EXHIBIT(S) - A (Motion #2) SUPPORTING DOCUMENTS - SUPPORTING DOCUMENTS Redacted August 24, 2016 (2024)

Case

WELLS FARGO BANK NA v. PHILLIPS, JOYCE ETAL

Nov 09, 2012 |Modica, Hon. Salvatore J. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |10797/2012

Case

Wisdom Equities Llc v. Black Stone Acquisitions, Inc., Jennifer K. Johnson, New York City Department Of Finance, New York State Department Of Taxation And Finance, John Doe, Jane Doe

Aug 23, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |717508/2024

Case

Citizens Bank, N.A. v. Herbert Wheeler, Eunice Wheeler, New York City Parking Violations Bureau, '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

Apr 04, 2024 |Frederick D R. Sampson |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |707275/2024

Case

Specialized Loan Servicing Llc, v. Denekqua Demetrius, New York City Parking Violations Bureau, New York City Environmental Control Board, New York City Transit Adjudication Bureau, 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,

Apr 10, 2024 |Kevin J Kerrigan |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |707725/2024

Case

Kenneth Graves Jr v. The Estate Of Willie Graves Sr, Wilmington Savings Fund Society

Aug 21, 2024 |Real Property - Other (Adverse Possession) |Real Property - Other (Adverse Possession) |717251/2024

Case

Nationstar Mortgage Llc v. Jose D. Moreno A/K/A JOSE M. MORENO A/K/A JOSE Q. MORENO, INDIVIDUALLY AND AS HEIR AND DISTRIBUTEE OF THE ESTATE OF AMILBIA PATINO, Quintiliano Moreno, Maynel A. Moreno AS HEIR AND DISTRIBUTEE OF THE ESTATE OF AMILBIA PATINO, Jenniffer L. Moreno A/K/A JENNIFER L. MORENO, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF AMILBIA PATINO, John Paul Moreno AS HEIR AND DISTRIBUTEE OF THE ESTATE OF AMILBIA PATINO, Heirs And Distributees Of The Estate Of Amilbia Patino, 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

Apr 16, 2024 |Ulysses B. Leverett |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |708147/2024

Case

Citimortgage, Inc. v. Zakeyah Ryan, New York City Transit Adjudication Bureau, New York City Environmental Control Board, New York City Parking Violations Bureau; Secretary Of Housing And Urban Development, The Office Of The City Register Of The City Of New York, John Doe, Mary Doe

Aug 19, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |717050/2024

Case

U.S. Bank Trust Company, National Association, As Trustee, As Successor-In-Interest To U.S. Bank National Association, Successor Trustee To Wachovia Bank, N.A., As Trustee, On Behalf Of The Holders Of Multi-Class Mortgage Passthrough Certificates Series 2005-1 v. Barbara Costantino, Capital One Bank (Usa), N.A., John Doe (Those unknown tenants, occupants, persons or corporations or their heirs, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.)

Aug 21, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |717268/2024

Case

Metropolitan Life Insurance Company v. Simon Wong, Kim Chiu et al

May 31, 2023 |Gordon Daniel |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |711152/2023

