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INDEX NO. 135821/2014(FILED: RICHMOND COUNTY CLERK 1072272014 04:18 PMNYSCEF DOC. NO. 1 RECEIVED NYSCEF 10/22/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND reese nie ica aoa SoS seeranre ar isSTHDONSrSTaSTeE WELLS FARGO BANK, N.A. Plaintiff, vs. VIVIAN ROJAS, JOSE ROJAS, BEIRRUTH VIEIRA, EDMUNDO E. VIEIRA, MIDLAND FUNDING LLC APO CITIBANK USA NA, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION SUMMONS BUREAU, SANTANDER BANK, NATIONAL ASSOCIATION FORMERLY KNOWN AS ORIGINAL FILED WITH THE SOVEREIGN BANK, NATIONAL ASSOCIATION CLERK ON FORMERLY KNOWN AS SOVEREIGN BANK SUCCESSOR BY MERGER TO INDEPENDENCE INDEX NO.: COMMUNITY BANK SUCCESSOR BY MERGER TO SI BANK & TRUST FORMERLY KNOWN AS MORTGAGED PREMISES: STATEN ISLAND SAVINGS BANK, WELLS 394 VIRGINIA AVENUE FARGO BANK, N.A. SUCCESSOR BY MERGER STATEN ISLAND, NY 10305 TO WACHOVIA MORTGAGE CORPORATION, SBL #: JOHN DOE (being fictitious, the names BLOCK 2993, unknown to Plaintiff intended to be LOT 47 tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors.) Defendant(s). ai TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Complaint in the above captioned action and to serve a copy of your Answer on the Plaintiff's attorney within twenty (20) days after the service of this 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. The United States of America, if designated as a Defendant in this action, may answer or appear within sixty (60) days of service hereof. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint.NOTICE YOU ARE IN DANGER OF LOSING YOUR HOMEIf 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 ANSWER ONTHE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY)AND FILING THE ANSWER WITH THE COURT. Richmond County is designated as the place of trial. The basis of venue is the location of themortgaged premises foreclosed herein.DATED: October Zz » 2014 By. W jl / Sarah K. Hyman, sq Gross Polowy, LLC Attorneys for Plaintiff 25 Northpointe Parkway, Suite 25 Amherst, NY 14228 Tel.: 716-204-1700SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF RICHMONDnanan enartinmanisannaiinaiiaiecabiieiinnctiatamaaniamninanmamaraWELLS FARGO BANK, N.A. Plaintiff,VS.VIVIAN ROJAS, JOSE ROJAS, BEIRRUTHVIEIRA, EDMUNDO E. VIEIRA, MIDLANDFUNDING LLC APO CITIBANK USA NA, NEWYORK CITY PARKING VIOLATIONS BUREAU,NEW YORK CITY TRANSIT ADJUDICATIONBUREAU, SANTANDER BANK, NATIONAL COMPLAINTASSOCIATION FORMERLY KNOWN ASSOVEREIGN BANK, NATIONAL ASSOCIATION INDEX NO.:FORMERLY KNOWN AS SOVEREIGN BANKSUCCESSOR BY MERGER TO INDEPENDENCE MORTGAGED PREMISES:COMMUNITY BANK SUCCESSOR BY MERGER TO 394 VIRGINIA AVENUESI BANK & TRUST FORMERLY KNOWN AS STATEN ISLAND, NY 10305STATEN ISLAND SAVINGS BANK, WELLSFARGO BANK, N.A. SUCCESSOR BY MERGER SBL #:TO WACHOVIA MORTGAGE CORPORATION, BLOCK 2993, LOT 47JOHN DOE (being fictitious, the namesunknown to Plaintiff intended to betenants, occupants, persons orcorporations having or claiming aninterest in or lien upon the propertydescribed in the complaint or theirheirs at law, distributees,executors, administrators, trustees,guardians, assignees, creditors orsuccessors.) Defendant(s).“i x The Plaintiff by its attorneys, Gross Polowy, LLC, for its complaint against the Defendant(s)alleges upon information and belief as follows: AS AND FOR A FIRST CAUSE OF ACTION: 1 Plaintiff is a national association organized and existing under the laws of the United States ofAmerica and the holder of the subject note and mortgage with delegated authority to institute this mortgageforeclosure action by the owner. Attached hereto as Schedule A is an attorney certified copy of theoriginal note.2. On or about September 6, 2005, Jose Rojas, Vivian Rojas, Beirruth Vieira and Edmundo E.Vieira executed and delivered a note whereby Jose Rojas, Vivian Rojas, Beirruth Vieira and Edmundo E.Vieira promised to pay the sum of $85,000.00 plus interest on the unpaid amount due. 3. As security for the payment of the note Vivian Rojas, Jose Rojas, Edmundo E. Vieira andBeirruth Vieira duly executed and delivered a mortgage, which was recorded as follows: Recording Date: April 17, 2006 Instrument Number: 121374 Richmond County Clerk The mortgage was subsequently assigned to Wells Fargo Bank, N.A.. 4. The mortgaged property is known as 394 Virginia Avenue, Staten Island, NY 10305. The taxmap designation is BLOCK 2993, LOT 47. Plaintiff is foreclosing the land, buildings, and otherimprovements located on the property. The property is more fully described in Schedule B attached tothis complaint. 5. That Jose Rojas, Vivian Rojas, Beirruth Vieira, and Edmundo E. Vieira failed to comply withthe conditions of the note and mortgage by not making the payment that was due on May 1, 2014 andsubsequent payments. Accordingly, Plaintiff hereby declares the entire amount owed on the note andsecured by the mortgage. 6. There is now due and owing on the note and mortgage the following amounts: Principal balance: $73,529.19 Interest Rate: 5.85% Date interest accrues from: April 1, 2014 Together with late charges, monies advanced for taxes, assessments, insurance, maintenance andpreservation of the property, and the costs, allowances, expenses of sale, and reasonable attorney's feesfor the foreclosure. 7. In order to protect the value of the property and its rights in the property, the Plaintiff mayhave to pay taxes, assessments, water charges, insurance premiums and other charges. Plaintiff requeststhat any amount it pays, together with interest, be included in the total amount due. 8 The defendant(s) claim an interest or lien encumbering the property, which is eithersubordinate to Plaintiff's mortgage, or paid in full, equitably subordinated, or adverse to Plaintiff'smortgage. The interest or lien of each defendant is set forth in "Schedule C" of this complaint. 9. The interest or lien of any governmental entity of the United States, State, City or localgovernment is set forth in "Schedule D" of this complaint.10. The John Doe defendant(s) unknown are tenants, occupants, persons or corporations, heirs atlaw, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors whoseinterest or lien is either subordinate to Plaintiff's mortgage, paid in full, equitably subordinated, or adverseto Plaintiffs mortgage. If the mortgagor or owner is deceased, the John Doe defendant(s) are theunknown heirs at law, distributees, executors, administrators, trustees, guardians, assignees, creditors orsuccessors of the mortgagors or owners. iM. Plaintiff has complied with sections 1304 and 1306 of the Real Property Actions andProceedings Law, and the mortgage was originated in compliance with all provisions of section 595-a ofthe Banking Law and any rules or regulations promulgated there under, and, if applicable, sections 6-1 or6-m of the Banking law. 12. No action was brought to recover any part of the mortgage debt or if any such action ispending final judgment for Plaintiff was not rendered and it is the intent of the Plaintiff to discontinue it. AS AND FOR A SECOND CAUSE OF ACTION, PLAINTIFF HEREIN ALLEGES: 13. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through “12”,as though fully set forth herein. 14. That the recorded mortgage, that is the subject of this action, accurately references theaddress of the property encumbered by the mortgage as: 394 Virginia Avenue, Staten Island, New York10305. 15. That the legal description contained in deed dated September 10, 1979, and recordedSeptember 11, 1979, in Liber 2321 at page 302 (attached hereto as Schedule B-1) accurately describessaid property. 16. That the legal description in said mortgage contained an error, to wit: description doesnot contain filed map information nor contains metes and bounds and is merely a deed reference, and thedescription contained in deed recorded September 11, 1979, in Liber 2321 at page 302 should besubstituted to reflect the intent of the parties. 17. Plaintiff hereby requests reformation of the said mortgage recorded April 17, 2006, inDocument No. 121374 by Order of this Court as contained in a clause in the Judgment of Foreclosurestating the following: ORDERED, that the legal description in the mortgage recorded April 17, 2006, in Document No.121374 is hereby reformed so that the property description reads as follows:ALL that certain plot, piece or parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the Borough of Staten Island, County of Richmond, City and State of New York, being more particularly bounded and described as follows: BEGINNING at the corner formed by the intersection of the Easterly side of Virginia Avenue and the Northerly side of Donley Avenue; RUNNING THENCE North 29 degrees 16 minutes 16 seconds East along the Easterly side of Virginia Avenue, 40.00 feet to a point; THENCE South 60 degrees 43 minutes 44 seconds East, 100.09 feet to apoint; THENCE South 29 degrees 16 minutes 16 seconds West, 40.00 feet to a point on the Northerly side of Donley Avenue; THENCE North 60 degrees 43 minutes 44 seconds West along the Northerly side of Donley Avenue, 100.09 fect to the point or place of BEGINNING.WHEREFORE, PLAINTIFF DEMANDS:a. Judgment determining the amount due Plaintiff for principal, interest, late charges, taxes, assessments, insurance, maintenance and preservation of the property and other similar charges, together with costs, allowances, expenses of sale, reasonable attorney's fees, all with interest. That the property be sold at auction to the highest bidder in accordance with the referee's terms of sale. That the interest of the defendant(s) and all persons claiming by or through them be foreclosed and their title, right, claim, lien, interest or equity of redemption to the property be forever extinguished. That out of the sale proceeds, the Plaintiff be paid the amounts due for principal, interest, late charges, taxes, assessments, insurance, maintenance and preservation of the property, and other similar charges, together with costs, allowances, expenses of sale, reasonable attorney's fees, all with interest. That the property be sold in as is condition and subject to the facts an inspection or accurate survey of the property would disclose, covenants, restrictions, easem*nts and public utility agreements of record, building and zoning ordinances and violations, and the equity of redemption of the United States of America. That Plaintiff may purchase the property at the sale. That a receiver be appointed for the property, if requested by Plaintiff. That a deficiency judgment against all obligors on the note, for the amount that remains due after distribution of the sale proceeds, unless the debt was discharged in a bankruptcy, be granted if requested by Plaintiff. That if the Plaintiff possesses other liens against the property, they not merge with the mortgage being foreclosed and that Plaintiff, as a subordinate lien holder, be allowed to share in any surplus proceeds resulting from the sale. Awarding the relief requested in the SECOND cause of action stated in this complaint.k, That the Court award Plaintiff additional relief that is just, equitable and proper. By: x / Sarah K, Hyman, Esq. AL Y /) 4 Gross Polowy, LLC Attorneys for Plaintiff 25 Northpointe Parkway, Suite 25 Amherst, NY 14228 Tel.: 716-204-1700Schedule AAttached hereto at Schedule A is an attorney certified copy of the original note, reviewed by Plaintiff'scounsel herein. If applicable, certain non-public personal information has been redacted from theattached document.34 ww ‘NOTE — September 06, 2005 pate) (City) {State} ~ +394 VIRGINIA AVENUE, STATEN ISLAND, NY, 10305 [Property Address] 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S. $85,000.00 (this amount is called "Principal"), plus interest, to the order of the Lender. The Lender is Wachovia Mortgage Corporation I will make all payments under this Note in the form of cash, check or money order. I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled 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. I will pay interest at a yearly rate of 5.850% . The interest rate 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 pay principal and interest by making a payment every month. 1 will make my monthly payment on the 1st day of each month beginning on November 01, 2005 . will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Pfincipal. If, on October 01, 2035. , I still owe amounts under this Note, I will pay those amounts in fil on that date, which is called the "Maturity Date." I will make my monthly payments at 1100 Corporate Center Drive Raleigh, NC 27607-5066 or at a different place if required by the Note Holder. (B) Amount of Monthly Payments My monthly payment will be in the amount of U.S. $501.45 . 