Preview
Filed Superior Court of California, Sacramento RAY KIM LAW, APC O11 22024 Raymond Y. Kim (SBN 251210) fisherr 112 E. Amerige Ave., Suite 240 By _ Deputy NYO Fullerton, CA 92832 Telephone: 833-729-5529 24CVb00485 W Facsimile: 833-972-9546 E-mail:ray@raykimlaw.com fF Attorneys for Plaintiff nA Mohammed F. Khan HD AN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO 0 SO Mohammed F. Khan, ) SES KF ) Plaintiff, ) VERIFIED COMPLAINT AND SF NYO 112 E. Amerige Ave., Suite 240 ) DEMAND FOR JURY TRIAL VS.Ray Kim Law, APC KF Fullerton, CA 92832 BW Planet Home Lending, LLC; Asset Recovery _) FAX HK Center, LLC; ARCPE Holding LLC; ZBS ) Law, LLP; and DOES 1-10. ) Nn KF ) Defendants. ) HDA HF ) BY HF WON HK OHO HK CO NO KF NN NY NY NY BW NY MN NO DN NO NO oN NO VERIFIED COMPLAINT Plaintiff Mohammed F. Khan (“Plaintiff”) brings this Complaint against defendants Planet Home Lending, LLC (“Planet Lending”); ARCPE Holding LLC (“ARCPE”); ZBS Law, LLP NYO (“ZBS”) (together “Defendants”), and alleges as follows: W SUMMARY OF ACTION fF L. Plaintiff brings this action for damages and other legal and equitable remedies nA (including the rescission of the Notice of Default recorded on September 26, 2023), resulting from NH inter alia the illegal actions of Defendants in commencing foreclosure proceedings on his home ON located at 9614 Boblyn Way, Elk Grove, CA 95757 (the “Home”) based on a void deed of trust. The deed of trust is void because the loan secured by the deed of trust (the “Loan”) that was So cancelled by the beneficiary over 12 years ago, on October 25, 2010. In fact, the beneficiary issued CO a 1099-C and has taken no action on the Loan until last year in 2022. In addition, Plaintiff reported OS KF the cancellation of debt on his 2010 tax returns. By attempting to foreclose on the Home now based 112 E. Amerige Ave., Suite 240 NO OFRay Kim Law, APC on a void assignment of deed of trust, Defendants are engaging in a wrongful foreclosure of the Fullerton, CA 92832 KP BW Home. In addition, on information and belief, ARCPE does not have ownership or the right to KF foreclose on the Home. NH KF 2. In so doing, Defendants are liable for common law wrongful foreclosure and their HA KF foreclosure proceedings must be estopped pursuant to Plaintiff's claim for promissory estoppel. KF WBN Defendants have also violated the: (i) California Rosenthal Fair Debt Collection Practices Act KF (“Rosenthal Act”), Cal. Civ. Code § 1788 et seq.; (ii) federal Fair Debt Collection Practices Act HO KH (“FDCPA”), 15 U.S.C. § 1692 et seq.; (iii) federal Real Estate Settlement Practices Act (“RESPA”) CO WN and Regulation X, 12 C.F.R. §§ 1024.33, 1024.39; (iv) California Home Owners Bill of Rights, kK HN (“HBoR”), Civil Code § 2924.17; and (v) California Unfair Competition Law (“UCL”), Business NY NY and Professions Code § 17200. With respect to Defendants’ unlawful foreclosure practice, pursuant NY BW to Civil Code § 2924.19 and Business and Professions Code § 17203, Plaintiff seeks an injunction NH ordering that Defendants cancel and rescind the notice of default and immediately stop all MN HN foreclosure proceedings on the Home. In addition, pursuant to Business and Professions Code § DO NH 17203, Plaintiff seeks public injunctive relief ordering that, going forward ZBS not submit and/or NO on record a declaration or notice of default that is not supported by competent and reliable evidence. NO =e VERIFIED COMPLAINT THE PARTIES 3. Plaintiff is an individual consumer residing in the State of California, Sacramento NY County. Plaintiff is the owner of residential property located at 9614 Boblyn Way, Elk Grove, CA WY 95757 (the “Home”). The Home is Plaintiff's principal residence is security for the Loan, which FP Plaintiff obtained for personal, family, or household purposes. Hn 4. Defendant Planet