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Filing # 28211056 E-Filed 06/08/2015 02:43:52 PMIN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCULETN AND FOR HILLSBOROUGH COUNTY, FLORIDACHASE HOME FINANCE, LLC,Plaintiff,vs. CASE NO. 09-CA-032931ARUTHUR GAVRILOY, et al.,Defendants.ARTHUR GAVRILOV.‘Third-Party Plaintiff,¥S.RADIAN GUARANTY, INC,Third-Party Defendant./RADIAN GUARANTY, INC’S MOTION TO DISMISS ARTHUR GAVRILOW’SAMENDED THIRD-PARTY COMPLAINT AND MOTION FOR ATTORNEYS’ PEESPURSUANT TO FLA, STAT, 887,108‘Third-party Defendant, Radian Guaranty, Inc, (“Radian”), by and through itsundersigned counsel, and pursuant to Rule 1.140 of the Florida Rides of Civil Procedure, movesto dismiss the amended third-party complaint filed by Defendant Arthur Gavrilov (“Gavrilov” or“Defendant”). Given that Defendant knew that his claims were not supported by the materialfacts necessary to establish any standing under the mortgage guaranty insurance policy at issuelong before he filed the instant third-party complaint, Radian also moves for attorney’s feespursuant to Fla. Stat. §57.105. In support of thereof, Radian states as follows:06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1IntroductionOn or about December 31, 2009, Plaintiff, Chase Home Finance, LLC, filed a complaintto foreclose its mortgage interest granted by Arthur Gavrilov on property located at 208 LakeParsons Green #313, Brandon, Hillsborough County, Florida. On or about May 5, 2015,Gavrilov filed an Amended Third Party Complaint for Declaratory Judgment against Radian (the“Third Party Complaint’). Gavrilov seeks a declaration from this Court: (1) that he has someright, title or interest under the mortgage insurance policy Certificate No. 99457360 (theMortgage Guaranty Certificate”) issued by Radian to Chase Home Finance, LILC’s predecessorin interest, CTX Mortgage Company (“CTX Mortgage”); and (2) that Radian is a gnarantorunder the note given by Gavrilov to CTX Mortgage. Gavrilov asks further that this Third PartyComplaint be litigated in conjunction with the underlying mortgage foreclosure action filed byChase. The Third Party Complaint should be dismissed because Gavrilov is not named and hasno beneficial interest in the mortgage guaranty insurance policy at issue and his disclaimed anypotential interest he may have had in the mortgage instrument executed in favor of CTXMortgage. Accordingly, Gaviilov lacks standing to bring the claims he seeks to assert in hisThird-Party Compisint.Standard of ReviewIn reviewing a motion to dismiss, Florida courts accept as true all factual allegations andall reasonable inferences drawn from those allegations, See N & D Holding, Inc. v. Town ofDavie, 17 So, 3d 819, 820 (Fla. 4th DCA 2009), Generally, a court should confine itself to thefour corners of the pleading when analyzing a motion to dismiss. Where a party refers todocuments in a complaint, the court may consider such documents in connection with a motionto dismiss that complaint without converting the motion into one for a summary judgment. See206/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2Veal v. Voyager Property and Cas. Ins. Co., $1 So. 3d 1246, 1249-50 (Fla, 2d DCA 2011). If theexhibits permissibly attached to the motion to dismiss negate the allegations of the complaint, theexhibit controls. See Warren v. Dairyland Ins. Co., 662 So, 2d 1387, 1388 @la. 4th DCA 1995).Here, Defendant can neither prove nor offer evidence that could prove his status as an Insuredunder the mortgage guaranty insurance policy. See Hillman Constr. Corp. v. Wainer, 636 So. 2d576, 578 (Fla. 4th DCA 1994) (test for pleading is whether claimant can theoretically offerevidence in support of claims), Accordingly, Radian’s motion to dismiss is due to be granted,ArgumentA. The clear language of the mortgaze guaranty insurance policy and Defendant’smortgaze both capressly disclaim any contention that Defendant has any rightsmuder the mortgage gu ity insurance policy.As defined by Florida Statute §635.011(L), mortgage guaranty insurance is “a form ofcasualty insurance insuring fenders against: (a) Financial loss by reason of nonpayment ofprincipal, interest, and other sums agreed to be paid under the terms of any note, bond, or otherevidence of indebtedness seoured by a mortgage. ...” The morigage guaranty insurance policy! atissue specifically provides that:The provisions of this Policy and Certificate in Insurance shall inure to the benefitof and be binding upon the Company and any Insured and its respectivesuccessors. ... fn no event shall any Borrower or other person be deemed to be aparty to, or intended beneficiary of, this Palicy. No payments made hereunder tothe Insured shall lessen or affect the Insured’s rights of recovery against anyBorrower or other person,Exhibit “A” at Condition Nineteen (emphasis added), Likewise, the Certificate of Insuranceattached to Defendant’s complaint as Exhibit A specifically defines the Insured as “CTXMortgage Company, LLC.” It is. well settled that “[a] party is an ‘intended beneficiary’ of a* The Third Party Complaint could be dismissed on the separate ground that it fails to attach the Policy asrequired by Rule 1.130, Fla.R.Ciy.P. Given that the master policy is referenced in the third-partycomplaint and embraced by the pleading, Radian has attached a true and correct copy of the master policyhereto as Exhibit A.06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3contract only if the parties to the contract clearly express, or contract itself expresses, intent toprimarily and directly benefit a third party...” Daniel v. Florida Residential Property andCasualty Join Underwriting Association, 118 $0.24 936 (Fla. 3d DCA 1998), Here, theinsurance contract expressly disclaims Defendant's status as a party or intended beneficiary,If there were any doubt about Defendant’s rights under the mortgage guaranty insurancepolicy, the Defendant himself has likewise disclaimed any interest in the Policy. In UniformCovenant 10 of the Mortgage, the lender and Defendant agreed that “Borrower is not a party tothe Mortgage Insurance.”* Given that the mortgage guaranty insurance policy disclaimsDefendant’s rights under the policy and Defendant has agreed that he is not a party to themortgage guaranty insurance policy, there is no basis to find coverage in favor of Defendant.mortgage guaranty insurance policy.As set forth above, Florida statutory law defines mortgage guaranty insurance as lendercoverage. Nunerous other jurisdictions have embraced the same view and found that borrowersare not insureds nor third-party beneficiaries of mortgage guaranty insurance policies like theone at issue here, See e.g., Pineda v. PMI Mortg. Ins. Co., 843 S,W.2d 660, 665 (1992) (Tex. Ct.App. 1992) (“After a careful review of the record, we conclude that the [borrowers] were neitherinsureds under the policy, nor in contractual privity with [the mortgage insurer]. Nor were theybeneficiaries under the PMI policy of insurance to Houston First. Savings Association, thelender.”); American Home Mortg. Servicing, Inc. v. Radian Guar, Inc., 2010 WL 10659809(C.D, Cal, Dee. 16, 2010) (finding that only ihe named insured could recover mortgage insurancebenefits); Peleschak v. Verex Assur, Inc., 651 N.E2d 562, 564 (HL. App. Ct. 1995) (“Paymentsby [the mortgage insurer] are made solely to discharge an obligation to its lender-insured and are2 A true and correct copy of the Mortgage executed by Defendant is attached hereto as Exhibit “BL”406/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4not intended for the benefit of any other person or entity, including the borrower”); Shields v.Allantic Fin. Mortgage Corp, 799 GW2d 441, 444 (Vex. Ct. App. 1990) (The mortgageinsurance was for the benefit of the [lender] and not for [the borrowers].”); Hunt v. Jeffersan Sav.