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments ,of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." When I make a Prepayment, | will tell the Note Holder in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. I may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If I gmake a partial Prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. NEW YORK FIXED RATE NOTE-Single Family- Fannie Mae/Freddie Mac UNIFORM INSTRUMENT FORM 3233 U/0L 243213 Nynote_conf.doc (rev02 01/01) [32131] Page 1 of3 964 8882145710/0303858096“«5. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that theinterest or other loan charges collected or to be collected in connection with this loan exceed the permittedlimits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to thepermitted limit; and (b) any sums already collected from me which exceeded permitted limits will be refundedto me. The Note Holder.may choose to make this refund by reducing the Principal I owe under this Note or bymaking a direct payment-to me. If a refund reduces Principal, the reduction ‘will be treated as a partialPrepayment. .6. BORROWER'S FAILURE TO PAY AS REQUIRED _ (A). Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendardays after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be2.00% of my overdue payment of principal and interest. I will pay this late charge promptly but only once oneach late payment. (@) 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 me that if I do not pay theoverdue amount by a certain date, the Note Holder may require me to pay immediately the full amount ofPrincipal which has not been paid and all the interest that I owe on that amount. That date must be at least 30days after the date on which the notice is mailed to me or delivered by other means. (D) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full asdescribed above, the Note Holder will still have the right to do so if | am in default at a later time. (E) Payment of Note Holder's Costs aiid Expenses If the Note Holder has required me-to pay immediately in full as described above, the Note Holder willhave the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent notprohibited by applicable law. Those expenses include, for example, reasonable attorneys’ fees.7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Notewill be given by delivering it or by mailing it by first class mail to me at the Property Address above or at adifferent address ifI give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by delivering it or bymailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a differentaddress if [ am given a notice of that different address.8. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of thepromises made in this Note, including the promise to pay the full amount owed. Any person who is aguarantor, surety or endorser of this Note is also obligated to do these things, Any person who takes overthese obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated tokeep all of the promises made in this Note. The Note Holder may enforce “its rights under this Note againsteach person individually or against all of us together. This means that any one of us may be required to pay allof the amounts owed under this Note.NEW YORK FIXED RATE NOTE-Single Family- Fannie Mae/Freddie Mac UNIFORM INSTRUMENT FORM 3233 1/01243213 Nynote_conf.doc (rev02 01/01) [32131] Page 2 of 3 964 Eieeterinouiasseneve 9. WAIVERS ‘ . “ I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. "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 due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder urider this Note, a Mortgage, Deed of Trust, or Security Deed (the "Security Instrument"); dated the ‘same date as this Note, protects the Note Holder from possible losses which might result if I do not’ keep the promises whichI make in this Note. That Security Instrument describes how and’ under what conditions | may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: Lender may require immediate payment in full of all Sums Secured by this Security Instriment 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 may 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 immediate 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 begin on the date the notice is given to me in the manner required by Section 15 of this Security Instrument. If I do not make the required payment during that period, Lender may act to enforce its rights under this Security Instrument without giving me any further notice or demand for payment. ‘WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. a [SEAL] [SEAL] EDMUN IEIRA -borrower -borrower os %HTe ia [SEAL] [SEAL] é hy -borrower -borrower t [SEAL] [SEAL] E’ROJAS -borrower -borrower e [SEAL] [SEAL] VIVIAN ROJAS -borrower -borrower wW tT WISE: eR OF WE St ESSOR Bi Ny Jasdyoots Lhorkgg. Conor | fone {Sign Original Only] hi £4 BY, Gi PATAIGK A, TIMMERS N ‘VICE PRESIDENT LOAN DOCUMI ENTATION NEW YORK FIXED RATE NOTE-Single Family- Fannie Mae/Freddie Mac UNIFORM INSTRUMENT FORM 3233 1/01 243213 Nynote_conf.doc (rev02 01/01) [32131] Page 3 of 3 964 8882145710/0303858096Borrower Name: EDMUNDO E VIEIRA / BEIRRUTH VIEIRAProperty Address: 394 VIRGINIA AVENUE, STATEN ISLAND, NY.10305i a - Project Id: 01/06 Reinvestment ALLONGE TO NOTE PAY TO THE ORDER OF (Without recourse) By:©WACHOVIA BANK OF DELAWARE, Up ‘CESSOR BY MERGER TO FIRST UNION NATION\T: a By: Lhe, Zia & Mary Hemdorfon, Vice President January 17", 2006PREPAYMENT ADDENDUM TO NOTEThis PREPAYMENT ADDENDUM is made this 06 day of September, 2005, and is incorporated into and shall bedeemed to amend and supplement the Note of the same date given by the undersigned (herein the “Maker” wh ether thereare one or more persons undersigned), to Wachovia Mortgage Corporation (the “Note Holder ”) of the same date andcovering the Property described in the Note, which is located at: 394 INIA AVENUE, STATEN ISLAND, NY 10305 [Property Address].To the extent of any conflict between the provisions of the Note and the provisions of this Addendum, the provisions ofthis Addendum shall supércede and control the conflicting provisions of the Note. The following provision is herebyamended to the Note:BORROWER’S RIG HT TO PREPAY[have the right to make payments of principal at any time before they are due. A payment of Principal only is known as “Prepayment.” When I make a Prepayment, I will tell the Note Holder in writing that I am doing so. I may notdesignate a payment as a Prepayment if I have not made all the monthly payments due under the Note.During the first 12 Months of the Note term, I may prepay up to twenty percent (20.00%) of the original principalamount of this Note without a Prepayment Fee. However, if I make a prepayment of the principal amount of theNote in excess of twenty percent (20.00%) of the original principal balance, I will be required to pay a PrepaymentFee equal to two percent (2.00%) of the outstanding principal balance that is prepaid. After the first 12 months ofthe Note Term, I may make a partial or a full prepayment without a Prepayment Fee.After paying any late fees or outstanding fees that I owe, the Note Holder will use my prepayments to reduce the amountof principal that I owe under this Note. However, the Note Holder may apply my prepayment to the accrued and unpaidinterest on the prepayment amount before applying my prepayment to reduce the principal amount of this Note. If Imake a partial Prepayment, there will be no changes in the due date or in the amount of my monthly payment unless theNote Holder agrees in writing to those changes. Any partial Prepayment made on other than an installment due dateneed not be credited until the next following installment due date or 30 days after such Prepayment, whichever is earlier. NOTICE TO THE BORROWERDO NOT SIGN THIS LOAN AGREEMENT BEFORE YOU READ IT. THIS LOAN AGREEMENT PROVIDESFOR THE PA (EE! OF A PREPAYMENT FEE IF YOU PREPAY THE LOAN PRIOR TO THE DATEDISCLOSED te AN AGREEMENT. Lhe CEA [SEAL] [SEAL]EDMUNDO E. VIEIRA -borrower -borrower [SEAL] {SEAL] (borrower -borrower [SEAL] {SEAL} ISE ROJAS -borrower -borrower aI eVIVIAN ROJAS On PHD a, [SEAL] -borrower [SEAL] -borrower Purs iantta CPLR 10 Bi fan OM ared mH a it %ePre-Payment Penalty Addendum — Conforming Ne 88821457 10/0303858096231767 PPPadd_conf.doc (Rev. 01, 01/03) P; 41 joey ‘acd Lisadao —Schedule B - Legal Descriptio:ADVANTAGE FORECLOSURE SERVICES, INC. Title No. FCL-107725-14 (File No. 302643) SCHEDULE A DESCRIPTIONBlock 2993 and Lot 47ALL that certain plot, piece or parcel of land, with the buildings and improvements thereonerected, situate, lying and being in the Borough of Staten Island, County of Richmond, City andState of New York, being more particularly bounded and described as follows:BEGINNING at the comer formed by the intersection of the Easterly side of Virginia Avenueand the Northerly side of Donley Avenue;RUNNING THENCE North 29 degrees 16 minutes 16 seconds East along the Easterly side ofVirginia Avenue, 40.00 feet to a point;THENCE South 60 degrees 43 minutes 44 seconds East, 100.09 feet to a point;THENCE South 29 degrees 16 minutes 16 seconds West, 40.00 feet to a point on the Northerlyside of Donley Avenue;THENCE North 60 degrees 43 minutes 44 seconds West along the Northerly side of DonleyAvenue, 100.09 feet to the point or place of BEGINNING.Premises known as 394 Virginia Avenue, Staten Island, New York Schedule Betn eat ep tte tn gener ino AEB STRONY - THD INTTREMDNT SHOULD OR (COUSELT TOUR LAWYEA BEPORD SIO MING THESght ‘THIS INDENTURE,made the 10th dayof | September , nineteen hundred and seventy-nine BETWEEN NETTIY FRANGOS, residing al , 394, Vieginds Avenve, Staten = _———— York, ale: 2 ae 2h nn alu liar party of the first part, and © EDMUNDO E. VIEIRA and BEERRUIR VIEIRA, his wife, both reaiding at 107 Monroe Avenue, Staten Island, New York, ut 232 p 302 i party of the second part, that the ‘of the first part, in consideration of ten dollars and other valuable consideration pasty te parsof the ‘sccond part, hereby grant and release tanto the party of the sccond part, the heirs ene ao int oP ‘Or successors and assigns of the party of the second part 7 the buildings dnd improvements ALL that certain lying and being ia Richmond, City and State ‘SE Wes Tork, bells wore particularly bounded and described as follows: BEGINNING at the corner formed by the intersection of the easterly side of Virginia Avenue and the northerly side of Donley Avenues running thence North 29 degrees, 16 minutes, 16 seconds, East along the easterly side of Virginia Avenue 40 feet to a point; running thence South 60 degrees, 43 minutes, 44 seconde East 100,09 feet to ®@ points thence South 29 degrees, 16 minutes, 16 seconds West 40 feet to a point on the northerly side of Donley Avenue; thence North 60 degrees, 43 minutes, 44 eeconda West along the northerly side of Donley Avenue 100.09 feet to the point of BEGINNING. BEING premises (SS perticniarty ‘known as 394 Virginia Avenue, Staten Island, New York. ie TOGETHER with all +i , title and interest, if any, of the party of the first 1 in and to any streets and roads abutting the with the 10 said premises;TO HAVE ANDTO to the center lines thereat; ‘Hl all the estate and rij is of the party of the HOLD the premise: i seein granted wsto the party of the seccud port, the heirs ce suiSReNare. An SOMERE ot the party of the : AND the party of the first part covenants that the party of the first part has not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as af AND the party of the first part, in compliance with Section 133 of the Lien Law, covenants that thi the part will receive consideration . ied first forforthethispurpose conveyance and will hold the right to receive su eration as a trust fund to be a] of paying the cost of the il ap ly the same first to the payment of the cost of the improvement before using any part o fi total of the same any other ‘The word “party” shall be construed as if it read “parties” whenever the sensg.of this, IN WETNESS WHEREOF, the pasty of the iret part has daly executed jie itst above =~ op == RICHMOND su ‘STATE OF WEW YORE, COUNTY OF ~ at svave op mew Your, county On the 10th day of September 19 79, before me On the Gay of 9 » before