SUMMONS + COMPLAINT August 30, 2024 (2024)

Case

US BANK v. BARNES,VICTORIA

Nov 07, 2011 |Betty Owen |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |381138/2011e

Case

Wells Fargo Bank, N.A. v. Ramiz Demaj, Board Of Directors Of West Farms Haven Homeowners Association, Inc., City Of New York Environmental Control Board, City Of New York Parking Violations Bureau, City Of New York Transit Adjudication Bureau, And John Doe, Said Name Being Fictitious, It Being The Intention Of Plaintiff To Designate Any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises

Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |813702/2024E

Case

DEUTSCHE BANK NATIONAL v. ELLISON,KEVIN

May 12, 2006 |Master Foreclosure Part (MFJ) |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |22615/2005E

Case

DEUTSCHE BANK v. SOLOMON,VELMA

Mar 22, 2012 |Barbato, Hon. Ben R. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |381242/2011

Case

CITIMORTGAGE v. ORTEGA,ALEXANDER

Oct 15, 2014 |Barbato, Hon. Ben R. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |380307/2014

Case

NYCTL-2008-A TRUST v. 1216 OLMSTEAD AVENUE

Jan 08, 2010 |Master Tax Lien Foreclosure Judge |RP-Tax Foreclosure |RP-Tax Foreclosure |381072/2009

Case

Flushing Bank v. 815-839 Westchester Llc, Bozhena Basmanov, A-Z Apartment Building Supply Corp., Donovan Property Service Inc., New York City Environmental Control Board, New York State Department Of Taxation And Finance, New York City Department Of Finance, John Doe No. 1 Through John Doe No. 10, The Last Ten (10) Names Being Fictitious And UnknownTo The Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Parties, If Any, Having Or Claiming An Interest In Or Lien Upon The premises described in the Verified Complaint.

Aug 27, 2024 |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Commercial |813562/2024E

Case

U.S. BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR RCF 2 ACQUISITION TRUST v. ARCE, EMILIO et al

Mar 02, 2023 |Master Foreclosure Part (MFJ) |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |803475/2023E

Case

DEUTSCHE BANK v. BLAIR,ERROL

Jan 29, 2015 |Master Foreclosure Part (MFJ) |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |380343/2014

Ruling

HY-NETHA SCOTT, AN INDIVIDUAL, ET AL. VS MP OPPORTUNITY PARTNERS I, LP, ET AL.

