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INDEX NO. 605794/2016FILED: SUFFOLK COUNTY CLERK 0471372016 01:54 PMNYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/13/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK . -X Index No. U.S. Bank National Association, as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Date filed: Pass-Through Certificates Series 2006-2, SUMMONS Plaintiff, -against- Premises being foreclosed: 229 Cedar Street Phyllis C. Byrne East Hampton,NY 11937 “JOHN DOE #1" through and including “JOHN ACTION TO FORECLOSE DOE#25", the defendants last named in quotation MORTGAGE ON marks being intended to designate tenants or PROPERTY SITUATED IN occupants in possession of the herein described SUFFOLK COUNTY premises or portions thereof, if any there be, said names being fictitious, their true name being unknown to plaintiff, Defendant(s). ee TO THE ABOVE DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in this action, and to serve a copy of your Answer, or if the Complaint is not served with this Summons, to serve a Notice of Appearance on the Plaintiff's attorneys within twenty (20) days after the service of the Summons exclusive of the day of service or within thirty (30) days after completion of service where service is made in any other manner than by personal delivery within the State. In case of your failure to appear, or answer, judgment will be taken against you by default for the relief demanded in this Complaint. Plaintiff designates SUFFOLK County as the place for trial. Venue is based upon the County in which the mortgaged premises is situated. 1 of 44NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this summons and complaint by serving a copyof the answer on the attorney for the mortgage company who filed thisforeclosure proceeding against you and filing the answer with the court, adefault judgment may be entered and you can lose your home. Speak to an attorney or go to the court where your case is pending forfurther information on how to answer the summons and protect yourproperty. Sending a payment to your mortgage company will not stop thisforeclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWERON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY)AND FILING THE ANSWER WITH THE COURT.Dated: March 29, 2016 Carle Place, New York Pranali Datta, Sq. Stein, Wiener Roth, L.L.P. Attorneys for Plaintiff One Old Country Road, Suite 113 Carle Place, New York 11514 (516)-742-1212 71209/WELLS 2 of 44SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SUFFOLKee eeeee Index No.U.S. Bank National Association, as Trustee forWells Fargo Asset Securities Corporation, MortgagePass-Through Certificates Series 2006-2, COMPLAINT Plaintiff, -against-Phyllis C. Byrne“JOHN DOE #1" through and including “JOHNDOE#25", the defendants last named in quotationmarks being intended to designate tenants oroccupants in possession of the herein describedpremises or portions thereof, if any there be, saidnames being fictitious, their true name beingunknown to plaintiff, Defendant(s). ee ee eee eee The plaintiff by Stein, Wiener & Roth, L.L.P., its attorneys , complains of the defendantsabove-named and alleges: i That the plaintiff was at all times hereinafter mentioned, and now is, a nationalassociation duly organized and existing under the laws of the United States with an address fordoing business at c/o Wells Fargo Bank, N.A. 3476 Stateview Boulevard, Fort Mill, SC 29715. 2 That on or about November 21, 2005, Phyllis C. Byrne (hereinafter “Borrower”) dulyexecuted and delivered to Wells Fargo Bank, N.A., a note whereby said Borrower becameobligated to pay the sum of $575,000.00 Dollars with interest at the initial rate of 6.375% percent per annum, and agreed to pay to the lender, its successors and assigns, the aforesaid sum andinterést thereon as follows: by payment of principal and interest of $3,054.69 on January 01,2006, and thereafter monthly payments as per the terms of the note on this same day of each 3 of 44subsequent month until the principal and interest were fully paid, except that the final payment ofthe entire indebtedness evidenced thereby, if not sooner paid, is due and payable on December 01,2035. 3 As collateral security for the payment of said indebtedness, the mortgagors Phyllis C.Byrne on the same day duly executed, acknowledged and delivered to the said Wells Fargo Bank,N.A.,a mortgage bearing date November 21, 2005, whereby they mortgaged to the said WellsFargo Bank, N.A., its successors and assigns, the real property known as 229 Cedar Street, EastHampton,NY 11937 and as more particularly described in the attached Schedule “A”. 4 Said mortgage was duly recorded in the Office of the Clerk of the County of SUFFOLKon January 03, 2006, in Liber 21204, page 126, that being the County wherein the said realproperty was then situated, and at the same time and place the mortgagee duly paid to saidCounty Clerk Office the recording tax on said mortgage. 5 Said mortgage was duly assigned to plaintiff herein by assignment dated December 30,2015, and recorded on January 07, 2016, in Liber 22665, Page 606. 6 The plaintiff is the holder of the said note and is the mortgagee of record. 7. The defendant Borrower has failed to comply with the terms and conditions of the saidnote and mortgage by failing and omitting to pay the installment due November 01, 2015, and theinstallments due on each subsequent installment due to date, in accordance with the terms of themortgage. 8 That more than one month has elapsed since each and every one of said defaults and thesame still remains unpaid and no part thereof has been paid, and the plaintiff, pursuant to theprovisions of the said note and mortgage has elected, and does elect that the entire unpaid balanceof the principal sum thereby secured become immediately due and payable. 9 That there is now justly due and owing to the plaintiff on said note and mortgage, theprincipal sum of $575,000.00, with interest thereon at the rate stated in the note from October 01, 4 of 442015, together with necessary advances and expenditures. That because of the defendants default,the plaintiff has incurred legal fees to date and requests the court to allow such fees in excess tothose mandated by statute as may reasonably be incurred herein. 