Complaint August 01, 2023 (2024)

Case Info

Parties

Case

TD BANK USA N A vs DIAZ, et al.

Case

CAPITAL ONE NA vs TSEGMID, et al.

Case

CALIFORNIA AIR RESOURCES BOARD vs JIB UNITED TRANSPORT LLC

Sep 13, 2023 |Michael G. Bowman |(Other Enforcement of Judgment...) |Limited Civil |23CV008453

Case

AMERICAN EXPRESS NATIONAL BANK vs LOUIS

Case

SYNCHRONY BANK vs BOWLER, et al.

Dec 18, 2023 |Richard K. Sueyoshi |(Collections Case) |Limited Civil |23CV014459

Case

CAVALRY SPV I, LLC vs SALAZ, et al.

Case

DISCOVER BANK vs CONNER

Nov 20, 2023 |Richard K. Sueyoshi |(Collections Case) |Limited Civil |23CV013259

Case

LVNV FUNDING LLC vs SCARBROUGH, et al.

Case

DISCOVER BANK vs PATTERSON

Nov 27, 2023 |Richard K. Sueyoshi |(Collections Case) |Limited Civil |23CV013228

Ruling

TD Bank, N.A. vs. Gurpreet Singh

Jul 10, 2024 |21CECG01521

Re: TD Bank, N.A. v. Singh Superior Court Case No. 21CECG01521Hearing Date: July 10, 2024 (Dept. 503)Motion: by plaintiff for Judgment on the PleadingsTentative Ruling: To continue the motion to Thursday, August 15, 2024, at 3:30 p.m., in Department503, in order to allow the parties to meet and confer in person, by telephone, or by videoconference, as required. If this resolves the issues, plaintiff’s counsel shall call the court totake the motions off calendar. If it does not resolve the issues, plaintiff’s counsel shall filea declaration, on or before Thursday, August 8, 2024, at 5:00 p.m., stating the effortsmade.Explanation: Plaintiff did not satisfy the requirement to meet and confer prior to filing the motionfor judgment on the pleadings. Code of Civil Procedure section 439 makes it very clearthat meet and confer must be conducted in person, by telephone, or by videoconference prior to filing the motion. While the parties may utilize written correspondenceto help supplement the meet and confer process, the moving party is not excused fromthe requirement to do so in person, by telephone, or by video conference, unless it showsthat the defendant failed to respond to the meet and confer request or otherwise failedto meet and confer in good faith. (Code Civ. Proc., § 439, subd. (a)(3)(B).) The evidencedid not show a bad faith refusal to meet and confer on defendant’s part that wouldexcuse plaintiff from complying with the statute. The parties must engage in good faith meet and confer, in person, by telephone,or by video conference, as set forth in the statute. The court’s normal practice in suchinstances is to take the motion off calendar, subject to being re-calendared once theparties have met and conferred. However, given the extreme congestion in the court’scalendar currently, the court will instead continue the hearing to allow the parties tomeet and confer, and only if efforts are unsuccessful will it rule on the merits. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 7/8/24 . (Judge’s initials) (Date)