Aug 30, 2024 |24STCV03675

Case Number: 24STCV03675 Hearing Date: August 30, 2024 Dept: 57 Plaintiffs Hy-Netha Scott, La Fuanja Call, and minors Emperor Martin and Legend Pree, by and through their guardian ad litem Hy-Netha Scott (collectively, Plaintiffs), sued Defendants MP Opportunity Partners I, LP and Bridge Management Inc. also known as Bridge Management XIII (collectively, Defendants) about the habitability of residential property located at 2140 Belle St., Unit 0001, San Bernardino, California 92404 (the Property) that Plaintiffs leased and that Defendants owned or managed. Plaintiffs allege, inter alia, that they suffered personal injuries as a result of the conditions of the Property.Plaintiffs move the Court for preference in setting a trial date pursuant to Code of Civil Procedure Section 36(b) on the grounds that minor plaintiffs Emperor Martin and Legend Pree (collectively, Minor Plaintiffs) are under the age of 14, have suffered personal injuries, and have a substantial interest as plaintiffs in the pending action. The Court is granting the Plaintiffs'' motion.A civil action for wrongful death or personal injury shall be entitled to preference upon motion of any party to the action who is under 14 years of age who has a substantial interest in the case as a whole. (Code Civ. Proc, § 36(b).) This is a mandatory provision for priority; the trial court has no discretion to refuse the minors request for early setting. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 223-224.) If the trial court grants the motion for trial preference, the court must set the case for trial not more than 120 days from the date the motion was granted. (Code Civ. Proc, § 36(f).) In support of their motion for trial preference, Plaintiffs submitted the declaration of Plaintiff Hy-Netha Scott, guardian ad litem for Minor Plaintiffs and their biological mother. (Scott Decl.) Scott declares under penalty of perjury that Martin and Pree are ages thirteen and two, respectively, and provides their dates of birth. (Id., ¶ 2.) Plaintiffs attorney also attaches copies of the Applications for Appointment of Guardian Ad Litem declaring the same. (Ohn Decl., ¶ 2, Ex. A.) Scott's declaration describes the uninhabitable conditions as alleged in the Complaint and states that her children have resided at the Property since 2020. ( Scott Decl. ¶¶ 3-4.) Due to the uninhabitable conditions, Scott declares, Minor Plaintiffs have suffered personal injuries, including coughing, sneezing and runny nose. (Id., ¶ 5.)Defendants counter that Plaintiffs fail to establish that Minor Plaintiffs are under fourteen. In so arguing, Defendants pay short shrift to the Scott Declaration which establishes the Minor Plaintiffs ages as two and thirteen. Defendants fail to provide evidence to the contrary. Defendants also contest that Minor Plaintiffs have a substantial interest in this action, this time discounting Scotts declaration as by a non-expert. Defendants do not cite any precedent, however, that says that parties seeking a trial preference based on the presence of minors under the age of 14 in the case must prove the minors have a substantial interest in the case through an expert declaration. The non-expert declarations that Plaitiffs submitted are sufficient. As children who are alleged to have lived in substandard conditions, Minor Plaintiffs may be able to recover substantial personal injury and general damages. (See Ohn Decl., ¶¶ 5-6.) They have a substantial interest in this case. Because the Minor Plaintiffs are under the age of fourteen and have a substantial interest in this action as a whole, the Court is granting the Plaintiffs' motion for trial preference and sets the trial date for December 16, 2024 at 9:30 a.m. The final status conference is set for December 6, 2024 at 9:00 a.m. The Court is not granting Defendants' request, made through their opposition to the motion for trial preference, for an order extending certain deadlines and shortening others. Defendants need to seek that relief through a properly noticed-motion of their own or an ex parte application.

Ruling

HYSON vs SELECT PORTFOLIO SERVICING INC.

Sep 01, 2024 |CVPS2403212

HYSON vs SELECT PORTFOLIO Motion to be Relieved as Counsel forCVPS2403212SERVICING INC. LINDA HYSONTentative Ruling: Grant. Moving counsel is ordered to lodge with the Court within 5 days a revisedproposed order including all upcoming hearing dates. Counsel is reminded that they are not relieveduntil they have filed with the Court proof of service of the signed order upon their client.

