SUMMONS + COMPLAINT March 06, 2023 (2024)

Preview
FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO. COUNTY OF ONONDAGA NATIONSTAR MORTGAGE LLC, Plaintiff designates ONONDAGA as the Plaintiff, place of trial situs of the real property vs. SUMMONS SARAH ROSE COSTELLO, AS ADMINISTRATRIX, HEIR AND DISTRIBUTEE OF THE ESTATE OF Subject Property: PETER P. COSTELLO; KATHRYN LOUISE 312 GLENDALE AVENUE COSTELLO, AS HEIR AND DISTRIBUTEE OF THE LIVERPOOL, NY 13088 ESTATE OF PETER P. COSTELLO; MATTHEW COSTELLO, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF PETER P. COSTELLO; SEAN COSTELLO, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF PETER P. COSTELLO; HEIRS AND DISTRIBUTEES OF THE ESTATE OF PETER P. COSTELLO; ONONDAGA COUNTY COMMISSIONER OF SOCIAL SERVICES; CAPITAL ONE BANK (USA), N.A.; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; UNITED STATES OF AMERICA, #1" #12," "JOHN DOE through "JOHN DOE 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, Defendants. To the above named Defendants YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on the Plaintiff's Attorney within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York) in the event the United States of America is made a party defendant, the time to answer for the said United States of America shall not expire until (60) days after service of the Summons; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. 1111111111111111111111111111111111111111111111 1111111111111111111111111111111111111111111111111111 1111111111111111111111111111111111111 21-081399 - Drafter: Jennifer Galczynski jg 1 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, a default judgment may be entered and you can lose your home. Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property. Sending a payment to the mortgage company will not stop the foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. Please take further notice that any right you may have pursuant to the Fair Debt Collection Practices Act to dispute the validity or amount of the debt does not change the time within which you must answer this summons and complaint. You must follow the instructions contained in the summons even if you dispute the validity or amount of the debt. Dated: February 22, 2023 Robertson, Anschutz, Schneid, Crane & Partners, PLLC Attorney for Plaintiff BY: [ ] SARA Z. BORISKIN, ESQ. [ ] ANTHONY CELLUCCI, ESQ. [ ] LUCE PIERRE-RUSSON, ESQ. [ ] STEPHANI A. SCHENDLINGER, ESQ. [X ] ANNETTE SHACHTER, ESQ. 900 Merchants Concourse, Suite 310 Westbury, NY 11590 516-280-7675 21-081399 - Drafter: Jennifer Galczynski jg 2 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 Help for Homeowners in Foreclosure New York State Law requires that we send you this notice about the foreclosure process. Please read it carefully. Summons and Complaint You are in danger of losing your home. If you fail to respond to the summons and complaint in this foreclosure action, you may lose your home. Please read the summons and complaint carefully. You should immediately contact an attorney or your local legal aid office to obtain advice on how to protect yourself. Sources of Information and Assistance The State encourages you to become informed about your options in foreclosure. In addition to seeking assistance from an attorney or legal aid office, there are government agencies and non-profit organizations that you may contact for information about possible options, including trying to work with your lender during this process. To locate an entity near you, you may call the toll-free helpline maintained by the New York State Department of Financial Services at (enter number) or visit the Department's website at (enter web address). Rights and Obligations YOU ARE NOT REQUIRED TO LEAVE YOUR HOME AT THIS TIME. You have the right to stay in your home during the foreclosure process. You are not required to leave your home unless and until your property is sold at auction pursuant to a judgment of foreclosure and sale. Regardless of whether you choose to remain in your home, YOU ARE REQUIRED TO TAKE CARE OF YOUR PROPERTY and pay property taxes in accordance with state and local law. Page 1 of 2 3 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 Foreclosure rescue scams Be careful of people who approach you with offers to “save” your home. There are individuals who watch for notices of foreclosure actions in order to unfairly profit from a homeowner's distress. You should be extremely careful about any such promises and any suggestions that you pay them a fee or sign over your deed. State law requires anyone offering such services for profit to enter into a contract which fully describes the services they will perform and fees they will charge, and which prohibits them from taking any money from you until they have completed all such promised services. Page 2 of 2 4 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA INDEX NO. NATIONSTAR MORTGAGE LLC, COMPLAINT Plaintiff, vs. Subject Property: 312 GLENDALE AVENUE LIVERPOOL, NY 13088 SARAH ROSE COSTELLO, AS ADMINISTRATRIX, HEIR AND DISTRIBUTEE OF THE ESTATE OF PETER P. COSTELLO; KATHRYN LOUISE COSTELLO, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF PETER P. COSTELLO; MATTHEW COSTELLO, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF PETER P. COSTELLO; SEAN COSTELLO, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF PETER P. COSTELLO; HEIRS AND DISTRIBUTEES OF THE ESTATE OF PETER P. COSTELLO; ONONDAGA COUNTY COMMISSIONER OF SOCIAL SERVICES; CAPITAL ONE BANK (USA), N.A.; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; UNITED STATES OF AMERICA, #1" #12," "JOHN DOE through "JOHN DOE 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, Defendants. The complaint of the above-named plaintiff, by Robertson, Anschutz, Schneid, Crane & Partners, PLLC, its attorneys, alleges upon information and belief as follows: 1. Plaintiff is organized under the laws of the United States of America or its state of formation. 2. On October 23, 1992, PETER P. COSTELLO duly executed and delivered a note whereby PETER P. COSTELLO promised to pay the sum of $56,300.00 plus interest as set forth in said note. A copy of said note is annexed hereto. 1111111111111111111111111111111111111111111111 1111111111111111111111111111111111111111111111111111 1111111111111111111111111111111111111 21-081399 - Drafter: Jennifer Galczynski jg 5 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 3. That to secure the payment of the sum represented by said note, PETER P. COSTELLO, duly executed and delivered a mortgage which was recorded as follows and the mortgage tax thereon was duly paid: Recording Date: October 26, 1992 County: Onondaga Book 6552 at Page 036 A copy of said mortgage is annexed hereto. 4. On August 27, 2009, PETER P. COSTELLO duly executed a note whereby PETER P. COSTELLO promised to pay the sum of $29,178.02 plus interest as set forth in the note. A copy of said note is annexed hereto. 5. That to secure the payment of the sum represented by the note, PETER P. COSTELLO, duly executed and delivered a mortgage which was recorded as follows and the mortgage tax thereon was duly paid: Recording Date: November 9, 2009 County: Onondaga Book 15995 at Page 720 A copy of said mortgage is annexed hereto. 6. On August 27, 2009, PETER P. COSTELLO duly executed a note whereby PETER P. COSTELLO promised to pay the sum of $69,600.00 plus interest as set forth in the note. A copy of said note is annexed hereto. 7. That to secure the payment of the sum represented by said note, PETER P. COSTELLO, duly executed and delivered a Consolidation, Extension and Modification Agreement which consolidated the mortgages referred to in paragraphs 3 and 5 above to form a single lien. Said Consolidation, Extension, Modification Agreement was recorded as follows and the mortgage tax thereon was duly paid: Recording Date: November 9, 2009 County: ONONDAGA Book 15995 at Page 739 21-081399 - Drafter: Jennifer Galczynski jg 6 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 Said mortgages, as consolidated, were assigned to Plaintiff by assignment of mortgage duly executed on a date prior to the filing of the complaint. A copy of said Consolidation, Extension and Modification Agreement is annexed hereto. 8. Plaintiff, directly or through an agent has complied with all applicable laws in an attempt to establish ownership and/or possession of the subject note and the right to foreclosure of same. Plaintiff has possession and control of the original note and mortgage, which note is secured by the mortgage identified below, and the said note is either made payable to Plaintiff or is duly indorsed. To the extent that the original note or interim assignments of mortgage are lost or unavailable, Plaintiff has the right to foreclose the subject note and mortgage pursuant to New York law. 9. Said mortgages, as consolidated, secured the real property known as 312 GLENDALE AVENUE, LIVERPOOL, NEW YORK 13088 and by Section 083., Block 01, Lot 23.0 together with all fixtures and articles of personal property annexed to, installed in, or used in connection with the mortgaged premises, all as is more fully set forth in said mortgage. A copy of the legal description is set forth on Schedule A annexed. 10. Plaintiff is the owner and holder of said note and mortgage or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the said note and mortgage. 11. PETER P. COSTELLO died on or about January 3, 2021. 