Ruling

RUTH LYNN WILSON,, TRUSTEE OF THE WILSON FAMILY TRUST VS LOANCARE LLC

Aug 26, 2024 |21STCV28820

Case Number: 21STCV28820 Hearing Date: August 26, 2024 Dept: 68 Dept. 68 Date: 8-26-24 Case: 21STCV28820 Trial Date: Not Set LEAVE TO AMEND MOVING PARTY: Plaintiff, Ruth Wilson, et al. RESPONDING PARTY: Defendant, Loancare, LLC RELIEF REQUESTED Motion for Leave to File a First Amended Complaint SUMMARY OF ACTION Plaintiff Ruth Lynn Wilson trustee of the Wilson Family Trust purchased 1218 Stevely Avenue, Long Beach. Servicing on the loan was ultimately assigned to Defendant Loancare, LLC, beginning on April 1, 2019. Beginning in May 2020, Plaintiff alleges a series of false statements demanding additional payments for insurance, an escrow account, false delinquency charges, and improper credit for payments towards the loan balance. Plaintiff was unable to resolve the dispute. On August 4, 2021, Plaintiff filed a complaint for 1. Fraud 2. Breach Of Contract 3. Breach Of Covenant Of Good Faith And Fair Dealing 4. Accounting 5. Violation Of Business, and Professions Code Sections 17200, Et Seq. Defendant answered on September 7, 2021. On April 7, 2024, the assigned judicial officer recused from the action upon the substitution of new defense counsel into the case. The case was reassigned to Department 68 on April 12, 2024. RULING: Granted. Plaintiff Ruth Lynn Wilson trustee of the Wilson Family Trust moves for leave to file a first amended complaint in order to add three (3) new causes of action for 6. Elder Abuse 7. Negligent Misrepresentation and 8. Negligent Infliction Of Emotional Distress. Plaintiff also seeks to substitute in as Ruth Wilson individually rather than as trustee on behalf of the Wilson Family Trust. [Declaration of Declaration of Darren Trone, Ex. 1.] Defendant Loancare, LLC in opposition challenges the motion as dilatory and extraordinarily prejudicial due to the addition/substitution of a new plaintiff, and three new causes of action. Defendant maintains the first motion for leave to amend was denied, notwithstanding the later minute order vacating the hearing upon the recusal of the court. Plaintiff in reply cites to the liberal public policy favoring amended pleadings. Plaintiff counters with a claim of prejudice if leave is not granted. Plaintiff also offers a substantive legal response to the challenges against the proposed new causes of action for elder abuse, and maintains the motion compiles with California Rules of Court 3.1324. A motion for leave to amend must comply with the requirements set forth in California Rules of Court Rule 3.1324, which states as follows: (a) Contents of motion A motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (b) Supporting declaration A separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier& (emphasis added). Dilatory delays and prejudice to the opposing parties is a valid ground for denial. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) Leave to amend is generally liberally granted. (Code Civ. Proc., § 473(a); Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.) The court will not generally consider the validity of the proposed amended pleading in ruling on a motion for leave, instead deferring such determinations for a demurrer or motion to strike, unless the proposed amendment fails to state a valid claim as a matter of law. (Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 Cal. App.3d 1045, 1048; California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280281 disapproved of on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.) The court finds the motion sufficiently complies with the procedural requirements. On the timing, new counsel substituted into the case in November 2023. The motion for leave to amend previously filed on March 26, 2024, was vacated upon the judicial officer for Department 19 recusing from the case upon the substitution of new defense counsel into the action. The renewed motion was filed on May 16, 2024, approximately one month after reassignment of the action. The court declines to consider any prior orders (especially vacated orders), especially given the circ*mstances to the recusal and transfer. As presented in this court, the court finds no dilatory conduct establishing any form of prejudice. The trial date was vacated upon the transfer of the action. The cause of the transfer was the substitution of new counsel by Defendant. Plaintiff is in no way at fault for circ*mstances involving the substitution of defense counsel and the prior judicial officer decisions. As for the legal challenge regarding the propriety of substituting in Wilson, an individual and removing the trust, the argument is extrinsic to the scope of consideration for a motion for leave. The court declines to rule as a matter of law to the impropriety of the requested substitution of parties. The instant motion is NO WAY governed by Code of Civil Procedure Section 473, or allows for consideration of relation back doctrine under statute of limitations, as presented in the extensive opposition. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1118; California Air Resources Bd. v. Hart (1993) 21 Cal.App.4th 289, 300; Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470-1471.) Again, under the standard for LEAVE TO AMEND, the court will also NOT otherwise consider the factual sufficiency of each and every new proposed claim, including elder abuse, and negligent misrepresentation. The court finds none of the proposed changes constitute an invalid amendment as a matter of law for purposes of the subject motion. Finally, because the changes arise from the common core of facts and only challenges the substitution of the parties, the court finds no showing of significant prejudice to Defendant. Again, the motion is in no way an eleventh hour request given the transfer and order vacating of all previously set dates. The case is not even at issue in this courtroom. Defendants will have sufficient time to address the claims against them. Any potential claimed prejudice insufficiently outweighs the liberal policy for leave to amend. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487; Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) When and how Defendant choses to respond can be addressed in due course. The motion is therefore GRANTED. Plaintiff to file and serve a separate copy of the first amended complaint within 10 days of the order. Plaintiff to provide notice.

Ruling

KEITH HERRINGTON ET AL VS. ALFRED GOODWIN ET AL

Aug 23, 2024 |CGC23606480

Real Property/Housing Court Law and Motion Calendar for August 23, 2024 line 6. DEFENDANT PAUL GOODWIN MOTION FOR SUMMARY JUDGMENT , Or In The Alternative, Motion For Summary Adjudication is OFF CALENDAR. Notice of Settlement on file. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.

Ruling

CHRISTOPHER PORTER ET AL VS. COOK GENERAL CONTRACTOR INC. ET AL

Aug 22, 2024 |CGC21589807

Real Property/Housing Court Law and Motion Calendar for August 22, 2024 line 1. CROSS COMPLAINANT COOK GENERAL CONTRACTOR INC. NOTICE OF MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT AGAINST CROSS-DEFENDANTS is GRANTED. Moving party may file its amended cross-complaint naming a new third-party cross-defendant and asserting six causes of action against this cross-defendant. To avoid the virtually inevitable delay in trial prejudicing the Plaintiff, the claims against the new cross-defendant shall be bifurcated and those claims will not be set for October 28, 2024 trial and will be set for Case Management track. However, if the bifurcated claims are ready for trial (answer on file and discovery, including expert discovery, is completed by all parties to the bifurcated cross-complaint), parties may make an ex-parte application no later than October 23, 2024 to consolidate the bifurcated claims with the rest of the case (complaint and cross-complaint). =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