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 30, 2024 |23CV-0203590

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

Ruling

JAMES LEE VS EMAAR LA PROPERTIES, LLC

Aug 28, 2024 |SC129270

Case Number: SC129270 Hearing Date: August 28, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 28, 2024 CASE NUMBER SC129270 MATTER Request for Default Judgment MOVING PARTIES Cross-Complainants Emaar LA Properties, LLC and EJL Homes Realty and Construction, Inc. Cross-Complainants Emaar LA Properties, LLC (Emaar) and EJL Homes Realty & Construction, Inc. (EJL) (together, Cross-Complainants) request for default judgment against Cross-Defendant JCL Contractors, Inc. (JCL) in the amount of $1,117,288.57, which is composed of special damages in the amount of $654,866.51; prejudgment interest in the amount of $436,863.35; and costs in the amount of $24,333.68. Cross-Complainants separately request attorneys fees via a noticed motion. The Court notes that $654,866.51 + $436,863.35 + $24,333.68 = $1,116,063.54, not the requested $1,117,288.57. a. Damages The Second Amended Cross-Complaint (SACC) alleges five causes of action for (1) Breach of Written Contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranties; (4) Negligence; and (5) Declaratory Relief. JCL was served with a copy of the second amended summons and second amended cross-complaint via substitute service on May 29, 2024. Default was entered against JCL on July 11, 2024, and the Roe Defendants were dismissed on August 8, 2024. The SACC seeks $770,510.61 in special damages. (SACC at pp. 10-11.) Therefore, the amount of damages does not exceed the amount demanded in the SACC. (See Code Civ. Proc., § 580, subd. (a) [The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint]; Levine v. Smith (2006) 145 Cal.App.4th 1131, 1136-1137 [when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint].) In support of the request, Cross-Complainants provide the declaration of Eric Jencks, explaining that EJL hired JCL to perform demolition, and installation, of drywall, wood, metal studs, and door frames on the interior units in a 22-story luxury high rise condominium project, Beverly West. (Jencks Decl. ¶¶ 1, 3-6 and Exs. 1-2.) Cross-Complainants also provide the declaration of Delbert Bern, who avers that JCL performed drywall work on the project negligently. (Bern Decl. ¶¶ 1-8 and Exs. 3-4.) The Jencks Declaration and Exhibits 5-6 thereto, also demonstrate that Cross-Complainants expended $219,366.51 on linear diffuser repairs and $435,500 to remediate the penthouse units. (Jencks Decl. ¶¶ 10-11 and Exs. 5-6 thereto.) The Court notes that $219,366.51 + $435,500 = the requested $654,866.51. Therefore, the Court finds that Plaintiff is entitled to the requested $654,866.51 in damages. b. Prejudgment Interest The interest computation for the $436,863.35 requested is stated as follows: · $654,866.51 x 10% interest rate for breach of contract ÷ 365 days/yr = $179.41 daily interest · $179.41 daily interest x 2,435 days (November 29, 2017 to August 2, 2024) = $436,863.35 Therefore, Plaintiff is entitled to the requested prejudgment interest in the amount of $436,863.35. c. Costs Cross-Complainants also request $25,558.71 in costs composed of $3,578.10 in filing fees, $222.52 in process server fees, $775 in court reporter fees, and $20,983.09 in other fees mediator fees and transportation. (CIV-100.) The request for costs is granted as Cross-Complainants are the prevailing parties in the action. (Code Civ. Proc., § 1032, subd. (a)(4).) Cross-Complainants expound upon the requested costs in the memorandum of costs, where they itemize $3,578.20 in filing fees; $135.53 in courier service fees; $203 in remote appearance fees; $21.16+$218.40+$5.00=$244.56 in toll road, mileage, and parking fees to attend a client meeting, mediation, and a site inspection, and $20,400 in mediator and judicial reference fees. Code of Civil Procedure section 1033.5 permits court reporter fees as established by statute. Cross-Complainants have not provided any information about the statute pursuant to which the court reporter fees requested. Similarly, the Court has no information about the requested courier service fees, which are presumably requested in addition to the $222.52 in process server fees. The Code does not authorize courier service fees, nor have Cross-Complainants demonstrated that such fees were reasonably necessary to the litigation. The Court finds, however, that the $203 remote appearance fees and the $244.56 in toll road, mileage, and parking fees were not reasonably necessary to obtaining a default judgment against JCL. Similarly, the Court does not see how, and Cross-Complainants do not explain how the $20,400 requested in mediator and judicial reference fees were reasonably necessary to obtain a default judgment against JCL. Therefore, Cross-Complainants have only substantiated the $3,578.10 in requested filing fees and $222.52 in process server fees. As such, the Court awards costs in the amount of $3,800.62. CONCLUSION Cross-Complainants have only shown entitlement to judgment in the amount of $1,095,530.48, composed of $654,866.51 in special damages, $436,863.35 in prejudgment interest, and $3,800.62 in costs. The Court addresses Cross-Complainants request for attorneys fees in connection with the separately noticed motion. If Cross-Complainants accept the Courts ruling, the Court will cause the Default Judgment to be entered, including the amount awarded for attorneys fees. DATED: August 28, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Ruling