& Loan Ass’n, 756 S.W.2d 762 (Tex. Ct. App. 1988); Mortgage Guaranty Ins. Corp. y.Langdon, 634 P.2d S09, 511 Wyo. 1981) (While the lender is the insured party under thecontract, the premium cost is paid in all instances by the borrower or mortgagor.”) (emphasisadded), Additionally, if Defendant was considered to be an insured, he could unilaterally triggercoverage by electing to default on his mortgage obligations. In light of the wealth of case lawrejecting a borrower's status as an insured or beneficiary under a mortgage guaranty insnrancepolicy, Defendant’s claim here likewise fails as a matter of law.©. Radian is entitled to prevailing party attorneys’ fees.Under Horida Statute § 57.105(1), a party is entitled to an award of a reasonableattorney's fee where “the losing party or the losing party’s attorney knew or should have knownthat a claim or defense when initially presented to the court or at any time before trial: (a) wasnot supported by the material facts necessary to establish the claim or defense; or (b) would notbe supported by the application of then-existing law to those material facts.” Given the clear andexpress provisions of the mortgage guaranty insurance policy and the Mortgage disclaimingDefendant's status as an insured or beneficiary and Defendant’s knowledge of the same, Radianis entitled to recover its fees incurred responding to this frivolous third-party complaint.Several months before the Third Party Complaint was filed, Radian’s in-house counsel toDefendant’s counsel, Jacqulyn Mack, that a borrower is not a beneficiary to the Policy. At thattime, Ms. Mack was provided with a copy of the mortgage guaranty insurance policy.Notwithstanding the express and unequivocal language of the mortgage guaranty insurance06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5policy, Defendant, through his counsel, caused the ‘Third Party Complaint to be filed.Additionally, on or about May 13, 2015, in accordance with the safe-harbor provision of §57,105, Fla. Stat, in-house counsel for Radian sent Ms, Mack a follow-up letter reciting thelanguage of Condition Nineteen of the Policy and demanding thet Ms. Mack withdraw the ThirdParty Complaint because there is no basis in fact or law for the suit. A trae and correct copy ofthe e-mail correspondence from Natasha Campbell Esq. to Jacqulyn Mack is attached as Exhibit“C.” Despite Radian’s request, Counsel for Defendant has failed to withdraw this frivolouslawsuit.ConclusionDefendant’s third-party complaint should be dismissed because Defendant has no rightsunder ihe mortgage guaranty insurance policy based on the clear and express provisions of thepolicy and the Mortgage. Moreover, Defendant’s claims have been repeatedly rejected as amatier of law and should be in this case. Given the frivolity of Defendant’s claims, Radianshould also be awarded its reasonable expenses, including attorneys’ fees, incurred in defendingagainst this action that was filed by Defendant with full knowledge that the suit has no colorablebasis in fact or in law.06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6WHEREFORE, Radian asks this Court to enter an order dismissing the Third PartyComplaint and awarding Radian its reasonable expenses, including attorneys’ fees, incurred indefending this litigation, to be paid by Gavrilov and his attorney pursuant to Fla.Stat, §57,105,Respectfully submitted,ésfLimothTimoruy A. ANDREUFlorida Bar No. 443778Primary Email:Secondary Email:Cheryl 1. ListerFlorida Bar No. 472580Primary Emaik: clisSecondary Email:D. Brian O'Dell@babe,comsalazar@babe.com.Florida Bar No. 0659665BRADLEY ARANT BOULT CUMMINGS, LLP100 South Ashley Drive, Suite 1300Tampa, FL. 33602{813) 229-3333; (813) 229-5946 (fax)Attorneys for Radian Guaranty, Inc.CERTIFICATE OF SERVICE| HEREBY CERTIFY that a truc and correct copy of the foregoing has been furnished toall counsel of record via the Florida Courts E-Filing Portal, this 8th day of June, 2015.iothy A, Andre:AttorneyUY3820414.406/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7EXHIBIT “A”06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8oe0 a ey aoe_ _ _a. . .aeeee. _—a.06/08/2015 2:43 PM Electronically Filed: Hillsbor:h County/13th Judicial Circuit Page 9sodas Jable of ContentsMasterPaticyCondition Two ~ Application for insurance,Commitment of Insurance, Initial Premium,Representations of the Insured .......40.7A. Appl n for Insurance and Commitmentoflasarance®. Initial Premium, Compliance withConditionsC. Representations of thelasured .,. € Condition Three ~}. Claim Settlement Perind .. ‘ferm of Coverage, Renewal .... 8K. Commitmentof Insurance A. Term of CoverageL, Default. B. Renewal oo... cp cee esr eee eee eeeM, Delict .W. Early Default... Condition Four0, Effective Bate Cancellation, Termination +P Fair Market Value A, Cancellation by the Insured 8Q insured... Ga) Certificate of insuranceR. Loan (2) Master Policy ..S, Loss 8, Cancellation by the Compan’7, Merhantable Title @) Certificate of InsuranceU. Perfected Claim . é (2) Master PolicyY Physical Damage 4 (. Termination of Coverage,W. Property 6 Conditions Subsequent... 60... 9K Servicer... .Y. Seftlerment Due Date ....... 2. ee 4 Condition Five2, Third-Parly Misrepresentation Exclusions From Coverage ......., sere dOOPH Ad cove eee ee ee ered 6 A, Balloon Payment ..B, Prior Delinquencte:C. Incomplete Construction ..D. Misrepresentation and Fraud... iE. Neglizence of insured or Servicer... iFf Physical Damage oo... ccrerer eee i '° fable at Contents06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 10RadinMasterPolleyCondition Six ~ ConditlonsPrecedent to Payment of Claim 2.6.0... .84A, Conditions Precedent 0.0.6... 2.000 ¥ i{3} Notice af Default orEarly Default oo ees! 11(2} MonthiyDefault Reports;Report of Proceedings wo... ccs. li{3} Appropriate PaceedingsB. failure to ComplyCondition Sever ~ Loan Servicing .... 0.04%Condition Eight ~ Approved Sale ...... 6. a3A. Settlement on Basis ofApproved SaleiP Apya Does NOLCOSE oe ee 2Condition Nine ~Mitigation of Damages... 0... carer eo kGA, Mitigation of Damages 6... ese ce 44B. Sale of the Propertyby the lnsuredIC, failure to MitigateCondition Tes ~Option to Acquire Laatt oe ee cece ene 45Condition Eleven ~Loss Payment Procedure§. Submission of Claim...BR. Calculation of Loss...C, Deficieney ludginentsD. Clair RequirementsCondition Twelve ~Claim Settlement Optlon oe ee 49aster Patiey | Table af ContentsCondition Thirteen ~Claim Payment Procedare . 050s... 0. ADA, Additional ionB, ACEESS oyeC, Arison 2. over ceeeeeeD, Late Payment...FE. Rescission / Denial.Condition Fourteen ~Duty of Cooperation occ. ec ee cee kDCondition Fifteen —Company's Right of Subregation ......, 24A. Subrogation... 3B. Impairment of Sabrogailon .Condition Sintesn ~Limitation of Acthons 0.0... cere 24Condition Seventeen ~ Notices .. 00... 66 #2Condition Eighteen ~ Enfire Agreement,Endorsem*nt, Severabilly 0.06. ..0.5 64 22A. Entire Agreement...8. Endorsem*ntCondition Nineteen ~Beneficiaries Under Polley o. eee ee 22Condition Twenty — Arbitration 2.0.0. ..83Condition Twenty-One =Conformity te Statute ee 83SignattseS occ e eer BEShort Rate Cancellation ScheduleAnnual Premium PlansShort Rate Cancellation ScheduleSingle Premiurt Plans oo... sce e cere ay06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 11bon Master PolicyMasterPolicyJn consideration of the premium paid, and in veliauee upon the representations in theApplication for Insurance, Radian Guaranty Inc., a Pennsylvania corporation (a stock.prorigage insurance company hereinafter referred to as the “Company” ) agrees fo payto die Insured the Loss renting from the Defauli of the Borrower, subject to all of theterow aud conditions contained in this Paficy,ConditiensCondition One ~ DelinitionsThe following words and phrases shall have the specific meanings as set forth in thisCondition Que when used in this Policy:A. Advatices means only the following expenses advanced by ihe Insured:G) Reasonable and customary hazard insurance premiums.