Ruling

Jason Neel vs United States Real Estate Corporation, et al

Aug 24, 2024 |22CV01758

22CV01758NEEL v. SUPERIOR LOAN SERVICING, et al CROSS-DEFENDANT DONALD SCHWARTZ’S SPECIAL MOTION TO STRIKE As discussed below, the motion is denied. I. BACKGROUND This is a convoluted fact pattern, which stems from plaintiff Neel’s efforts to forestall theforeclosure of his home and unwind allegedly fraudulent conveyances encumbering his home.Plaintiff’s allegations are as follows: Plaintiff owns property which was purchased “free and clear” in 2018, located at 144Palo Verde Terrace, Santa Cruz. Plaintiff has cognitive impairments. In January and March2018, plaintiff committed various criminal offenses. In March 2018, plaintiff hired DonaldSchwartz and Ed Russo to represent him. In addition to his criminal charges, plaintiff’s erraticbehavior also caused the HOA where his home is located to bring a civil suit against him.Schwartz was his attorney in that matter as well. (FAC ¶¶ 18-20.) According to the allegations in the FAC, from January 2018 to August 2020, plaintiff wasunable to manage his financial affairs, unable to contract with knowledge or understanding, andsusceptible to financial abuse. Between April 2019 and November 2019, plaintiff was declaredincompetent to stand trial for certain criminal offenses. During a portion of this period, plaintiffwas a patient at Napa State Mental Hospital. Plaintiff has been diagnosed with Psychotic orSchizoaffective Disorder, Bipolar II, Dissociative Disorder, and Social Anxiety. Attorney Schwartz raised the issue of plaintiff’s lack of capacity in the HOA civil actionand at one point, requested the court name a guardian ad litem. The guardian ad litemrecommended by Schwartz was Cody Molica. Plaintiff granted a power of attorney (“POA”) to Page 6 of 14Molica to pay his expenses while incarcerated. Molica, a law school graduate who had workedwith both Schwartz and Russo, agreed to serve as plaintiff’s attorney in fact. On 3/17/19,plaintiff executed a POA in favor of Molica. Plaintiff thought his powers were limited to payingbills. (FAC ¶ 21.) Prior to the execution of POA #1, Molica and co-conspirator Derek Wheat had alreadyarranged with defendant CNA Equities Group, LLC (“CNA”) to borrow money againstplaintiff’s residence, which was debt-free. This loan was taken out without either plaintiff’sconsent or knowledge. Molica engaged CNA to broker a loan of $367,500. The lender was Yeva,Inc. dba Saxe Mortgage Co. The escrow was handled by Fidelity Escrow Co. (FAC ¶ 23.) Molica allegedly orchestrated a fraudulent lease agreement between plaintiff and NathanPerry to characterize the loan as one for business purposes. The lease was dated retroactively forthe three-year period of 10/1/17-10/1/20 and called for $2,500/month rent. Neel does not knowPerry and Perry never lived at the residence and ultimately received $10,430 in checks from the2019 loan proceeds. The lease agreement predated Neel’s January 2018 purchase of the Property.(FAC ¶ 24.) Molica is alleged to have completed fraudulent and inaccurate Uniform ResidentialLoan Applications on behalf of Neel, which reported that Neel received $2,500/month in rentalincome from the property. (FAC ¶25.) The net proceeds of the loan were distributed to Schwartz’s Trust account on 3/27/19,where Molica directed Schwartz to distribute the funds. None of the funds were used forplaintiff’s benefit. One check of $60,000 was paid to Jeffrey Vieyre of Funding Solutions. (FAC¶ 26.) On 5/1/19, Schwartz drafted a new POA requiring both Schwartz’s and Molica’ssignatures and stated the POA was only for paying bills and HOA issues and not for aspects ofthe house. At the time the second POA was executed, plaintiff was unaware Molica already usedthe POA to affect his home via the new loan. (FAC ¶ 27.) Molica withdrew over $1,000,000 from plaintiff’s bank account, using the two POAs. Athird POA was executed on 5/28/20. On 9/9/20, Molica refinanced the property for $439,000which paid off the 2019 loan; two days later it was mortgaged for an additional $35,000. (FAC¶¶ 28-30.) Plaintiff contends the refinance was done for no valid financial reason and actuallycost Molica money to obtain. CNA’s files contain another Residential Loan Application signed by Molica withnumerous fraudulent statements. (FAC ¶ 32.) Defendants CNA and Rushmyfile (“RMF”) co-brokered the 2020 Loan. Defendants United States Real Estate Corporation (“USREC”), CNA,and RMF knew Molica had failed to make any of the payments on the 2019 loan, that the Page 7 of 14refinance was fraudulent, that none of the loans were for business purposes, and that the 2020loans were also fraudulently obtained. (FAC ¶34.) After Molica failed to make payments on the 2020 Loan, USREC instructed DefendantSuperior Loan Servicing to commence foreclosure proceedings. Neel has delivered notices ofrecission. USREC filed a Notice of Default and election to sell on 4/16/21. On 7/23/21, USRECfiled a Notice of Trustee’s Sale. II. PLEADINGS A. Complaint and amended complaint Plaintiff originally filed this action in Alameda County on 8/13/21 to halt USREC’spending non-judicial foreclosure. Scwhartz was plaintiff’s original attorney of record, butsubstituted out in favor of plaintiff’s current counsel on 11/19/22. The action was subsequentlytransferred to Santa Cruz Superior Court by stipulation, and thereafter, plaintiff filed hisoperative first amended complaint (“FAC”) on 10/11/22. The FAC added new causes of actionand new party defendants, among others, including