me personally came pers ly came METTY FRANGOS — fo me cane a be the individual: described in and who to me knows to be the individual aise island vee cere’ the lore foregoing instrument, and acknowledged that executed the foregoing ina , same, SAMs0 oa FATE w ol Rew York SEP t 4 1979 so, dem beet ase ISFER TAX Bets STATE OF IW YORK, COUNTY OF STATE OF NEW sm ‘On the day of iD before me On the personally cam day of 19 , before me to me known, who, beingby me daly sworn, did depose and the subscribing witness to the foregoing instrument, with say that he resides at 7i whom am per va he who, being by me duly eater sworn,did depose and that he is the i that he'knows the corporation described in and which wane the foregoing instrument; that he to be the individual knows the seal of said corporati that the seal affixed described in and who executed the foregoing instrament to said instrument is te seal; that it was so that he, said subscribing witness, was present and saw affixed order of the board of directors of said corpori- execute same}al that he, said witness, tion, an ‘that he name thereto by like order. at the same time subscribed h name as witness thereto, A 8 - ~~ Barga in and Gale Berd secrion 4 wis Eee Acawnst Grantor’s Acts ‘TITLE NO. 2992D METTY FRANGOS TO a COUNTY OR TOWN = RICHMOND EDMUNDO E. VIEIRA & BEIRRUTH VIEIRA, ux. Recordedat CHICAGO ‘TITLE INSURANCE COMPANY Return by Mail teSo [STANDARG FORO UF REW YORK BOARD DF TITLE URDERWRITERS Distributed by CHICAGO TITLE Robert B, Pesnick, Esq. INSURANCE COMPANY 350 Fifth Avenue New York, New’ York 10001gp 1a, ws oe 8 j i eo % z3 Mn ae ce An a & Zz 2 3 ee: 3 B)< wed [* a> >=Schedule C - DefendantsVIVIAN ROJAS Original obligor.BEIRRUTH VIEIRA Record owner and original mortgagor.EDMUNDO E. VIEIRA Record owner and original mortgagor.JOSE ROJAS Original obligor.MIDLAND FUNDING LLC APO Holder of judgment(s).CITIBANK USA NASANTANDER BANK, NATIONAL Named for a lien prior in time to the mortgageASSOCIATION FORMERLY KNOWN that is the subject of this action. We believeAS SOVEREIGN BANK, NATIONAL this lien has been satisfied but no satisfaction is ofASSOCIATION FORMERLY KNOWN record.AS SOVEREIGN BANK SUCCESSORBY MERGER TO INDEPENDENCECOMMUNITY BANK SUCCESSOR BYMERGER TO SI BANK & TRUSTFORMERLY KNOWN AS STATENISLAND SAVINGS BANKWELLS FARGO BANK, N.A. Holder of a mortgage.SUCCESSOR BY MERGER TOWACHOVIA MORTGAGECORPORATIONJOHN DOE being fictitious, the names unknown to Plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors.Schedule D - DefendantsNEW YORK CITY TRANSIT Holder of possible judgments against Edmundo E.ADJUDICATION BUREAU Vieira, Beirruth Vieira, Jose Rojas and/or Vivian Rojas, see attached.NEW YORK CITY PARKING Holder of possible judgments against Edmundo E.VIOLATIONS BUREAU Vieira, Beirruth Vieira, Jose Rojas and/or Vivian Rojas, see attached.Title No: 5247-7846587 COUNTY CLERK SEARCH( 9/24/2014 ) SPECIAL NAME SEARCH Last Name:
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ROBERT M. ABER, AN INDIVIDUAL AND TRUSTEE OF ROBERT M. ABER REVOCABLE LIVING TRUST CREATED FEBRUARY 11, 2004 VS PHH MORTGAGE CORPORATION, ET AL.
Aug 19, 2024 |23STCV27937
Case Number: 23STCV27937 Hearing Date: August 19, 2024 Dept: 55 NATURE OF PROCEEDINGS: Demurrer without Motion to Strike The Court having read and considered the moving papers and oral argument, hereby rules as follows: The Court sustains the demurrer to the First Cause of Action, Eighth Cause of Action, Tenth Cause of Action with leave to amend. BACKGROUND On 03/26/24, ROBERT M. ABER, and individual and TRUSTEE OF ROBERT M. ABER REVOCABLE LIVING TRUST CREATED FEBRUARY 11, 2004 (Plaintiff) filed the operative First Amended Complaint (FAC) against PHH MORTGAGE CORPORATION, MORTGAGE ASSETS MANAGEMENT and other defendants (Defendants) related to defendants allegedly enabling Plaintiffs estranged sons to fraudulently sell Plaintiffs home, when they knew or should have known of the fraud. The causes of action are: 1) Violations of Welfare & Institutions Code §15600 et seq. (Elder Abuse); 2) Violations of Civil Code § 1798.93; 3) Violations of Civil Code § 2924.11; 4) Violations of Civil Code § 2924.17; 5) Violations of Civil Code § 3273.11; 6) Violations of the Home Equity Sales Contract Act (HESCA), Civil Code §1695; 7) Slander of Title; 8) Unfair Business Practices; 9) Violations of the Rosenthal Act; 10) Negligence; 11) Breach of Contract; 12) Breach of the Implied Covenant; 13) Fraud; 14) Negligent Misrepresentation; 15) Intentional Interference with Contract; 16) Quiet Title; and 17) Cancellation of Deed. Defendant Wilshire Escrow Company (Wilshire) demurs to the First, Eighth and Tenth causes of action on the grounds that the FAC fails to state facts sufficient to constitute a cause of action. LEGAL STANDARD The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) A demurrer tests the legal sufficiency of the factual allegations in a complaint. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (Id.) The Court does not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint as a whole and its parts in their context. [Citation.] (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Harris, supra, 56 Cal.4th p. 240.) The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.) First Cause of Action for Elder Abuse The cause of action for elder abuse fails to state a cause of action against Wilshire because Plaintiff has not alleged facts showing Wilshire actually assisted Plaintiffs children in their alleged elder abuse. Financial elder abuse requires that (1) the defendant took, obtained or retained a plaintiffs property (or assisted in that act), (2) that the plaintiff is 65 years of age or older, (3) that the defendant took, obtained or retained the plaintiffs property for a wrongful use or with the intent to defraud, (4) that the plaintiff was harmed, and (5) the defendant's conduct was a substantial factor in causing that harm. (Welf & Inst. Code section 15610.30.) Here the FAC fails to provide any allegations showing that Defendant Wilshire obtained or retained the Plaintiffs property for a wrongful use or with the intent to defraud. For instance, the FAC states, Moreover, at a bare minimum, Wilshire is committing elder abuse by continuing to retain the fees it charged the Plaintiff for facilitating this fraudulent transaction. On this point, Wilshire charged the Plaintiff for acting as an escrow holder, even though he never authorized same, and they have never returned these funds. (FAC ¶ 211.) The FAC further alleges, Wilshire Escrow also should have been aware of this fraud and facilitated its execution. (FAC ¶ 214.) The FAC also alleges, If Wilshire had exercised the basic due diligence of calling the number listed, or simply performing a web search of that number, it would have been apparent that the number does not belong to Dr. Morovati, but instead to Eugene J. Fay, who is not a doctor, and is an associate of Solange Meshay. (FAC ¶ 216.) The FAC further alleges, Wilshire also certainly knew of the Hatchett brothers fraud as they had the Hatchett brothers drivers license and knew their age. (FAC ¶ 226.) The FAC states Wilshire was readily aware that the 2006 amend trust was fraudulent. As stated herein, the Hatchett Brothers would have been 15, and Wilshire had their identification cards and was aware of their age. Nonetheless, they pushed forward with the transaction in order to collect their fees and aided and abetted the Hatchett Brothers in their fraudulent scheme. On this score, Wilshire offered substantial encouragement and assistance to the Hatchett Brothers in completing their fraud. The Hatchett brothers would not have been able to accomplish their scheme without Wilshire's assistance. (FAC ¶ 227.) These allegations are conclusory and fail to show Wilshires intent to defraud. Therefore, the demurrer is sustained with leave to amend as to the first cause of action for elder abuse. Eighth Cause of Action for Unfair Business Practices Defendant argues that the cause of action for unlawful business practices fails as a matter of law. To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) An unlawful business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351.) The FAC alleges in a conclusory manner the unlawful acts and practices of Defendants alleged herein constitute unlawful, unfair or fraudulent business practices within the meaning of Business and Professions Code§ 17200. (FAC ¶414.) Plaintiff further alleges Wilshire is readily aware of the fraud exhibited herein, and was aware of said fraud before the transaction closed. Nonetheless, Wilshire has improperly charged the Plaintiff for its services to the tune of thousands of dollars and continues to refuse to refund said fees to Plaintiff. (FAC ¶415.) Moreover, Plaintiff alleges that Wilshires failure to speak to Mr. Aber or Maxine Aber ... certainly indicates they should have known of the fraud, and could have discovered it easily in the routine course of their work as escrow company professionals. (FAC ¶394.) As discussed above, the FAC fails to allege sufficient facts supporting that Wilshire knew the sale and/or payoff demand were fraudulent prior to its recordation of the Deed of Trust on May 8, 2023. Thus, a reasonable jury could not infer from the face of the FAC that Wilshire acted unlawfully, unfairly, or fraudulently towards Plaintiff in recording the Deed of Trust. Therefore, the demurrer is sustained with leave to amend as to the eighth cause of action for unfair business practices. Tenth Cause of Action for Negligence Defendant argues that the cause of action for negligence fails to state a claim against Wilshire because an escrow holders fiduciary duty is to strictly comply with the instructions of the parties. The elements for negligence cause of action are duty, breach, causation and damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿ Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are limits to the generality with which a plaintiff is permitted to state his cause of action, and the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendants negligence has caused him injury. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 [Internal quotations and ellipses omitted].) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 [internal brackets omitted].) The FAC alleges in a conclusory manner PHH and Wilshires utter failure to take any reasonable steps to prevent the fraudulent sale of the home after being informed that the parties who provided the payoff were not authorized thus constituted negligence by these parties. (FAC ¶ 463.) The FAC further states Moreover, Wilshire Escrow also breached their duty of care to the Plaintiff, a senior citizen and the trustee of the trust for which it was purporting to act as escrow agent. As an initial matter, as set forth herein, the forged 2006 Restatement of Trust contained a myriad of inconsistencies and outright illegalities, such as the status of the Hatchett brothers as minors while supposedly being appointed co-trustees. (FAC ¶ 444.) The FAC further alleges Wilshires failure to speak to Mr. Aber or Maxine Aber even once, solely based on Alvin Hatchetts request not to do so, certainly indicates they should have known of the fraud, and could have discovered it easily in the routine course of their work as escrow company professionals. (FAC ¶ 447.) Additionally, in Summit Financial Holdings Ltd. v. Continental Lawyers Title Co., the Supreme Court of California held that [a]n escrow holder has a fiduciary duty to comply strictly with the instructions of the parties but "has no general duty to police the affairs of its depositors". (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711.)"Absent clear evidence of fraud, an escrow holder's obligations are limited to compliance with the parties' instructions." (Id.) Notably, the FAC fails to provide any facts showing the duties of an Escrow Holder, such as Wilshire, are only owed if found in the escrow instruction or set forth in the statute alleged. Here, Plaintiff provides no basis, factually or legally, that supports its allegations that Wilshire negligently performed any duty it accepted in its escrow instructions. Therefore, the demurrer is sustained with leave to amend as to the tenth cause of action for negligence. Conclusion Therefore, the Court sustains the demurrer as to the First Cause of Action, Eighth Cause of Action, and Tenth Cause of Action with leave to amend. Plaintiff to notice.