ROSA L. MUNGUIA RODRIGUEZ, ET AL. VS PETER COELER

Aug 28, 2024 |23CHCV00469

Case Number: 23CHCV00469 Hearing Date: August 28, 2024 Dept: F47 Dept. F47 Date: 8/28/24 Case #23CHCV00469 MINORS COMPROMISE Petition filed on 8/5/24. MINOR: Breanna Munguia-Sena GAL: Rosa L. Munguia Rodriguez DEFENDANT: Peter Coeler dba P.A.C. Properties RULING: Minor Breanna Munguia-Sena (Minor) resided in a residential dwelling unit along with other family members, including her parent and guardian ad litem, Rosa L. Munguia Rodriguez. Plaintiffs claimed the unit was not properly maintained by Defendant Peter Coeler dba P.A.C. Properties (Defendant) who is alleged to be the landlord, manager and operator of the residential dwelling. Defendant denied all the allegations and claims or liability is disputed. There are no claimed injuries except discomfort. Minor received no medical treatment. Defendant has offered to settle Minors claim for $3,000.00. Attorneys fees in the amount of $750.00 will be paid from the settlement. The remaining $2,250.00 is to be paid/delivered to the parent of the minor, without bond, on the terms and under the conditions specified in Probate Code 3401-3402. The petition contains the following defects: (1) No.11.b.(1) should be $57,000.00 instead of $60,000.00 the total amount offered to others, not the total settlement including Minor, which is $60,000.00. (See No.11.b.(5)). (2) No.17.e. incorrectly indicates that the attorney is not representing any other party when the attorney represents the other plaintiffs. (3) No.21 was improperly signed (electronically) by the minor. No.21 only applies if the claimant is an adult with a disability who has capacity&). Additionally, a proposed Order has not been submitted. Upon the correction of the above-mentioned defects and the submission of an appropriate Order approving the compromise, the petition will be granted.

Ruling

STATE OF CALIFORNIA, BY AND THROUGH THE DEPARTMENT OF WATER RESOURCES, vs. JAWID SIDDIQ

Aug 23, 2024 |C24-01552

C24-01552CASE NAME: STATE OF CALIFORNIA, BY AND THROUGH THE DEPARTMENT OF WATER RESOURCES,VS. JAWID SIDDIQHEARING IN RE: PETITION FOR ORDER PERMITTING ENTRY AND INVESTIGATION OF REALPROPERTYFILED BY: STATE OF CALIFORNIA, BY AND THROUGH THE DEPARTMENT OF WATER RESOURCES,*TENTATIVE RULING:*Dropped from calendar.