Home Lending, LLC is a privately held national residential HD mortgage servicer and debt collector formed in Delaware and based in Meriden, Connecticut. Planet ON Lending has been issued California Department of Financial Protection and Innovation, Residential Mortgage Lending Act license number 4130947. Planet Lending regularly does business throughout Co California, and is the servicer and debt collector of the Loan. On information and belief, Planet OO Lending is not licensed in California to be a debt collector, pursuant to the Debt Collection Licensing EE KF Act. 112 E. Amerige Ave., Suite 240 NY OERay Kim Law, APC 5. Defendant Asset Recovery Center, LLC (“Asset Recovery”) is a debt collector Fullerton, CA 92832 Fe BW incorporated and based in Florida. Asset Recovery is not a licensed debt collector in California. KF While Asset Recovery claims to be a servicer, it is not licensed with the California Department of NH KF Financial Protection and Innovation, and does not have a Residential Mortgage Lending Act license NH KF number. Asset Recovery regularly does business throughout California, and is a debt collector of the WDBnNn KF Loan. KF 6. Defendant ARCPE is a mortgage servicer, lender, and purported beneficiary and HO HF assignee of the Loan, with its principal place of business in Miami Beach, Florida. ARCPE regularly CO NN does business throughout California, and is the purported owner of the Loan. NN KF A Defendant ZBS is a “default law firm” and debt collector with its principal place of NY N business at 30 Corporate Park, Suite 450 Irvine, CA 92606. NY BW 8. Doe Defendants 1-10 are the other individuals who improperly assigned the Loan to NY ARCPE and/or improperly engaged in debt collection activity or foreclosure. UN NO JURISDICTION AND VENUE DO NO 9. The Court has jurisdiction over this matter because the amount in controversy NO oN exceeds $25,000.00, and Plaintiff seeks injunctive relief. NO —e VERIFIED COMPLAINT 10. | Venue in Sacramento County is proper because the Loan was obtained in this County, the Home is located in this County, the harm occurred in this County and Defendants NYO transact business in this County. W /I/ fF STATEMENT OF FACTS nA 11. In or about October 2006, Plaintiff obtained a mortgage loan for $132,000.00 (the HN “Loan”). The Loan was secured by the Home. mHN 12. ‘In 2010, Plaintiff began experiencing financial hardship and was unable to make payments on the Loan. The Loan was cancelled and charged-off. On October 25, 2010, the Loan Co servicer, Saxon Mortgage Services, Inc. (“Saxon Mortgage”), issued a 1099-C cancelling the entire SO balance due on the Loan. S| KF 13. Saxon Mortgage and the lender ceased sending periodic statements and did not attempt 112 E. Amerige Ave., Suite 240 OO Se NHRay Kim Law, APC to collect on the Loan after October 2010. Plaintiff did not receive any further periodic statements Fullerton, CA 92832 Ore BW on the Loan. Fr 14. Plaintiff relied on the 1099-C and the cancellation of the Loan and thereby made no NA KF further attempts to repay the Loan or inquire about the Loan after learning about the 1099-C. In 2011, Qa FP Plaintiff reported the 1099-C in his tax returns filed with the IRS. HF WBN 15. In 2017, ClearSpring Loan Services contacted Plaintiff about the Loan. Plaintiff] HF responded that the Loan was cancelled and provided ClearSpring with a copy of the 1099-C and his HO KF tax return showing that the 1099-C had been reported. In response, in December 2017 ClearSpring CO NO sent Plaintiff a letter stating, “Thank you for providing the 1099-C issued by Saxon Mortgage NO KF Services , Inc . (‘Saxon’), as ClearSpring had no knowledge of this document when the loan boarded. NY NY After review, we have determined that your debt was, in fact, cancelled in 2010 by Saxon.” NY WW 16. The property title