (2001) 92 Cal.App.4th 1068, 1073 [“Allowing a SLAPP plaintiff leave to amend thecomplaint once the court finds the prima facie showing has been met would completelyundermine the statute by providing the pleader a ready escape from [Code of Civil Procedure]section 425.16's quick dismissal remedy. Instead of having to show a probability of success onthe merits, the SLAPP plaintiff would be able to go back to the drawing board with a secondopportunity to disguise the vexatious nature of the suit through more artful pleading. This wouldtrigger a second round of pleadings, a fresh motion to strike, and inevitably another request forleave to amend.”]; Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992,1005.) A defendant party who prevails on an anti-SLAPP motion is entitled to recover his or herattorney’s fees and costs incurred on the motion, but not for the entire litigation. §425.16(c). Adefendant who prevails on only part of the motion may be entitled to an award of fees and costs(but only those associated with the successful part of the motion), unless the results of the motionwere so insignificant that the defendant did not achieve any practical benefit from the motion.The court has broad discretion in making this determination. (Weil & Brown, §7:1135.) B. Equitable indemnity A claim for equitable indemnity requires proof that the same harm for which plaintiffmay be held liable is properly attributable in whole or in part to the defendant. (Platt v. ColdwellBanker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn. 7.) IV. DISCUSSION A. Defendant Schwartz has not met his initial threshold burden – cross-complaint’s cause of action for equitable indemnity does not arise from protected activity Schwartz moves to strike the cross-complaint against him for equitable indemnity. Thatclaim seeks to shift liability from USREC to others (including Schwartz) if plaintiff succeedssince USREC alleges those other parties are really at fault, not it. The proper focus here is todetermine the cause of Schwartz’s potential damages in the cross-complaint, and if that causesprings from Schwartz’s protected activity. Page 12 of 14 Schwartz will only be liable to USREC if plaintiff succeeds in proving USREC is not abona fide encumbrancer and invalidates the deed of trust. To do that, plaintiff will havesucceeded in proving the fraudulent scheme – in which plaintiff alleges Schwartz was a part. Thegravamen of the indemnity claim then is the underlying allegations in plaintiff’s FAC – thescheme – and not in any protected speech by Schwartz. “In determining ‘whether the challenged claims arise from acts in furtherance of thedefendants’ right of free speech or right of petition under one of the categories set forthin section 425.16, subdivision (e). [Citation.] … ‘[w]e examine the principal thrustor gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statuteapplies.’’[Citation.] The ‘gravamen is defined by the acts on which liability is based, not somephilosophical thrust or legal essence of the cause of action.’ [Citation.] In other words, ‘for anti-SLAPP purposes [the] gravamen [of plaintiff’s cause of action] is defined by the acts on whichliability is based.’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer 8 Feld LLP(2017) 18 Cal.App.5th 95, 111.) As mentioned, Schwartz fails to identify the category of free speech at issue. “Thedefendant's burden is to identify what acts each challenged claim rests on and to show how thoseacts are protected under a statutorily defined category of protected activity. [Citation.]” (Bonni v.St. Joseph Health System (2021) 11 Cal.5th 995, 1009; Baral v. Schnitt (2016) 1 Cal.5th 376,396.) The court finds this failure significant since it prevents a full analysis of the allegedprotected activity for the first anti-SLAPP step. Again, the only activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)But analyzing the acts on which Schwartz’s potential liability is based, there is no protectedactivity at issue here. Schwartz is only liable under the cross-complaint if the USREC deed oftrust is invalidated. The deed is only invalidated if plaintiff proves the fraudulent scheme, inwhich Schwartz allegedly participated. Schwartz’s conduct creating liability under the cross-complaint is not in any way protected activity – it does not arise from his representation of Mr.Neel. Instead, it arises from his tortious conduct against Mr. Neel, likely in contravention to hisethical duty to Mr. Neel. Since Schwartz fails to establish the alleged conduct is protected activity, the court neednot move to the second prong of the anti-SLAPP analysis. B. Civil Code §1714.10 and agent’s immunity do not afford Schwartz any protection here Schwartz’s argument that cross-complainants failed to comply with the pre-filingrequirements of Civil Code § 1714.10 is meritless. “No cause of action against an attorney for a Page 13 of 14civil conspiracy with his or her client arising from any attempt to contest or compromise a claimor dispute, and which is based upon the attorney’s representation of the client, shall be includedin a complaint or other pleading unless the court enters an order allowing the pleading thatincludes the claim for civil conspiracy to be filed after the court determines that the party seekingto file the pleading has established that there is a reasonable probability that the party will prevailin the action….” (Civil Code §1714.10(a).) There are no conspiracy allegations in the cross-complaint; Schwartz concedes this whenhe admits “[t]he Cross-Complaint insinuates a conspiracy between Mr. Neel’s former attorney(Schwartz) and others….” (MPA p. 9, emphasis added.) Further, the FAC does not allegeconspiracy between Schwartz and his client – it alleges a conspiracy by Schwartz against hisclient. That is not covered by section 1714.10, and if somehow a conspiracy under the codesection had been alleged, it was Schwartz’s duty to bring a motion to strike when he was namedas a Doe, not when he was named as a Roe to a different pleading. Schwartz’s contention that attorney-agency immunity insulates him from liability underthe cross-complaint is also misplaced. As stated, Schwartz is only liable for equitable indemnityif he’s established as a bad actor under the FAC, and in that case, he will be found to have actedagainst his client’s interests, not for them. C. Sanctions against Schwartz Prevailing cross-complainant USREC shall be entitled to reasonable fees and costsincurred on the special motion to strike (not the entire litigation). (CCP §425.16(c); LafayetteMorehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) USREC seeks $9,490.00 ($7,300.00 for the prior withdrawn anti-SLAPP motion and$2,190.00 for the updated opposition to this motion). USREC’s counsel Edward Egan Smith’shourly rate is $365.00 and he declares he spent no less than 20 hours preparing USREC’sopposition to the initial motion and at least six hours updating and preparing this opposition. Thecourt finds that 13 hours of work is a reasonable duration of time preparing an opposition to thislatest motion and awards $4,745.00 in fees to USREC, payable by cross-defendant Schwartz nolater than 9/20/24.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 Castro vs. Orange Wood Plaza