Ruling

NYDIA MCFADDEN VS PUBLIC STORAGE A MARYLAND ASSOCIATION

Aug 28, 2024 |24STCV12395

Case Number: 24STCV12395 Hearing Date: August 28, 2024 Dept: 58 Judge Bruce G. Iwasaki Department 58 Hearing Date: August 28, 2024 Case Name: Nydia McFadden v. Public Storage. et al. Case No.: 22STCV07387 Motion: (1) Demurrer and Motion to Strike; and (2) Motion for Attorney Fees Moving Party: (1) Defendant Public Storage (2) Plaintiff Nydia McFadden Opposing Party: (1) Plaintiff Nydia McFadden (2) Defendant Public Storage Tentative Ruling: (1) Defendant Public Storages Demurrer is overruled in its entirety and Motion to Strike is denied in its entirety; (2) Plaintiff Nydia McFaddens Motion for Attorney Fees is continued. Plaintiff is instructed to submit a supplemental declaration that includes either unredacted billing records or forgoes the request for fees as to such entries. This case arises out of Plaintiff Nydia McFaddens lease of a storage unit at a facility belonging to Defendant Public Storage (Defendant) in Montclair, California. Plaintiff Nydia McFadden (Plaintiff) alleges that her storage unit was burglarized twice on February 6, 2021 and March 5, 2021 by transients who stayed overnight at Defendants Montclair facility without any supervision. Pursuant to the arbitration provision stated within the storage rental agreement, Plaintiff initiated consumer arbitration before JAMS on March 1, 2022. Plaintiff was required to pay the initial arbitration fees to initiate the proceedings, and Defendant was responsible for paying all other fees in order to maintain arbitration. On August 21, 2023, JAMS issued an invoice to Defendant for $27,000 for its services, which was due upon receipt. By October 4, 2023, the arbitration fees remained unpaid. Consequently, on October 1, 2023, Plaintiff withdrew from arbitration pursuant to Code of Civil Procedure § 1281.97 and JAMS Rule 10 because Defendant was in material breach of its obligations under the arbitration provision. Arbitration closed on October 13, 2023. Plaintiff filed this action on May 15, 2023 against Defendant for fraud, battery, and negligence. On June 5, 2024, Plaintiff filed a motion for attorney fees pursuant to Code of Civil Procedure § 1281.98. Defendant opposes the motion for attorney fees, and Plaintiff replied. On June 20, 2024, Defendant demurred to each cause of action raised in the Complaint on the grounds that the claims are time-barred and that insufficient facts have been alleged. Defendant separately moves to strike the entirety or portions of Paragraphs 24-28, 30, 37, 44 in the body of the Complaint and portions of the Prayer for Relief. Plaintiff opposes the demurrer and motion to strike, and Defendant replied. The declaration of Defendants counsel, Craig L. Dunkin, satisfies the meet-and-confer requirement. The Court shall first address Defendants demurrer and motion to strike before considering Plaintiffs motion for attorney fees. Legal Standard A. Demurrer A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . .. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) B. Motion to Strike The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.) C. Attorneys Fees Pursuant to Code of Civil Procedure § 1281.98 Attorneys fees are recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) If an employee or consumer withdraws a claim from arbitration and proceeds in a court of appropriate jurisdiction pursuant to Code of Civil Procedure § 1281.98(b)(1): (1) the employee or consumer may bring a motion, or a separate action, to recover all attorneys fees and all costs associated with the abandoned arbitration proceeding, without regard to any findings on the merits in the underlying action or arbitration; and (2) the court shall impose sanctions on the drafting party in accordance with Section 1281.99. (Code Civ. Proc., §§ 1281.98, subds. (c)(1)-(2).) The Court must impose a monetary sanction against the drafting party that materially breached the arbitration agreement by ordering the drafting party to pay the reasonable expenses, including attorneys fees and costs, incurred by the employee or consumer as a result of the material breach. (Code Civ. Proc., § 1281.99.) Judicial Notice Defendant requests the Court to take judicial notice of Rule 8 of the JAMS Streamlined Arbitration Rules, entitled Interpretation of Rules and Jurisdiction Challenges. The Court takes judicial notice of the existence of this document only because the interpretation of these rules would likely be a source of dispute. (Evid. Code § 452(h).) Discussion A. Demurrer i. Statute of Limitations In assessing a demurrer challenging the complaint based on a statute of limitations defense, the Court must determine whether such a defense is plain on the face of the complaint. A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred. [Citations omitted.