history reveals that an assignment of mortgage relating to the Loan BP NO was recorded with the Sacramento County Recorder’s Office in October 2018. Plaintiff did not NN NO receive notice of this assignment in or after 2018 by the assignee, ARCPE. Plaintiff also did not HD NO receive notice that ARCPE was the assignee or had any connection to the Loan. On information and NO oN belief, the assignment to ARCPE is improper. NO -4- VERIFIED COMPLAINT 17. ‘In or about 2018, out of the blue Planet Lending began sending Plaintiff monthly]. statements for the Loan. The monthly statements claimed that Plaintiff had a past due balance of NO approximately $150,000.00 and a total accelerated balance of approximately $170,000.00. WW 18. Plaintiff disputed the Loan with Planet Lending. FP 19. On May 5, 2023, ZBS, as agent and/or fiduciary representative of ARCPE and at the Hn direction of ARCPE, recorded a notice of default. ZBS acted within the course and scope of such NHN agency or fiduciary relationship in recording the notice of default. The notice of default states that ON Plaintiff is past due for the amount of $169,788.82 as of May 3, 2023. 20. On August 1, 2023, Planet Lending sent Plaintiff a notice of servicing transfer C0 notifying Plaintiff that servicing of the Loan will be transferred to Asset Recovery Center, LLC SO Se (“Asset Recovery”) effective August 18, 2023. KF 21. On August 8, 2023, in response to Plaintiff's demand and at ARCPE’s direction ZBS 112 E. Amerige Ave., Suite 240 NYO OeRay Kim Law, APC recorded a Notice of Rescission of Declaration of Default and Demand for Sale. Fullerton, CA 92832 Re BPW 22; On August 24, 2023, Asset Recovery sent Plaintiff a collection notice and notified KF Plaintiff of its intent to recommence foreclosure proceedings. In the letter, Asset Recovery stated NA KF that it had “determined that the unpaid balance is approximately $135,793.66 if paid on 9/23/2023.” Qa HF This alleged balance was $35,000.00 less than the amount listed in the notice of default and in prior HF WBN monthly statements from Planet Lending. HF 23. On September 26, 2023, ZBS, as agent and/or fiduciary representative of ARCPE and UO KH at the direction of ARCPE, recorded a second notice of default (“Second NOD”). ZBS acted within CO NO the course and scope of such agency or fiduciary relationship in recording the notice of default. The NN KF notice of default states that Plaintiff is past due for the amount of $169,788.82 as of May 3, 2023. NY ND 24. Since the Second NOD was recorded Plaintiff has repeatedly demanded that WW NY Defendants rescind the second NOD, but Defendants refused. BP NO FIRST CAUSE OF ACTION NO MN WRONGFUL FORECLOSURE DN NO (Against Defendants) NO oN NO oS x VERIFIED COMPLAINT 25. Plaintiff repeats, re-alleges, and incorporates by reference all other paragraphs, as if fully set forth herein. NY 26. | ARCPE claims to be a mortgagee and beneficiary of the Loan. W 27. ZBS, acting as an agent and/or fiduciary representative of ARCPE and at the FP direction of ARCPE illegally and oppressively commenced foreclosure proceedings on the Home Wn pursuant to a purported power of sale in a deed of trust, including the recording of notices of default Nn in May 2023 and September 2023. ON 28. Plaintiff is and has been prejudiced and harmed by the recording of the notice of default and commencement of foreclosure proceedings. 