10. That the plaintiff requests that, in the event this action proceeds to judgment offoreclosure and sale, the said premises be sold subject to any state of facts an accurate survey mayshow and to restrictive covenants, utility easem*nts, agreements and reservations, if any, ofrecord zoning restrictions and violations thereof, if any, and covenants, restrictions, easem*ntsand agreements of record, if any, and violations thereof, if any. 11. Upon information and belief, during the pendency of this action, the plaintiff may beobliged to pay sums by way of assessments, taxes, insurance premiums and other chargesaccruing against said premises and the Plaintiff asks that any sums it may be required to pay anddoes pay for the purpose of protecting the lien of the mortgage herein sought to be foreclosed maybe added to the indebtedness secured by and adjudged a valid lien on the premises hereindescribed including legal fees and expenses. 12. No action or proceeding is pending at law or otherwise for the foreclosure of saidmortgage or recovery of said sums so secured by said note and mortgage or any part thereof. 13. Upon information and belief, all the individual defendants herein are of full age andsound mind and none is an absentee. 14. That plaintiff is informed and believes and therefore alleges that each of the abovedefendants has, or claims to have some interest or lien upon said mortgaged premises, or somepart thereof, which interests or lien, if any, has accrued subsequent to and is subordinate to thelien of said mortgage. 15. Plaintiff is the holder of the subject note and is the mortgagee of record, or has beendelegated the authority to institute a mortgage foreclosure action by the owner and holder of thesubject mortgage and note. 5 of 4416. Plaintiff has complied with all of the applicable provisions of Banking Law § 595-a,and any rules and regulations promulgated thereunder, Banking Law §§6-1 and 6-m and RPAPL§1304 and §1306. WHEREFORE, the plaintiff demands judgment that the defendants, and all personsclaiming under them, subsequent to the filing of a Notice of Pendency of this Action, in theoffice of the Clerk of the County of SUFFOLK in which said mortgaged premises are situated,may be barred and foreclosed of all right, title and interest, claim, lien and equity of redemptionin said mortgaged premises; that the monies arising from the sale may be brought into Court; thatthe plaintiff may be paid the amount due upon the said note and mortgage, with interest to thetime of such payment, the expenses of the sale, and the costs, allowances, and disbursem*nts ofthis action, and together with any monies advanced and paid pursuant to any terms or provisionsof the note and mortgage set forth in this Complaint, or to protect the lien of plaintiff's mortgage,together with the taxes, water charges, insurance and all other charges and liens thereon to bepaid, with interest upon said amounts from the dates of the respective payments and advancesthereof, so far as the amounts of such monies properly applicable thereto will pay the same; thatthis Court forthwith appoint a receiver of the rents and profits of said premises with the usualpowers and duties; and that the defendants, Phyllis C. Byrne, may be adjudged to pay anydeficiency remaining after the application of said monies as aforesaid, unless validly discharged 6 of 44pursuant to the United States Bankruptcy Code; and that the plaintiff may have such other andfurther relief in the premises as shall be just and equitable.DATED: March 29, 2016 Carle Place, New York Pranali Datta, Es Stein, Wiener & Roth, L.L.P. Attorneys for Plaintiff One Old Country Road, Suite 113 Carle Place, New York 11514 (516)-742-1212 7 of 44TITLE # FC 2016-27416/ REFERRAL FILE# 71209 HAIL ABSTRACT CORP. SCHEDULE AALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected,situate, lying and being in the Town of East Hampton, County of Suffolk and State of New York,being bounded and described as follows:BEGINNING at a point on the northwesterly corner of the premises on the southwesterly side ofOld Northwest Road or Cedar Street; which point being situate along said southwesterly side ofCedar Street from a marble monument at its intersection with the easterly side of Stephen HandsPath the following two (2) courses and distances to the point of beginning.(1) South 46 degrees 19 minutes 50 seconds East 605.03 feet to a concrete monument;(2) South 45 degrees 20 minutes 20 seconds East 190.00 feet to a concrete monument and the pointof beginning;RUNNING THENCE from said point of beginning along said southwesterly side of Cedar Streetthe following three courses and distances:(1) South 45 degrees 20 minutes 20 seconds East 61.97 feet to a concrete monument;(2) South 63 degtees 57 minutes 30 seconds East 165.79 feet to a point;(3) South 53 degrees 28 minutes 50 seconds East 36.70 feet to a concrete monument and land nowor formerly of Fred Obser and Eileen Obset;RUNNING THENCE along land now or formerly of Fred Obser and Eileen Obset South 67degrees 15 minutes 10 seconds West 166.00 feet to an old stake;RUNNING THENCE along land now or formerly of Fred Obser and Eileen Obser and land nowor formerly of Rosemary Drysdale South 58 degrees 40 minutes 30 seconds West 220.51 feet to aconcrete monument and land now or formerly of John Damiecki;RUNNING THENCE along land now or formerly of John Damiecki North 55 degtees 41 minutes40 seconds West 24.38 feet to land now or formerly of DavidJ. Goell and Nancy K. Goell;RUNNING THENCE along land now or formerly of David J. Goell and Nancy K. Goell North 24degrees 38 minutes 10 seconds East 333.63 feet to a concrete monument and the southwesterly sideof Old Northwest Road or Cedar Street and the point and place of BEGINNING. 