Ruling
Aug 22, 2024 |23STCV22924
Case Number: 23STCV22924 Hearing Date: August 22, 2024 Dept: 54 Superior Court of California County of Los Angeles Sherman Oaks First Plaza, LLC, Case No.: 23STCV22924 Plaintiff, vs. Tentative Ruling Lorena Sanchez & Lorena B. Sanchez dba Honor Yoga, et al., Defendants. Lorena Sanchez, et al., Cross-Complainants, vs. Sherman Oaks First Plaza, LLC, Cross-Defendant. Hearing Date: August 22, 2024 Department 54, Judge Maurice Leiter Demurrer to First Amended Cross-Complaint Moving Parties: Cross-Defendant Sherman Oaks First Plaza, LLC Responding Party: Cross-Complainants Lorena Sanchez and Lorena B. Sanchez T/R: The demurrer is sustained with leave to amend. Defendant to give notice. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers. No opposition or reply was filed. BACKGROUND This is a commercial lease dispute. Plaintiff Sherman Oaks First Plaza, LLC sued defendants Lorena Sanchez, Lorena B. Sanchez, and Lorena Sanchez and Lorena B. Sanchez dba Honor Yoga on September 21, 2023, asserting a single cause of action for breach of contract. Plaintiff alleges Honor Yoga leased a commercial space from it in October 2019, stopped paying rent in June 2020, and vacated in October 2022 without paying the balance owed. The individual defendants guaranteed Honor Yogas lease. The individual defendants, Lorena Sanchez and Lorena B. Sanchez (Cross-Complainants), cross-complained against Plaintiff on December 12, 2023. The Court sustained Plaintiffs demurrer to the cross-complaint with leave to amend on March 25, 2024. On April 18, 2024, Cross-Complainants filed their first amended cross-complaint (FAXC). The FAXC asserts causes of action for breach of the covenant of good faith and fair dealing and breach of the parties written lease. Cross-Complainants allege Plaintiff did not deliver them the Premises in a condition suitable for its intended use and/or that Plaintiff knew the City of Los Angeles would not approve necessary permits for the sites intended use but failed to disclose that to Cross-Complainants. ANALYSIS A. Legal Standard A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.) B. Discussion 1. Breach of Contract The elements of breach of contract are (1) the contract, (2) plaintiffs performance or excuse, (3) breach, and (4) injury. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Cross-Complainants have not pleaded that Plaintiff breached the contract. The FAXC refers to paragraphs 2.2, 2.3, 3.3, 7.2, and 13.5 of the parties lease, which it incorporates by reference from Plaintiffs complaint. Paragraph 13.5 of the lease refers to the interest rate after default; its relevance to the dispute is unclear. (See Compl., Ex. 1, p. 12.) Paragraph 3.3 refers to timely delivery of possession (id., at p. 3); Cross-Complainants also do not appear to allege that provision was violated. Paragraphs 2.2, 2.3, and 7.2 refer to the Lessors obligation to keep the Premises in good repair and compliant with fire prevention standards. (Compl., Ex. 1, pp. 2, 6.) Paragraph 6(A) of the FAXC alleges that [t]he subject premises were in a deplorable state of disrepair and needed to be built out before cross-complainants would be able to do business, but cross-defendants failed and refused to honor its commitments under the lease regarding cleanup, construction, fire prevention and the other obligations on its part to be performed[.] (FAXC, ¶ 6(A).) Cross-complainants also allege Plaintiff refused to take fire prevention steps required by the City by either installing a sprinkler system for the entire building or constructing a fire wall. (Id., subp. (F).) The remainder of the allegations appear to relate to Cross-Complainants dispute with the City over permits. Cross-Complainants cursory allegations are insufficient to give Plaintiff notice of the factual basis for Cross-Complainants causes of action. Although a cause of action need only include ultimate facts, more particularity is required when the body of the complaint does not clearly articulate a breach. (See e.g. Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5-8 [plaintiff must demonstrate a link between facts of breach of relevant contract term].) It is unclear how the contract was breached, particularly because an addendum to the lease appears to rule out the breaches they allege. (See Compl., Ex. 2 [Addendum to Lease].) The addendum, signed the same day as the Lease, states that the Premises will be delivered largely in as-is condition, that the Lessee will make the premises suited to its intended use at the Lessees sole cost, and that the Lessee has confirmed with the City that all permits are in order. (Id., ¶¶ 1, 9, 10.) Cross-Complainants must provide more facts to establish why Plaintiffs alleged conduct breached the paragraphs they identify and was not permitted by the Addendum. 2. Breach of the Covenant of Good Faith and Fair Dealing The [implied] covenant of good faith and fair dealing [is] implied by law in every contract. (Citation.) The covenant is read into contracts and functions as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 10311032.) A claim for breach of the covenant of good faith and fair dealing does not stand without an underlying breach of contract. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 433.) And [i]f allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded &. (Ibid.) The cross-complaint alleges at most a breach of contract and failure to disclose certain information. Cross-Complainants have alleged no act or omission that goes beyond their breach of contract claim.
Ruling
LLOYD VS. LLOYD, ET AL
Aug 19, 2024 |CVCV20-0195922
LLOYD VS. LLOYD, ET ALCase Number: CVCV20-0195922This matter is on calendar for review regarding status of case and Plaintiff’s counsel. As discussed at multipleprevious hearings, Plaintiff may not proceed in pro per as she is representing the trust. An appearance isnecessary on today’s calendar.
Ruling
EKO SUBSTANCE THREE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS MICHAEL KASABA, ET AL.