{a} ‘Taxes. ments and other public charges imposed upon the Property.(3) Customary expenses necessary for preservation of the Property.(@ Condominium fees, homeowner association dues and other shared property fees.fs) All other reasonable and nevessary expenses inciwred ip the AppropriateProveedings, including attorney’s fees nat fa excess of three percent (3%) of thedelinquent principal and interes! at the time a Claint is fifed, and custoniary cowtcosts; provided, havever, that rasunable attornoy’s fees incurred pursuant toCondition Eleven (C} shall not be so limited.{8) Necessary and customary costs for eviction proceedings, including relatedaltomey’s fees.aB. Appropriate Proceedings means any action or proceeding which vests in the Insured allof the Borrower's rights and title in and to the Property including, but not limited to,foreclosure by public or private sale or voluntary conveyance from the Borrower;provided, hawever, that such action or proceeding shall not be inconsistent with thereqairements of Canditions Six, Nine and Fifteen of this Policy and is permitted byapplicable law,& Raster alicw! Chsiditiog Gane06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 12Kadian C. Approved Sale means the sale of the Property by the Borrower with die consent of theInsured, or by the Insured after the acquisition of the Property, the terms of which invither case have been approved by the Company pursuant to Condition Nine of thisPolicy; redemption af the Property from the Insured afer it acquires Borrower’or the sale of the Properly at a foreclosure sole to a third-party bidder pursuant toCondition Bix (A}3)(c} of this Policy,fasterPolicy. Application for insurance means all documents, materials, statements and exhibits,whether or not prepared by the Insured, submitted to the Company by or on behalf ofthe Insured for ihe purpose of obtaining a Coninuinent of Insurance or a Certificateof Insurance.£, Borrower means the person or persons designated as such on the face of theApplication for Insurance and/or the Certificate of Insurance, and includes any o>borrower, co-signer, co-obligor, guarantor, or other maker of the note, mortgage, orother insirument af indenture, whether or not specifically listed on the Applicationfor Insurarice and/or ihe Certificate of Tasurance.& Borrower's Own Funds means any finds owned by the Borrower, and not borrowedfrom other sources, or subject to any rebate, refind or repayment.&, Borrower's Title moans ibe Insured’s possession and control of the Property, asevidenced by: (i) an executed Trustee’s or Sheriil’s deed (which need not reflectrecordation) or other evidence satisiactory te the Company that the foreclosure salehas been completed, or (ii) a deed from the Borrower in the case of a voluntaryconveyance to the Insured, conveying title to the Insured, and (i1/) the expiration ofany applicable redemption period, unless the Insured elects to file the Claim prior io.expiration,subject to Condition Eleven of this Policy.H. Certificate of Insurance means a certificate issued by the Company to the Insured, inaccordance with the terms of this Policy, to extend inserance average fo the Loantherein described. A Certificate may take the form, without limitation, ofa facsiroile,electronic computer tape or other agreed-upon data interchange,L. Claint means.a written request for payment of a Loss, made on 3 fornt or in a raanneraeveptable to the Company.Clainy Settlement Period means the period starting when the Claim is initially filed andending at the clase of business on the Settlement Due Date,x. Master Polfewl Condithin One:06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 13RadianasterPotieyK. Commitment of lasuratice means any commitment issued by the Company to tieInsured, setting forth the terays and conditions under whieh the Company will extendinsurance overage io a Loan in aceardance with this Policy.eDefault means the failare of the Borrower to pay when due an amount equal to orgreater than ane (J) monthly regular poriodie payment in accordance with the termsofa Loan.M. Deficiency means all amounts due and owing ander a Loan on which a Default hasocemred, and remaining after the conclusion of Appropriate Proceedings, pursuant toapplicable state law.ft. Early Default means the failure of the Borrower to make any of the initial twelve (12)otonthly payments in accordance with the terms of a Loar so that suros equal to theaugregale of two (2} such monthly payments have not been paid when duc.2. Effective Dake means, with respect to an insured Loan, the closing date of such Loan,or, suck later date as may be requested by the Insured and approved in writing bythe Cornpany,mmFair Market Value means, with regard to the amount bid for any Property ataforeclosure sale, the Froperty’s value at the approximate time of the foreclosure seleas determined by appraisal, if available, or in aecordanes with customary servicingpractices (which may inchide reliance on information provided by a local real estatebroker), subject to applicable law governing foreclosure.Q, Insured means the narned insured or any party (7) to whom coverage has been grantedby the Company, ot (i/) that is a subsequent assignee or transferee owner ofa Loanthat has requested to become the insured. If however, the Company has not beennotified in writing of such assignment or transfer, the Company’s sole obligationhereunder shafl be to the named Insured.R. Loan means the indebtedness of the Borrower to the Insured in the amount and for theterm specified on the fice of the Certificate of Insurance, which is evidenced by awritten ebligation and secured by a mortgage, deed of trast or ather instrument,which is a first Hen or charge on the Property, and which is insured under this Polieyor intended to be insured in accordance with the terms of a Commitment ofInsurance,5. Loss means the antount of loss seffered ar incurred by the Insured determinedpursuant to the provisions of Condition Eleven of this Policy.Police! Condition Qae06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 14fadian Y. Merchantable Title means title to the Property which is readily salable and freelytransfhruble, and which is Gee and clear of all liens, defects and encumbrancesincluding, without limuation, sights of parties in po: on god rights of redemption(unless, in either or bath cases, the Company waives in writing its right 1o take theProperty free of such sights}, excepting only:MasterPaleyG)} the lien of current general real estate taxes and other public charges andsgsexsntenis not yet due and payable;easem*nts for public uiilities, building restrictions and the effect of building laws oryogulations with which the improvements on the Property comply, which do potimpair the use of the Property and the improvements thereon for theirintended purposes;={3} tenants ander leases approved in writing by the Company; and.