8 of 44Parties Defendant Interest in PremisesPhyllis C. Byrne Record Owner by deed recorded January 08,229 Cedar Street 1999 in Liber 11938 and Page 662.East Hampton, NY 11937Phyllis C. Byrne Mortgagor(s) under the mortgage recorded in229 Cedar Street Liber 21204, Page 126 foreclosed herein.East Hampton, NY 11937John and Marty Doe Said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, being foreclosed herein 9 of 44STATE OF NEW YORK ) ) SS:COUNTY OF NASSAU ) Pranali Datta, Esq., an attorney admitted to practice law in the state of New York, beingmindful of the penalties of perjury, affirms that she is an associate of Stein, Wiener & Roth,L.L.P., the Attorneys for thePlaintiff that she has read the foregoing Complaint and knows thecontents thereof, and that the same is true to her own knowledge, except as to the matters hereinstated to be alleged upon information and belief, and as to those matters she believes it to be true.Deponent further says that the reason this verification is made by deponent and not by thePlaintiff is because Plaintiff's office is outside the county where Plaintiff’s attorney has its office.The grounds of deponent's belief as to all matters in the said Complaint not stated on her ownknowledge are investigations which deponent has caused to be made concerning the subjectmatters of this Complaint and information of said Plaintiff and from the books of said Plaintiffand the entire claim is based on written documents.Dated: March 29, 2016 Carle Place, New York Pranali Datta, Hsq. 10 of 44SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SUFFOLK eeU.S. Bank National Association, as Trustee for Wells Index No.Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates Series 2006-2, CERTIFICATE OF MERIT Plaintiff, -against- Mortgaged Premises:Phyllis C. Byrne, et al., 229 Cedar Street East Hampton,NY 11937 Defendants.ene nnn xXPranali Datta, Esq., pursuant to CPLR §2106 and under the penalties of perjury affirms asfollows: 1 Tam an attorney at law duly licensed to practice in the State of New York and anattorney with the firm of Stein, Wiener & Roth, LLP, the attorneys of record for Plaintiff in theabove-captioned mortgage foreclosure action. 2 Ihave reviewed the facts of this case; consulted with the following representativeof plaintiff Nickesha Faithlyn Presley, a Vice President of Loan Documentation if Wells FargoBank, N.A. as servicing agent for plaintiff; and have reviewed the pertinent documents relevantto this case, including the mortgage/security agreement, the note/bond underlying the mortgageexecuted by defendant, all instruments of assignment, if any, and any other instrument ofindebtedness including any modification, extension, and consolidation agreements. 3 Based upon the foregoing, and to the best of my knowledge, information andbelief there is a reasonable basis for the commencement of this action, and that the plaintiff iscurrently the creditor entitled to enforce rights under such documents. 4. lam aware of my obligations under New York Rlules of Professional Conduct (22NYCRR Part 1200) and 22 NYCRR Part 130.Dated: April 13, 2016 Pranali Datta, ESQ. 11 of 44NOTE (Interest Only) NOVEMBER 2 2005 WOODBURY NEW YoRK City State 229 CEDAR STREET, EAST HAMPTON, NY 11937 (Property Address) 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S $75,000.00 (this amount is called "Principal" plus interest, to the order of the Lender The Lander is WELLS FARGO BANK, NA. . I wild make all payments under this Note in the form of cash, check or money order I understand that tho Lander may transfer this Note The Lender or anyone who takas this Note by transfor and who is antitled to receive payments under this Note is called the “Note Holder". 2. INTEREST Interest will be charged on unpaid principal until the full amount of Principal has been paid. L will pay interest at a yearly rate of 6.375%. Tha interest rata required by this Section 2 is the rate I will pay both before and after any default described in Section 6(B) of this Note.3. PAYMENTS {A) Time and Place of Payments I will make a payment evory month on the first day of each month beginning on JANUARY 1, 2006 Before the first fully amortizing principal and interest payment due date, my monthly payments will bo only for the interest duo on the unpaid principal of the Note. The due date of my first payment including fully amortizing principal and interest is the first day of JANUARY 2016 I will make those payments every month until I have paid all of the principal and interest and any other charges described below that I owe under this Note Each monthly payment will be applied as of its scheduled due date and if the payment consists f both principal and interest, it will be applied to interast before Principal If, on DECEMBER 1, 2035 , I still owe amounts undor this Note, I will pay those amounts in full on that date, which is called the Maturity Date" I will make my monthly payments at WELLS FARGO BANK, NAL P.O BOX 10304, DES MOINES, TA 50306-0304 ar ata different alace if required by the Note Holder (B) Amount of My I ial Monthly Payments Hy monthly payment will be in the amount of U.S $___3.084.69 until the due date of the first fully amortizing principal and interest payment Beginning with the first fully amortizing principal and interest payment, my paymont will be in the amount of U.S, ¢ The Note Holder will notify mo prior to the date of any change in the amount of my monthly payment in accordance with Section 7 of this Note. The Nate Holder will provide the title and talephone number of a person wha will answer any questions I may have ragarding the notice4. BORROWER'S RIGHT TO PREPAYI have the right to make paymants of Principal at any time before thay are dua. A payment ofPrincipal only is known as a "Prepayment When I make a Prepayment, I will tell the Note Holder inwriting that I am doing so I may not designate a payment as a Prepayment if I have not made all themonthly payments due under the NoteI may make a full Prapayment or partial Prepayments without paying a Prepayment charge. The NoteHolder will use my Prepayments to reduce the amount of Principal that I awe under this Note However,the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amountbefore applying my Prepayment to reduce the Principal amount of the Note If I make a partialPrepaymont, there will be no changes in the due dates of my monthly payment unless the Note Holderagrees in writing to the changesIf I make a partial Prepayment during the period ending with the due date of my last interest onlymonthly payment, the partial Prepayment will reduce the amount of my monthly payment. If I make apartial Prepayment after the due date of my last interest only payment, the amount of my monthlypaymant will not change unless the Note Holder agrees in writing to that change5. LOAN CHARGESIf a law, which applies to this loan and which sets maximum loan charges, is finally interpreted sothat the interest or other loan charges collected or to be collected in connection with this loanexcead the permitted limits, then (a) any such loan charge shall be reduced by the