12. Plaintiff has complied with all conditions precedent contained in the mortgage, if any. 13. To the extent applicable, Plaintiff has complied with RPAPL 1304 and RPAPL 1306. 14. To the extent applicable, Plaintiff has complied with all of the provisions of Banking Law § 595-a and any rules and regulations promulgated thereunder, Banking Law §§ 6-1 and 6-m. 15. To the extent applicable, Plaintiff has complied with Banking Law § 9-x. 16. That Defendants failed to comply with the conditions of the note and mortgage by failing to make the payment that became due on January 1, 2021 and each subsequent payment thereafter. 17. That by reason of such defaults, Plaintiff hereby declares the balance of the principal indebtedness immediately due and payable. 21-081399 - Drafter: Jennifer Galczynski jg 7 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 18. That there is now due and owing to the plaintiff, the principal sum of $61,334.00 with interest thereon from December 1, 2020 plus accumulated late charges together with any sums advanced by the plaintiff on behalf of defendant. 19. That plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of the payment after the date of the commencement of this action, of any or all of the defaults mentioned herein; and such election shall continue and remain effective until the costs and disbursem*nts of this action, and any and all future defaults under the aforesaid bond or note and mortgage, and occurring prior to the discontinuance of this action are fully paid. 20. That to protect its security afforded by said note and mortgage, it may be necessary for the plaintiff to pay taxes, assessments, water rates and insurance premiums which are, or may become liens on the mortgaged premises, and any other charges for the protection of the premises, and plaintiff hereby demands that any amounts which may be so expended shall be added to the amount of the principal sum secured by said note and mortgage, together with interest from the time of any such payment, and that the same be paid to the plaintiff from the proceeds of the foreclosure sale herein. 21. That the plaintiff alleges that no other proceedings have been had for the recovery of the mortgage indebtedness or if any such action is pending, a final judgment was not rendered in favor of Plaintiff and such action is intended to be discontinued. 22. That plaintiff further alleges that all the defendants have, or may claim to have, some interest in, or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, is subject and subordinate to the lien of the mortgage being foreclosed. "B" 23. The description of each of the named party defendants interest is set out on Schedule annexed. "C" 24. The interest or lien of each of the named party defendants, if any, is set forth in Schedule annexed. 25. The terms of said mortgage provide that defendants shall be liable to plaintiff for reasonable attorneys' fees incurred by plaintiff to protect or enforce plaintiff's security interest in the premises. 21-081399 - Drafter: Jennifer Galczynski jg 8 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 26. That the sale of the mortgaged premises and title thereto are subject to the state of facts an accurate survey will show; all covenants, restrictions, easem*nts, agreements and reservations, if any, of record, and to any and all violations thereof; any and all building and zoning regulations, restrictions and ordinances of the municipality in which said premises are situated, and to any violations of the same, including, but not limited to, reapportionment of lot lines, and vault charges, if any; any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises and any violation of the same; the physical condition of any building or structure on the premises as of the date of closing hereunder; rights of tenants in possession, if any; prior mortgages and judgments, if any, now liens of record; right of Redemption of United States of America, if any; rights of any defendants pursuant to CPLR Section 317, CPLR Section 2003 and CPLR Section 5015, if any; any and all Hazardous Materials in the premises including, but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or any material containing asbestos, and toxic substances; and other conditions as set forth in the terms of sale more particularly to be announced at the sale. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK 21-081399 - Drafter: Jennifer Galczynski jg 9 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 WHEREFORE, plaintiff demands judgment against the defendants as follows: A. The defendants and each of them, and all persons claiming under them, or any of them subsequent to the commencement of this action and the filing of the Notice of Pendency thereof, may be barred and foreclosed of all right, title, claim, lien and equity of redemption in the mortgaged premises; B. Said mortgaged premises be sold subject to the state of facts an accurate survey will show; all covenants, restrictions, easem*nts, agreements and reservations, if any, of record, and to any and all violations thereof; any and all building and zoning regulations, restrictions and ordinances of the municipality in which said premises are situated, and to any violations of the same, including, but not limited to, reapportionment of lot lines, and vault charges, if any; any and all orders or requirements issued by any governmental body having jurisdiction against or affecting said premises and any violation of the same; the physical condition of any building or structure on the premises as of the date of closing hereunder; rights of tenants in possession, if any; prior mortgages and judgments, if any, now liens of record; right of Redemption of United States of America, if any; rights of any defendants pursuant to CPLR Section 317, CPLR Section 2003 and CPLR Section 5015, if any; any and all Hazardous Materials in the premises including, but not limited to, flammable explosives, radioactive materials, hazardous wastes, asbestos or any material containing asbestos, and toxic substances; and other conditions as set forth in the terms of sale more particularly to be announced at the sale. C. Said premises may be decreed to be sold in one parcel according to law subject to the various items set forth in allegations of the complaint herein; D. The monies arising from the sale may be brought into court; E. Plaintiff may be paid the amount due on said note and mortgage as alleged herein, together with interest to the time of such payment, together with the sums expended by plaintiff prior to and during the pendency of this action, and for thirty days after any sale demanded herein for taxes, water rates, sewer rents, assessments, insurance premiums and other necessary and essential charges or expenses in connection therewith to protect the mortgage lien, plus any sums expended for the protection or preservation of the property covered by said mortgage and note, and the amount secured thereby, with interest thereon from the time of such payment and the attorneys' costs and expenses of this action including reasonable fees so far as the amount of such monies properly applicable thereto will pay the same; F. The plaintiff be decreed to be the owner of any and all personal property used in connection with the said mortgaged premises, except if discharged in bankruptcy; 21-081399 - Drafter: Jennifer Galczynski jg 10 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 G. The obligors may be adjudged to pay any deficiency which may remain after applying all of said monies so applicable thereto unless the obligors were discharged in bankruptcy; H. awarding the relief requested in the additional causes of action stated in the complaint, if any; I. Plaintiff shall have such other and further relief or both, in the premises as shall be just and equitable. Dated: February 22, 2023 Robertson, Anschutz, Schneid, Crane & Partners, PLLC Attorney for Plaintiff BY: [ ] SARA Z. BORISKIN, ESQ. [ ] ANTHONY CELLUCCI, ESQ. [ ] LUCE PIERRE-RUSSON, ESQ. [ ] STEPHANI A. SCHENDLINGER, ESQ. [X ] ANNETTE SHACHTER, ESQ. 900 Merchants Concourse, Suite 310 Westbury, NY 11590 516-280-7675 21-081399 - Drafter: Jennifer Galczynski jg 11 of 83FILED: ONONDAGA COUNTY CLERK 03/06/2023 03:51 PM INDEX NO. 002008/2023NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/06/2023 " '"" .. NOTE Muhistate OCKER 23, 1992 IDal 312 GIBlDALE AVEEE, LIVERPOOL, NY 13088 1%"ny mee=) 1. PARTtES "BorNwer" "itnder" means each person signing at the end of this Note, and the person's successors and assigns. means NVR 1EEISWEE L.P. I ND. and its successors and assigns. 2. BORROWER'S PROMISE TO PAY; INTEREST In return for a loan received fNm Lender, Borrower promises to pay the principal sum of FIliTY SIX IMXIBAE, TlIREE liONEEtIB AND m /100 Dollars (U.S. $ 56, 300.00 ), Plus interest, to the order of (ander. Interest will be charged on unpald principal, from the date of disbursem*nt of the loan proceeds by lander, at the rate of EIGHT per cent ( 8.000 %) per year until the full amount of principal has been paid. 3. PROMISE TO PAY SECURED Bormwer's pmmise to pay is secured by a mortgage, deed of trust or similar security instrument that is dated the same date as this Note and called the "Security Instrument." That Securit y Instrument protects the I£oder from losses which might result if Bormwer defaults under this Note. 4. MANNER OF PAYMENT (A) Time Bormwer shall make a payment of principal and interest to lander on the first day of each month beginning on IlEICENBER 1 , 1992 . Any principal and interest remaining on the first