(4) sach minor imperfections of title as would rot hapair the use and engoyment ofthe Property as a residence.Mereligntabls Title does not exist if there is a Hen on the Property pursuant to federaloy state law providing for Hens in connection with the cleanup of environmentalconditions, or if notice has been given of commencement of proveedings whichcould result in such a lien,Hf of the inforrsation and proof reasonablyiity with respect thereto,U. Perfected Claim means a Chain: containiroquited by the Company to evaluate itVY. Physical Daniage means any tangible injury to the Property, whether caused byaccident, natural occurrence or athenvise, excluding normal wear and tear,W, Property means the residential real property, designed for occupancy by not more thanfour (4) families, identified on the face of p Certificate of Insurance, and shall includeall appurtenanees, rights of arcess and improvements thereon. which secure the Loan.X. Servicer means the enitty servicing @ Loan on behalf of the Insured. The Servicer isdeemed to be the representative of the Insured for purposes of the Policy.ySettlement fue Gate means the date sixty (60) days after receipt of a Chaim by theCompany, subject the extensions of time set forth in Condition Thirteen of this Policy.Z, Third-Party Misrepresentation ar Fraud means a misrepresentation or fraud by anyoneother than the Insured, its employees or agents, For purposes of this definition, theiusured’s agents shall include any mortgage broker and/or intermediary originatingthe Loan, or anyone wader contract with such persons in connection with theorigination of the Loan, such as an appraiser or escrow agent.4 aster Baliey {Condition One06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 15RadianMasterPaleyCondition Two ~ Application for Insurance, Commitment of Insurance,initial Promlan, Representations of the InsuredA. Application for insurance aud Connmitmeant of fusurance‘The Insured shall submit an Application for Insurance to the Company in connectionwith exch Loan for which coverage under this Policy is desired. The Company shallprovide forms of Application for Insurance to the Insured and the [Insured shall complywith the requirements contained therein. Approval sf any Application for Insuranceshall be at the discretion of the Company and shall be communicaied to the Insured inthe form of a Commitment of Insurance, Each Application for Iusurance shall bedeemed to be part of this Policy and iworporated herein by ibis reference. If dieBorrower's application fora Loau is denied, the Company shall bear no responsibilityfor notifying the Borrower of the decision pursuant to applicable state or federal law.B, initial Premium, Compliance with ConditionsG)} Within ten (18) days afier the Mffictive Date, the Insured shall forward tothe Company the initial premium as shown on the face of the Connaiimentof Insurances.The obligation of the Company io extend insurance coverage to 2 Loan for whicha Commitnent of Insurance has been issued, or pay any Loss in vespect thereof, isexpressly conditioned upon the Insured’s compliance with the provisions of thisPolicy and any conditions shown on the Commitinent of Insusanee and the timelyyeecipt by the Company of the initial premium; provided, however, that anyspecial conditions shall expire apon the Company’s acceptance of renewalpremint or a period of one (1) year from the Certifivale effective date, whicheveris Jonger.=(3) Upon compliance by the Insured with the Commitment of Insurance and upooreceipt by the Company of the initial premium, the Company shall issue aCertificate of Insurance to the Insured, or a Certificate of Insurance previouslyissued to the fisured shall become effective and bind the Company ander thisPolicy as of the Effective Date.C, Representations of the InsuredAn Application for Insurance shall be deemed a representation by the Insared to theCompany, and the Commitment of Insurance and Certificate of Insurance shall bedeemed to haye been issued in relignee thereon,Master Palicy | Confitian Two06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 16RadianMasterPolicyCondition Three ~ Term of Coverage, RenewatA, Tetia of CoverageA Certificate of Josurance shall be in foree and provide coverage for the period oftime shown on the face thereof, untess renewed in accordance with Condition Three(8), below. Upon renewal, the Certificate of Insurance shall continue in forve for theapplicable renewal period.§. RenewalA Coriifieate of fngurance may be renewed at the option of the Insured apon paymentof the applicable renewal premiums and delivery of inctructions identifying the Loanor Loans for which the premium is being paid ided that such instructions asdpaynient are received by the Company within thirty (30) days aller the expiration ofany coverage or renewal period, If the Certifinate of Insuwanee is net renewed as getforth herein, coverage ander the Cerlificate of Insurance sh terrpinaie for Defaultsnot then existing as of 12:07 A.M. on the day following the expiration date thereof,of of the then-current renewal period, The Company shall provide notice of renewaldates to the Servicer (or, #f the Company has-not been informed of a Servicer, tothe Insured),A tupse of coverage for fiihire to pay premiurns when due which affects a group ofLoans may be cured upon written notifivation to the Company by the Insured, atransferee Servicer or the owner of the Loans, that the failure to pay the renewalmure or forfeiture, provided thatranston,premiums was the result of a servicing transfer, seiauch notification occurs within three (3) months of the sorviciagsCondition Pour ~ Cancellation, TerminationA. Cancellation by the Insured{3) Certificate of Insurance‘The Insured or its Servicer may, at any time, by written notice (o the Company,cancel a Certificate of Insarance. Such cancellation shall relieve the Companyof liability for any Default untess a Claim has been submitted prior to suchcancellation, Upon receipt by the Company of the original copy of the Certificateof lnsuranee or a notice of cancellation acceptable to the Company, theappropriate portion of the premiura will be refunded to the Insured pursuant to theCancellation Schedsile appended hereto and made a part bereof, However, noreforid shall be remitted if'a Claim has been submitted, or if the premium planselected by the Insured does not provide for a return of premium.Raster Palire [Candisians Thee ~ Four06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 17Radian {a) Master Polley‘The Insured may, at any ime, by written notice to the Company, cancel thisPolicy, and such cancellation shall be effective as of the date of such notice,provided that ihe conditions of this Policy shall remain applicable fo any Loansinsured here-under prior to such cancellation.MasterPaticyCancellation by the Company{2) Cortificate of InsuranceSubject io applicable law, the Company may cancel a Certificate of Insuranceonly apon the failure of the Insured to pay any premium or comply with anycondition ag required by this Policy:{a} Master PolicySubject to applicable lay, the Company may, at ay Une, by written notice lo UeInsured, cancet this Policy, and such cancellation shall be ¢ ve as of the dateof such notice, provided that the conditions of this Policy shall remain applicableto any Loans insured hereunder prior te such cancellation.€, Terniination of Coverage, Conditions SubsequentNotwithstanding any other provision of this Polivy, the crveraye extended to anyLoan by a Certificate of Insurance may be terminated al the Company's solediscretion, immediately and without notice, if, with respect to such Loan, the Insuredshall perrnit or agree to-any of the following without prior written cansent of the:Company:(a) Any material change or modification of the terms of the Loan including, but notlivnited to, the borrowed amount, interest rac, teem or amertization schedule,excepting auch modifications as may he specifically provided for in the Loandocuments, and permitted without futher approval or consent of the Josured.{a} Any release of the Borrower from liability for the Lean.