amount necessaryto reduce the charge to the permitted limit; and (b) any sums already collected from mo whichaxceoded permitted limits will be refunded to me The Note Holder may choose to make this refund byreducing the Principal I owe under this Note or by making a direct payment to me If a refund reducesPrincipal. tha reduction will ba treated as a partial PrepaymentFIXED RATE NOTEwunPl 1ota 100188 12 of 44Me a 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the and of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 2.000% of my overdue payment of interest during the period when my payment is interest only, and of principal and interest after that. L will pay this late charge promptly but enly once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. {C) Notice of Default If I am in default, the Note Holder may send me a written notice telling mo that if I do not pay tha overdue amount by a certain date, the Note Halder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must ba at least 30 days after the date on which the notica is mailed to ma or deliverad by other means. (D) No Waiver by Note Holder Even if, at a time when I am in dofault, the Note Holder does not require me to pay immadiatoly in full as described above, the Note Holder will still have the right to do so 1f I am in default at a lator time. ({E) Payment of Note Holder's Costs and Expenses If the Note Holder has required ma to pay immediately in full as described above, the Nate Holder will have the right to be paid back by me for all of its casts and expenses in enforcing this Nota to the axtent not prohibited by applicable law. Those expenses include, for example, reasonable attorney's fees. 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to ma at the Proparty Addrass above or at a differant address if I give the Note Holder a notice of my differant address. Any notice that must be given to tha Note Holder under this Note will be givan by delivoring it or by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above of at a different address if I am given a notice of that different address. 8 OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than ane persan signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do thease things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of tha promises made in this Note. Tha Note Holder may enforce its rights under this Note against each person individually or against all of us togethor. This moans that any one of us may be required to pay all of the amounts owed under this Note. 9. WAIVERS I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishoner. “Presentment means the right to require the Note Holder to demand payment of amounts due. “Notice of Dishonor means the right to require the Note Holder to give notice to other persons that amounts dus have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to tho protections given to the Note Holder under this Note, a Mortgage, Dead of Trust, or Security Dead (the "Security Instrument"), dated the samo date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required te make immediate payment in full of all amounts I owe under this Note, Some of those conditions are described as follows: nvtals ‘C. B ota HOo1ss REV. o2sc9105 13 of 44-14 of 44- Lender may require immediate payment in full of all Suns Secured by this security Instrument if all or any part of the Property, or if any right in the Property, is sold or transferred without Lender's prior written permission, If Borrower is not a natural Person and a beneficial interest in Borrower is sold or transferred without Lender's prior written permission, Lender also m: require immediate payment in full. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender requires immediato payment in full under this Section 18, Lender will give me a notice which states this requirement. The notice will give me at least 30 days to make the required payment. The 30-day period will bagin on the date the notice is given to me in the manner required by Section 15 of this not make the required payment during that period, Lender may urity Instrument. If I do act to enforce its rights under this Security Instrument without giving me any further notice or demand for payment, Bota loose REV. 04/01/05, 15 of 44WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. PHYLLTS (ba.C. €.//BYRNE Borrower (Seal) WOT THE SADER OF Bat wey A fF nm lt
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ANTHONY GREENBERG VS DIANE HAYEK
Jul 29, 2024 |6/18/2022 |19SMCV01899
Case Number: 19SMCV01899 Hearing Date: July 29, 2024 Dept: I The matter is here for an FSC. The FSC order was issued no later than 11/30/23, but perhaps earlier. In any event, there are no FSC papers of which the court is aware other than four MILs by defendant to which there is no opposition and a unilateral exhibit list. The matter does not appear ready for trial. On 7/26/24, Greenberg filed an application to continue the trial. Greenberg notes that all of the matters between the parties have been settled except for 2101 Oceans cross-complaint alleging improper behavior after Greenberg lost the UD trial and before he moved out and also damage to the property. Greenberg then filed a cross complaint stating that he paid $75,000 in rent for which 2101 has not accounted and also that he should get the benefits of improvements he made to the property. He argues that there has not been adequate time to conduct discovery on these matters but that if the trial were continued, the case would settle. The court has its doubts as to settlement. If the parties want to settle, they ought to do so. If not, then not. The court would deny the application if that is all there were to it. But Greenbergs counsel also claims that he has suffered certain medical issues that preclude him from trying the case on August 5. The court watched Greenbergs counsel during the UD case, and the court believes that during the trial he conducted himself ethically and honestly. The court is inclined to believe his declaration now. Although the court is reluctant to do so, the court believes that this is a circ*mstance that does justify a continuance. Therefore, the motion is GRANTED. The trial date is VACATED, and a TSC will be held on August 5, 2024, at 8:30 am. Counsel may appear by phone.
Ruling
CREATIVE RECOVERY CONCEPTS, INC. VS 8424 WESTERN PLAZA, LLC., ET AL.