Related Contentin Onondaga County

Case

WELLS FARGO BANK, NA v. MURPHY, WILLIAM C. AKA GARRAN MURPHY-

Jul 05, 2016 |Young, Hon. Kevin G. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |16-0490

Case

BANK OF AMERICA v. ARNO, JULIE C. AND JOHN DOE 1 THROUGH

Feb 11, 2013 |DeJoseph, Hon. Brian F. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |12-5406

Case

US BANK NATIONAL ASSOCIATION, AS TRUSTEE v. RINALDI, JOHN R. JR.; SELECT CREDIT

Jan 06, 2014 |Paris, Hon. Anthony J. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |13-5560

Case

WELLS FARGO BANK, NA v. VIRGINIA, NICOLE D.; THE PEOPLE OF THE

Aug 05, 2015 |Hafner Jr., Hon. Walter W. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |15-0842

Case

MIDFIRST BANK v. CALAGIOVANNI, ALICIA S. AS PUBLICADMIN O

Feb 24, 2015 |Young, Hon. Kevin G. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |11-1891

Case

JOMORGAN CHASE BANK, N.A. S/B/M CHASE H v. SNOW, CHRISTOPHER A. A/K/A CHRISTO

Case

PHH MORTGAGE CORP v. HILLBORN, JOHN, INDIVIDUALLY AND AS SUCC

Aug 16, 2016 |Murphy, Hon. James P. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |15-0403

Case

ROUNDPOINT MORTGAGE SERVICING CORP v. MATRO, STEPHEN N.; CHERYL ANN SMITH A

May 27, 2016 |Karalunas, Hon. Deborah H. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |16-0244

Case

US BANK NATIONAL ASSOC AS TRUSTEEUNDER P v. SAKRAN, NANCY; USA-INTERNAL REVENUE

Feb 10, 2016 |Karalunas, Hon. Deborah H. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |13-0752

Ruling

PHH MORTGAGE CORPORATION VS GLENDA S. AHHAITTY, ET AL.