(3) Any assumption of liability for the Loan, with or without release af the originalBorrower from liability therefor,{s) Any change in the Property,&} Any sale or transter of the servicing of a Loan te an entity not approved in writingby the Company as a servicer, subject to the provisions of Condition Seven of thisPolicy.in the event that the Company elects fo terminate the coverage pirsuant to the aboveConditions, it will make a refund of any applicable premium and/or renewalpremiuny, prorated to the dale of the event giving rise to termination.40 Master fatiewE Coaditian Four06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 18RadianMaster Condition Five ~ Exckucions from CoveragePri . ; , ies It is understood and agreed that the Carapany shall not be liable for and the Policy shallnot apply, extend to or cover the following:A. Balloon PaymentAny Loss arising out af or in connection with failure of the Borrower to make anypayment of principal and/or interest due under a Loan which payment arises becausethe Insured exercises ite right to call or aecelerate such Lean (except as a result of aDefault) or because the tenn of such Loan is shorter than the amortization period, andwhich payment is for an amount atore than twice the regular periodic payments ofprincipal and interest Gachiding any additional amonnts escrowed for taxes or insurance)that are set forth in such Loan (commonly referred to as a “Balloon Payment’). Thisexelusion shall nal apply te Le ‘ulling from the redial of die Borrower to acceptan extension or renewal from ihe Insured or ifs Servicer of the Loan at market rates.8, Brier DelinguenclesAny Loss arising trom a Default if, aa of the Bffective Date of the Certificate ofInsurance, a delinquency exists with respect to any payment under die Loan,€. Incoraplete ConstructionAny Loss, if, as of the date of the related Claim, construction of the Property has notbeen completed in accordance with the constraction plans and specifications,SMisrepresentatias and FrandAny Loss for which a Claint is made in connection with a Certificate of Insuranceissued in reliance upon an Application for fosucance containing any materialmisstaternent, ntisrepresentation or omission, whether intentional or otherwise or as aresult of any act of fraud; provided, however, that unless the Insured had knowledgeafarpatticipated in a Third-Party Misrepresentation or Fraud at the time it was made, theCompany shall not rescind or deny coverage, or adjust any Claim based on suchThird-Party Misrepresentation or Praud if the Borrower has made twelye conseculivemonthfy payments front the Borrower's Own Funds.mm.Negligence of Insured or ServicerAny Loss arising out of any negligence of the Insured or Servicer in the originationar servicing of a Loan which negligence is either the proximate cause of such Loss ormaterially increases the risk insured, provided that if the Company can reasonablydetermine the amount by which such negligence increased the Loss as calculated inCondition Eleven (3), its remedy shall be te adjust the Loss avcerdingly.st Master Policy | Condition Five06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 19KadiattMasterPolityCondition Six ~ Conditions Precedent to Payment of ClaimB Physical BaiageAny cast or expense related to the repair or remedy of any Physical Darnage to theProperty, including but not limited to Ple Damage arising from the followingcauses; () contamination by toxic or hazardous waste, chemical, or other substances,(4) earthquake, flood, or any act of God, (iii) civil war or riot, or (iv) any defects inthe construction of the Property not identified in the Application.A. Conditions PrecedentThe frsared must comply with each of the following requitemoents as 2 conditionprecedent to any obligation of the Company uader this Policy:{® Notice of Defertt or Early BefzaltThe Insered shall, within fillecn (15) days, and notwithstanding any subsequentcure, give the Company written notice, on formas acceptable to the Conipany, of (Dany Loan that is three (3) months in Default, or Gi) any Loan for which there is anBarly Default.@Bionthly Default Reports; Report of Proceadings‘The Insured shall give the Company monthly reports, on forms acceptable to theCompany, detailing servicing efforts with respect to each Loan for whieh ative tothe Company is required under Condition Six of this Policy. Monthly reports shallcontain all of the information and documentation reasonably requested by theCompany, including, but not limited to, the condition of the Property, status ofBorrower contact efforts and statas of Appropriate Proceedings,Monthly reports shall continue with respect to each such Loan until such Defaultay Rarly Default has been cured er until title to the Property has been acquired bythe Insured, The Insured shall provide the Company with wrilten notice withinfifleen (18) days after the Insured has knowledge of the conunencemenit of anyproceeding, including Appropriate Proceedings, which affvets the Loan, theProperty, or the Iysured’s or Borrower's interest therein,(3) Appropriate ProceedingsSubject only to the provisions of Conditions Nine and Fifteen below:(a) ‘fhe Insured shall commence and diligently pursue Appropriate Proceedings,but in no event later than six (6) mosths after it is perniitted to do so pursaantto the terms of the Loan and applicable law. If directed by the Company, theInsured shall commence Appropriate Proceedings as soon as if is permitted tsdo so parstant to the terms of the Loan and applicable Jaw,Master Paliee fCondifinns five ~ Six06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 20Radian {) ‘The Insured shall furnish the Company with capies of all notices audaster pleadings filed or required in connection with Appropriate Proceedings.Pofiey Chain. t :. (9) Bidding instractions.{The Company may give specific foreclosure sale bidding instructions tathe Insured that do not require a mininum bid of Jess than Fait MarketValue, and in accordance with applicable law, provided that the CompanyWil not specify a maximum bid of fess than the uninsured Loan amount,and, if the Property will be subject to redemption for less than theoutstinding amount owed by the Borrower, the Company will not specifyan opening bid of fess than the uninsured Loan amount, For this purpose,the uninsured Loan amount shall be the estimated Loss calculated pursnantto Condition Biever (5), less the percentage thereof payable pursvant taCondition Twelve (A}(2).{i} Tn the absence of specific bidding instructions, the Lysaved may controlthe bidding proce:{iH} Ip the event of either (i) or (ii), above, unless the Company elects Inwriting prior fo the foreclosure sale to purchase the Property, any third-parly purchase af foreclosure will be treated as. an Approved Sale pursuantto Condition Bight (A) of this Folicy,8, Failure te Comply‘fhe failure of the Insured to comply with any of the foregoing conditions precedentwill give the Company, at its sote discretion, the right to declare any liability orobligation under this Pofiey null and void with respect lo the applicable Certificate ofInsurance, provided that violations of timing requirements shall residt only in aseduction of the Loss to the estimated extent of the prejudice suffered by theCompany for the violalion, and shall not sesult in cancellation of coverage unless thetiming violatian exceeds one year from the required date of submission,condition Seven ~ Loan ServicingEvery Loan insured under this Policy shall be serviced in a reasonable and prudentmanner and consistent with the highest standards of servicing in use in the residentialthortgage industry. Such servicing shall include, Dut not be Hmited to, diligent efforts tocure a Default, inchiding Borcower contact, and prompt reporting of any Default to theappropriate credit reporting bareau(s). If the servicing of a Loan is sald, assigned ortransferred by the Insured ot by the Servicer, coverage shall continue hereunder,provided that notice thereof is given to the Company and the Laan continues to beserviced by an entity approved by the Compaiy,so Raster fillev 1 Castitinas Six ~ Seven.06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2RadianRaterPoticythe Company disapproves a Servicer, or ifthe Loan is transferred to a previouslydisapproved or unapproved Servicer, the Insured, (or the owner of the LoanheCompany has been notified of an owner other than the Insured), shall have ninety (90)days in which to replace the Servicer with one approved by the Company.Condition Eight ~ Approved SaleA, Settlement on Basis of Approved Sale8fan Approved Sale is consummated in accordance with the terms act forthhereinabove, with respect to such Approved Sale:(@ The Company hereby waives is riubt to exercise its option to acquire the Propertypursaaat to Condition Twelve (A)(1) of this Policy, and releases die Insured from thobligation to tender Merchantable Title pursuant t Condition Twelve or Borrower'sTide to the Property pursuant to Condition Eleven (A)(1) of this Poliey;the net proceeds of such Approved.sfaction of the Loan shall not{2} The Insured shall have the sole right to reBale and acceptance of such net presprejudice the Insured hereunder; and(3) In calculating the nel proceeds of such Approved Sale, all the Insured’s reasonablecosts of obtiining and closing the sale shall be deducted from the gross proceeds ofthe sale.