0 29. The notice of default and foreclosure sale proceedings are based on an underlying CO Loan and deed of trust that are void and unconscionable. The Loan was cancelled in October 2010, SS KF and therefore ARCPE never became a beneficiary of the deed of trust. Thus, the assignment to 112 E. Amerige Ave., Suite 240 NYO eSRay Kim Law, APC ARCPE is void. In addition, upon information and belief ARCPE cannot show that it is the owner Fullerton, CA 92832 KF BW of the Loan and has the legal right to foreclose on the Loan. KF 30. Plaintiff has suffered monetary damages, and immense emotional distress, anxiety NH KF and loss of sleep as a result of Defendants’ conduct. In addition to emotional distress damages, ADA HF Plaintiff is entitled to a declaration that the Loan is cancelled and the deed of trust purportedly held Fe WNQ by ARCPE is void and unenforceable, and an injunction that Defendants must immediately rescind Ke the notice of default and cancel any foreclosure sale proceedings. OO KH SECOND CAUSE OF ACTION NO CO ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT KH NY California Civil Code §1788, et seq. NY NN (Against Defendants) NY BW 31. Plaintiff repeats, re-alleges, and incorporates by reference all other paragraphs, as if NO fully set forth herein. MN NO 32. ARCPE, Asset Recovery, Planet Lending, and ZBS are “debt collectors” under the DN NO Rosenthal Act. NO oN 33. Plaintiff is a “debtor” within the meaning of the Rosenthal Act. NO -6- VERIFIED COMPLAINT 34. | Defendants acts and omissions constitute multiple violations of the Rosenthal Act, including but not limited to the violations of sections 1788.17. NY 35. ZBS violated California Civil Code section 1788.17 (via incorporation of 15 W U.S.C. §§ 1692e and 1692f), by making false, deceptive and/or misleading representations in FP an attempt to collect a debt. This included but is not limited to falsely stating that Plaintiff has Wn a default balance on the Loan and demanding approximately $150,000.00 in order to bring the ND Loan into good standing and $170,000.00 in order to avoid foreclosure, and falsely claiming that the amount due will increase until the Loan becomes current. mH 36. Asset Recovery also violated California Civil Code section 1788.17 (via Co incorporation of 15 U.S.C. § 1692g), by failing to provide a debt validation notice within five OC Se days after its initial August 24, 2023 communication with Plaintiff. KF 37. Defendants’ conduct has caused Plaintiff severe stress, anxiety, loss of sleep, and 112 E. Amerige Ave., Suite 240 ee NYRay Kim Law, APC grief. Fullerton, CA 92832 Fe BW 38. As aresult of Defendants’ willful, knowing, and reckless violations, Plaintiff is Ke entitled to recover statutory damages, actual damages, reasonable attorney’s fees, and costs. NH Fe THIRD CAUSE OF ACTION NH KF FEDERAL FAIR DEBT COLLECTION PRACTICES ACT WANQ KF 15 U.S.C. §§ 1692, et seq. KF (Against Defendants) HO KF 39. _ Plaintiff repeats, re-alleges, and incorporates by reference all other paragraphs, as if TO ND fully set forth herein. KH ND 40. | ARCPE, Asset Recovery, Planet Lending, and ZBS are “debt collectors” under the NY ND FDCPA. NH BW 41. Plaintiff is a “consumer” within the meaning of the FDCPA. NY 42. The Loan is a “debt” within the meaning of the FDCPA. MN NO 43. Defendants violated 15 U.S.C. § 1692e by making false, deceptive and/or DN
Related Contentin Sacramento County
Case
NEWREZ LLC vs MURCHISON, et al.
Jul 22, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014444
Case
AVENT vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Kenneth C. Mennemeier, Jr. |(Other Real Property (not emin...) |Unlimited Civil |24CV014508
Case
MUNDI vs KAUR, et al.
Jul 19, 2024 |Kenneth C. Mennemeier, Jr. |(Other Real Property (not emin...) |Unlimited Civil |24CV014486
Case
SITORUS, et al. vs PURBA, et al.
Jul 25, 2024 |Thadd A. Blizzard |(Other Real Property (not emin...) |Unlimited Civil |24CV014904
Case
MUNDI vs KAUR, et al.
Jul 19, 2024 |Thadd A. Blizzard |(Other Real Property (not emin...) |Unlimited Civil |24CV014490
Case
GOLEMON vs DAVID D RASUL TRUSTEES OF THE FIRST AMENDMENT AND ...
Jul 25, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014945
Case
SMITH, et al. vs REDWOOD PROPERTY INVESTORS III, LLC, A CALIF...