Oct 15, 2024 |Shannon M Gerhart |24PSCV00396

Case Number: 24PSCV00396 Hearing Date: October 15, 2024 Dept: H Plaintiff PHH Mortgage Corporations Application for Default Judgment is DENIED without prejudice. Background Plaintiff PHH Mortgage Corporation (Plaintiff) alleges as follows: Glenda S. Ahhaitty (Ahhaitty) acquired title to the property located at 1119 Angelcrest Drive in Hacienda Heights (the subject property) via a grant deed recorded on July 5, 2001. On or around March 10, 2012, Ahhaitty obtained a loan, which was secured by a deed of trust recorded on April 6, 2012 (the subject deed) in favor of Mortgage Electronic Registration Systems (MERS), acting solely as nominee for Ally Bank, as beneficiary. The legal description in the subject deed is incorrect. The subject deed was assigned to Plaintiff via a Corporate Assignment of Deed of Trust recorded on April 17, 2019. Notices of Federal Tax Lien were recorded on September 6, 2016 and February 18, 2018, respectively. Notices of State Tax Lien were recorded on November 8, 2017 and June 16, 2022, respectively. The subject deed is presently in default, but Plaintiff is unable to proceed with a nonjudicial foreclosure due to the mistaken legal description therein. On February 7, 2024, Plaintiff filed a complaint, asserting causes of action against Ahhaitty, Department of the Treasury-Internal Revenue Service, The Franchise Tax Board of the State of California (FTB), and Does 1-10 for (1) reformation and (2) declaratory relief. On March 26, 2024, a Disclaimer of the United State of America was filed. On April 24, 2024, the Clerk entered default against FTB and Ahhaitty. An Order to Show Cause Re: Default Judgment is set for October 15, 2024. Discussion Plaintiffs Application for Default Judgment is denied without prejudice. The following defect is noted: [A] claim for reformation of an instrument based on fraud or mistake is subject to a three-year statute of limitations. (Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 162; Code Civ. Proc., § 338, subd. (d).) Further, [a] claim for declaratory relief is subject to the same statute of limitations as the legal or equitable claim on which it is based. (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 943.) Plaintiff, through its complaint filed February 7, 2024, seeks reformation of a deed of trust recorded on April 6, 2012. The Court directs Plaintiff to provide supplemental briefing as to the statute of limitations. Accordingly, the Court denies Plaintiffs application without prejudice and directs Plaintiff to submit a new default judgment application that addresses the aforementioned issue.

Ruling

James White, Jr. vs. First American Title/Eagle Insurance Co.

Aug 22, 2024 |C24-01908

C24-01908CASE NAME: JAMES WHITE, JR. VS. FIRST AMERICAN TITLE/EAGLE INSURANCE CO. HEARING IN RE: PRELIMINARY INJUNCTION - SET PER EX PARTE ORDER FILED 7/30/24FILED BY: WHITE, JAMES BRUNELL, JR.*TENTATIVE RULING:*Plaintiffs appeared at an ex parte hearing on July 30 seeking a TRO against a foreclosure sale set tooccur that same day. The TRO was denied for multiple reasons, and this date was set for hearing on apreliminary injunction, though with the observation that the point was likely to be mooted either bythe lender agreeing to forbear, or by the foreclosure sale occurring in the meantime.Defendant has filed a response stating that the foreclosure sale did in fact go forward on July 30,which moots the request for an injunction against it proceeding. The motion for preliminaryinjunction is therefore denied as moot.The Court does not know if plaintiffs intend to proceed in any further way in this lawsuit. If they donot, they should file a dismissal. If they do intend to proceed, they are granted leave to file a firstamended complaint updating their claims and allegations in light of the intervening foreclosure sale.The Court notes, however, that there is nothing in the Court’s file showing that plaintiffs had everserved any pleadings, motions, or ex parte papers on defendant. Evidently defendant did receiveword of the proceedings by one means or another, as it filed a response to the preliminary injunction.Plaintiffs are reminded, however, that for any papers they file in Court, they must (1) serve a copy onthe other side’s lawyers, and (2) file a proof of service with the Court showing that they did so.The case management conference now calendared for November 5 will also be an order to showcause as to why the case should not be dismissed for lack of prosecution. If plaintiffs have filed andserved no amended complaint by then, the Court will assume that they do not intend to proceed withthe lawsuit and will dismiss it accordingly. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 12 JUDICIAL OFFICER: CHARLES S TREAT HEARING DATE: 08/22/2024

Ruling

RICHARD PAUL HOSKING et al vs. JABEZ NINNIS et al

Aug 28, 2024 |24CV13578

No appearances necessary. On July 19, 2024, the Court ordered that summons be served by publication. Upon review of Plaintiff’s CMC statement, publication is anticipated to be complete by September 13, 2024. Plaintiff is ordered to file a proof of service prior to the next hearing date. The matter is continued for further CMC to October 30, 2024 at 1:30 p.m. in Dept. 3. Updated CMC Statements must be filed and served at least 15 days prior to the CMC.

Ruling

ORIAN vs ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUI

Aug 29, 2024 |RIC1810028

ORIAN VS ALL PERSONS MOTION FOR SUMMARY JUDGMENTRIC1810028 UNKNOWN CLAIMING ANY ON 1ST AMENDED CROSS-LEGAL COMPLAINT OF LUIS GARCIATentative Ruling:The Motion for Summary Judgment as against Cross-Defendant A. Pathak is granted for reasonCross-Complainants have met the initial burden of producing evidence on each element of everycause of action justifying a summary judgment as to the entire action. Once the burden shifted,A. Pathak failed to meet his burden of producing controverting evidence raising a triable issue offacts as to any cause of action.Cross-Complainants’ Requests for Judicial Notice:Nos. 2-38: is granted only as to “the fact of a document’s recordation, the date the document wasrecorded and executed, the parties to the transaction reflected in a recorded document, and thedocument’s legally operative language, assuming there is no genuine dispute regarding thedocument’s authenticity”; and “from this, the court may deduce and rely upon the legal effect ofthe recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank,N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New CenturyMortgage Corp. (2016) 62 Cal.4th 919; see Poseidon Development, Inc. Woodland Lane Estates,LLC (2007) 152 Cal.App.4th 1106, 1118 [judicial notice properly taken of the legal effect ofassignment of deed of trust].)Nos. 1, 39-52: is granted only to extent these documents exist as part of record or file of a courtin this state or the United States and should not be accepted as true matters stated, unless thematters are indisputably true. (Evid. Code, §452(d) [judicial notice may be taken of records of anycourt of this state or United States]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.)Cross-Complainants’ evidentiary objectionSustained.