{s) Company shall pay to the Insured, in fill settlement of ils obligation to the Insuredwith respect to the Loss to which such Approved Sale is related, the lesser of(3) the entire amount of such Loss detenmined pursuant fo Condition Eleven of thisPolicy; or(8) the percentage of such Loss, computed withoul deduction of the net proceeds ofthe Approved Sale, specified in the applicable Certificate of Insurance and inaccordance with the prersiun plan under which the Loan is jusured.Settlement if Approved Sale Doas Rat CloseIfan Approved Sale does not close, the Company may settle under either of theacttlement options set forth in Condition Twelve (A), provided that if tbe SettlementDue Date has passer, (3) interest as provided for in Condition Thisteen (D) shall bepayable, and (ii) if the Company wishes to settle ander Condition Twelve (ACE), theInsured’s obligations it connection with the transfer of the Property to the Companyshall be as required by this Policy subject to the limitation that they shall not be moreburdensome to the Insured than ils obligations (including, but not limited to, itsobligations as to the condition of the Pauperty) as seller in the Approved Sale that failed toclose,Master Patioy} Conditions Seven ~ Dish?06/08/2015 2:43 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 22RadianfAanterPolicyCondition Nine ~ Biigation of famagesA. Mitigation of Ramages8,cRaster Palies | Condition MineThe Insured shall actively cooperate with the Company to prevent and ptifigate Lossiveluding, without linutation, the collection of rents, the assertion of its rights in andio any collateral or security in its custody or vontral, assertion of rights against theBorrower, and prompt reporting to the Company of any preforcelosure sale offers. Ifa preforeclosure sale is approved by the Company and the Insured, but for any reasonthe safe does not close, then the Company shall cantinue to adininister the Policy asif no sale bad been attempted. The Company may the Insured in efforts toiwitigate any Loss,te With the. Insured to administer the Policy inpursuant fo the reciprocityThe Company shail actively coorsuch a way as to not increase the hisured’s uninsured tosand maitualily of the parties’ obligations.Rats of the Property by the Ineured‘The mitigation
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The motion states that it seeks relief under Code of Civil Procedure, section 904.1 the statute governing grounds for appeal on the basis that the Courts November 16 Order was wrong. To the Courts knowledge, Defendant has not followed the procedures for filing an appeal and in any event, the Court is not able to consider appeals of its own judgments. Defendants motion could be characterized as a motion for reconsideration, and the Court will consider it as such. Within ten days of service of an order, a party may move for reconsideration based on new facts, circ*mstances, or law. (Code Civ. Proc., § 1008, subd. (a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The moving party shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circ*mstances are claimed to be shown. (Code Civ. Proc., § 1008, subd .(a).) 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(Alsbrook Decl. ¶ 12.) The Referee represented in his ex parte brief that the offer was for a purchase price of $660,000.00. (Ex Parte Application for Writ of Possession at p. 2:19-25.) The Referee declared that it was Defendants continued residence at the Property that was delaying the sale. (Alsbrook Decl. ¶ 12.) Defendants first two arguments could have been presented at the original hearing for the motion, and are therefore not new facts. The delay in the sale of the Property appears to be a result of Defendants own conduct, and not a result of an inability to find a buyer. The Court therefore denies Defendants motion.
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FCS057009 - DMP MANAGEMENT, LLC V. CORNERSTONE LAND CO(DMS)
Jul 16, 2024 |FCS057009
FCS057009Motion by Plaintiff DMP MANAGEMENT, LLC to Compel Compliance with DepositionSubpoena for Production of Business Records and for SanctionsTENTATIVE RULINGEvidence Code §1563(b)(1) authorizes a nonparty witness to charge the subpoenaingparty “reasonable costs” with respect to the production of business records pursuant toa records subpoena, with those costs generally limited to $24/hour per person for thereasonable clerical costs to locate and produce the records responsive to the subpoena. All reasonable costs incurred in a civil proceeding by a witness who is not a party with respect to the production of all or any part of business records requested pursuant to a subpoena duces tecum shall be charged against the party serving the subpoena duces tecum. (1) “Reasonable costs,” as used in this section, includes, but is not limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8½ by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.After the original enactment of this statute, the Legislature amended it, to add the“including but not limited to” language.Nevertheless, a nonparty receiving a records subpoena should produce responsivedocuments subject to the clerical hourly rate limitation, absent the providing of sufficientevidence to establish that the document search cannot reasonably be performed by aclerical, non-professional person.The only evidence AMS has presented is the declaration of its founder/chief engineer.All he claims in his declaration is that nearly all work and communications are inelectronic form, stored on computers, and not stored yet in separate folders per project.While his declaration reported directing “an associate in my office, Marie Thompson”, tocontact AMS’s attorney, he also claimed that “AMS does not employ any clericalpersons or secretaries or persons who are compensated at the rate of $24/hour”. Thatlatter statement does not rule out that AMS employs or could employ any clerks orsecretaries (only that if AMS does so employ, none are paid at the hourly rate of $24).And it does not seem likely that an engineering firm of even small size lacks any supportstaff (secretary, clerk, receptionist or even bookkeeper) who at relatively low hourlyrates could not be tasked with the job of sorting through computer records.The court therefore grants DMP’s motion, and orders AMS to produce documents(electronic or otherwise) responsive to the business records deposition subpoena.The court also imposes sanctions against AMS, in the amount of $1,460.00, payable toDMP by 5:00 p.m. within 30 days from issuance of this Order.Compliance with all terms of this order is due within 20 days of service of the signedorder.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)
Ruling
WENDY NEWTON, AN INDIVIDUAL VS LEE MARIE CLAUDINO, AN INDIVIDUAL, ET AL.