Aug 22, 2024 |22SMCV00709
Case Number: 22SMCV00709 Hearing Date: August 22, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 EKO SUBSTANCE THREE LLC, Plaintiff, v. MICHAEL KASABA, et al., Defendants. Case No.: 22SMVC00709 Hearing Date: August 22, 2024 [TENTATIVE] ORDER RE: DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS BACKGROUND This action arises from a dispute over easem*nts. Plaintiff Eko Substance, LLC bought a property located at 27835 Borna Drive, Malibu, California (Plaintiffs Property). Defendants Michael Kasaba and Michael E. Kasaba LLCs (MEK) own the property located at 2210 Mar Vista Ridge Drive, Malibu, California (MEK Property). Plaintiff claims that there are two recorded 40 foot wide easem*nts, across the MEK Property, that benefit Plaintiffs Property and provide Plaintiffs Property with unfettered ingress and egress for roadway and public utilities over Defendants land (Easem*nts). (Compl. ¶ 3.) Plaintiff further alleges that an improved paved road runs within the geographical limitations of the Easem*nts (Improved Road). (Compl. ¶ 6.) Plaintiff identifies as the first easem*nt benefitting Plaintiffs land a document which is recorded as document no. 07-2646335 O.R., Rec. December 03, 2007 (First Easem*nt). (Compl. ¶ 7.iii at 5:26-27.) Plaintiff identifies as the second easem*nt benefitting Plaintiffs land a document which is recorded as document no. 07-2646336 O.R., Rec. December 03, 2007 (Second Easem*nt) (Compl., ¶ 7.iii at 6:1-3.) Plaintiff alleges that Defendants have engaged in wrongful, deceptive, unauthorized and illegal conduct concerning Plaintiffs land, the Easem*nts and the Improved Road (Compl. ¶ 7.) The alleged misconduct includes (1) submitting proposed plans to government agencies in which Defendants failed to disclose that their planned development on the MEK Property encroaches not only on the existing Improved Road but seriously and materially encroaches upon the Easem*nts (Compl. ¶ 7.i at 4:19-20), and (2) placing yard improvements and plantings, and engaging in illegal grading, over both Easem*nts (Compl. ¶ 7.iii.). The operative complaint alleges claims for (1) continuing nuisance, (2) permanent nuisance, (3) trespass, (4) slander of title, (5) intentional interference with prospective economic relations, (6) declaratory relief, and (7) negligence. Each of Plaintiffs alleged causes of action is based on Plaintiffs purported rights to the Easem*nts and Improved Road across the MEK Property. The First Cause of Action for Continuing Nuisance, and the alternative Second Cause of Action for Permanent Nuisance, allege Defendants owed Plaintiff a duty to refrain from doing acts that interfere with or obstruct the free use of the Easem*nts and Improved Road. (Compl., ¶¶ 14, 18.) The Third Cause of Action for Trespass and/or Interference with Property Rights is based on the assertion that Defendants entered upon the Easem*nts and performed the actions as described above. (Compl., ¶ 23.) The Fourth Cause of Action for Slander of Title charges Defendants with publishing, misrepresenting and deceiving, as above described, to the land use authorities the rights of Plaintiff to the Easem*nts and Improved Road through Defendants land and casting doubt on plaintiffs title and rights to the Easem*nts and Improved road. (Compl., ¶¶ 27, 30.) To support its Fifth Cause of Action for Quiet Title and Cancellation of Cloud on Title, Plaintiff alleges that Defendants have no right, title, estate, lien, or interest whatsoever in the lands adverse to Plaintiffs title to the Easem*nts and the Improved Road. (Compl., ¶ 37.) The Sixth Cause of Action for Intentional Interference with Prospective Economic Advantage is based on the submission of false and deceptive land use applications, and the encroachments and injury to property as above described. (Compl., ¶ 40.) In the Seventh Cause of Action for Declaratory Relief, Plaintiff seeks to ascertain its rights and duties concerning the Easem*nts and Improved Road. (Compl., ¶ 48.) Finally, in its Eighth Cause of Action for Negligence, without specifying any other conduct, Plaintiff alleges that defendants in acting as set forth above owed Plaintiff a duty of care and said defendants acted negligently in performing the actions alleged herein. (Compl., ¶ 50.) Plaintiffs prayer for relief likewise is based on the Easem*nts. Among other things, Plaintiff seeks (i) injunctive relief requiring the removal of the offensive [encroachments and] improvements, foliage and trees from the Easem*nts and correction of the land use applications of Defendants containing the false and deceptive representations concerning the Easem*nts and Improved Road (Compl. at 16:8-11, 16:24-27), and (ii) an order that the Easem*nts and Improved Road thereon are valid and enforceable (Compl. at 17:4-5.) This hearing is on Defendants motion for judgment on the pleadings. Defendants argue that each of Plaintiffs causes of action fails because they are premised on purported easem*nt rights that were extinguished upon a prior foreclosure sale of the MEK property. LEGAL STANDARD A defendant may move for judgment on the pleadings when the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc. §438(b)(1) and (c)(1)(B)(ii).) A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.] (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citations omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Like a demurrer, a motion for judgment on the pleadings may be addressed to the pleading as a whole or to separate counts. If addressed to the pleading as a whole, the motion must be denied if even one count is good. (Lora v. Garland (1946) 27 Cal.2d 840, 850; Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1358.) If addressed to separate counts, the motion may be granted as to some counts and denied as to others. (Steiner v. Rowley (1950) 35 Cal.2d 713, 720; Heredia, 228 Cal.App.3d at 1358.) MEET AND CONFER A party moving for¿judgment on the pleadings must¿meet and confer in person or telephonically with the party who filed the pleading that is subject to the motion to determine if an agreement can be reached regarding the claims raised in the motion. (Code Civ. Proc., § 439, subd. (a).) The moving party must file a declaration detailing the¿meet and confer efforts. (Code Civ. Proc. § 439, subd. (a)(3).) Defendants submit the Declaration of Mak Hurwitz which attests the parties met and conferred by telephone. This satisfies the meet and confer requirements of § 439. REQUEST FOR JUDICIAL NOTICE Defendants request judicial notice of the following documents recorded in the Official Records of the Los Angeles County Recorders Office: (1) a Deed of Trust, recorded with the County Recorder on January 25, 2005 as Instrument No. 05 0174612, executed by Raymond Munro in favor of Washington Mutual Bank FA; (2) a Grant of Road and Utility Easem*nt, recorded with the County Recorder on December 3, 2007 as Instrument No. 20072646335; (3) a Grant of Road and Utility Easem*nt, recorded with the County Recorder on December 3, 2007 as Instrument No. 20072646336; (4) a Notice of Trustees Sale dated July 23, 2008, and recorded with the County Recorder on July 25, 2008 as Instrument No. 20081332370; (5) A Trustees Deed Upon Sale dated January 28, 2009, and recorded with the County Recorder on January 30, 2009 as Instrument No. 20090127166; (6) a Grant Deed, recorded with the County Recorder on October 15, 2019 as Instrument No. 20191095187. In addition, Defendants request that the Court take judicial notice of the (a) the Complaint filed on May 22, 2018, (b) the Answer filed on February 22, 2023, and (c) the Amended Answer filed on July 12, 2023. Defendants¿request for judicial notice is not made in a¿separate document in violation of California Rules of Court, Rule 3.113. (Cal. Rules Ct. 3.1113(l)¿(Any¿request for judicial notice must be made in a¿separate document listing the specific items for which notice is requested&.).) Nonetheless, in the interest of moving the case forward, the Court will take judicial notice of (1)-(6) pursuant to Cal. Evid. Code §§ 452(c), 452(h), and 453, although it admonishes Defendant to familiarize itself, and comply, with the rules of Court. The Court denies the request to take judicial notice of the pleadings filed in this action as it is unnecessary. Defendants need only call the Courts attention to such pleadings. Plaintiff also seeks judicial notice of (1) the Deed Restriction recorded on August 30, 2002 in the Official Records of Los Angeles County as Document Number 02 2047545, and (2) the Amendment to Deed Restriction recorded on November 6, 2022 in the Official Records of Los Angeles County as Document Number 02 02657968. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(h), and 453. DISCUSSION Defendants argue that the easem*nts upon which Plaintiffs claims are based were extinguished in a foreclosure sale, and accordingly, there is no basis for any of Plaintiffs claims. The Court agrees. In January 2005, a prior owner of the MEK Property, Raymond Munro (Munro), executed a Deed of Trust to the MEK Property in favor of Washington Mutual Bank, FA. (Request for Judicial Notice (RJN), Ex. A.) The Deed of Trust was recorded nearly three years before the Easem*nts were recorded on December 3, 2007. (RJN, Exs. B & C.) On July 25, 2008, after the Easem*nts were recorded, the Trustee under the Deed of Trust recorded a Notice of Trustees Sale (Notice) of the MEK Property. (RJN, Ex. D.) As reflected by the Trustees Deed Upon Sale (Sale Deed) recorded on January 30, 2009, the Trustee sold the MEK Property to the foreclosing beneficiary under the Deed of Trust on January 28, 2009. (RJN, Ex. E.) The Sale Deed, among other things, expressly identifies (i) the Deed of Trust by recording date and instrument number, (ii) Munro as the Trustor, and (iii) the APN and legal description of the MEK Property. (Id.) Under well settled California law, the Sale Deed conveyed by the Trustee in January 2009 pursuant to the foreclosure sale of the MEK Property extinguished all easem*nts or encumbrances recorded after the Deed of Trust, including but not limited to the alleged Easem*nts, recorded in December 2007, on which Plaintiff bases the entire Complaint. See, e.g., Perez v. 222 Sutter St. Partners (1990) 222 Cal. App. 3d 938, 942-943, 949 (affirming summary judgment on ground that foreclosure sale extinguished easem*nt rights); San Francisco Design Ctr. Assocs. v. Portman Cos. (1995) 41 Cal. App. 4th 29, 45 (when property is sold under a trust deed, the purchaser obtains title free and clear of all encumbrances subsequent to the deed of trust); R-Ranch Mkts. #2, Inc. v. Old Stone Bank (1993) 16 Cal. App. 4th 1323, 1328 (When property is sold under a trust deed, the purchasers acquire title free and clear of all encumbrances subsequent to the deed of trust); Dover Mobile Estates v. Fiber Form Prods. (1990) 220 Cal. App. 3d 1494, 1498 (Liens which attach after execution of the foreclosed trust deed are extinguished. The purchaser at the trustee sale therefore takes title free of those junior or subordinate liens.). As the leading treatise on California real property law confirms, the foreclosure sale terminates any easem*nts recorded after the deed of trust was recorded, and the purchasers title and possession are free and clear of the easem*nt. (4 Miller & Starr, California Real Estate (4th Ed.) § 10.100.) Accordingly, at the time Plaintiff acquired Plaintiffs Property in 2019, the Easem*nts had already been extinguished by operation of law, and Plaintiff does not have any right of access, ingress, or egress across the MEK Property. Plaintiff therefore cannot state any claim based on, or even seeking a determination of, its purported rights to the Easem*nts or any Improved Road thereon. Since each cause of action in the Complaint depends upon the Easem*nts, and the Easem*nts have been extinguished as matter of law, the entire Complaint does not and cannot state a cause of action against Defendants. Plaintiff argues that Defendants attack goes only to a portion of their Complaint, and even if the easem*nts were terminated, Plaintiff would still have certain rights in the easem*nt area by virtue of the legal description set forth in the grant deed vesting Plaintiffs Property to Plaintiff and/or an equitable easem*nt. But the Grant Deed merely contains a legal description of the extinguished Easem*nts. Plaintiff has cited no authority that, simply by a grantor including the description of the extinguished Easem*nts in a grant deed, the extinguished Easem*nts were somehow revived. Similarly, Plaintiffs references to purported deed restrictions from a permit application by a prior owner of the MEK Property in 2002 (Purported 2002 Restrictions) are entirely immaterial, as (a) the Complaint is not based on the Purported 2002 Restrictions, (b) the Purported 2002 Restrictions predate the Easem*nts on which Plaintiff bases its claims, (c) the Purported 2002 Restrictions concern the MEK Property, and the rights of the owner thereof, but do not grant easem*nt rights to any owner of Plaintiffs Property, and (d) Plaintiff has not shown that it somehow could have acquired easem*nt rights by the Purported 2002 Restrictions, between the California Coastal Commission and a prior owner of the MEK Property, to which neither Plaintiff nor any predecessor on Plaintiffs Property was a party. Plaintiff also cannot show that it can base any claim on Defendants alleged deception in their land use applications. Since the Easem*nts have been extinguished as a matter of law, and Plaintiff therefore cannot claim any rights on the MEK Property, MEKs use of its property is of no concern to, and certainly is not actionable by, Plaintiff. Plaintiff has no interest in the MEK Property, nor does Plaintiff have any right of access, ingress, or egress across the MEK Property. Accordingly, Plaintiff has no standing to pursue any purported claim thereon. CONCLUSION Based on the foregoing, the Court GRANTS Defendants motion for judgment on the pleadings without leave to amend. IT IS SO ORDERED. DATED: August 22, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Ruling