Ruling

MURAL MEDIA, LLC 401K PLAN VS LINDA J. MAULTSBY

Sep 03, 2024 |23STCV25631

Case Number: 23STCV25631 Hearing Date: September 3, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING MURAL MEDIA, LLC 401K PLAN, Plaintiff, v. LINDA J. MAULTSBY, et al., Defendants. Case No: 23STCV25631 Hearing Date: September 3, 2024 Calendar Number: 5 Defendant Linda J. Maultsby (Maultsby) demurs to the First Amended Complaint (FAC) filed by Plaintiff Mural Media, LLC 401K Plan (Plaintiff). The Court SUSTAINS the demurrer WITH LEAVE TO AMEND so that Plaintiff may allege what type of entity it is and the legal basis for its capacity to sue. Plaintiff shall amend within ten days. Background This is an unlawful detainer case. The following facts are taken from the allegations and attached exhibits in Plaintiffs Complaint, except where otherwise noted. Plaintiff is the owner of real property that is legally described as Lot 446 of Tract No. 1446, in the City of Los Angeles, County of Los Angeles, State of California, as per Map recorded in Book 20, Page 34 of Maps, in the office of the County recorder of said County (the Property). The Property contains a multi-unit building which is comprised of four units with the following addresses: (1) 2757 South Mansfield Avenue, Los Angeles, CA 90016; (2) 2759 South Mansfield Avenue, Los Angeles, CA 90016; (3) 5107 Westhaven St., Los Angeles, CA 90016; and (4) 5109 Westhaven St., Los Angeles, CA 90016. Defendant is a tenant at the Property pursuant to a lease agreement that pre-dates Plaintiffs ownership of the Property. Defendant occupies 2759 South Mansfield Avenue, Los Angeles, CA 90016 (the Unit). Plaintiff entered an agreement to sell the Property to a third party. The third party wished to inspect the Property, including the Unit. On August 9, 2023, Plaintiff served on Defendant a notice requiring Defendant to permit an inspection of the Property and Unit. Plaintiff subsequently delivered a second letter requesting the same, on an unspecified date. Defendant did not allow Plaintiff to inspect the Property and the Unit. Plaintiff alleges that on August 11, 2023 and August 24, 2023, Plaintiff served a written notice on Defendant to allow the inspections of the Property and Unit or quit and deliver possession of the Property and Unit to Plaintiff within three days. (Complaint, Ex. 2 (the August 24 Notice.) Plaintiff only attaches a copy of the August 24, 2023 notice, and not the August 11, 2023 notice. Exhibit 2 does not contain a request that Defendant permit inspection of the Property and Unit. Rather, Exhibit 2 states that Defendants right to occupy the Unit will be terminated because the Property was sold at a non-judicial foreclosure sale on May 9, 2023. On September 1, 2023, Plaintiff filed a complaint against Defendant in the Superior Court for the County of Los Angeles Stanley Mosk Courthouse, Department 78, Case No. 23STCV21442 (the Department 78 Action), raising a claim for unlawful detainer. (Request for Judicial Notice, Ex. A.) The complaint in the Department 78 Action seeks restitution and possession of the Property and Unit, damages, and costs of suit. The complaint in the Department 78 action attaches as Exhibit 2 a three-day notice to quit that was served on August 24, 2023 and is identical to the August 24 Notice attached as Exhibit 2 in this action. On October 20, 2023, Plaintiff filed this action (the Department 72 Action), raising a claim against Plaintiff for unlawful detainer. The Complaint seeks restitution of the Unit, damages, and costs of suit. On February 29, 2024, the Court stayed this case pending the resolution of the Department 78 Action under the doctrine of exclusive concurrent jurisdiction. On May 14, 2024, judgment was entered for Defendant in the Department 78 Action as a result of Defendants demurrer in that case. On July 18, 2024, the Court issued an order lifting the stay on this case and granting Plaintiff leave to amend to correct a number of deficiencies in the Complaint, to plead an alternate cause of action based on a Notice to Quit that was served after this case was initiated by Plaintiff, and to name additional alleged occupants of the Property as defendants. On July 25, 2024, Plaintiff filed the FAC against Defendants Maultsby, Jaccoma Maultsby, Jezreel Maultsby, Charmaine Thompson, Blanca Estala Tinoco, Jorge Tinoco, and Olivia Weaver, raising two causes of action for unlawful detainer. On July 31, 2024, Maultsby demurred to the FAC. Plaintiff filed an opposition and Maultsby filed a reply. Requests for Judicial Notice The Court grants the parties requests for judicial notice and takes notice of the requested public records. Legal Standard The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (h) No certificate was filed as required by Section 411.35. (Code Civ. Proc., § 430.10.) As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Discussion Capacity to Sue The FAC does not allege that Plaintiff has capacity to sue. As discussed above, lack of capacity is properly raised on demurer. (Code Civ. Proc., § 430.10, subd. (b).) Here, Plaintiff has not alleged what type of entity it is. Plaintiff notes in its opposition that it is not an LLC, but rather, a retirement plan. (Opposition at pp. 8:21-9:2.) Plaintiff states that Mural Media, LLC is a separate entity from Plaintiff Mural Media, LLC 401k Plan. (Opposition at pp. 8:21-9:2.) A pension plan [&] is a formal plan or program whereby funds are accumulated to pay for retirement income or other deferred income to employees of an employer, payable at a future date, generally at the normal retirement age as specified in the plan. The plan [&] constitutes a separate entity from the employer[.] (Coastline JX Holdings LLC v. Bennett (2022) 80 Cal.App.5th 985, 1005 fn. 8 [citation to practice guide omitted] [holding at p. 1006 that profit-sharing plan established subject to ERISA was not subject to claims by creditors of the employer].) A limited liability company has the capacity to sue and be sued. (Corp. Code, § 17701.05, subd. (b).) Plaintiff identifies no comparable authority establishing capacity to sue for a retirement plan. Mural Media LLC (not Plaintiff) is a limited liability company organized in the State of Oregon on December 31, 1996 and dissolved by the Secretary of State for the State of Oregon on February 28, 2019. (Plaintiffs Request for Judicial Notice, Ex. E.) Mural Media LLC was never reinstated by the State of Oregon and there are currently no active filings for the exact name Mural Media LLC in the State of Oregon. (Plaintiffs Request for Judicial Notice, Ex. B.) Mural Media, LLC was registered as a foreign LLC in the State of California to conduct intrastate transactions on March 30, 2000, and its registration was terminated by the California Secretary of State on February 14, 2022. (Plaintiffs Request for Judicial Notice, Ex. C.) Plaintiff argues that an entity is not required to register in California when its actions are limited to acquiring or originating loans or collecting or enforcing the security interests in such loans. (See Corp. Code, § 17708.03, subds. (b)(7), (b)(8).) However, section 17708.03 pertains to the rights of a limited liability company to transact business in California. (See Corp. Code, § 17708.03, subd. (a).) The FAC does not reflect that Plaintiff is a limited liability company. Plaintiff has not identified its capacity to sue in the FAC. The Court therefore sustains the demurrer. The Court grants leave to amend so that Plaintiff may allege what type of entity it is and the legal basis for its capacity to sue.