Aug 01, 2024 |20STCV34671
Case Number: 20STCV34671 Hearing Date: August 1, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 CREATIVE RECOVERY CONCEPTS, Plaintiff, vs. 8242 WESTERN PLAZA, LLC, et al., Defendants. Case No.: 20STCV34671 [c/w 22STCV13629] Hearing Date: August 1, 2024 Hearing Time: 10:00 a.m. [TENTATIVE] ORDER RE: MOTION OF DEFENDANT M STEPHEN CHO FOR FEES PURSUANT TO CCP § 425.16 Background On September 10, 2020, Creative Recovery Concepts, Inc. filed the instant action against Defendants 8424 Western Plaza, LLC and Kathleen Janet Haywood aka Kathleen Robinson. The Complaint alleges causes of action for (1) breach of contract and (2) to set aside fraudulent transfer. On April 25, 2022, a Complaint was filed in the matter Janet Haywood, et al. v. Stephen Cho, et al., Case No. 22STCV13629 (herein, the Haywood Action). On February 9, 2023, Janet Haywood (Haywood) filed the operative First Amended Complaint (FAC) in the Haywood Action against Defendants Stephen Cho and Creative Recovery Concepts. The FAC alleges causes of action for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, and (3) conspiracy to defraud. On July 6, 2023, M. Stephen Cho (erroneously sued as Stephen Cho) (herein, Cho) filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 in the Haywood Action. On October 31, 2023, the Court issued a minute order in the Haywood Action providing, inter alia, that the Court grants Chos special motion to strike as to the third cause of action of the FAC. Chos motion is otherwise denied. On October 9, 2023, the Court issued a Nunc Pro Tunc Order in the Haywood Action providing, inter alia, as follows: It appearing to the Court that through inadvertence and/or clerical error, the minute order of 10/09/2023 in the above-entitled action does not properly reflect the Courts order. At the direction of the Judicial Officer, said minute order is corrected nunc pro tunc as of 10/09/2023, as follows: By adding: The Court orders the following cases, 22STCV13629 and 20STCV34671, consolidated and assigned to Department 50 in Stanley Mosk Courthouse for all purposes. The Court designates 20stcv34671 as the lead case. All future documents must be filed under 20stcv34671 (CREATIVE RECOVERY CONCEPTS, INC. vs 8424 WESTERN PLAZA, LLC., et al.). Case numbers on all subsequent filings should be reflected under the lead case. (Emphasis added.) Cho now moves for attorneys fees and costs incurred by Cho in connection with his special motion to strike. Haywood opposes. Discussion The anti-SLAPP statute provides that a prevailing defendant on a special motion to strike shall be entitled to recover that defendants attorneys fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1).) [A]ny SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) An award of fees may also include the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16. (Id. at p. 1141.) It is well established that the amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [internal quotations and brackets omitted].) Under the lodestar method, the court tabulates the attorney fee lodestar by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work. (Ibid.) With regard to the number of hours reasonably expended, the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) In determining the reasonable hourly rate, the burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar. (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys efforts are unorganized or duplicative. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.) Here, Cho states that he is seeking an award of $19,160.00, derived as follows: $11,600.00 for the anti-SLAPP motion + $7,560.00 as fees costs [sic] for the instant motion& (Notice of Mot. at p. 2:3-4.) As an initial matter, Haywood asserts in the opposition that the motion should be denied because the partially successful anti-SLAPP motion has no practical effect on the remaining causes of action to be litigated. (Oppn at p. 3:16-17.) Haywood cites to City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 782, where the Court of Appeal noted that [t]he anti-SLAPP statute reflects the Legislatures strong preference for awarding attorney fees to successful defendants. The term prevailing party must be interpreted broadly to favor an award of attorney fees to a partially successful defendant. However, a fee award is not required when the motion, though partially successful, was of no practical effect. [A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of [the] trial court. (Internal quotations and references to [Citation.] omitted.) As set forth above, the Court granted Chos special motion to strike as to the third cause of action of the FAC for conspiracy to defraud. (See October 31, 2023 Minute Order.) In the opposition to the instant motion, Haywood cites to IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652, where the Court of Appeal noted that [c]onspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another. Haywood contends that a conspiracy cause of action is dependent on the success of the underlying cause of action. Here, no underlying claim was alleged -- fraud was not alleged; malicious prosecution was not alleged. In brief, striking the third cause of action has no value or practical effect on the remaining causes of action alleged and pending for breach of contract and breach of implied covenant of good faith and fair dealing causes of action. (Oppn at p. 4:8-12.) Haywood also contends that [i]t would have been different if striking the cause of action also removed a significant amount of damages prayed against Cho. However, this is not the case, as there really is no practical effect or benefit to Cho in striking the conspiracy cause of action. (Oppn at p. 4:4-6.) But as noted by Cho in the reply, the third cause of action accused Mr. Cho of engaging in a conspiracy to commit fraud, the act, thus potentially exposing him to punitive damages& (Reply at p. 4:10-11.) Indeed, Haywood seeks [p]unitive and exemplary damages in the prayer for relief of the FAC. (FAC, p. 8:10.) Cho also asserts that dismissal of the third cause of action impacted&whether the same factual allegations remain to be litigated - they are not; whether discovery and motion practice have been narrowed - it has been; and the extent to which future litigation expenses and strategy were impacted by the motion -most certainly reduced. (Reply at pp. 4:12-5:2.) The Court agrees with Cho that he achieved a practical benefit from bringing the anti-SLAPP motion. Chos counsel Dilip Vithlani states in his supporting declaration that [i]n connection with the anti-SLAPP motion, I have expended in excess of 16 hours in preparing the anti-SLAPP motion, appearing in person at the hearing on ex parte application to (1) Set aside this courts Tentative