the brokers involved in the USREC Loan,CNA Equities Group, LLC (“CNA”) and Rushmyfile, Inc. (“RMF”). The FAC alleges thatplaintiff is a dependent adult who lacks mental capacity, that plaintiff was fraudulently inducedto sign the subject powers of attorney, and that plaintiff had no knowledge of either of the loans.The FAC further alleges that the subject loans were part of an extended scheme to convert andsteal the equity in plaintiff’s property. (FAC ¶¶ 21-38.) The fraud scheme was allegedly directedby unnamed third parties and Molica, the attorney-in-fact appointed in the powers of attorney,who has been defaulted under USREC’s cross-complaint. (FAC ¶¶ 22-23, 28.) The FAC allegesthat the broker and lender defendants facilitated the fraud by accepting fraudulent loanapplications and documentation. (FAC ¶¶ 24-25, 29-35, 40-41.) B. Cross-complaint On 12/13/22, USREC cross-complained against Neel, CNA, RMF, and Molica fordeclaratory relief, reformation, quiet title, equitable subrogation, equitable lien, judicialforeclosure, implied contractual indemnity and equitable indemnity. USREC claims to be a bonafide encumbrancer who made the loan to plaintiff in good faith without knowledge of plaintiff’salleged lack of capacity or the scheme. The cross-complaint seeks to affirm the validity of theUSREC Deed of Trust or, alternatively, force judicial foreclosure of a lien by equitablesubrogation in the amount of at least $407,328, representing the amount of the USREC loanproceeds used to satisfy in full all prior liens against the property. USREC’s Cross-Complaintalso seeks indemnity against brokers CNA and RMF, Molica and Roes 25-50. (Cross-Complaint¶¶41-49.) Page 8 of 14 C. Doe amendment adding Schwartz as defendant On 11/20/23, plaintiff Neel named Schwartz as Doe 1 under his causes of action forabuse of a dependent adult, conversion, and aiding and abetting. Plaintiff alleges that Schwartz,who was plaintiff’s attorney from 2018 to 2022 and had raised plaintiff’s lack of mental capacityin various proceedings, caused Molica to be appointed plaintiff’s guardian ad litem, suggestedplaintiff give Molica the power of attorney for the 2019 loan, drafted at least one other power ofattorney plaintiff signed in favor of Molica and Schwartz, and facilitated distribution of loanproceeds for the benefit of third parties other than plaintiff. (FAC ¶¶ 19-23, 26-30.) Schwartzanswered on 11/27/23. D. Roe amendment adding Schwartz as cross-defendant On 1/26/24, USREC named Donald Schwartz as Roe 25 to the cross-complaint for theseventh cause of action for implied contractual indemnity and for the eighth cause of action forequitable indemnity. (Cross-Complaint, 12/13/22.) On 6/4/24, USREC voluntarily dismissed Schwartz from the implied contractualindemnity cause of action, leaving Schwartz as a Roe for equitable indemnity only. (Dismissal,6/4/24.) III. MOTION A. Moving papers Cross-defendant Schwartz moves to strike the cross-complaint for equitable indemnitypursuant to CCP § 425.16(b)(1), “A cause of action against a person arising from any act of thatperson in furtherance of the person’s right of petition or free speech under the United StatesConstitution or the California Constitution in connection with a public issue shall be subject to aspecial motion to strike, unless the court determines that the plaintiff has established that there isa probability that the plaintiff will prevail on the claim.” (Emphasis added.) Moving party fails to identify the type of free speech allegedly at issue here. Undersection 425.16(e), there are four types of petitioning or speech: (1) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, Page 9 of 14 (3) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) Any other conduct in furtherance of the exercise of constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (CCP §425.16(e).) The only protected activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)This would fall under categories (1) and (2), above. Schwartz contends that his filing of the underlying complaint on Neel’s behalf againstUSREC is petitioning or free speech activity and that USREC cannot succeed on its claim ofequitable indemnity against Schwartz since it is procedurally defective and cannot overcome thelitigation privilege or an attorney’s absolute immunity when acting as an agent. Schwartz relieson Navellier v. Sletten (2002) 29 Cal.4th 82, 89, to support his claim. Under Navellier, “thecritical consideration is whether the cause of action is based on the defendant’s protected freespeech or petitioning activity.” (Navellier v. Slettin, supra, 29 Cal.4th at 89.) Schwartz alsoargues the equitable indemnity cause of action “insinuates a conspiracy” between Neel andSchwartz and so must comply with CCP § 1714.10 which requires a showing of reasonableprobability of prevailing in the action with supporting affidavits. He contends no suchcompliance with section 1714.10 can be found in the cross-complaint and it is therefore “doomedto failure.” Schwartz contends that the cross-complaint is an end run around the attorney clientrelationship (between him and Neel) and USREC seeks to force him to testify against his client. B. Opposition USREC argues that Schwartz cannot meet the first prong of the anti-SLAPP analysissince the indemnity cross-complaint is not based on Schwartz’s right of petitioning or freespeech. It contends that Schwartz has been sued by plaintiff for the fraudulent scheme and byUSREC only for contribution as an alleged joint tortfeasor. It argues that an