Jul 23, 2024 |Richard K. Sueyoshi |(Wrongful Eviction Case) |Unlimited Civil |24CV014984
Case
ALLEN vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014504
Case
ARMSTEAD vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014520
Ruling
KURT GRIMES VS. RUSHMORE LOAN MANAGEMENT SERVICES, LLC ET AL
Jul 25, 2024 |CGC23609026
Real Property/Housing Court Law and Motion Calendar for July 25, 2024 line 3. DEFENDANT U.S. BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELEY AS TRUSTEE OF CITIGROUP MORTGAGE LOAN TRUST 2018-B, RUSHMORE LOAN MANAGEMENT DEMURRER TO AMENDED COMPLAINT. SUSTAINED. The Court notes that Plaintiff's opposition brief is again oversized. This is the last time the Court will review any filings by the Plaintiff's or Plaintiff's counsel that violate procedural requirements. The Court further notes that this oversized opposition again fails to address or recognize multiple arguments and authorities raised in the moving papers. The Court striking Plaintiff's oversized opposition on March 12, 2024 did not result in Plaintiff complying with the rules or addressing the demurrer on the merits. The Court orders Plaintiff's counsel to prepare and present hard copies for execution at the hearing: (1) an Order reflecting the Court's ruling of March 12, 2024; and (2) an order reflecting the Court's ruling on this demurrer. Plaintiff is ordered to serve copies of these orders to the California State Bar forthwith and file a declaration of service with the Court no later than August 1, 2024. Demurrer to causes of action for Violation of CC 2923.6(c); Violation of 2923.7 and Violation of 2924.10 is sustained without leave to amend. CC 2920.5(c)(2)(C). Demurrer to the cause of action for violation of CC 2923.5 is sustained with final leave to amend for Plaintiff to allege an actionable claim arising out of failure to comply with CC 2923.5 in conjunction with the recordation of June 16, 2022 NOD on September 20, 2022. Plaintiff must clearly set forth a legally available remedy sought for such violation within the body of this cause of action. Demurrer to the cause of action for violation of CC2924.9 is sustained with leave to amend for Plaintiff to allege an actionable violation of CC 2924.9 in light of Foote v. Wells Fargo Bank, N.A. Plaintiff must clearly set forth a legally available remedy sought for such violation within the body of this cause of action. Demurrer to the cause of action for negligence is sustained without leave to amend. Plaintiff fails to cite any valid authority to support this cause of action and fails to address Sheen v. Wells Fargo Bank, N.A (2022) 12 Cal.5th 905, 948. Demurrer to the causes of action for UCL violation and cancellation of instruments is sustained with leave to amend for Plaintiff to allege facts in support of each element of these causes of action. Defendant's request for judicial Notice is granted. =(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
U.S. Bank Trust, N.A. vs. Sells
Jul 27, 2024 |22CV-0200669
U.S. BANK TRUST, N.A. VS. SELLSCase Number: 22CV-0200669This matter is on calendar for review regarding status of proposed judgment. As previouslyordered by this Court, an Amended Proposed Judgement and Declaration have been filed clarifyingthe correct address of the subject property. The proposed judgment will be executed by the Court.No appearance is necessary on today’s calendar.VALDEZ VS. FALL RIVER VALLEY FIRE PROTECTION
Ruling
KYLE A. PEREZ VS LOANCARE, LLC, A VIRGINIA LIMITED LIABILITY COMPANY, ET AL.
Jul 26, 2024 |23CHCV01204
Case Number: 23CHCV01204 Hearing Date: July 26, 2024 Dept: F47 Dept. F47 Date: 7/26/24 Case #23CHCV01204 MOTION TO BE RELIEVED AS COUNSEL Motion filed on 3/22/24. MOVING ATTORNEY: Safora Nowrouzi CLIENT: Plaintiff Kyle A. Perez RELIEF REQUESTED: An order relieving Safora Nowrouzi as counsel for Plaintiff Kyle A. Perez in this action. RULING: The motion is granted. On 3/22/24, attorney Safora Nowrouzi filed and served the instant motion to be relieved as counsel for Plaintiff Kyle A. Perez (Plaintiff) in this action on the grounds the essential relationship of trust and confidence that underpins the attorney-client relationship has been irreparably compromised. (See Nowrouzi Decl. No.2). On 7/19/24, Plaintiff filed and served an opposition to the motion wherein Plaintiff admits that the relationship between he and attorney Nowrouzi has deteriorated due to disagreements over litigation strategy. (See Perez Decl. ¶6). Additionally, Plaintiff claims that attorney Nowrouzi has not diligently pursued [his] claims. Id. The motion also implies that Plaintiff believes he has a claim against attorney Nowrouzi for legal malpractice based on advice attorney Nowrouzi gave to Plaintiff regarding this case. (See Opposition, generally). Despite the foregoing, Plaintiff asks the Court to deny the motion and require attorney Nowrouzi to continue to represent him in this matter and during settlement negotiations claiming that he will be prejudiced if attorney Nowrouzi is permitted to withdraw because the case is at a critical stage of settlement negotiations. (Perez Decl. ¶¶7-8). Based on the declarations of attorney Nowrouzi and Plaintiff, it is clear that that there has been an irreparable breakdown in the attorney-client relationship which warrants relieving attorney Nowrouzi as Plaintiffs counsel in this matter. Plaintiff admits that he received notice of attorney Nowrouzis intention to withdraw on 4/2/24. (Perez Decl. ¶4). Therefore, Plaintiff has had almost 4 months to retain replacement counsel to assist him in this matter. Plaintiffs failure to do so does not justify denying the motion under the circ*mstances.