Order granting Defendants anti-SLAPP motion and (2) to continue the hearing on the anti-SLAPP motion to allow Plaintiff to file her Opposition to the anti-SLAPP motion, and the hearing on the anti-SLAPP motion. (Vithlani Decl., ¶ 8.) Mr. Vithlani further states that [i]n connection with the instant motion for fees, Mr. Cho will accept an award of 10 hours of fees. The hours include preparing and filing this motion, reviewing of the Opposition and preparing a Reply and appearing at the hearing on the instant motion&Costs incurred in connection with the anti-SLAPP are $60.00. (Vithlani Decl., ¶¶ 20-21.) Mr. Vithlanis requested hourly rate is $725.00 per hour. (Vithlani Decl., ¶ 9.) Mr. Vithlanis states that he has been practicing law since January 1999, and his background and experience are set forth in the supporting declaration. (Vithlani Decl., ¶¶ 10-12.) Mr. Vithlani asserts that [b]ased on the Laffey Matrix for 2022, the accepted billing rate for attorneys with my experience in the Los Angeles area is in excess of $900.00 per hour. My rate of $725.00 per hour is well below that range. (Vithlani Decl., ¶ 9.)[1] In the opposition, Haywood asserts that Cho has failed to submit declarations by other attorneys with respect to the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation& (Oppn at p. 5:20-22.) However, Haywood does not appear to cite to legal authority demonstrating that such declarations are required. Haywood also argues that [t]he Legal Trends Report published annually by Clio, a billing service used by thousands of legal professionals and attorneys found that $344 was the average hourly rate for civil litigation attorneys in California. (Oppn at p. 6:9-11.) However, this assertion is not supported by competent evidence. No declaration was filed in connection with the opposition. The Court finds that Cho has demonstrated that his counsels hourly billing rate is reasonable. In the opposition, Haywood also asserts that Cho has failed to submit any billing statements from Vilthani in order for the Court to determine if fees were reasonably generated. (Oppn at p. 5:22-24.) In the motion, Cho cites to Cruz v. Fusion Buffet, Inc. (2020) 57 Cal.App.5th 221, 237-238, where the Court of Appeal noted that [t]he declaration of an attorney as to the number of hours worked on a particular case may be sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. Indeed, sufficient evidence to support an attorney fee award may include [d]eclarations of counsel setting forth the reasonable hourly rate, the number of hours worked and the tasks performed. There is no requirement that an attorney provide time records or billing statements. (Internal quotations and citations omitted.) As discussed, Chos counsel states that he expended in excess of 16 hours in preparing the anti-SLAPP motion, appearing in person at the hearing on ex parte application to (1) Set aside this courts Tentative Order granting Defendants anti-SLAPP motion and (2) to continue the hearing on the anti-SLAPP motion to allow Plaintiff to file her Opposition to the anti-SLAPP motion, and the hearing on the anti-SLAPP motion. (Vithlani Decl., ¶ 8.) Chos counsel further states that [i]n connection with the instant motion for fees, Mr. Cho will accept an award of 10 hours of fees. The hours include preparing and filing this motion, reviewing of the Opposition and preparing a Reply and appearing at the hearing on the instant motion. (Vithlani Decl., ¶ 20.) The Court finds that Mr. Vithlanis declaration is sufficient and that the requested time is reasonable. Lastly, Cho states in the notice of motion that he seeks $7,560.00 as fees costs for the instant motion. (Notice of Mot. at p. 2:4.) However, as noted by Haywood and as set forth above, Mr. Vithlani states that [i]n connection with the instant motion for fees, Mr. Cho will accept an award of 10 hours of fees. (Vithlani Decl., ¶ 20.) 10 hours multiplied by the requested hourly rate of $725/hour is $7,250.00. Adding the requested $60.00 in costs to this amount results in a total of $7,310.00, not $7,560.00. Thus, the Court deducts $250.00 from the total amount requested. Conclusion Based on the foregoing, Chos motion for attorneys fees and costs is granted in part. The Court awards Cho a total of $18,910.00 in attorneys fees and costs. Cho is to provide notice of this Order. DATED: August 1, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court [1]Cho notes that [t]he Laffey Matrix is a United States Department of Justice billing matrix that provides billing rates for attorneys at various experience levels in the Washington, D.C., area and can be adjusted to establish comparable billing rates in other areas using data from the United States Bureau of Labor Statistics. (Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1057, fn. 5.)
Ruling
U.S. Bank Trust, N.A. vs. Sells
Jul 29, 2024 |22CV-0200669
U.S. BANK TRUST, N.A. VS. SELLSCase Number: 22CV-0200669This matter is on calendar for review regarding status of proposed judgment. As previouslyordered by this Court, an Amended Proposed Judgement and Declaration have been filed clarifyingthe correct address of the subject property. The proposed judgment will be executed by the Court.No appearance is necessary on today’s calendar.VALDEZ VS. FALL RIVER VALLEY FIRE PROTECTION
Ruling
Hull, et al. vs. The Cadle Company, et al.
Aug 01, 2024 |22CV-0200159
HULL, ET AL. VS. THE CADLE COMPANY, ET AL.Case Number: 22CV-0200159Tentative Ruling on Order to Show Cause Re Sanctions: An Order to Show Cause Re:Sanctions (“OSC”) issued on May 17, 2024, to Plaintiffs James Hull and Shirley Hull for failureto abide by California Rule of Court 3.110. Defendant Tri Counties Bank was amended into theComplaint on January 24, 2024. There has been no summons issued for Tri Counties Bank, andthey have not been served. The matter is not at issue. No response to the OSC has been filed.Plaintiff James Hull appeared at the most recent hearing on July 22, 2024, and informed the Courtthat he intended to dismiss this matter. The Court advised Mr. Hull that the Court would vacatethis OSC if the matter was properly dismissed prior to today’s hearing. No request for dismissalhas been filed. Plaintiff remains in violation of CRC 3.110. Sanctions will be imposed in theamount of $250. The clerk is instructed to prepare a separate Order of Sanctions.Tentative Ruling on Motion for Attorney Fees: This action alleging violations of the CaliforniaHomeowner Bill of Rights, wrongful foreclosure, and other causes of action was filed by PlaintiffJames and Shirley Hull on July 14, 2022. Plaintiffs purchased their home in 2006 with a loan fromTri-Counties Bank. BBR Investments LLC bought the loan and deed of trust in August 2016, andcurrently owns the mortgage note and deed of trust. The