Aug 29, 2024 |23CECG00945

Re: Maria Castro v. Orangewood Plaza, LLC Superior Court Case No. 23CECG00945Hearing Date: August 29, 2024 (Dept. 502)Motion: Demurrer by Defendants Boom Boom Properties LLC, B1-66ER LLC, and Orangewood Plaza LLC, to Plaintiffs’ First Amended ComplaintTentative Ruling: To sustain the demurrer filed by defendants Boom Boom Properties LLC, B1-66ERLLC, and Orangewood Plaza LLC, with leave to amend. Should plaintiff desire to amend,the Second Amended Complaint shall be filed within ten (10) days from the date of thisorder. The new amendments shall be in bold print.Explanation:Meet and Confer Before filing a demurrer, the demurring party must meet and confer in person orby telephone with the party who filed the pleading that is subject to demurrer for thepurpose of determining whether an agreement can be reached that would resolve theobjections to be raised in the demurrer. (Code Civ. Proc., § 430.41.) The court previously ordered a supplemental filing by defendants detailing theefforts made to meet and confer. Defendants complied with this order and filed adetailed declaration. The meet and confer requirement has been met.Legal Standard A demurrer challenges defects apparent from the face of the complaint andmatters subject to judicial notice. (Blank v. Kirwan (1985) 30 Cal.3d 311, 318.) A generaldemurrer is sustained where the pleading is insufficient to state a cause of action or isincomplete. (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th521, 535.) A special demurrer, though disfavored, is nevertheless sustained where apleading is so uncertain that the defendant cannot reasonably respond to the subjectpleading. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; A.J. Fistes Corp.v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 694.) Similarly, failure to complywith rules promulgated to promote clear and understandable pleadings “may render acomplaint confusing and subject to a special demurrer for uncertainty.” (Williams v.Beechnut Nutrition Group (1986) 185 Cal.App.3d 135, 139 fn. 2.) In determining a demurrer, the court assumes the truth of the facts alleged in thecomplaint and the reasonable inferences that may be drawn from those facts. (Miklosyv. Regents of University of California (2008) 44 Cal.4th 876, 883.) A demurrer “admit[s] allmaterial facts properly pleaded, but not contentions, deductions or conclusions of factor law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)Application Plaintiffs argue that “[t]he FAC sets forth all the facts needed to support Plaintiffs’allegations, and adequately places Defendants on notice.” (Opp., 3:4-6.) However, evenwith the liberal construction that is afforded to pleadings, the FAC fails to allege factsreasonably demonstrating demurring defendants’ ownership or control of the premisesduring the times when the alleged habitability defects were suffered. Plaintiffs allegesuffering the habitability issues throughout their tenancy from March 2018 to March 2023.However, simply alleging demurring defendants have “clear successor liability” appearsto be a broad conclusion, especially considering the judicially noticeable grant deedsdemonstrating that the demurring defendants did not acquire the property until April andSeptember of 2022, and June 2023, respectively. Therefore, the general demurrer for failure to allege sufficient facts and specialdemurrer on the basis of uncertainty are sustained. Considering the liberality afforded toamendment, and that there are numerous typographical and grammatical errorsaccentuating the FAC’s uncertainty, plaintiffs are allowed to amend. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 08/28/24 . (Judge’s initials) (Date)