Ruling

WALTERS WHOLESALE ELECTRIC CO., A CALIFORNIA CORPORATION VS TOBIAS EUGENE VARGAS, ET AL.

Aug 29, 2024 |Echo Dawn Ryan |23STCV06189

Case Number: 23STCV06189 Hearing Date: August 29, 2024 Dept: 26 08/29/2024 Dept. 73 Judge Rolf Treu, Judge presiding Walters Wholesale Electric Co. v. Tobias Eugene Vargas, et al. (23STCV06189) Counsel for Defendant/Cross-Complainant moving party: OMelveny & Myers LLP (Marc F. Feinstein, Sherin Parikh, Michael W. Marvin, Laura Kaufmann) Counsel for Plaintiff/opposing party: N/A, no opposition filed. Motion for Leave to file second amended cross-complaint (filed 07/31/24) TENTATIVE RULING Defendant/Cross-Complainant Fred & Jamison LLCs Motion for Leave to File Second Amended Cross-Complaint is granted. Fred & Jamison LLC is ordered to file the proposed Second Amended Cross-Complaint within thirty (30) days of notice of the Courts Order. I. BACKGROUND On March 21, 2023, Plaintiff Walters Wholesale Electric Co. (Walters) filed an action against Defendants Tobias Eugene Vargas, an individual, dba Signal Alarms & Electric Co. (Vargas), Fred & Jamison LLC (FJ), Evertrust Bank (Bank), Inland Development Company, LLC (Inland), and Does 1 through 500, Case No. 23STCV06189. Plaintiff filed a First Amended Complaint (FAC) against Defendants on March 29, 2023. On April 6, 2023, pursuant to Plaintiffs request, Evertrust was dismissed from the FAC without prejudice and on June 9, 2023, Nova Homes dba Inland Development was added as Doe 21. The FAC asserts causes of action for (1) common count, (2) account stated, (3) foreclosure of mechanic lien, and (7) to enforce bonded stop payment notice. On August 24, 2023, Defendant FJ filed a Cross-Complaint and on September 1, 2023, it filed a First Amended Cross-Complaint (FACC) for (1) fraud, (2) negligent misrepresentation, (3) intentional interference with contractual relations, (4) conversion, (5) violation of California Penal Code section 496, (6) breach of fiduciary duty, (7) aiding and abetting breach of fiduciary duty, (8) violation of Californias Unfair Competition Law, and (9) claim for recovery on license bonds against Vargas and more than 20 other defendants. During the pendency of the action, the following cases were found to be related within the meaning of California Rules of Court, rule 3.300(a), and were consolidated: 23STCV06189, 23STCV08994, 23STCV09227, 23STCV11102, and 23STCV16220. (5-3-24 Minute Order.) Case No. 23STCV06189 was designated the lead case. (Ibid.) On July 31, 2024, Cross-Complainant Fred & Jamison LLC (FJ) filed the instant Motion for Leave to File Second Amended Cross-Complaint. FJ seeks to add additional cross-defendants, causes of action, allegations, and damages based on its ongoing investigation and to address points raised in a demurrer with motion to strike filed by Quick Draw Fund Control, Inc. FJ also seeks to remove voluntarily dismissed cross-defendants and correct typographical errors. FJ argues that the filing of a Second Amended Complaint is in the furtherance of justice, will promote judicial efficiency, will not prejudice any party. No opposition has been filed. II. ANALYSIS A. Legal Standard for Motion for Leave to Amend Leave to amend is permitted under Code of Civil Procedure sections 473, subdivision (a), and 576. The policy favoring amendment and resolving all matters in the same dispute is so strong that it is a rare case in which denial of leave to amend can be justified. [Citation.] (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.) Notwithstanding the policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only where no prejudice is shown to the adverse party . . . . [citation]. A different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown. [Citation]. (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, Rule 3.1324, subds. (a), (b).) B. Analysis Cross-Complainant FJ moves for an order for leave to file a Second Amended Cross-Complaint (SACC). (Mot. p. 3.) FJ seeks to add additional cross-defendants, causes of action, allegations, and damages based on its ongoing investigation and to add allegations addressing the demurrer filed by Cross-Defendant Quick Draw Fund Control, Inc. (Ibid.) FJ also aims to remove voluntarily dismissed cross-defendants and correct certain typographical errors. (Ibid.) FJ has attached a copy of the proposed SACC as well as a redline version of the First Amended Cross-Complaint. (Attach. 1; Marvin Decl., Ex. 2.) On August 24, 2023, Defendant FJ filed a Cross-Complaint and on September 1, 2023, it filed a First Amended Cross-Complaint (FACC). Since filing the FACC, FJ has discovered additional facts that necessitate amending the FACC. In particular, FJ has discovered that several additional cross-defendants are implicated in a fraudulent scheme that was alleged in the FACC. These additional facts against one of these cross-defendants, Mee Hee Lee, also necessitate adding new causes of action related to voidable transaction and common law fraudulent conveyance against Lee and existing Cross-Defendant Sang Hoon Chung. Moreover, on December 8, 2023, Cross-Defendant Quick Draw filed a demurrer with motion to strike the FACC. FJ aims to address the points raised in the demurrer and motion to strike. In filing the SACC, FJ also seeks to add specific amounts of alleged damages to put cross-defendants on notice and to allow for the entry of default judgment against any defaulting cross-defendants. FJ argues that the Motion is filed in furtherance of justice and will promote judicial efficiency because it will enable the litigation of all causes of action against all cross-defendants implicated in the alleged fraudulent scheme. (Mot. p. 6.) These amendments will also address Quick Draws demurrer and motion to strike and allow for the entry of default judgment against any defaulting cross-defendants. (Ibid.) Furthermore, the correction of typographical errors and removal of voluntarily dismissed cross-defendants will make the SACC more accurate. (Ibid.) FJ also argues that the amendments are timely and will not prejudice any party. (Ibid. at p. 7.) The trial in this case is scheduled for June 9, 2025, and to date no depositions have been scheduled. (Ibid.) Moreover, several cross-defendants have stipulated to the filing of the SACC. (Ibid.; Marvin Decl. ¶¶ 8-9.) As FJ has sought stipulation from all cross-defendants, they are on notice of FJs intention to file an SACC and have had an opportunity to review the amendments. (Ibid.) The Court finds that FJ has met the requirements for the instant Motion. It has specified the changes to be made with a redline version of the First Amended Cross-Complaint, as well as the effect, necessity, and discovery of the facts necessitating these changes. No opposition has been filed showing that the filing of the SACC would cause inexcusable delay or probable prejudice to cross-defendants. Given that FJ has met the requirements of the instant Motion, no opposition has been filed showing any prejudice to cross-defendants, and the policy of great liberality in permitting amendments at any stage of the proceedings, the Court grants FJs Motion. III. DISPOSITION Defendant/Cross-Complainant Fred & Jamison LLCs Motion for Leave to File Second Amended Cross-Complaint is granted. Fred & Jamison LLC is ordered to file the proposed Second Amended Cross-Complaint within thirty (30) days of notice of the Courts Order.