01 BH PARTNERSHIP VS BANK OF AMERICA, N.A., ET AL.
Aug 22, 2024 |6/18/2022 |21SMCV01405
Case Number: 21SMCV01405 Hearing Date: August 22, 2024 Dept: I The court is inclined to DENY the motion to continue the trial. The court will GRANT the application to hear the motion for summary judgment less than 30 days before the trial and it will remain on the calendar for September 17, 2024. The court is aware that the parties have stipulated to a continuance. However, there has been no showing of diligence here. The parties state that plaintiff is still doing discovery, but the court is puzzled. The case was filed three years ago. The complaint was amended in April 2023, but the major contours of the case were likely known years and years ago. The trial date was set on May 15, 2023over a year ago (and after the amended complaint was filed). At that time, all parties and counsel signed off on the date. The court is aware that unforeseen things can happen, but there has been no showing of that here, nor has there been a showing as to why plaintiff has not completed discovery. Were there such a showing, the court would consider moving the trial. The court notes that not too long ago, the request would have been granted. When the court had 700 or 800 cases on its docket, it had some flexibility and could accommodate counsel. The court now has over 1100 cases on the docket. The court assumes that 93% or more will settle, but even with that assumption the court is stacking cases deep. The court cannot move a case and thereby displace other litigants who were diligent, and the court no longer has open space on its trial calendar. Therefore, absent a showing of illness or truly unforeseen and unforeseeable circ*mstances, continuances are no longer granted. The court suggests that the parties continue to monitor the courts calendar. If it becomes clear to the court that it will be engaged in trial on the current trial date, the court will be receptive to moving this case. But until or unless there is a trial continuance, the court expects full compliance with its FSC and trial orders, which can be found on-line. The court will also honor any agreement that the parties come to in writing to extend the discovery cut off dates to kick in closer to trial. For purposes of the motion for summary judgment, the court notes that under Sentry, a party has the right to have its motion for summary judgment or adjudication heard if it is timely filed. This one was timely filed. Although the court is hearing cases on pretty close to statutory notice, the court only hears such motions on Tuesdays and Thursdays, meaning that there could be a small bleed past the 75 day notice period. And there is some congestion, so the bleed could be a week or two. That seems to be what occurred here. Accordingly, the court will exercise its discretion to hear the motion less than 30 days before the trial date. Opposition and reply per code.
Ruling
R Scott Turicchi et al vs Randy Quaid et al
Aug 26, 2024 |Judge Colleen K. Sterne |19CV06268
R. Scott Turicchi, et al., v. Randy Quaid, et al.Case No. 19CV06268 Hearing Date: 8/26/2024 HEARINGS: (1) Quaid motion to compel Turicchi compliance with subpoena (2) Quaid motion to strike references to July 28, 2024 ruling ATTORNEYS: Craig S. Granet / Claire K. Mitchell of RIMON, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs Randy Quaid and Evgenia Quaid are in pro per. TENTATIVE RULINGS: Both motions are denied. Motion to compel Turicchi compliance with subpoena: The Quaids filed their motion on June 28, 2024, seeking to compel the Turicchis to comply with a subpoena which the Quaids contend was served upon them May 14, 2024. The subpoena sought a “non-fabricated photograph” of a sign posted on the front gate of the property, and for the identity of the “friend” who allegedly created the sign. The motion contends that the information is critical to the fair resolution of the ongoing civil dispute concerning the property at 1335/1357 East Mountain Drive, in Montecito. The motion contends that the Turicchis had the Quaids “falsely citizen’s arrested” on the property in September 2010, at a time when the Turicchis’ claim of ownership was under a void title from the Bermans in 2007, and they had not yet perfected a 5-year adverse possession claim to the property. In October 2010, the Turicchis posted a sign on the front gate to the property “threatening harm” to the Quaids if they returned. Plaintiffs produced emails in November 2023 which reveal that multiple witnesses observed and photographed the sign. Since that time, the Quaids have made exhaustive requests for production of a photograph of the sign which had been posted on the gate, and have also requested the Turicchis to provide the name of the person who Mrs. Turicchi says made the sign. The subpoenaed a copy of the photograph and the name of the friend on May 14, 2024, but plaintiffs failed to respond by the June 14, 2024 deadline, and on June 20 responded providing “a suspiciously altered PDF image” of a sign on the front gate of the property, and did not identify the friend who created it. They contend that a preliminary analysis of the PDF image of the sign suggests that the image of the sign has been digitally altered and inserted into a photograph of the front gate. They assert further that the content of the sign “does not align with the reactions of witnesses.” Given that the preliminary analysis suggested possible manipulation, they contend that the actual photograph must be analyzed by a forensic expert using more advanced forensic tools, in order to determine the photograph’s authenticity. They therefore seek an order compelling plaintiffs to fully comply with the subpoena, and permitting the Quaids to engage a forensic expert to analyze the photograph. The PDF image of the photograph in question, produced by the Turicchis on June 20, 2024, is attached to the motion as Exhibit A, and depicts what appears to be a wooden gate, arched at the top, and attached to a stone wall. On the gate is affixed what appears to be a white, rectangular sign with red lettering, which states: To the couple arrested.This is not your property.Shy of purchasing it from me—KEEP YOUR ASS OFF MY PROPERTY.Opposition The Turicchis have opposed the motion, on multiple bases. First, they note that the discovery cut-off was 30 days prior to the then-June 24, 2024 trial date, and the Quaids’ subpoena called for documents to be produced on June 14, 2024, past the cut-off date. The Turicchis served written opposition noting the discovery cut-off date, and objecting that the Deposition Subpoena which had been served on counsel was not a valid subpoena, in that it was unsigned. It could not permissibly have been signed by the Quaids in any event, as the only persons authorized by law to issue a subpoena are a judge, court clerk, or an attorney at law who is an attorney of record. (Code Civ. Proc., § 1985, subd. (c).) Parties representing themselves are not authorized to issues subpoenas, and any subpoenas they attempt to issue are invalid. Additionally, while a Notice to Consumer was attached, it was not signed, and was not directed to any consumer.The Turicchis object that any motion to compel production of documents pursuant to a subpoena must contain specific facts showing good cause for the discovery being sought. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.) The motion to compel does not contain any such facts. The Turicchis explain that in connection with documents previously produced, an email was produced that referenced a sign the Turicchis had posted on their gate. One of the Quaids’ former attorneys requested a copy of the photo of the sign, but the Turicchis had not been able to locate a copy of the photo. They later located one, and that photo was produced to the Quaids on June 19. The current motion appears to contend that the photo which was produced was not genuine. However, since the photo requested was produced, there is no basis for any additional production. Further, the photo has no relevance to the slander of title cause of action against the Quaids, which is the only remaining cause of action. Quaid motion to strike references to July 28, 2014 ruling: The motion seeks to “strike” in this case all references to and citations of this Court’s July 28, 2014 ruling, citing as authority Code of Civil Procedure section 43, and the doctrine of stare decisis. The motion contends that the ruling violated established precedent set forth by the Court of Appeal in County of Santa Barbara v. American Surety Company (Case No. B238601), which found that Randy Quaid was not lawfully required to attend the hearing in question, and vacated his bail bond forfeiture. The Quaids contend that reliance on the Court’s 2014 ruling has allowed plaintiffs to unjustly harass and defame Randy Quaid. The Court of Appeal on November 14, 2013, ruled in favor of Randy Quaid, vacating his bail bond forfeiture and finding he was not lawfully required to attend the hearing. In spite of the ruling, Judge Sterne on July 28, 2014 issued a ruling declaring that Mr. Quaid was required to appear, and cited the Doctrine of Fugitive Disentitlement to bar him from seeking civil redress. His Code of Civil Procedure section 170.6, filed on December 29, 2020, was ignored by the court, as was a January 8, 2021 request for judicial notice and declaration of prejudice. The motion argues that use of the ruling to paint Mr. Quaid as a felony fugitive has caused significant harm, and has unjustly maligned his character. Since the Court of Appeal determined he was not lawfully required to attend the hearing, this court must adhere to that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450; Code Civ. Proc., § 43.) Randy Quaid therefore requests that the court strike all references to and citations of the July 28, 2014 ruling, and bar any future use of it by plaintiffs and their counsel. Opposition The Turicchis have opposed the motion, contending that the November 14, 2013 decision by the Court of Appeal was on a technical bail bond requirement, and had nothing to do with the Court’s July 28, 2014 order quashing the Quaids’ subpoena based upon the Doctrine of Fugitive Disentitlement. Only the bail bond forfeiture was vacated by the Court of Appeal decision, and that was on the basis that the court (the Honorable Frank Ochoa) should have forfeited the bond for Randy Quaid in court on November 2, 2010, as he had done for Evi Quaid, but instead continued the forfeiture issue to November 16, 2010, but then reconsidered his November 2 hearing on November 5, and ordered that the bond be forfeited nunc pro tunc to November 2, 2010. The Court of Appeal also found that, had Judge Ochoa waited until the next scheduled hearing on November 16 and, if Randy Quaid failed to appear, order forfeiture of the bond at that time, his actions would have been proper. He simply could not order forfeiture of the bond at a time when there was no scheduled hearing, since a bond can only be forfeited when a person subject to the bond does not appear at a hearing. It was only for that reason that the forfeiture was ordered reversed.None of the issues which formed the basis for the Court of Appeal’s decision had anything to do with the fact that the Quaids were fugitives for justice, which is the issue this Court decided on July 28, 2014. Consequently, there is no basis to strike the 2014 order or any reference to it in this case. Further, the Quaids remain fugitives from justice, and the Doctrine of Fugitive Disentitlement still applies to them. The Turicchis request judicial notice of the Criminal Complaint against the Quaids, which is still pending, arguing that their failure to return to California to face those charges makes them continue to be fugitives from justice. Reply The Quaids filed extensive reply papers. They first focus upon the language of the Court of Appeal that Randy Quaid “. . . was not obligated to appear,” and argue that tit doesn’t matter that the appellate ruling was based on a technicality due to a lower court’s error, and its language is binding on this court. They contend that even if the ruling was based on a technicality, it still provides a strong legal foundation for arguing that Randy Quaid was subject to unlawful procedures, reinforcing his case for relief under Code of Civil Procedure section 473(b). The Quaids argue that plaintiffs failed to distinguish facts leading to the 2013 appellate decision, including misidentifying the judge whose decision to forfeit an alleged bail bond nunc pro tunc was overturned. They assert that the 2013 decision is not irrelevant to the 2014 order, contending that the ruling quashing the Quaids’ subpoena was based upon a Quaid attorney disqualification issue, and the court tacked on as an alternative reason the Doctrine of Fugitive Disentitlement, effectively branding the Quaids as felony fugitives who failed to appear. Plaintiffs defend the ruling’s flawed reasoning, but the appellate ruling is what it is, and must be honored. The Quaids then raise an issue regarding findings of the California Department of Insurance regarding the validity of the forfeiture of Evi Quaids’ bail bond in 2010. They note that they sued the American Surety Company (ASC) in Indiana in 2014, and that ASC turned over the results of the California Department of Insurance investigation that agreed with the Quaids’ 2013 complaint that the Quaids took no cash bail in exchange for their September 2010 release, as the Santa Barbara District Attorney and Santa Barbara Sheriff’s Department falsely contained in their motions and statements in court. An August 12, 2013 Department of Insurance letter to ASC declared the Quaids’ complaint regarding the bail bonds to be justified under Section 2694 of the California Code of Regulations, agreeing with the Quaids that they took no bail bonds in exchange for their September 2010 release, and that the alleged bail bonds were