Ruling
Ochoa VS Ekeh
Jul 25, 2024 |Civil Unlimited (Other Real Property (not emin...) |RG21098529
RG21098529: Ochoa VS Ekeh 07/25/2024 Hearing on Motion to be Relieved as Counsel filed by Hector Ochoa (Plaintiff) in Department 15Tentative Ruling - 07/22/2024 Peter BorkonThe Hearing on Motion to be Relieved as Counsel filed by Hector Ochoa (Plaintiff) scheduledfor 07/25/2024 is continued to 08/29/2024 at 02:30 PM in Department 15 at Rene C. DavidsonCourthouse .The unopposed Motion by Friedman & Chapman LLP to be Relieved as Counsel for PlaintiffHector Ochoa is CONTINUED to August 29, 2024 at 2:30 p.m. in Department 15, allow counselto serve the notice of revised hearing date on Plaintiff Ochoa. There does not appear to be proofof service on the new hearing date and time and the Court cannot discern from the record ofaction whether Plaintiff is aware of the revised schedule.Assuming proper service of the new hearing schedule, the Court is inclined to sign the proposedorder submitted with the moving papers, corrected (at paragraph 9) to delete the reference to ascheduled trial date; the trial date has been vacated.The hearing on Plaintiff’s Counsel’s motion to be relived will be held virtually on August 29,2024 at 2:30 pm.
Ruling
Patel, Ragini vs. Kaur, Manjit et al
Aug 05, 2024 |S-CV-0050523
S-CV-0050523 Patel, Ragini vs. Kaur, Manjit et al** NOTE: telephonic appearances are strongly encouragedAppearance required.
Ruling
Parkash Pabla et al. vs Gursharn Pabla et al.
Jul 25, 2024 |20CV-03476
20CV-03476 Parkash Pabla et al. v. Gursharn Pabla, et al.Motion By Defendant Dual Arch International Inc. for Prevailing Party Attorney’s fees of$136,421.03 pursuant to CCP § 1717 on Breach of Contract ClaimRemittitur was issued on July 15, 2024 returning jurisdiction to this court andestablishing that the Court of Appeal Opinion filed May 14, 2024 is now final. ThatOpinion affirmed this Court’s May 9, 2023 Order adopting the tentative ruling issued onApril 25, 2023 granting the motion to tax costs and providing: “Attorney’s fees claimed(Item 9) are not provided for by statute or contract and are therefore not permissiblecosts.” The Court of Court of Appeal opinion addressed each argument that one or moredocuments in the case established a right by which Plaintiffs could obtain attorney’s feesagainst Defendant Dual Arch International, Inc. and found that there was no legal basis tosupport a right to attorney’s fees by Plaintiffs against Defendant Dual Arch. That there isno contractual basis for an award of attorney fees by Plaintiffs against Dual Arch is nowthe law of the case and binding on all the parties.Defendant Dual Arch now seeks an award of $136,421.03 on the grounds that it is theprevailing party by defeating a contract claim for attorney’s fees pursuant to a non-existant contract. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128-129; PacificCustom Pools v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1268; LinearTechnology Corp. v. Tokyo Electron Ltd. (2011) 200 Cal.App.4th 1527, 1538; M. Perez Co.Inc. v. Base Camp Condominium Assn. No. One (2003) 111 Cal.App.4th 456, 466;International Billing Services, Inc. Emigh (2000) 84 Cal.App.4th 1175, 1178-1179.) The gistof that argument is while there was no right to attorney’s fees before Plaintiffs brought,appealed, and ultimately lost their motion for attorney’s fees based on contract, suchmotion, appeal and loss created Defendant Dual Arch’s right to attorney’s fees asprevailing party on an unsuccessful contract claim for attorney’s fees by Plaintiffs dueto the mutuality requirements of CCP § 1717.Controlling Case Law supports the position of Defendant Dual Arch and is contrary tothe argument raised by Plaintiffs in opposition. Accordingly this Court finds thatDefendant Dual Arch is the prevailing party on the Attorney’s fee claim, that it is entitledto an award of prevailing party attorneys fees pursuant to CCP § 1717 notwithstandingthe fact that the law of the case establishes that no applicable contract privudes a rightto attorney’s fees, and that the claim for attorney’s fees of $136,421.03 is reasonableunder the circ*mstances of this case. .Order to Show Cause re Entry of Proposed JudgmentThere having been no response to this Court’s Order to Show Cause why the proposedjudgment following by Plaintiffs and Cross-Defendants Jaswinder Kaur and ParkashPabla on the Cross-Complaint, that judgment is approved and will be signed by theCourt.