Ruling

STATE OF CALIFORNIA, BY AND THROUGH THE DEPARTMENT OF WATER RESOURCES vs. CONEY ISLAND FARMS, INC.

Aug 21, 2024 |C24-01489

C24-01489 CASE NAME: STATE OF CALIFORNIA, BY AND THROUGH THE DEPARTMENT OF WATER RESOURCES VS. CONEY ISLAND FARMS, INC. HEARING ON PETITION IN RE: FOR ORDER PERMITTING ENTRY AND INVESTIGATION OF REAL PROPERTY FILED BY: *TENTATIVE RULING:* Petitioner, the State of California, by and through the Department of Water Resources, filed a petition for order permitting entry and investigation of real property against Respondent, Coney Island Farms, Inc. No opposition has been filed. For the reasons set forth below, the petition is granted. Background: On June 7, 2024, Petitioner, the State of California, by and through the Department of Water Resources filed a petition for order permitting entry and investigation of real property against Respondent Coney Island Farms, Inc. Petitioner seeks access to real property in Contra Costa County, Assessor Parcel Numbers (APNs) 001-111-004 and 001-111-005. (Initial Petition, 6:10–12.) Petitioner requests access to the subject properties for 11 intermittent 12-hour days for a period of 12 months in order to conduct geological surveys and tests, as well as biologic and cultural site clearances and surveys. (Id. at 6:11–20.) For geological matters, Petitioner intends to make five soil borings, conduct Cone Penetrometer Tests (CPT), and collect groundwater. The soil borings will be approximately three and eight inches in diameter, to a maximum depth of 250 feet. (Declaration of Allan T. Davis, 3:2–5.) The holes will be backfilled and sealed in the method most suited for the local environment, likely bentonite grout. (Id. at 7; Declaration of Andrew Finney, 4:7.) CPT is a cone-tipped rod with a diameter of one to two inches, pushed through the ground to measure tip resistance, side friction, and several other values. (Declaration of Andrew Finney, 4:3–4.) The groundwater will be sampled from existing wells, and the amount removed from the property owners well will not exceed 3 gallons. (Id. at 4:17–19.) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024The biological site clearances and surveys are conducted to support the above-mentioned soilinvestigations. (Declaration of Katherine Marquez ¶ 5.) Site clearances occur in the immediate areawhere the soil investigations would happen. (Id. at ¶ 6.) The cultural studies include archeologicalhistoric surveys of the area and offer tribal representatives an opportunity to survey for tribalresources. (Id. at ¶ 9.) The study consists of a review of the California Historical ResourcesInformation System records and a walking survey for various resources. (Ibid.)Legal Standard:Private property may be taken or damaged for a public use and only when just compensation,ascertained by a jury unless waived, has first been paid to, or into court for, the owner. TheLegislature may provide for possession by the condemnor following the commencement of eminentdomain proceedings upon deposit in court and prompt release to the owner of money determined bythe court to be the probable amount of just compensation. (Cal Const, Art. 1 § 19(a).)Analysis:The precondemnation entry and testing statutes under California Eminent Domain law control thesubject matter. (CCP § 1245.010-1245.030.) Subject to requirements of these articles, any personauthorized to acquire property for a particular use by eminent domain may enter upon property tomake photographs, studies, surveys, examinations, tests, soundings, borings, samplings, or appraisalsor to engage in similar activities reasonably related to acquisition or use of the property for that use.(CCP § 1245.010.) Before making that entry and undertaking those activities, the person shallsecure at least one of the following: (a) the written consent of the owner to enter upon theowner's property and to undertake those activities; or (b) an order for entry from the superior court.(CCP § 1245.020.)The person seeking to enter upon the property may petition the court for an order permitting theentry and shall give such prior notice to the owner of the property as the court determines isappropriate under the circ*mstances of the particular case. Upon such petition and after such noticehas been given, the court shall determine the purpose for the entry, the nature and scope of theactivities reasonably necessary to accomplish such purpose, and the probable amount ofcompensation to be paid to the owner of the property for the actual damage to the property andinterference with its possession and use. After such determination, the court may issue its orderpermitting the entry. The order shall prescribe the purpose for the entry and the nature and scope ofthe activities to be undertaken and shall require the person seeking to enter to deposit with the courtthe probable amount of compensation. (CCP § 1245.030.)In the controlling case, Property Reserve, Inc. v. Superior Court, the California Supreme Court held thatthe State of California may use precondemnation proceedings to authorize entry on specific parcels ofreal property to conduct specified geological, environmental, and cultural activities. ((2016) 1 Cal. 5th151, 177.) The court held the California takings clause was satisfied if the statute was reformed toallow the property owner to obtain a jury determination of damages if the property owner so SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024chooses, however, damages are limited to actual damage resulting from entry and testing. (Id. at167.) In addition, the court concluded a hearing and an opportunity to be heard on a public entity’sentry petition are implicit in the statutory scheme. (Id. at 175.)Petitioner is authorized to exercise the power of eminent domain to acquire property for state waterand subterranean testing, pursuant to Water Code sections 250, 11577, 11580, and Part 11, Division3, Title 2 of the Government Code.As required by statute, Petitioner filed a court petition and served notice upon Respondent.Petitioner states the purpose for entry is to investigate both: “. . . the best alternative and futurewater conversion and conveyance facilities in the Sacramento-San Joaquin Delta necessary to restoreand protect reliable water deliveries and supplies for fisheries, habitat and other water users inCalifornia;” and “. . . the potential impacts of a water conveyance system. . .” on various resources onthe subject properties. (Initial Petition, 4:20, 5:3–5.)As provided in statute by CCP section 1245.010, the nature and scope of the activities are reasonablynecessary to accomplish the purpose listed in the above paragraph. (Id. at 4:19–23.) Petitioner arguesthe probable compensation of activities reasonably necessary is $7500. If Respondent wishes todispute this amount, they are entitled to a jury determination of actual damages, in accordance withthe California Supreme Court’s holding in Property Reserve. (1 Cal. 5th, 151, 167.)All necessary components of the entry and testing precondemnation statutory scheme have beenlisted and met. As such, the State of California, by and through the Department of Water Resourceshas properly petitioned this court, and the petition is granted.Disposition:The California Supreme Court’s decision in Property Reserve allows the California State Department ofWater to utilize the entry and testing precondemnation statutory scheme with some modifications.(Id. at 213.)Petitioner shall file a proposed order by September 29, 2024.