Cadle Company (“Cadle”) services theloan for BBR Investments LLC. The Cadle Company’s Motion for Summary Judgment wasgranted by this Court on April 15, 2024. Cadle moves now for attorney fees and costs. The motionfor fees and costs is unopposed.Merits: A prevailing party is entitled to costs. CCP § 1032. “Costs” may include attorney’s feesif they are provided by contract. CCP § 1033.5(a)(10). Civil Code § 1717 provides that on anyaction on a contract where the contract provides for attorney’s fees, the prevailing party on thecontract shall be entitled to attorney’s fees in addition to other costs. A prevailing party is definedas the party with a net recovery, a defendant in whose favor a dismissal is entered, a defendantwhen neither side obtained any relief and a defendant as against a plaintiff who do not recoveryany relief against defendant. CCP § 1032.Here, Cadle’s basis for recovery of attorney fees is contractual. The Deed of Trust betweenBorrower James and Shirley Hull, and Lender Tri Counties Bank, attached as Ex. A to the VerifiedAmended Compliant as Ex. 1, provides at p. 9 ¶ 14, for recovery of attorneys’ fees and costs relatedto the Borrower’s default for the purpose of protecting Lender’s interest in Property and Lender’srights under the Deed of Trust. A Loan Modification Agreement was entered into on December14, 2018, by The Cadle Company, servicing for BBR Investments, and James and Shirley Hull.The Agreement provides that it is a modification of the Loan Documents (the Note and Deed toTrust) to the extent it is inconsistent, and the remainder of the terms remain in full force and effect.(Decl. Coleman, Ex. 4, ¶ 15.) The attorney fees provision of the Deed of Trust therefore applieshere, entitling Cadle to attorney fees and costs. Cadle prevailed on a motion for summaryjudgment. Judgment was entered in favor of Cadle and Plaintiffs received no relief. The Courtfinds that Defendant is the prevailing party as defined by CCP § 1032.“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number ofhours reasonably expended multiplied by the reasonable hourly rate.” PLCM Group, Inc. v.Drexler (2000) 22 Cal.4th 1084, 1095. “A court assessing attorney fees begins with a touchstoneor lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourlycompensation of each attorney ... involved in the presentation of the case.’” Ketchum v. Moses(2001) 24 Cal.4th 1122, 1131-1132. In determining the amount of attorney's fees to which alitigant is entitled, an experienced trial judge is the best judge of the value of professional servicesrendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752.Cadle’s Counsel has provided a declaration and detailed billing records claiming 195.5 hoursdefending this suit, including time spent by two experienced attorneys at a rate of $340 per hour,and a less experienced attorney at a rate of $325 per hour. Two billing entries for paralegals at arate of $100 and $125 per hour are also included. Defendant seeks a total of $65,583.50 in attorneyfees. The Court finds Counsel’s time spent and rates are reasonable, with the following exception.The Court notes that the attorney billing records provided as Exhibit 6 to the Declaration of JuneColeman include time spent on The Cadle Company’s discovery motions filed August 11, 2023,and heard on September 11, 2023. The Court’s Order on those Motions, entered on September 14,2023, included an award of sanctions for time spent bringing the Motions and associated costs, toDefendant The Cadle Company against Plaintiffs in the amount of $4,100. The Court declines toaward attorney fees for this same work a second time. The current request for attorney fees willtherefore be reduced by $4,100.00 - the amount previously awarded as sanctions on the discoverymotions. The memorandum of costs details reasonable costs incurred of $6,154.46. TheDeclaration of June Coleman submitted in support of the Statement of Non-Opposition includes arequest for additional costs of $525.75 for filing fees and CourtCall, which appear reasonable andwill be awarded.The Motion for Attorney Fees and Costs is GRANTED. The total amount awarded to The CadleCompany is $$68,163.71 in fees and costs. No proposed order has been lodged as required byLocal Rule 5.17(D). Moving party shall prepare the order.
Ruling
CHRISTINA CATANIA vs. LOANCARE, LLC
Jul 26, 2024 |C24-00735
C24-00735CASE NAME: CHRISTINA CATANIA VS. LOANCARE, LLC HEARING IN RE: TO SHOW CAUSE AS TO WHY A PREMLIMINARY INJUNCTION SHOULD NOT BEISSUEDFILED BY:*TENTATIVE RULING:*Per the Court’s 7/19/24 order this hearing is continued to August 16, 2024, at 9:00a.m.
Ruling
MARTIN TOKICH VS ANDREW M. DANG, ET AL.
Aug 01, 2024 |22AHCV01417
Case Number: 22AHCV01417 Hearing Date: August 1, 2024 Dept: P [TENTATIVE] ORDER GRANTING DEFENDANT'S MOTION FOR TRIAL CONTINUANCE I. INTRODUCTION Procedural History & Factual Background This case arises from alleged uninhabitable housing conditions at 2841 W. Main St., Alhambra, California 91801 (the Premises). On December 29, 2022, Plaintiff Martin Tokich (Plaintiff) filed this action against Defendants Andrew M. Dang (Andrew), Melvin M. Dang (Melvin) and Northstar Real Estate Group, Inc. (Northstar, together Defendants). The initial Complaint alleged the following nine causes of action as against all Defendants: (1) breach of warranty of habitability under CCP §1941.1 and (2) CCP §1942.4, (3) breach of warranty of habitability under CCP §17920.3, (4) negligence premises liability, (5) nuisance, (6) intentional infliction of emotional distress, (7) breach of contract, (8) unfair business practices under B&P Code § 17200 et seq., and (9) fraudulent concealment. A First Amended Complaint (FAC) was filed on July 12, 2023. Defendants filed a Motion for Summary Judgment on June 26, 2024, which is scheduled to be heard on October 3, 2024. The motion now before the Court is Defendants Motion for an Order Continuing Trial and All Related Dates (the Motion). The Motion was filed on July 8, 2024, and on July 24, 2024 Defendants filed a Notice of Non-Opposition. II. DISCUSSION Legal Standard California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for good cause, which includes (without limitation): (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Id., Rule 3.1332(c).)