anti-SLAPP motionis justified only when the conduct upon which the claim is based is an act in furtherance of theright to petition. Merely because some protected activity may have occurred preceding thecomplaint is not enough; the conduct constituting the protected activity is itself the wrongcomplained of. (Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 1057, 1060.) Essentially, USREC argues that no petitioning activity is involved at all in its claim forindemnity in the event it is liable. The Cross-Complaint alleges: “In the event it is determined that the USREC Deed of Trust is invalid, in whole or inpart, such resulting loss to Cross-Complainant will arise solely by reasons of the cross-defendants’ intentional or negligent conduct,” and “if Cross-Complainant suffers loss or damages Page 10 of 14as a result of Plaintiff’s claims, such damages were caused entirely or partly by the breach ofcontract, violation of statutory duty, negligence, fraud, or other tortious conduct of the cross-defendants.” (Cross-Complaint ¶¶ 42, 46.) USREC argues these allegations fail to mention nor rely upon protected petitioning orfree speech activity by Schwartz and instead, they allege a straightforward claim for equitableindemnity against Schwartz and USREC’s other alleged joint tortfeasors based on plaintiff’sallegations of a fraudulent power of attorney and mortgage loan scheme. USREC points out this is Schwartz’s second anti-SLAPP motion in an apparent effort tostall discovery and prevent his deposition from proceeding. The first motion was brought justprior to Schwartz’s noticed deposition, then Schwartz filed for bankruptcy and withdrew the firstmotion. Once the bankruptcy was dismissed, meaning this case’s discovery could proceed,Schwartz filed this second anti-SLAPP motion, effectively staying this case’s discovery again. C. Reply Cross-defendant’s reply argues the cross-complaint against him was filed to gainadvantage and should be viewed with distrust. He contends he never owed any duty to USRECand actually secured restraining orders against it to stop the foreclosure of Mr. Neel’s home. Inshort, the reply does not persuade this Court that petitioning activity arises from USREC’s cross-complaint against Schwartz. III. LEGAL STANDARDS A. Anti-SLAPP The Legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action thatare brought to chill the valid exercise of the constitutional rights to free speech and to petition thegovernment for redress of grievances. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The court must engage in a two-prong analysis on an anti-SLAPP motion, with shiftingburdens of proof as to each prong. In prong one, the court determines whether the conductunderlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speechor petition. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) This is a threshold issue; if moving partyfails to show the conduct is constitutionally protected, the court need not address prongtwo. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Under the second prong,the burden shifts to plaintiff to prove a legally sufficient claim and to prove with admissibleevidence a reasonable probability of prevailing. (Navellier v. Sletten (2002) 29 Cal.4th 82,88.) Plaintiff cannot rely on the allegations of the complaint but must produce evidence Page 11 of 14admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)To defeat the motion, plaintiff need only demonstrate a prima facie case as to either part of theclaim. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570; Weil & Brown, CaliforniaProcedure Before Trial (The Rutter Group) §§ 7:1005, 7:1020.) If the anti-SLAPP is granted, the court may not grant leave to amend to allege or omitfacts demonstrating the complaint is not subject to the anti-SLAPP statute. (Simmons v.Allstate (2001) 92 Cal.App.4th 1068, 1073 [“Allowing a SLAPP plaintiff leave to amend thecomplaint once the court finds the prima facie showing has been met would completelyundermine the statute by providing the pleader a ready escape from [Code of Civil Procedure]section 425.16's quick dismissal remedy. Instead of having to show a probability of success onthe merits, the SLAPP plaintiff would be able to go back to the drawing board with a secondopportunity to disguise the vexatious nature of the suit through more artful pleading. This wouldtrigger a second round of pleadings, a fresh motion to strike, and inevitably another request forleave to amend.”]; Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992,1005.) A defendant party who prevails on an anti-SLAPP motion is entitled to recover his or herattorney’s fees and costs incurred on the motion, but not for the entire litigation. §425.16(c). Adefendant who prevails on only part of the motion may be entitled to an award of fees and costs(but only those associated with the successful part of the motion), unless the results of the motionwere so insignificant that the defendant did not achieve any practical benefit from the motion.The court has broad discretion in making this determination. (Weil & Brown, §7:1135.) B. Equitable indemnity A claim for equitable indemnity requires proof that the same harm for which plaintiffmay be held liable is properly attributable in whole or in part to the defendant. (Platt v. ColdwellBanker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn. 7.) IV. DISCUSSION A. Defendant Schwartz has not met his initial threshold burden – cross-complaint’s cause of action for equitable indemnity does not arise from protected