Ruling
ISA J. MUHAWIEH VS. YOHALMA MARTINEZ ET AL
Jul 26, 2024 |CUD24674516
Real Property/Housing Court Law and Motion Calendar for July 26, 2024 line 9. DEFENDANT YOHALMA MARTINEZ MOTION FOR SUMMARY JUDGMENT ; MEMORANDUM OF POINTS AND AUTHORITIES OFF CALENDAR. Case Settled on July 22, 2024, with the Honorable Samuel K. Feng. =(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
Gary Kidgell vs County of Merced
Jul 24, 2024 |23CV-04276
23CV-04276 Gary Kidgell v. County of MercedDemurrer by Defendant County of Merced to first, third, fourth, fifth and sixth causes of action inSecond Amended complaintThe Demurrer to the Second Amended Complaint’s First Cause of Action for Cancellationof a Written Instrument for failure to state a claim not barred by the statute of limitationsis SUSTAINED WITH LEAVE TO AMEND to plead around the statute of limitations.The Demurrer to the Second Amended Complaint’s Third cause of Action for failure toallege a fiduciary duty that was breached by the County of Merced is SUSTAINED WITHLEAVE TO AMEND to state facts establishing a fiduciary duty owed to Plaintiff by theCity of Merced.The Demurrer to the Second Amended Complaint’s Fourth cause of Action for failure toallege a statutory basis for liability against the County of Merced is SUSTAINED WITHLEAVE TO AMEND to state a statutory basis for Plaintiff’s claim.The Demurrer to the Second Amended Complaint’s Fifth cause of Action for failureconduct a fraud investigation of recorded documents is SUSTAINED WITH LEAVE TOAMEND to state fact establishing a duty to conduct an investigation of recordeddocuments.The Demurrer to the Second Amended Complaint’s Sixth cause of Action for breach ofduty is SUSTAINED WITH LEAVE TO AMEND to state fact establishing a duty to breachedby the recording of the subject deed.Motion to Strike Proofs of Service and Punitive Damages Claims in Second AmendedComplaint by Defendant City of MercedThe Motion to Strike Punitive Damages Claims is GRANTED WITH LEAVE TO AMEND tostate a cause of action and grounds for an award of punitive damages.The Motion to Strike Proof of Service filed with the Court is DENIED AS MOOT given thatDefendant has made a general appearance in this action by filing a demurrer addressingthe merits of various causes of action therein. (See e.g. Fireman’s Fund Ins. Company v.Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)
Document
ARMSTEAD vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014520
Document
ARMSTEAD vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014520
Document
AVENT vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Kenneth C. Mennemeier, Jr. |(Other Real Property (not emin...) |Unlimited Civil |24CV014508
Document
Stephen Camarillo vs. David Bostanchyan
Oct 11, 2018 |Laurie M. Earl |(Other Real Property (not emin...) |Unlimited Civil |34-2018-00242397-CU-OR-GDS
Document
ALLEN vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014504
Document
MUNDI vs KAUR, et al.
Jul 19, 2024 |Thadd A. Blizzard |(Other Real Property (not emin...) |Unlimited Civil |24CV014490
Document
MUNDI vs KAUR, et al.
Jul 19, 2024 |Kenneth C. Mennemeier, Jr. |(Other Real Property (not emin...) |Unlimited Civil |24CV014486
Document
ARMSTEAD vs REDWOOD SQUARE APARTMENTS
Jul 22, 2024 |Richard K. Sueyoshi |(Other Real Property (not emin...) |Unlimited Civil |24CV014520