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. [Citations omitted.] This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [citations omitted].) Defendant first argues that the entire action is barred by the one-year contractual limitations contained within an agreement attached to the Complaint. (Demurrer at pg. 6.) In particular, Defendant relies on a provision found within the storage agreement that Plaintiff had alleged it entered into with Defendant in 2014 when Plaintiff moved her belongings from Defendants facility in Sherman Oaks, California to Defendants facility in Montclair, California (2014 Agreement). (See Compl. ¶ 5, Exh. A at ¶ 4.) This argument presumes that the 2014 Agreement is the controlling agreement between the parties. However, the Complaint further alleges that Plaintiff entered into a third agreement with Defendant on April 13, 2021 (2021 Agreement). (Compl. ¶ 12, Exh. B.) Pursuant to the 2021 Agreement, there is no indication that it contains a contractual statute of limitations provision, and in fact, it dispels such an assertion by stating unequivocally that the 2021 Agreement is subject to the laws of the State of California, which would encompass statutes of limitations prescribed by California law. (Id. at ¶ 17.) Furthermore, it covers claims that occurred prior to its signing and contemplates that this agreement supersedes all prior agreements. (Id. at ¶¶ 6.2, 21.) Therefore, because a superseding contract has been alleged, Defendants reliance on the 2014 Agreement lacks merit. Accordingly, because the Complaint on its face does not indicate that Plaintiffs claims are time-barred, the Court overrules the demurrer on this ground. ii. First Cause of Action Fraud Defendant also argues that the first cause of action for fraud is subject to demurrer because Plaintiff entered into 2021 Agreement after knowing that the alleged burglary had occurred, causing her to waive any claim for damages linked to fraud. (Demurrer at pg. 8, relying on Schied v. Bodinson Mfg. Co. (1947) 79 Cal.App.2d 134, 142-143.) The question of waiver or nonwaiver [is] one of fact for the trial court to pass upon, and the acts or conduct which the defendant claims constituted said waiver [are] the evidence to be considered by in determining the ultimate fact of waiver or nonwaiver. (French v. Freeman (1923) 191 Cal. 579, 590.) Because the issue of waiver is a question of fact, Defendant improperly requests the Court to adjudicate this issue at the pleading stage through the instant demurrer. Furthermore, there is nothing within the Complaint that would indicate on its face that Plaintiffs fraud claim has not been sufficiently pleaded. While it is alleged that Plaintiff entered into a new contract following the discovery of the alleged burglaries, there is no indication that Plaintiff accepted substantial payments, property or the performance of work or labor not required by the original contract to have waived her right to damages arising from fraud. (Schied, supra, 79 Cal.App.2d 134, 142-143.) Accordingly, because the first cause of action has been sufficiently alleged, the demurrer is overruled. iii. Second Cause of Action Breach of Contract Next, Defendant argues that the second cause of action for breach of contract has not been sufficiently alleged based on the exculpatory clause found within the 2014 Agreement. (Demurrer at pp. 8-9.) As stated above, Defendants reliance on the 2014 Agreement lacks merit because it was superseded by the 2021 Agreement. Also, regardless of which agreement controls, both agreements include provisions stating that Defendant could still be liable in instances of fraud, which has been sufficiently alleged. (Compl., Exh. A at ¶ 7; Exh. B at ¶ 4.1.) Accordingly, the demurrer to the second cause of action is overruled on this ground. iv. Third Cause of Action Negligence Defendant also demurs to the third cause of action for negligence, but it has failed to raise any specific arguments as to why the demurrer should be sustained. Those arguments are presumed abandoned because they were not raised within its memorandum of points and authorities. (Cal. Rules of Court, Rule 3.1113.) To the extent that Defendant relies on the exculpatory clause found within the agreements between the parties, this is not persuasive because the Complaint alleges that Defendant had continued to rent storage units to transient individuals despite knowing that those individuals were committing burglaries of other storage units within the facility. (Compl. ¶ 47.) Therefore, it can be inferred that Defendants conduct was willful and reckless, which