activity Schwartz moves to strike the cross-complaint against him for equitable indemnity. Thatclaim seeks to shift liability from USREC to others (including Schwartz) if plaintiff succeedssince USREC alleges those other parties are really at fault, not it. The proper focus here is todetermine the cause of Schwartz’s potential damages in the cross-complaint, and if that causesprings from Schwartz’s protected activity. Page 12 of 14 Schwartz will only be liable to USREC if plaintiff succeeds in proving USREC is not abona fide encumbrancer and invalidates the deed of trust. To do that, plaintiff will havesucceeded in proving the fraudulent scheme – in which plaintiff alleges Schwartz was a part. Thegravamen of the indemnity claim then is the underlying allegations in plaintiff’s FAC – thescheme – and not in any protected speech by Schwartz. “In determining ‘whether the challenged claims arise from acts in furtherance of thedefendants’ right of free speech or right of petition under one of the categories set forthin section 425.16, subdivision (e). [Citation.] … ‘[w]e examine the principal thrustor gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statuteapplies.’’[Citation.] The ‘gravamen is defined by the acts on which liability is based, not somephilosophical thrust or legal essence of the cause of action.’ [Citation.] In other words, ‘for anti-SLAPP purposes [the] gravamen [of plaintiff’s cause of action] is defined by the acts on whichliability is based.’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer 8 Feld LLP(2017) 18 Cal.App.5th 95, 111.) As mentioned, Schwartz fails to identify the category of free speech at issue. “Thedefendant's burden is to identify what acts each challenged claim rests on and to show how thoseacts are protected under a statutorily defined category of protected activity. [Citation.]” (Bonni v.St. Joseph Health System (2021) 11 Cal.5th 995, 1009; Baral v. Schnitt (2016) 1 Cal.5th 376,396.) The court finds this failure significant since it prevents a full analysis of the allegedprotected activity for the first anti-SLAPP step. Again, the only activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)But analyzing the acts on which Schwartz’s potential liability is based, there is no protectedactivity at issue here. Schwartz is only liable under the cross-complaint if the USREC deed oftrust is invalidated. The deed is only invalidated if plaintiff proves the fraudulent scheme, inwhich Schwartz allegedly participated. Schwartz’s conduct creating liability under the cross-complaint is not in any way protected activity – it does not arise from his representation of Mr.Neel. Instead, it arises from his tortious conduct against Mr. Neel, likely in contravention to hisethical duty to Mr. Neel. Since Schwartz fails to establish the alleged conduct is protected activity, the court neednot move to the second prong of the anti-SLAPP analysis. B. Civil Code §1714.10 and agent’s immunity do not afford Schwartz any protection here Schwartz’s argument that cross-complainants failed to comply with the pre-filingrequirements of Civil Code § 1714.10 is meritless. “No cause of action against an attorney for a Page 13 of 14civil conspiracy with his or her client arising from any attempt to contest or compromise a claimor dispute, and which is based upon the attorney’s representation of the client, shall be includedin a complaint or other pleading unless the court enters an order allowing the pleading thatincludes the claim for civil conspiracy to be filed after the court determines that the party seekingto file the pleading has established that there is a reasonable probability that the party will prevailin the action….” (Civil Code §1714.10(a).) There are no conspiracy allegations in the cross-complaint; Schwartz concedes this whenhe admits “[t]he Cross-Complaint insinuates a conspiracy between Mr. Neel’s former attorney(Schwartz) and others….” (MPA p. 9, emphasis added.) Further, the FAC does not allegeconspiracy between Schwartz and his client – it alleges a conspiracy by Schwartz against hisclient. That is not covered by section 1714.10, and if somehow a conspiracy under the codesection had been alleged, it was Schwartz’s duty to bring a motion to strike when he was namedas a Doe, not when he was named as a Roe to a different pleading. Schwartz’s contention that attorney-agency immunity insulates him from liability underthe cross-complaint is also misplaced. As stated, Schwartz is only liable for equitable indemnityif he’s established as a bad actor under the FAC, and in that case, he will be found to have actedagainst his client’s interests, not for them. C. Sanctions against Schwartz Prevailing cross-complainant USREC shall be entitled to reasonable fees and costsincurred on the special motion to strike (not the entire litigation). (CCP §425.16(c); LafayetteMorehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) USREC seeks $9,490.00 ($7,300.00 for the prior withdrawn anti-SLAPP motion and$2,190.00 for the updated opposition to this motion). USREC’s counsel Edward Egan Smith’shourly rate is $365.00 and he declares he spent no less than 20 hours preparing USREC’sopposition to the initial motion and at least six hours updating and preparing this opposition. Thecourt finds that 13 hours of work is a reasonable duration of time preparing an opposition to thislatest motion and awards $4,745.00 in fees to USREC, payable by cross-defendant Schwartz nolater than 9/20/24.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 14 of 14