Jul 16, 2024 |22TRCV00276
Case Number: 22TRCV00276 Hearing Date: July 16, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Tuesday, July 16, 2024 Department M Calendar No. 13 PROCEEDINGS Wendy Newton v. Clay Claudino, et al. 22TRCV00276 1. Clay Claudino, et al.s Demurrer to Third Amended Complaint 2. Clay Claudino, et al.s Motion to Strike Portions of Third Amended Complaint TENTATIVE RULING Clay Claudino, et al.s Demurrer to Third Amended Complaint is overruled, in part, and sustained with 20 days leave to amend, in part. Clay Claudino, et al.s Motion to Strike Portions of Third Amended Complaint is denied, in part, and deemed moot, in part. Background Plaintiffs Complaint was filed on April 11, 2022, and the Third Amended Complaint (TAC) was filed on April 4, 2024. Plaintiff alleges the following facts. Plaintiff was a tenant of a property located at 509 Longfellow Avenue, Hermosa Beach, California 90254. The property suffered from numerous habitability problems. Plaintiff alleges the following causes of action: 1. Negligence 2. Tortious Breach of Implied Warranty of Habitability 3. Statutory Breach of Implied Warranty of Habitability 4. Breach of Contract 5. Nuisance 6. Fraud 7. Breach of the Implied Covenant of Good Faith and Fair Dealing 8. Breach of the Covenant of Quiet Use and Enjoyment 9. Trespass 10. Intentional Infliction of Emotion Distress 11. Violation of Civil Code Section 827 12. Violation of Civil Code Section 1942.2 13. Retaliatory Eviction 14. Constructive Eviction 15. Conversion. Meet and Confer Defendants set forth meet and confer declarations in sufficient compliance with CCP § 430.41 and CCP § 435.5. (Decls. Rudolf Petrosyan.) Request for Judicial Notice Defendants request for judicial notice is granted pursuant to Evidence Code Section 452(d). 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.) Defendants demur to the entire TAC and each cause of action pursuant to CCP § 430.10(a)(e) and (f) on the grounds that the Court lacks jurisdiction over this matter, that the causes of action fail to state sufficient facts, and that the TAC is uncertain. First, Defendants again demur to the entire TAC on the grounds that the Court lacks jurisdiction because a prior unlawful detainer judgment acts as collateral estoppel to bar the causes of action of the TAC. The Court has again taken judicial notice of the Complaint, Answer, and Judgment in Case No. 20IWUD00738. In ruling to the demurrer to the Second Amended Complaint, the Court already determined that the demurrer based on lack of jurisdiction cannot be sustained. It is not clear why Defendants again demurred on these same grounds. Defendants are instructed in the future to read the Courts minutes and rulings prior to filing documents or making appearances in this Court. For Defendants benefit the Court will repeat what was written in the Courts prior ruling: An unlawful detainer action is a special limited summary proceeding limited to the issue of the right to possession. As such, the parties cannot raise extrinsic issues and are generally limited in the issues that they can litigate. Thus, usually, the judgment in the unlawful detainer action does not have a res judicata effect on any issue other than one that was necessarily litigated to determine the right of possession. [T]he critical question is whether or not the unlawful detainer defendant has had adequate opportunity to present his case. Gonzales v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029, 1036. In some circ*mstances, the unlawful detainer judgment does bar a subsequent action by the parties. Any issue that was necessarily litigated in the unlawful detainer to resolve the issue of the right to possession cannot be raised in any subsequent action between the parties. The party asserting issue preclusion bears the burden of establishing these requirements. Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 757. The unlawful detainer judgment may be barred by res judicata on issues that were not necessary to the issue of possession when the issue is raised in the proceedings without objection and fully litigated by the parties. Vella v. Hudgins (1977) 20 Cal. 3d 251, 25657. Here, a review of the UD Complaint, Answer, and Judgment does not reveal, at least for purposes of the instant demurrer, a complete bar to the causes of action based on principles of collateral estoppel and res judicata. First, the Court notes that the UD Judgment was entered only in favor of Clay Claudino and Lee Marie Claudino, Trustees of the Clay and Lee Claudino Living Trust Dated November 2, 2007. Defendants have failed to establish, at this time, that the other two Defendants named in the Complaint can utilize the principles of collateral estoppel and res judicata in their favor. Second, a review of the UD Judgment only reflects a discussion of issues involving Newtons alleged maintenance of a nuisance by placing undue restrictions on the asbestos abatement efforts. As the parties are probably aware, there are a multitude of issues that are alleged in the instant Complaint which are not addressed at all in the UD Judgment. The Court declines to dismiss the action or sustain the demurrer, at this time, based on principles of collateral estoppel and res judicata. The Court notes that the prior demurrer was sustained based solely on uncertainty grounds based on the failure to differentiate the parties that committed certain acts. The Court will review the TAC to determine if the TAC has now rectified those uncertainty issues. As to the demurrer of Clay Claudino, individually, the demurrer is overruled. Plaintiff states sufficient facts to state the causes of action and the Third Amended Complaint is not uncertain. Numerous factual allegations have been alleged against this Defendant to support the elements of the cause of action and Clay Claudino is specifically named as the landlord/lessor in the lease agreement attached to the TAC. However, as to the demurrer of Lee Marie Claudino, individually, and Clay Claudino and Lee Marie Claudino, as Trustees of the Clay and Lee Claudino Living Trust Dated November 2, 2007, the demurrer is sustained with 20 days leave to amend. As to these Defendants, the Court again sustains the demurrer based on uncertainty. The Court again notes that the attached lease reflects the parties to the lease as Plaintiff and Defendant Clay Claudino only. Most of the causes of action alleged against Defendants would only be applicable to the landlord - Clay Claudino. Despite Plaintiffs constant reference to the other Defendants as also being landlords, the only lessor named in the lease agreement is Clay Claudino. There are several causes of action that may be applicable to a Defendant solely based on ownership of the property. However, the allegation of ownership is completely uncertain. Plaintiff appears to allege that the owners are all of the following: Clay Claudino, individually, Lee Marie Claudino, individually, and Clay Claudino and Lee Marie Claudino, Trustees of the Clay and Lee Claudino Living Trust Dated November 2, 2007. This allegation is uncertain because generally when a trust is the title owner of the property it would not hold joint ownership with individuals. Typically, ownership of property would be held by individuals or a Trust, but usually not co-owned by individuals and a Trust. Curiously, Defendants made specific arguments in this regard only related to the Fraud and IIED causes of action. However, the uncertainty in the allegation of ownership of the property permeates every cause of action. As to the Fraud and IIED causes of action, the Court notes that there does not appear to be any factual allegations within these causes of action directed against Defendants Clay Claudino and Lee Marie Claudino, Trustees of the Clay and Lee Claudino Living Trust Dated November 2, 2007 and Lee Marie Claudino. The factual allegations are directed solely to Clay Claudino, individually. Thus, the demurrer of Clay Claudino, individually, is overruled. The demurrer of Lee Marie Claudino, individually, and Clay Claudino and Lee Marie Claudino, as Trustees of the Clay and Lee Claudino Living Trust Dated November 2, 2007 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. Defendants move to strike the following: 1. Page 2. line 4, which states, "Ms. Newton is a single, approximately 59-year old woman." 2. Page 4, lines 3-5, which states, "Plaintiff, believing that her sister and her very young niece would be moving into the residence with her as a result of her brother-in-law dying from asbestos exposure&" 3. Page 29, lines 14-15, which state "Defendants engaged in conduct, which was malicious, oppressive, and fraudulent, entitling Plaintiff to punitive damages." 4. Page 29, lines 23-26, which state "Defendants' conduct in breaching the implied warranty of habitability has been grossly negligent, malicious, and oppressive, thereby entitling Plaintiff to punitive damages in an amount to be proven at trial." 