falls under an exception to the agreements exculpatory clause. (Compl., Exh A at ¶ 7, Exh. B at ¶ 4.1.) Accordingly, the demurrer to the third cause of action is overruled. B. Motion to Strike Defendant moves to strike the entirety or portions of Paragraphs 24-28, 30, 37, 44 in the body of the Complaint and portions of the Prayer for Relief. These points of the complaint refer to an allegation of fraud as well as Plaintiffs claim for attorneys fees, compensatory damages, and punitive damages. The Court shall address these in turn. i. Contradictory Allegation re: Fraud Defendant argues that the Complaint includes a false allegation that the subject unit was safe and secure because the 2014 Agreement expressly disclaimed any representation of safety or security. (Motion re: Strike at pp. 10-11; Compl. ¶ 30, Exh. A at ¶ 16.) However, this argument lacks merit because Plaintiff has sufficiently alleged a cause of action of fraud. (McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 794 [a party to a contract who committed fraud in the inducement cannot absolve himself or herself from fraud by any stipulation in the contract, either that no representations were made or that any right that might be grounded upon them was waived.].) Accordingly, the motion to strike is denied on this ground. ii. Punitive Damages Defendant also moves to strike Plaintiffs claim for punitive damages. (Motion re: Strike at pg. 11.) The basis for punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent, or malicious. (Civ. Code, § 3294, subd. (a).) A¿plaintiffs conclusory characterization of defendants conduct as intentional, willful and fraudulent is a patently insufficient statement of oppression, fraud,¿or malice, express or implied,¿within the meaning of section 3294.¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864, 872.) Here, because Plaintiffs fraud claim has been sufficiently alleged, it follows that the Complaint has sufficiently alleged a claim for punitive damages. Therefore, the motion to strike is denied on this ground. iii. Compensatory Damages Defendant also argues that Plaintiffs compensatory damages are limited to $5,000 based on a provision found within the 2014 Agreement. (Motion re: Strike at pp. 8-9; Compl., Exh. A at ¶ 4.) However, as stated above in connection with Defendants demurrer, there is a question of fact concerning whether the 2014 Agreement or the 2021 Agreement controls in this case. Therefore, it would be improper to strike the amount of compensatory damages sought within the Complaint. Accordingly, the motion to strike is denied on this ground. iv. Attorney Fees Defendant argues that Plaintiffs claim for attorney fees arising from a material breach of the arbitration agreement should be stricken because any such claim is pre-empted by the Federal Arbitration Act and questions of arbitrability are reserved for the arbitrator. (Motion re: Strike at pp. 5-8.) As to the former argument, Defendant relies on Hernandez v. Sohnen Enterprises, Inc. (2024) 102 Cal. App. 5th 222, 244 for the proposition that section 1281.97 violates the equal-treatment principle because it mandates findings of material breach and waiver for late payment that do not apply generally to all contracts or even to all arbitrations. Thus, it is reasoned that the same preemption should apply to Code of Civil Procedure section 1281.98. In opposition, Plaintiff argues that Hernandez should not be followed because a more recent appellate court decision is more persuasive. (Opposition at pg. 3.) In Keeton v. Tesla, Inc. (2024) 103 Cal.App.5th 26, the appellate court acknowledged that California case law has established that the Code of Civil Procedure sections 1281.97 and 1281.98 are not preempted by the FAA based on the legislative history surrounding these statutes. (Id. at pp. 33, 36.) Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, Espinoza v. Sup. Ct. (2022) The Court agrees because it has been repeated upheld that Code of Civil Procedure § 1281.97 and 1281.98 have furthered the goals of the FAA. (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, Espinoza v. Sup. Ct. (2022) 83 Cal.App.5th 761, De Leon v. Juanitas Foods (2022) 85 Cal.App.5th 740) Also, Hernandez is distinguishable from the instance case because the arbitration there was solely governed by federal law, and in this instance, the arbitration provision states that California law applies. (Hernandez, supra, 102 Cal.App.5th at 242; Compl., Exh. B at ¶ 17.) The weight of authority indicates that Hernandez should not be adopted; the Keeton and Gallo line of cases concluding that sections 1281.97 and 1281.98 are not preempted better serve the policy that arbitration proceedings should be expeditious. Thus, while