Ruling

CARDENAS vs CARDENAS

Aug 20, 2024 |CVSW2308997

DEMURRER TO COMPLAINT BYCVSW2308997 CARDENAS VS CARDENASMICHAEL R CARDENASTentative Ruling: SUSTAIN without leave to amend. This matter needs to be pursued in theFamily Court. The matter will be dismissed without prejudice.

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.

Ruling

Aug 20, 2024 |CVRI2403157

B&B CARRIER, INC. VSCVRI2403157 PRELIMINARY INJUNCTIONEAST WEST BANKTentative Ruling: Deny motion.A motion for preliminary injunction must show (1) a probability of prevailing on the merits,and (2) that the balance of hardships favors issuance of the injunction. (O’Connell v. SuperiorCourt (2006) 141 Cal.App.4th 1452, 1463.) However, “[t]he applicant must demonstrate a realthreat of immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California(1989) 213 Cal.App.3d 131, 138.)Here, Plaintiffs will suffer harm because they will lose real property. With regard toPlaintiff’s three causes of action for fraud, a preliminary injunction is neither requested noravailable as a remedy, even if Plaintiff is likely to or in fact, succeeds on the merits of said claims.(Cal. Civil Code § 3343.) The complaint makes no request for injunctive relief in any of the threefraud causes of action. (Complaint, ¶¶ 31, 38, and 44.) “In general, if the plaintiff may be fullycompensated by the payment of damages in the event he prevails, then preliminary injunctiverelief should be denied.” (Tahoe Keys Property Owners' Assn. v. State Water Resources ControlBd. (1994) 23 Cal.App.4th 1459, 1471.) Likewise, Cal. Civil Code § 3343, which covers damagesresulting from the fraudulent sale of property, does not list injunctive relief as an available remedy.Therefore, the fraud claims must not be considered when evaluating Plaintiff’s request for apreliminary injunction.Plaintiff’s fourth cause of action for breach of duty care, honesty, good faith fair dealingand disclosure is only brought against Defendants eXp realty and Robach who are not affiliatedwith the party against whom the preliminary injunction is being sought. Thus, the fourth cause ofaction, and any conduct by eXp Realty or Robach, cannot be considered either.This leaves only Plaintiff’s fifth cause of action for violations of the unfair competition lawas defined by Cal. Business and Professions Code § 17200, et seq. (“UCL”). Business &Professions Code §17200 prohibits any business act or practice that is unlawful, unfair, orfraudulent. A cause of action for violating this statute “borrows” actionable conduct and makes itindependently actionable under the UCL. (Smith v. State Farm (2001) 93 Cal.App.4th 700, 718.)Here, Plaintiff could “borrow” the actionable conduct from the fraud allegations to support his UCLclaim. But, given the deposition testimony that is attached to Bank’s opposition, Plaintiff is notlikely to succeed on his fraud claims. Mr. Butter, who is the owner and CEO of Plaintiff, statesseveral times that he did not discuss the permit issue with Mr. Suk or anyone from Bank prior tomissing his first payment and after the loan was funded. (Declaration of Thomas Robins, ¶ 3,Exhibit 1.)Moreover, relief under the UCL requires ongoing wrongful business conduct. (CaliforniaService Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44, 56-57.) This would requireongoing wrongful business conduct that makes the foreclosure itself wrongful. Plaintiff alleges noongoing fraudulent conduct. The complaint alleges a potential single act that impacted the sale ofthe Property. Additionally, Plaintiff admits that it had defaulted on the loan. (Declaration ofParminder Singh Butter, ¶ 10.) That alone gives Bank the right to foreclose on the Property.Therefore, it is not likely that Plaintiff will succeed in proving that he reasonably relied on anystatements made by Bank or its employees or agents to support the fraud claim against Bank.