extortionate. ASC concealed those findings from the Court of Appeal at the time it was considering the bail forfeiture issue. With no proper notice from the bond company as to their next appearance, the Quaids were not required to appear and the warrants for non-appearance are not valid. There was also never a bail hearing after the Quaids’ September 2010 false arrest. As a result, neither plaintiffs nor the Court can label the Quaids as “felony fugitives”, and all references to them as such must be stricken in the interests of fairness. The Quaids then include a section entitled “The Turicchis’ nefarious motives and misleading statements,” in which they argue that the Turicchis had no interest in the property and did not own it in 2010, since they had not yet owned it for five years, contending that the court’s summary adjudication ruling gave the Turicchis’ ownership as of 2012. They may claim they believed they owned the property based upon the forged, void deed form Berman, and that the Quaids are felony fugitives, but the Cobb forensic evidence, the Berman dissolution agreement, the Department of Insurance findings, the Vermont Superior Court denial of extradition based upon the District Attorney’s failure to show probable cause, the District Attorney’s numerous procedural errors, all supported by well-settled law, “dispel that illusion.” The Quaids argue that the Turicchis are relying on their own “false” citizen’s arrest of the Quaids for trespassing a property in which the Turicchis had no legal interest in 2010, so as to smear the Quaids as felons in 2023 and 2024. The charges were brought against the Quaids based solely on the Turicchis’ misleading and perjured statements and fabricated evidence of a broken mirror that they have admitted in writing was not broken. The Quaids’ argue that their Fifth Amendment rights were violated when they were not properly noticed for an appearance, and the invalid bail bonds and misimpressions by the District Attorney’s office continue to unfairly deprive them of their liberty. The District Attorney’s and Sheriff’s errors have compromised their right to a fair trial and violated their Sixth Amendment rights. They are being treated from other similarly situated, in violation of their Fourteenth Amendment right to equal protection under the law. The issuance of warrants based on insufficient evidence and procedural errors is an unreasonable seizure without due process, in violation of the Quaids’ Fourth Amendment rights. ANALYSIS: For the reasons more fully articulated below, both motions will be denied. Motion to compel compliance with subpoena The motion is denied. Apart from the significant technical insufficiencies with the subpoena, and the fact that the discovery cut-off took place in this case prior to the date for production set forth in the subpoena, the motion simply makes no attempt to explain how or why any such photo has any possible relevance to the remaining claim in this action, i.e., the Turicchis’ claim against the Quaids for slander of title. Indeed, even if the other claims alleged by the Turicchis against the Quaids had not already been adjudicated in this action, the photo at issue in the subpoena does not appear to have any relevance to those claims either. Further, the Quaids apparently seek the actual photograph so that they can conduct tests on the photograph to determine whether it was altered or manipulated in some manner, but they have never explained how that fact has any relevance to any issue in this action. It doesn’t even appear to have relevance to the claims which the Quaids attempted to insert into this action, with respect to their previously-heard motion for leave to file a cross-complaint for identity theft, mail theft, and mail fraud. Certainly, it appears from the motion that the Quaids took considerable offense from the posting of the sign and its contents. However, that does not mean it has any relevance to the action. Finally, the Turicchis have indicated that they have not been able to locate anything other than the PDF copy of the photograph which they provided to the Quaids. The Court simply cannot compel a party to produce something they do not have. For these reasons, the Court has no option but to deny the motion to compel compliance with the subpoena. Motion to strike reference to July 28, 2014 ruling The motion is denied.While the current motion is fashioned as a motion to strike, it appears to the Court to be more of a motion in limine to preclude any reference to the 2014 ruling at the trial of this action, and the Court will evaluate it as such.In order to resolve the current motion, reference to several distinct bodies of law is necessary, including: (1) Availability of a bench warrant for a felony defendant’s failure to appear for arraignment; and (2) Impact (or lack of impact) on the availability of a bench warrant caused by the invalidity of a trial court’s order of forfeiture of bail, and/or the invalidity of a bail bond in general. 1. Arraignments and bench warrants.Pursuant to Penal Code section 977(b)(1), one who is charged with a felony “shall be physically present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at all time of the imposition of sentence. . . .” Pursuant to Penal Code section 978.5(a) permits issuance of a bench warrant of arrest when a defendant fails to appear in court as required by law. Further, Penal Code section 979 provides that if a defendant has been discharged on bail, and does not appear to be arraigned when his personal presence is necessary, the court, in addition to the forfeiture of the undertaking of bail may order the issuance of a bench warrant for his arrest. The fact that felony defendant does not have actual notice of the hearing date at which their presence in court was required by law has no impact on the validity of the bench warrant issued based upon their failure to appear. (Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)“One who, with knowledge that he is being sought pursuant to court process in a criminal action, absents himself or flees is a fugitive from justice.” (People v. Kubby (2002) 97 Cal.App.4th 619, 624, quoting Estate of Scott (1957) 150 Cal.App.2d 590, 592.) 2. Bail Forfeiture. Penal Code section 1305(a)(1) provides that “a court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient cause, a defendant fails to appear for any one of the following: (A) Arraignment. (B) Trial. (C) Judgment. (D) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. (E) To surrender himself or herself in execution of the judgment after appeal. Pursuant to Penal Code section 1305.1, if a defendant fails to appear for arraignment (or other specified events at which personal appearance is required), but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it demes reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. If, after making the order, the defendant, without sufficient cause, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant’s arrest may be issued.3. Application to the Quaids.The essence of the Quaids motion, as best as this Court has been able to discern, is that any mention of the fugitive disentitlement doctrine, or the Court’s 2014 ruling regarding application of that doctrine to them in another case, is improper because they are not actually “fugitives from justice.” In making that argument, they rely upon language set forth in County of Santa Barbara v. American Surety Company (2013) 2013 WL 6018066, to the effect that Randy was not required to be in court on November 5, 2010, the date on which his bail was ordered forfeited. The argument misunderstands both what occurred, and what was determined by the Court of Appeal in that case. According to the recitation of facts set forth in the appellate decision, the Quaids were arrested for felony vandalism on September 18, 2010, and bail was posted for their release on September 19, 2010. When they failed to appear at the October 18, 2010 arraignment (a hearing at which, as felony defendants, their presence was mandated by the provisions of Penal Code section 977(b)(1)), the Quaids attorney requested a continuance, and the trial court continued the arraignment to October 26, 2010. Several days later it was discovered that the Quaids were in Canada. On October 22, 2010, based upon their non-appearance and flight risk, the court granted the prosecution’s motion to increase their bail to $500,000 each. On October 26, 2010, the attorney again appeared and requested that the arraignment again be continued, and the trial court continued the arraignment to November 2, 2010, and ordered the $50,000 bench warrants to remain outstanding. After the hearing, the bail agent posted a $500,000 bail bond on each bench warrant. On November 2, 2010, the Quaids failed to appear. The trial court ordered Evi Quaid’s $500,000 bail forfeited. It recalled Randy’s bench warrant and ordered it held to November 16, 2010, pursuant to Section 1305.1. On November 5, 2010 (a date on which no hearing was scheduled at which the Quaids’ presence was required by law under Section 977(b)(1)), the trial court reconsidered its ruling, found there was no good cause for Randy’s non-appearance, and ordered Randy’s bail forfeited nunc pro tunc as of November 2, 2010. While the law regarding the issuance of bench warrants and the law regarding the forfeiture of bail frequently operate in tandem, give that both are triggered by the failure to appear for a hearing at which the felony defendant is required by law to personally appear, they are separate and distinct. The forfeiture of a bail bond for a defendant who has failed to appear in court when required by law, has no impact on the validity of a bench warrant for an individual’s arrest, based upon the same failure to appear in court when required by law. The Quaids were required by law to personally appear in court for their arraignment, and for each successive, continued hearing date for such arraignment, including October 18, 2010, October 26, 2010, November 2, 2010, and November 16, 2010. They did not do so. As a result, the bench warrant that had been issued based upon their failure to appear for their arraignment was valid and enforceable, regardless of whether their bail was either properly or improperly imposed or ordered forfeited. For as long as the bench warrant remains in effect, the Quaids are considered “fugitives from justice,” because they are fully aware that they are being sought pursuant to court process in a criminal action. (See People v. Kubby (2002) 97 Cal.App.4th 619, 624, quoting Estate of Scott (1957) 150 Cal.App.2d 590, 592.) This is true regardless of whether they had advance notification of the precise date for the arraignment. (See Valderas v. Superior Court (2021) 72 Cal.App.5th 172, 181-183.)The reason the Court of Appeal found that it was impermissible for the trial court to declare a forfeiture of Randy’s bail on November 5, 2010, was that there was no hearing set on that date at which Randy was required by law to personally appear. This is also why the Court of Appeal noted that it would have been proper for the trial court to declare the forfeiture in open court on November 2, 2010 (a scheduled date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305), or November 16, 2010 (a continued hearing date for the arraignment, at which Randy Quaid was required to personally appear in court pursuant to Penal Code section 1305.1). Nothing in the Court of Appeal opinion ever said that either Randy Quaid or Evi Quaid were not required to personally appear in court for their arraignment, no matter what date it was scheduled for.While the Quaids also, in their reply papers, make arguments with respect to the validity of the criminal charges against them, that issue, too, is irrelevant to the question of whether they are truly fugitives from justice. Legally, their remedy is to submit to the jurisdiction of the criminal court and establish their claims before that court at trial. Because the validity of the criminal charges against them, the validity of the bail bonds which were issued, and the validity of a trial court’s order of forfeiture of the bail bond, all have absolutely no impact on the validity of the bench warrant issued by the trial court based upon their failure to appear at a hearing at which their appearance was required by law (i.e., arraignment), the basis for their motion—that they are not in fact fugitives from justice because they were not required to be present in court—is legally erroneous, requiring that the motion be denied. 4. Future proceedingsHaving ruled on the motion that was filed, the Court notes that there could be other bases for an order precluding the mention of the Quaids’ fugitive status at trial, which were not raised in the motion. Due process would preclude the Court from entertaining at this time any grounds for exclusion that were not raised by the moving papers, and for which the parties have not notice or an opportunity to respond. The Trial Confirmation Conference for this action is currently scheduled for January 27, 2025. Prior to the commencement of trial, the parties will have an opportunity to present motions in limine to address evidence which the party contends should not be admitted or mentioned in front of the jury. This would include motions based upon Evidence Code section 352, which provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.Certainly, the fact does not readily appear to have any significant relevance to the remaining slander of title cause of action against them, which will be the subject of the upcoming trial. However, the Court has not evaluated the issue, nor has it reached any conclusion regarding whether evidence of the Quaids’ alleged fugitive status would meet the standards for exclusion under Section 352, and is merely positing that it would be amenable to considering a properly supported motion in limine made on this basis, when the time for trial nears.