¿¿¿ The court may also consider the following factors: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court 3.1332(d).) Continuances are granted only on an affirmative showing of good cause requiring a continuance. (In re Marriage of Falcone &¿Fyke¿(2008) 164 Cal.App.4th 814, 823.) Analysis Defendants primary contention is that the current trial date of October 15, 2024, and the current date for the hearing on summary judgment of October 3, 2024 violate Code Civ. Proc. §437c(a)(3) which provides that the motion for summary judgment shall be heard no later than 30 days before the date of trial. Defendants contend a timely motion for summary judgment was filed and served on June 26, 2024, more than the 75 days before the appointed hearing as articulated in Code Civ. Proc. §437c(a)(2). Defendants request a 90-day continuance to allow for the motion for summary judgment to be heard. As noted in Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529, Wells Fargo Bank, N.A. v. Superior Court (1988) 206 Cal.App.3d 918, and Polibrid Coatings, Inc., v. Superior Court (2003) 112 Cal.App.4th 920, 923, being heard on summary judgment is a statutory right, and the Court cannot violate such a right. Although the hearing is just prior to trial, Defendants are entitled to have the motion heard and any reasonable time that may be needed for additional briefing or arguments. The seven court days between the hearing for the motion and the trial are insufficient. As good cause exists, as no opposition has been filed, as no party will suffer prejudice for a continuance, and as the interests of justice are best served by a continuance, the instant motion to continue trial is granted. III. CONCLUSION Defendants' Motion for an Order Continuing Trial and All Related Dates is GRANTED. At the hearing on the motion, the Court will select a date at least 90 days from todays date which will accommodate counsels respective calendars. Defendants to give notice of this ruling. Dated: August 1, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT[TENTATIVE] ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION I. INTRODUCTION Procedural History & Factual Background This case arises from alleged uninhabitable housing conditions at 2841 W. Main St., Alhambra, California 91801 (the Premises). On December 29, 2022, Plaintiff Martin Tokich (Plaintiff) filed this action against Defendants Andrew M. Dang (Andrew), Melvin M. Dang (Melvin) and Northstar Real Estate Group, Inc. (Northstar, together Defendants). The initial Complaint alleged the following nine causes of action as against all Defendants: (1) breach of warranty of habitability under CCP §1941.1 and (2) CCP §1942.4, (3) breach of warranty of habitability under CCP §17920.3, (4) negligence premises liability, (5) nuisance, (6) intentional infliction of emotional distress, (7) breach of contract, (8) unfair business practices under B&P Code § 17200 et seq., and (9) fraudulent concealment. A First Amended Complaint (FAC) was filed on July 12, 2023. Plaintiff filed a Motion for Leave to file a Second Amended Complaint on May 13, 2024. On July 3, 2024, the Court denied leave to amend. The motion now before the Court is Plaintiffs Motion for Reconsideration of that denial (the Motion). Defendants oppose the Motion; no reply has been filed. II. DISCUSSION Legal Standard A motion for reconsideration may only be brought if the party moving for reconsideration can offer new or different facts, circ*mstances, or law which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion....A motion for reconsideration will be denied absent a strong showing of diligence." (Forrest v. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP §1008 tightened diligence requirements). [M]otions to reconsider allow the trial court to consider new facts or law relevant to its order&. (Morton v. Wagner (2007) 156 Cal. App. 4th 963, 973 (dictum). [Emphasis added.] Cf. also Wiz Tech., Inc. v. Coopers & Lybrand (2003) 106 Cal. App. 4th 1, 17-18 (no relevant basis for reconsideration shown). Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Analysis In their moving papers, Plaintiff correctly notes that the first-stated reason the Court denied the Motion for Leave to File the SAC was because in the proposed SAC, Plaintiff did not state whether the 9th cause of action for fraudulent concealment in the FAC is to be deleted and replaced with a proposed cause of action for violation of Government Code §§12921 and 12927 as required by CRC Rule 3.1324(a). Plaintiff brings to the Courts attention that the omission of this cause of action for fraudulent concealment was because of a prior ruling made on September 19, 2023 by the Honorable Judge Margaret Oldendorf on a demurrer and motion to strike, which sustained demurrer without leave to amend as to the cause of action for fraudulent concealment. Therefore, this procedural basis for the Courts ruling was in error. Bringing Judge Oldendorfs prior order to this Courts attention is the type of new fact or circ*mstance contemplated by Code of Civil Procedure section 1008(a). However, the Court also denied the motion for leave to file the SAC because (1) the motion was untimely and (2) there was prejudice to the Defendants. (July 3, 2024 Minute Order, pg. 3-4.) The motion for leave was filed on May 13, 2024, 16 months after the initial Complaint that initiated the case. Trial was scheduled for October 15, 2024. In their motion for leave, Plaintiff argued that the new information that prompted the SAC came to light during an April 10, 2024 deposition of Plaintiff. However, it took more than a month for the motion for leave to be filed. The law is well settled that a long-deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.'"]; Estate of Murphy (1978) 82 Cal.App.3d 304, 311, ["Where inexcusable delay and probable prejudice to the opposing party is indicated, the trial court's exercise of discretion in denying a proposed amendment should not be disturbed."] Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) In opposing the instant Motion to Reconsider, Defendants argue that (1) Plaintiff presents no new or different facts and (2) Defendants will suffer prejudice. Given that Defendants have moved this Court to continue the trial into 2025, which the Court has tentatively granted, the Court concludes that this continuance effectively resolves the timeliness issue and greatly reduces the possibility of prejudice to Defendants. Defendants may have to conduct additional discovery and incur additional costs. However, Plaintiff contends that prejudice can be mitigated by Plaintiff offering depositions at any time without statutory notice, agreeing to advance the motion for summary judgment, and agreeing to an amendment to the motion for summary judgment. The Court finds that these measures are sufficient and that the granting of Plaintiffs Motion for Reconsideration will be contingent upon Plaintiff following through on these offers. Failure to do so may result in the Court looking favorably upon a motion to strike the newly added causes of action. III. CONCLUSION Accordingly, Plaintiffs Motion for Reconsideration is GRANTED. Defendants to file their answer within 20 days. Dated: August 1, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT
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