the 2021 Agreement states that arbitration is governed by the FAA (Compl., Exh. B at ¶ 6), it cannot be ignored that the parties agreed to also apply California law. Thus, Code of Civil Procedure sections 1281.97 and 1281.98 would have equal application. The Court rejects the contention that it lacks jurisdiction to adjudicate Plaintiffs claim for attorneys fees pursuant to Code of Civil Procedure § 1281.98 because the statute intended for the Court to exercise jurisdiction as a matter of law once a party has unilaterally withdrawn from arbitration. (Williams, v. West Coast Hospitals, Inc. (2022) 86 Cal.App.5th 1054, 1069.) Therefore, the issue of whether Plaintiff is entitled to attorneys fees pursuant to Code of Civil Procedure § 1281.98 is within the jurisdiction of this Court. This result is appropriate because Defendant, by its conduct, forfeited the right to arbitrate. It cannot insist that an arbitrator decide any issue when there is no longer any arbitration proceeding. Accordingly, because Plaintiffs claim for attorneys fees pursuant to Code of Civil Procedure § 1281.98 is not preempted by the FAA and the Court has jurisdiction to consider that issue, the motion to strike is denied on this ground. C. Motion for Attorney Fees Plaintiff moves for award of $72,712.50 in attorneys fees and $250 in JAMS arbitration fees and costs pursuant to Code of Civil Procedure sections 1281.98 and 1281.99. As a preliminary matter, Defendants arguments of preemption and lack of jurisdiction have no merit based on the analysis above relating to those same issues. Also, Defendants contention that Plaintiff claim for attorney fees is barred by the one-year contractual limit imposed by the 2014 Agreement is unpersuasive. Irrespective of whether the 2014 Agreement or 2021 Agreement controls, a plaintiff may initiate an action in court, separate from the claims raised during arbitration, to be awarded their attorney fees associated with the abandonment of the arbitration process. (Code Civ. Proc., § 1281.98(c)(1).) i. Reasonableness of Requested Fees The Court begins this inquiry with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Ibid.) Relevant multiplier factors include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) No specific findings reflecting the courts calculations for attorneys fees are required; the record need only show that the attorneys fees were awarded according to the lodestar or touchstone approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349.) The Court has broad discretion to determine the amount of a reasonable attorneys fee award, which will not be overturned absent a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-94.) Here, Plaintiffs counsels Charles M. Coate and Michael M. Plotkin attest that their hourly rates are each $525 per hour. (Motion re: Attorney Fees at pg. 9; Coate Decl. ¶ 12; Plotkin Decl. ¶ 7.) In opposition, Defendant argues that these hourly rates are excessive considering that the claimed property loss is less than $100,000 and that the case did not require two seasoned attorneys to work on it. (Opposition re: Attorney Fees at pp. 4-5, 14.) However, based on the attorneys experience and the Courts knowledge of the legal market, the claimed hourly rates are reasonable. Defendant has failed to present any opposing evidence that would undermine the reasonableness of these rates. As to claimed hours of the work performed, Defendant points out that numerous entries are entirely redacted. This prevents the Court from adjudicating whether the time spent on those tasks were reasonable or whether they amounted to duplicative or excessive work. For this reason, before Court can adjudicate the issues of whether the claimed hours of work performed was reasonable and to what amount Plaintiff is entitled to recover her attorney fees, Plaintiff is instructed to submit a supplemental declaration that includes either unredacted billing records or forgoes the time spent for such work. Accordingly, the motion for attorney fees is granted as to entitlement to fees. The Court continues the hearing to determine the appropriate amount of fees to be awarded. Plaintiff shall submit a supplemental attorney fee declaration with a revised exhibit of time entries. Conclusion Defendants demurrer and motion to strike are denied in their entirety. Plaintiffs motion for attorney fees is continued for supplemental briefing. Plaintiff is instructed to submit a supplemental declaration that either includes unredacted billing records or foregos seeking fees for such entries.

Ruling

Jason Neel vs United States Real Estate Corporation, et al

Aug 29, 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

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