Ruling

Angeles Contractor, Inc., et al vs Santa Cruz Hotel, L.P, et al

Sep 01, 2024 |20CV01281

20CV01281ANGELES CONTRACTOR INC. v. SANTA CRUZ HOTEL LP CROSS-DEFENDANT ANGELES CONTRACTOR’S DEMURRER TO SANTA CRUZ HOTEL’S THIRD AMENDED COMPLAINT The demurrer is overruled. Page 1 of 2 Cross-defendant Angeles Contractor argues that Santa Cruz Hotel’s Third AmendedComplaint (TAC) fails to state facts to support these the causes of action for negligence, fraudand negligent misrepresentation and that these claims are barred by California law. However, Santa Cruz Hotel has pled facts indicating that an independent duty of careexists outside the contract for negligence (causing property damage). (TAC ¶¶ 72-79.) Further,Santa Cruz Hotel now specifically alleges the parties, their statements, and sufficient detailsrelated to their authority to speak, to whom they spoke, what they said or wrote, and when it wassaid or written for supporting its causes of action for fraud and negligent misrepresentation (TAC¶¶ 93-123.) (Kalnoki v. First Am. Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 35.) Angeles Contractor’s arguments go to the merits of the causes of action. At this point inthis four-year-old case, the pleadings in this matter must be set so the parties can proceed to trythis case on its merits. Angeles Contractor’s Request for Judicial Notice: Exhibits A and B: Stipulation for Entry of Judgment, Notice of Entry of Stipulated FinalJudgment in People v. Santa Cruz Hotel, LP, Santa Cruz Superior No. 19CV02338: Granted.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 2 of 2

Ruling

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

Aug 31, 2024 |23CV-0202994

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

Ruling

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Case Number: 19SMCV01876 Hearing Date: August 30, 2024 Dept: I The court has already issued the judgment. Accordingly, there will be no hearing today and the court will set no future hearings.

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