Ruling
MARTHA BENCOMO VILLAR VS WELLS FARGO, NATIONAL ASSOCIATION, A CORPORATION, ET AL.
Aug 22, 2024 |23NWCV00583
Case Number: 23NWCV00583 Hearing Date: August 22, 2024 Dept: SEC VILLAR v. WELLS FARGO CASE NO.: 23NWCV00583 HEARING: 08/22/24 #2 Plaintiffs unopposed motion for terminating sanctions is GRANTED. Defendant FRANCISCO BENCOMO JR.S Answer is STRICKEN. The request for monetary sanctions is DENIED. The Court sets an OSC Re: Default/Default Judgment as to Defendant FRANCISCO BENCOMO JR. for September 13, 2024 at 9:30 a.m. in Dept. SE-R. Moving Party to give notice. No Opposition filed as of August 19, 2024. Due by August 9, 2024. (CCP §1005(b).) CCP §2023.010 includes: (d) Failing to respond or to submit to an authorized method of discovery. CCP §2023.030 provides, in part: To the extent authorized by this chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, may impose the [sanctions] against anyone engaging in conduct that is a misuse of the discovery process, including monetary and issue and terminating sanctions. Failing to respond to an authorized method of discovery and disobeying a court order to provide discovery are both misuses of the discovery process. (CCP §§2023.010 (d) and (g).) Sanctions which may be imposed for a misuse of the discovery process include terminating sanctions. Plaintiff seeks terminating sanctions on the basis that Defendant FRANCISCO BENCOMO JR. (Defendant) is refusing to participate in the discovery process. Specifically, Defendant has failed to comply with this Courts May 9, 2024 Discovery Order. Defendant does not oppose the instant Motion. It is a commonly stated axiom that discovery sanctions should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) However, a court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with discovery obligations. The refusal to reveal material evidence is deemed to be an admission that the claim or defense is without merit. (Id. at 794-795.) Where no Opposition to the instant Motion has been filed as of August 19, 2024, it is undisputed that Defendant is unwilling to comply with their discovery obligations. The Court finds that terminating sanctions are warranted here. The information sought by Plaintiff is important to this case. Defendants blatant refusal to participate in this litigation supports the conclusion that lesser sanctions would not be appropriate. The motion for terminating sanctions is GRANTED as indicated above. Defendants Answer is STRICKEN. The Court DENIES monetary sanctions as terminating sanctions are sufficient redress.
Ruling
Frank Betancourt, et al vs Richard Betancourt
Aug 19, 2024 |23CV02511
23CV02511BETANCOURT v. BETANCOURT PLAINTIFFS’ MOTION FOR INTERLOCUTORY JUDGMENT OF PARTITION ON THE PLEADINGS AND APPOINTMENT OF REFEREE The motion for judgment on the pleadings is granted.Plaintiffs Frank A. Betancourt and Gidget M. Martinez seek the partition of property located at229 Elm St., Watsonville CA. They wish to force the sale since they, along with defendant(presumably their sibling), all own a third of the property. Defendant refuses to sell and contendsplaintiffs have benefited from rental income of the property not shared with him. (Verifiedanswer ¶ 1.) Plaintiffs ask the court to appoint a professional referee with full authority topartition the property, take possession for the purpose of terminating any tenancies, list it for saleand disburse the proceeds to all parties. In 1991, a grant deed transferred the property to Gloria E. Betancourt as her sole andseparate property. (Verified complaint ¶ 9.) On 9/12/18, a grant deed transferred the property toGloria Esther Betancourt, Frank Amador Betancourt (plaintiff), Richard Anthony Betancourt(defendant), and Gidget Marie Martinez (plaintiff), all unmarried, taking the property as jointtenants with rights of survivorship. (Verified complaint ¶ 12.) On 10/18/23, the affidavit of thedeath of joint tenant, Gloria Betancourt, was recorded. (Verified complaint ¶ 11.) Plaintiffs have not waived any right to partition and there are no encumbrances on theproperty. (Verified complaint ¶¶ 17, 21.) Defendant, in pro per, was served by email and regular mail. He filed an untimelyopposition on 8/15/24, over a week late. The opposition states the home has been the only homehe’s known and he is honoring his deceased mother by keeping and fixing it. He says his nephewlives in the home. His verified answer admits he has a 33.33% interest in the property as a jointtenant. (Verified answer ¶ 1.) Partition is an equitable action that is governed by statute. (Code Civ. Proc. § 872.010 etseq.; all statutory references are to the Code of Civil Procedure.) Property may be partitioned byphysical division, sale of the property and division of the proceeds, or court approved andsupervised partition by appraisal. (§§ 873.210-290, 873.510-850, 873.910-980.) “The interests ofthe parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the Page 1 of 4action.” (§ 872.610.) “Court determination of right to partition. At the trial, the court shalldetermine whether the plaintiff has the right to partition.” (§ 872.710(a) (emphasis added).) If thecourt finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment thatdetermines the interests of the parties in the property and orders the partition of the property. (§872.720(a).) Thereafter, the court shall order that the property be divided in accordance with theparties’ interests as determined in the interlocutory judgment. (§ 872.810.) If the court orderssale, the court shall appoint a referee to divide and sell the property. (§§ 872.010, 873.020.) Allegations in verified pleadings are binding judicial admissions and can support motionsfor judgment on the pleadings. “‘The admission of fact in a pleading is a ‘judicial admission.’’(Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 [127 Cal. Rptr.2d 436].) A judicial admission in a pleading is not merely evidence of a fact; it is a conclusiveconcession of the truth of the matter. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 218[51 Cal. Rptr. 2d 642].) ‘Well pleaded allegations in the complaint are binding on the plaintiff attrial.” (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 455, p. 587.)’” (Bucur v. Ahmad(2016) 244 Cal.App.4th 175, 187.) On a motion for judgment on the pleadings, as on a demurrer, the court must accept theallegations of the complaint and answer as true. (Gerawan Farming, Inc. v. Lyons (2000) 24Cal.4th 468, 515.) This motion is granted since the relief sought is appropriate considering the verifiedadmissions of ownership by all three owners. Plaintiffs’ Request for Judicial Notice: 1-3. Filed documents in this action: Denied, the court need not take judicial notice of itsown records in the action. 4-5. Recorded deed and affidavit of joint tenant: Granted.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 2 of 4 LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 19, 2024 TIME: 8:30 A.M.
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Wells Fargo Bank, N.A. v. Richard Drucker EXECUTOR OF THE ESTATE OF FRANCINE TRELISKY A/K/A FRANCINE DRUCKER EXECUTRIX OF THE ESTATE OF BARRY TRELISKY A/K/A BARRY ALAN TRELISKY A/K/A ALAN BARRY TRELISKY, City Of New York Environmental Control Board, Board Of Managers Of The Manors At Elmwood Park Condominium Iii
Sep 21, 2016 |Charles M. Troia |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |135127/2018
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Wells Fargo Bank, N.A. v. Richard Drucker EXECUTOR OF THE ESTATE OF FRANCINE TRELISKY A/K/A FRANCINE DRUCKER EXECUTRIX OF THE ESTATE OF BARRY TRELISKY A/K/A BARRY ALAN TRELISKY A/K/A ALAN BARRY TRELISKY, City Of New York Environmental Control Board, Board Of Managers Of The Manors At Elmwood Park Condominium Iii
Sep 21, 2016 |Charles M. Troia |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |135127/2018
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Nationstar Mortgage Llc v. Donald Clarke, Katherine Clarke INDIVIDUALLY AND AS HEIR AND DISTRIBUTEE OF THE ESTATE OF ASTRID MOSHER A/K/A ASTRID C. MOSHER, Heirs And Distributees Of The Estate Of Astrid Mosher A/K/A Astrid C. Mosher, New York City Parking Violations Bureau, New York City Environmental Control Board, New York City Transit Adjudication Bureau, New York State Department Of Taxation And Finance, United States Of America, John Doe 1-JOHN DOE 12 THE LAST TWELVE NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF,THE PERSONS OR PARTIES INTENDED BEING THE TENANTS, OCCUPANTS, PERSONS OR CORPS, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES, DESCRIBED IN THE COMPLAINT
Dec 22, 2023 |CONFERENCE PART FORECLOSURE |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |135546/2023
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Wells Fargo Bank, N.A. v. Dorothy Fox-Dick AS HEIR AND ADMINISTRATRIX OF THE ESTATE OF STEVEN DICK, New York State Department Of Taxation And Finance, David A. Fox, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, United States Of America Acting Through The Irs, New York City Environmental Control Board, People Of The State Of New York, David Fox Jr
Jul 31, 2019 |PETER G. GEIS |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |135409/2019
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U.S. Bank National Association, Credit Suisse First Boston Mortgage Securities Corp, Csab Mortgage-Backed Pass-Through Certificates, Series 2006-4 v. Richard Tobing, New York City Environmental Control Board, New York City Transit Adjudication Bureau
Jan 24, 2014 |CONFERENCE PART FORECLOSURE |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |130055/2014
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Gasper Ferrito v. Jean Ferrito
Mar 07, 2016 |Charles M. Troia |Real Property - Other (Appointment of Referee) |Real Property - Other (Appointment of Referee) |150271/2016
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Steven Cavaliere v. Janice Mastropiero, James Cavaliere Jr
Sep 29, 2017 |Wayne Ozzi |Real Property - Other (Partition) |Real Property - Other (Partition) |152182/2017
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Nationstar Mortgage Llc, v. Sabrina Maringo Balducci AS ADMINISTRATOR, HEIR AND DISTRIBUTEE OF THE ESTATE OF CHARLES BALDUCCI A/K/A CHARLES H. BALDUCCI, Louis A. Balducci AS ADMINISTRATOR, HEIR AND DISTRIBUTEE OF THE ESTATE OF CHARLES BALDUCCI A/K/A CHARLES H. BALDUCCI, Charles Balducci Jr A/K/A CHARLIE BALDUCCI, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF CHARLES BALDUCCI A/K/A CHARLES H. BALDUCCI, Heirs And Distributees Of The Estate Of Charles Balducci A/K/A Charles H. Balducci, Discover Bank, New York City Parking Violations Bureau, New York City Environmental Control Board, New York City Transit Adjudication Bureau, First Financial Equities, Inc., John Doe #1 Through John Doe #12, the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint
May 09, 2023 |CONFERENCE PART FORECLOSURE |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |135224/2023