5. Page 31, lines 10-11, which state "Civil Code § 3294 allows for punitive damages where a defendant's actions were done with malice, oppression, or fraud." 6. Page 35, lines 19-21, which state "Defendants' conduct in breaching the covenant of quiet enjoyment has been grossly negligent, malicious, and oppressive, thereby entitling Plaintiffs to punitive damages in an amount to be proven at trial." 7. Page 37, lines 19-21, which state "Defendants' conduct in breaching the covenant of quiet enjoyment has been grossly negligent, malicious, and oppressive, thereby entitling Plaintiffs to punitive damages in an amount to be proven at trial." 8. Page 38, lines 23-24, which state "Plaintiffs are thus entitled to exemplary and punitive damages in an amount according to proof at time of trial." 9. Page 44, lines 18-19, which state "Plaintiff is thus entitled to exemplary and punitive damages in an amount according to proof at time of trial." 10. Page 49, lines 1-4, which state "Any lessor or agent of lessor who violates §1942.5, shall be liable to the lessee in a civil action for all of the following 1) The actual damages sustained by the lessee; (2) Punitive damages in an amount of not less than one hundred dollars ($100) no more than two thousand ($2000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act." 11. Page 49, lines 17-20, which state "Defendants have individually, and in concert, acted with reckless and conscious disregard for the rights of the Plaintiff Defendants' conduct has been grossly negligent, malicious, and oppressive, thereby entitling Plaintiff to punitive damages in an amount to be proven at trial." 12. Page 51, lines 8-10, which state "Plaintiffs are thus entitled to exemplary and punitive damages in an amount according to proof at time of trial." 13. Page 52, lines 23-28, which state "Defendants unauthorized acts of conversion were done with the intent o [sic] depriving Plaintiff of their property or legal rights or otherwise causing injury, and were despicable, malicious, oppressive, and/or fraudulent conduct that subjected Plaintiff to a cruel and unjust hardship in conscious disregard of Plaintiffs rights, so as to justify an award of exemplary and punitive damages to Plaintiff in an amount not yet ascertained but which amount is within the jurisdictional requirements of this Court and will be proven at time of trial." 14. Prayer for relief items 6, which state "For treble damages according to proof at time of trial" 15. Prayer for relief items 7, which state "For punitive and exemplary damages according to proof at time of trial" (Notice of Motion, pages 2-3). As to Defendant Clay Claudino, the motion to strike is denied. 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. [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. [I]f the tenant wrongfully evicted elects to sue in tort, damages may be awarded for mental anguish and pain or physical injury; exemplary damages may also be recovered when the landlord's conduct justifies the award[.] Id. at 926. Plaintiff has alleged sufficient specific facts that Defendant Clay Claudino acted with malice, oppression, and/or fraud to support the allegations and prayer for punitive damages. In addition, Plaintiff has alleged facts to support the request for statutory penalties. Finally, the allegations are not false, irrelevant, or improper on their face. As to Defendants Lee Marie Claudino, individually, and Clay Claudino and Lee Marie Claudino, as Trustees of the Clay and Lee Claudino Living Trust Dated November 2, 2007, the motion to strike is deemed moot pursuant to the Courts ruling sustaining the demurrer to the entire TAC. Defendants are ordered to give notice of this ruling.
Ruling
655 POWELL I5, LP VS. MICHAEL RUTLEDGE ET AL
Jul 15, 2024 |CUD22670193
Real Property/Housing Court Law and Motion Calendar for July 15, 2024 line 6. PLAINTIFF 655 POWELL I5, LP Motion To Enforce Settlement: Memorandum Of Points And Authorities is GRANTED. Judgment shall enter for $54,000 for the "balance owing" under the stipulation and for reasonable attorney's fees and costs in the amount of $2,250. Request for prejudgment interest and NSF fees is not supported by the terms of the settlement agreement or authority. No opposition filed. =(501/HEK) 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
LAWRENCE GEORGE WORTHEN VS COLLIN HINDS
Jul 16, 2024 |23STCV28792
Case Number: 23STCV28792 Hearing Date: July 16, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: July 16, 2024 TRIAL DATE: 03/04/2025 CASE: Worthen v. Hinds CASE NO.: 23STCV28792 MOTION FOR ORDER ESTABLISHING ADMISSIONS AND FOR SANCTIONS MOVING PARTY: Defendant/ Cross-Complainant Collin Hinds RESPONDING PARTY(S): Plaintiff/Cross-Defendant Lawrence George Worthen CASE HISTORY: · 11/27/23: Complaint filed. · 12/26/23: First Amended Complaint filed. · 02/13/24: Cross-complaint filed. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: The dispute arises from the lease of the real property located at 5622 Keniston Ave. Los Angeles CA, 90043. Plaintiff files the instant action against Defendant to recover rent paid based on alleged defects with the property not disclosed at the time of the creation of the parties landowner/tenant relationship. On May 14, 2024, Defendant/Cross-Complainant filed the instant motion for an order deeming his Requests for Admission, Set One, as admitted based on Plaintiffs failure to respond under Code of Civil Procedure § 2033.280. Plaintiff filed his opposition on June 28, 2024. No reply has been filed. TENTATIVE RULING: Defendant/Cross-Complainant Collin Hindss Motion for an Order Establishing Admissions is DENIED as MOOT. Request for Sanctions is DENIED. DISCUSSION: Request for Admissions Legal Standard A party must respond to requests for admissions within 30 days after service of such requests. (Code Civ. Proc., § 2033.250, subd. (a).) If a party to whom requests for admission are directed fails to serve a timely response&(a) [that party] waives any objection to the requests, including one based on privilege or on the protection for work product& (Code Civ. Proc., § 2033.280, subd. (a).) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7. (Id. at subd. (b).) A motion dealing with the failure to respond, rather than with inadequate responses, does not require the requesting party to meet and confer with the responding party. (Deymer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, fn. 4 [disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973]). There is no time limit within which a motion to have matters deemed admitted must be made. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1585.) Analysis Defendant provides the declaration of his counsel, Alain V. Bonavida, who states that he served Plaintiff with Defendants Request for Admissions, Set One (RFAs) via overnight delivery on April 2, 2024. (Bonavida Decl. ¶ 3; Exh. A.) The request was delivered to Plaintiff on April 3, 2024. (Id.; Exh. B.) Counsel swears that as of the filing of the instant motion, no responses have been received. (Id. ¶ 4.) Plaintiffs opposition declaration states that he did not receive Defendants discovery request but did receive two USPS packages, one of which contained the instant motion. (Worthen Decl. ¶ 1.) By the time he filed his opposition, however, Plaintiff had responded to the RFAs. (Id. ¶ 3; Exh. A.) Based on Plaintiffs declaration, the motion appears to be moot under CCP § 2033.280(c) as Plaintiff has provided his responses to the request for admissions compliant with CCP §2033.220. Defendant has not filed a reply challenging the responses. Therefore, the Court finds the motion to be moot. Sanctions Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorneys fees, incurred by anyone because of that conduct. A misuse of the discovery process includes failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) Furthermore, it is mandatory that the Court impose a monetary sanction&on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc., § 2033.280, subd. (c).) Defendant requests $3,150.02 be issued as a monetary sanction against Plaintiff. (Bonavida Decl. ¶ 5.) While the filing of late response does not negate the Courts discretion to issue monetary sanctions, sanction in this case would be unwarranted as Plaintiff swears under penalty of perjury that his failure to respond timely was through no fault of his own. (Worthen Decl. ¶ 5.) Therefore, the Court declines to issue sanctions in this case. Accordingly, Defendant/Cross-Complainant Collin Hindss Motion for an Order Establishing Admissions is DENIED as MOOT. Request for Sanctions is DENIED Moving party to give notice, unless waived. IT IS SO ORDERED. Dated: July 16, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
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