Ruling

LAWRENCE KAUFMAN VS CLOUDBREAK COMMUNITIES, ET AL.

Aug 20, 2024 |23TRCV01102

Case Number: 23TRCV01102 Hearing Date: August 20, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Tuesday, August 20, 2024 Department M Calendar No. 12 PROCEEDINGS Lawrence Kaufman v. Cloudbreak Communities, et al. 23TRCV01102 1. Westside Residence Hall, Inc.s Demurrer to First Amended Complaint 2. Westside Residence Hall, Inc.s Motion to Strike Portions of First Amended Complaint TENTATIVE RULING Westside Residence Hall, Inc.s Demurrer to First Amended Complaint is sustained with 20 days leave to amend. Westside Residence Hall, Inc.s Motion to Strike Portions of First Amended Complaint is denied, in part, and granted with 20 days leave to amend, in part. Background Plaintiffs Complaint was filed on April 10, 2023. The First Amended Complaint was filed on February 13, 2024. Plaintiff alleges the following facts. Plaintiff is a tenant of a property located at 733 S. Hindry Ave., Unit 512-B, Inglewood, CA 90301. The property suffers from numerous habitability problems including toxic mold and vermin that has caused injuries to Plaintiff. Plaintiff alleges the following causes of action: 1. Breach of Warranty of Habitability (Violation of Civil Code § 1941.1) 2. Breach of Warranty of Habitability (Violation of Civil Code § 1942.4) 3. Negligence - Premises Liability 4. Nuisance 5. Intentional Infliction of Emotional Distress 6. Breach of Contract 7. Breach of Covenant of Quiet Enjoyment 8. Fraud/Deceit/Intentional Misrepresentations of Fact 9. Housing Discrimination in Violation of Government Code §12921. Meet and Confer Defendant set forth a meet and confer declaration in sufficient compliance with CCP § 430.41 and CCP § 435.5. (Decl. Daniel R. Berke.) Demurrer A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.) Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is uncertain. Uncertainty exists where a complaints factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Defendant demurs to the fifth cause of action for IIED. The demurrer is based on the grounds that the cause of action fails to state facts sufficient to constitute a cause of action and is uncertain. Fifth Cause of Action for IIED Defendants demurrer to the fifth cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action and the cause of action is uncertain. A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007. [I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921. Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. Id. Plaintiff has failed to set forth facts to support the elements of extreme and outrageous conduct, intent or reckless disregard, and proximate causation. Plaintiff alleges that he discovered numerous problems with the property including water leaks, mold, and vermin, and that Defendant failed to remedy the issues. Plaintiff also set forth numerous health issues that he suffered. These allegations are not sufficient to show that Defendant abused a position of power, or, that Defendant knew that Plaintiff was susceptible to injuries through emotional distress, or, that Defendant acted intentionally or unreasonably knowing that it would likely cause emotional distress. Plaintiff fails to plead facts to show that Defendant had any knowledge of the Plaintiffs susceptibility to emotional distress and that it acted unreasonably knowing that emotional distress would occur from Defendants actions. With the First Amended Complaint, Plaintiff alleges new facts attempting to state that Defendant ignored Plaintiffs request for protection from an alleged violent co-tenant. Plaintiff states that the attack eventually manifested on March 2, 2021. (FAC, ¶¶ 132-135.) However, these new allegations, which attempt to support a theory of IIED, are barred by the two year statute of limitations of CCP 335.1. The original Complaint was filed on April 10, 2023, more than two years after the alleged battery. Therefore, the demurrer to the fifth cause of action is sustained with 20 days leave to amend. Motion to Strike The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437. Defendant moves to strike numerous allegations. Rather than repeat all the allegations here, since the items are lengthy, the Court refers the parties to page 2, line 7 through page 4, line 15 of the notice of motion. In this ruling, the Court will refer to the numerical headings of the items sought to be stricken. The following authority applies to Items 1, and 9 to 12. Civ. Code, § 3294 states, in relevant part: (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. The motion to strike items 1 and 9 to 12 is denied. Plaintiff has now alleged sufficient specific facts that Defendant acted willfully, maliciously, intentionally, and/or recklessly to support Plaintiffs allegations of punitive damages under these causes of action. In addition, the allegations are not on their face false, irrelevant, or improper. It is true that some of the allegations are arguably repetitive. However, if this was the standard for striking allegations from pleadings numerous items from numerous pleadings throughout the state would be subject to be stricken. As to Items 2 to 8, the motion to strike is granted with 20 days leave to amend. Plaintiff fails to allege facts to show that the alleged nuisance is a public nuisance that affected the public at large. Therefore, the motion to strike is denied, in part, and is granted, with 20 days leave to amend, in part. Defendant is ordered to give notice of this ruling.

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Sep 22, 2023 |Karina E. Alomar |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |719682/2023