Ruling

JOSE BLANCO, ET AL. VS LEVON H. BARDAKJIAN, ET AL.

Aug 29, 2024 |23AHCV00021

Case Number: 23AHCV00021 Hearing Date: August 29, 2024 Dept: E Hearing Date: 08/29/2024 8:30am Case No. 23AHCV00021 Trial Date: 03/17/2025 Case Name: JOSE BLANCO, et al. v. LEVON H. BARDAKJIAN, et al. TENTATIVE RULING COMPEL RESPONSES RELIEF REQUESTED¿ Defendants, 1001 LAS LOMAS LLC., hereby move the Court for a Motion to Dismiss the Complaint for Plaintiff, JACINTA BLANCO. This Motion will be Heard on August 29, 2024 at 8:30 am in Department E of the Los Angeles County Glendale Courthouse Superior Court located at 600 E. Broadway Glendale, California, 91206. The Motion is based on this Notice, CCP § § 2023.010-030 2030.290(c), 2030.300(e)] Court Ruling, Points and Authorities, the Declaration of Patrick J. Torsney, Esq., the court file and on such further information as may be presented at the hearing. (Def. Mot. p. 2-3.) [The Court notes that Movant refers to itself as Defendants. It appears as if this motion was filed by one Defendant, not multiple Defendants. This motion appears to be filed by Defendant, 1001 Las Lomas, LLC. The Court will presume there is one moving Defendant. At the hearing, the Movant should provide clarification on this issue.] PROCEDURAL Moving Party: Defendant, 1001 Las Lomas, LLC (Movant or Defendant) Responding Party: No Opposition by Plaintiff, Jacinta Blanco Moving Papers: Notice/Motion Opposition Papers: No Opposition Reply: No Reply TENTATIVE RULING Service 16/21 Day Lapse (§1005(b)): Ok Proof of Service Timely Filed (CRC, Rule 3.1300): Ok Correct Address (CCP §1013, §1013a): Uncertain In the 11/17/2023 Minute Order, the Court heard two hearings on motions to be relieved as counsel as to Plaintiffs Jose Blanco and Jacinta Blanco. These two motions to be relieved as counsel, filed by Maria Giragossian on 9/5/2023, were granted. The instant motion was filed on 7/26/2024, and allegedly served via first class mail on 7/26/2024. The date of 7/26/2024 is after 11/17/2023; therefore, Plaintiffs Jacinta and Jose would not have been represented by counsel at the time this motion was filed and allegedly served. The proof of service for this motion lists the parties served as Attorney for Plaintiffs, in pro per, and then it indicates that Plaintiffs Jose Blanco and Jacinta Blanco are the "Attorney for Plaintiffs, in pro per. Both Jose and Jacinta were allegedly served by first class mail at 15964 Hawthorne Avenue, Fontana, CA 92335. On eCourt, there is no address listed for Jose and Jacinta; therefore, it is unclear as to what address Jose and Jacinta were supposed to be served at. On the two 9/5/2023 motions to be relieved as counsel, it appears as if Jacinta and Joses address is listed as 15964 Hawthorne Avenue, Fontana, CA 92335, which matches the address that Defendant served the instant motion. The Court will hear argument as to if Jacinta was properly served this motion. Defendant should be prepared to come forward with any case law, statutes, or rules of court to support whatever argument it may have as to what is considered proper service in the instant scenario when Plaintiffs previous counsel withdrew. Substantive Analysis Defendant seeks an order dismissing Plaintiff, Jacinta Blanco, from the Complaint. [The Court notes that although Defendant wants an order dismissing Plaintiff, Jacinta Blanco, from the Complaint, it appears that the operative complaint is the FAC.] Defendant seeks the instant order because on May 24, 2024, this Court granted Defendants motion to compel responses to request for production of documents, set one, and Defendants request for sanctions. [The Court notes that the 5/24/2024 Minute Order does not indicate when the responses had to be served by. The Court notes that the 5/24/2024 Minute Order only indicated that the sanctions against Plaintiffs were to be paid by 6/24/2024.] Defendant argues that Plaintiff failed to comply with the Courts order. Defendant argues that it is prejudiced by Plaintiffs failure to respond to discovery because it cannot adequately prepare for trial since Plaintiff failed to respond to discovery that would have defined their damages and causes of action. Thus, Defendant seeks terminating sanctions against Plaintiff, Jacinta Blanco, for Plaintiff failing to abide by the prior court order. The case of Van Sickle v. Gilbert helps explain the legal standard for when terminating sanctions are appropriate: Failing to respond to an authorized method of discovery is a misuse of the discovery process. (§ 2023.010, subd. (d).) So is disobeying a court order to provide discovery. (Id., subd. (g).) If a party fails to obey an order compelling answers to special interrogatories and/or an order compelling a response to a demand for production of documents, the court may impose a terminating sanction by striking out the pleading of that party and/or rendering a judgment by default against that party. (§§ 2023.030, subd. (d)(1) & (3), 2030.290, subd. (c), 2031.300, subd. (c).) The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should attempt[ ] to tailor the sanction to the harm caused by the withheld discovery. [Citation.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992, 94 Cal.Rptr.3d 802.) 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. [Citation.] If a lesser sanction fails to curb abuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will cure the abuse. A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Ibid.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion, and is reviewed only for abuse. (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 991, 94 Cal.Rptr.3d 802.) Sanction orders are subject to reversal only for arbitrary, capricious or whimsical action. (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102, 78 Cal.Rptr.3d 200.) (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Here, the Court will hear argument. However, the Court is unlikely to find that terminating sanctions, i.e., dismissing Plaintiff Jacinta Blanco from the FAC, are appropriate. Defendant points out how Plaintiff did not provide discovery responses, as previously ordered by the Court. However, Defendant has not shown that the violation to provide discovery responses was willful, nor has Defendant pointed out any history of abuse by Plaintiff. Further, Defendant has not shown that less severe sanctions would not produce compliance with discovery rules. Defendants motion to dismiss Plaintiff Jacinta Blanco is DENIED.

Ruling

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

Aug 31, 2024 |23CV-0202994

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

Document

Quicken Loans Inc. v. Milton V. Mitchell, Jr., As Administrator Of The Estate Of Milton V. Mitchell A/K/A Milton V. Mitchell, Sr., Deceased, And Individually, Diane L. Emm, Dennis J. Mitchell, New York State Department Of Taxation And Finance, People Of The State Of New York O/B/O City Court Clerk, Td Bank Usa Na, Julile Cerio Esq - COURT APPOINTED REFEREE

Feb 08, 2019 |Donald A. Greenwood |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |001249/2019

Document

Citizens Bank Na v. Myrlene Jones aka Myrlene M. Jones, John Doe 1 Through John Doe 12, The Last Twelve Names Being Fictitious And Unknown To Plaintiffs, 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

Nov 14, 2023 |Joseph E. Lamendola |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |012780/2023

Document

U.S. Bank Trust National Association, Not In Its Individual Capacity But Solely As Owner Trustee For Legacy Mortgage Asset Trust 2018-Rpl2 v. Bruce Jones a/k/a Bruce J. Jones a/k/a Bruce Joseph Jones, United States Of America (Northern District), Board Of Managers Of Watertree Of Dewitt Condominium I, Endodontic Specialists Pc, John Doe #1 Through John Doe #12

May 14, 2024 |Gerard J. Neri |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |005103/2024

Document

U.S. Bank National Association, As Trustee For Velocity Commercial Capital Loan Trust 2019-2 v. Apmd Properties 122 Llc, Lorraine Dell, John Doe #1- #50 And Mary Roe #1- #50, The Last Two Names Being Fictitious, It Being Intended To Name All Other Parties Who May Have Some Interest In Or Lien Upon The Premises Described In The Complaint

Aug 28, 2024 |Real Property - Mortgage Foreclosure - Commercial |Real Property - Mortgage Foreclosure - Commercial |008899/2024

Document

Sefcu N/K/A Broadview Fcu v. Thomas G Watts, Larisa G Watts, Geddes Federal Savings And Loan Assn., John Doe, (Said Name Being Fictitious, It Being The Intention Of The Plaintiff To Designate Any And All Persons In Possession Of The Mortgaged Premises)

Jan 03, 2024 |Robert E. Antonacci |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |000065/2024

Document

U.S. Bank National Association, As Trustee, Successor In Interest To Wilmington Trust Company, As Trustee, Successor In Interest To Bank Of America, National Association, As Trustee, Successor By Merger To Lasalle Bank National Association, As Trustee For Structured Asset Investment Loan Trust Mortgage Pass-Through Certificates Series 2005-1 v. Beverly Zoe Kinney as Executrix of the Estate of Andrew P. Woods, New York State Department Of Taxation And Finance, United States Of America O/B/O Internal Revenue Servie, John Doe #1 Through #6, And Jane Doe #1 Through #6, The Last Twelve Names Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants, Tenants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon the premises being foreclosed herein

Jun 01, 2018 |Gerard J. Neri |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |005395/2018

Document

Jun 01, 2018 |Gerard J. Neri |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |005395/2018

Document

Freedom Mortgage Corporation v. Cheryl A. Sellars, Christopher T. Jackowski

Jan 18, 2023 |Hon. Danielle M. Fogel |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |000508/2023