Ruling

UNIFUND V HAGSTROM

Jul 10, 2024 |MCV-231357

MCV-231357, Unifund v. Hagstrom Judgment Creditor, Unifund CCR, LLC’s, unopposed Application for Order of Sale of Dwellingis GRANTED. Judgment Debtor, Steve E. Hagstrom, has failed to show cause why the property shouldnot be sold to satisfy the judgment. A homestead declaration has not been recorded by Judgment Debtor.By failing to oppose the application and failing to respond to the Court’s order to show cause, JudgmentDebtor has failed to meet his burden of showing that the homestead exemption applies here. (CCP §704.780.) There is no evidence of any other exemption being applicable here. The property shall be soldin the manner provided in Article 6 (commencing with Section 701.510) of Chapter 3 of the Code of CivilProcedure, as required by CCP § 704.780. Judgment Creditor shall submit a written order consistent with this tentative ruling. The proposedorder currently lodged with the Court does not conform with the Court’s ruling. It does not reference thecorrect hearing date. It refers to the Judgement Debtor as “Adam Seller” on the first page. Also, it statesthat no minimum bid shall be required, but this does not comply with CCP § 701.620, which statesproperty shall not be sold without a minimum bid. Judgment Creditor shall submit a written order thatcomplies with all of the requirements of Article 6 of Chapter 3 and of Article 4 of Chapter 4.4. 23CV00186, Jooblay, Inc. v. Steven D. Skolnik The Court awards Defendant $5,545 in fees and costs. Defendant’s counsel shall prepare a writtenorder consistent with this tentative ruling in compliance with California Rules of Court, rule 3.1312.I. Background On August 29, 2023, Plaintiff filed this action for (inter alia) wrongful foreclosure and quiet title.The subject properties are 1551 Laguna Road, Santa Rosa, and 9579 Ross Station Road, Sebastopol. OnSeptember 26, 2023, Plaintiff recorded Notices of Pending Action (“lis pendens”) on both properties. Thenotices were filed with the Court on April 16, 2024. On the same day, Pacific Private Money(“Defendant”) moved to expunge the lis pendens on the Laguna Road property only (the “Motion”). TheMotion included a request for attorney’s fees, but did not specify an amount. On May 28, 2024, Plaintiff filed a different lawsuit, Jooblay, Inc. v. Sanchez (24CV03100),concerning the same two properties. The Sanchez complaint alleges causes of action that fundamentallyduplicate six of the causes of action in the instant case, though against slightly different sets ofdefendants. The duplicated causes of action include two for quiet title, one related to the Ross Stationproperty and the other to the Laguna property. On June 13, Plaintiff filed a Request for Dismissal in theinstant case, dismissing the causes of action that had been duplicated in the Sanchez complaint, includingthe two quiet title claims. In summary, Plaintiff moved several causes of action, including two for quiettitle, from the instant case into a different lawsuit. Thus, the instant case no longer has a quiet titlecomponent. Plaintiff withdrew the lis pendens on the Laguna Road property on June 3. Plaintiff recorded anew lis pendens on the Laguna Road property, relating to the Sanchez matter, on or about June 6. At the June 14 hearing, the Court denied the Motion as moot. Defendant argued that the motion isnot moot because it is entitled to attorney’s fees. The Court continued the matter and instructedDefendant to submit an itemization of its fees and costs. Defendant did so on June 24. This matter comeson calendar for consideration of Defendant’s requests for fees and costs.II. Analysis CCP § 761.010(b) requires that “[i]mmediately upon commencement of [a quiet title] action, theplaintiff shall file a notice of the pendency of the action in the office of the county recorder of each countyin which any real property described in the complaint is located.” The complaints in both the instant case and Sanchez allege causes of action for quiet title. In theinstant case, Plaintiff recorded a lis pendens just under a month after filing the complaint. In the Sanchezcase, Plaintiff recorded it slightly over a week after filing the complaint. Both timeframes somewhatstretch the definition of “immediately,” but the point is that Plaintiff was required to record the lispendens in both cases. Plaintiff withdrew the lis pendens in the instant case ten days before dismissingthe two quiet-title cause of action that had required it. In other words, as relevant here, Plaintiff has fileda lawsuit containing quiet-title allegations, recorded a lis pendens as required by statute, moved the quiet-title allegations to a different lawsuit, withdrawn the lis pendens in the first lawsuit because it was nolonger required by statute, and recorded it in the second one because it was required by statute. The party prevailing on any motion to expunge a lis pendens is entitled to “the reasonableattorney’s fees and costs of making or opposing the motion.” (CCP § 405.38.) If the Court had grantedDefendant’s motion and ordered Plaintiff to withdraw the lis pendens, there would be no question thatDefendant was the prevailing party and entitled to attorney’s fees. But the Court did not do that; theCourt denied Defendant’s Motion as moot because the lis pendens addressed by the Motion had alreadybeen withdrawn. The question, then, is whether Defendant is still the prevailing party. Plaintiff argues that Defendant is not, noting that “California law defines the ‘prevailing party’ toinclude ‘the party with a net recovery’ or ‘a defendant in whose favor a dismissal is entered.’” (Oppo atp. 6.) Plaintiff cites for this proposition to CCP § 1032(a)(4), which does begin with the passage Plaintiffquoted, but goes on to add that “[i]f any party recovers other than monetary relief and in situations otherthan as specified, the ‘prevailing party’ shall be as determined by the court, and under thosecirc*mstances, the court, in its discretion, may allow costs or not . . . .” Thus, CCP § 1032(a)(4), asapplied to the situation presented here, simply says that the court has the discretion to determine whichparty is “prevailing,” but provides no guidance on how to make that determination. Significant guidance is provided by Castro v. Superior Court (2004) 116 Cal.App.4th 1010, whichaddresses this exact issue. Castro rejects any inflexible rule that the moving party either is or is notentitled to attorney’s fees when a lis pendens is withdrawn before the court has an opportunity to rule on amotion to expunge it. Instead, Castro calls for a “practical approach,” under which “the trial court has thediscretion to award attorney fees based on a determination of which party would have prevailed on themotion, and whether the lis pendens claimant acted with substantial justification in withdrawing the lispendens, or whether, in light of all of the circ*mstances, the imposition of fees would otherwise beunjust.” (Id. at pp. 1024-1025.) A. Defendant would have prevailed on the Motion. In the Motion, Defendant sets forth a variety of reasons why it should prevail. The reasons fallinto two categories: procedural defects, and reasons Plaintiff cannot establish a likelihood of prevailing ona real property claim. (CCP § 405.32 [lis pendens to be expunged if claimant does not establish probablevalidity of claim].) In the first category, Defendant notes that the recording, service, and filing of the lis pendensfailed to comply with statutory requirements. First, Defendant points out that the lis pendens bears thewrong caption in that it lists only Defendant, Pacific Private Money, as a defendant in the pending action,whereas the complaint in the instant case lists a number of other defendants. The Court does not find thispoint significant standing alone, in light of the fact that the actual complaint, with its full caption, wasattached to the Notice of Pending Action. Defendant’s second point in this category is that the lis pendenswas not served on Defendant, and that it should have been because Defendant is “affected by the realproperty claim.” (CCP § 405.22.) (Defendant also argues that the lis pendens was not filed with theCourt, but in fact it was, on April 16, 2022, the same day the Motion was filed.) In the second category, Defendant makes a series of arguments as to the prospective failure ofevery cause of action in the complaint. In light of Plaintiff’s contention that its only reason for filing thelis pendens was to comply with a statutory requirement related to quiet-title actions, the most relevantcause of action is the eighth, the one to quiet title on the Laguna property. That cause of action states thatthe defendants against whom it is alleged have no interest in the Laguna Road property. Defendant arguesthat this claim will fail for two reasons: first, because it rests on the allegation that the loan upon whichthe defendants foreclosed was usurious, which is not a valid argument because Defendant is a licensedbroker and therefore exempt from the usury laws (Fin. Code § 22002); and second, because Plaintiffcannot contest the foreclosure because he failed to tender the payment due (Daniels v. Select PortfolioServicing (2016) 246 Cal.App.4th 1150, 1184-1185). Plaintiff did not address any of these arguments in its opposition to the Motion; it rested on thepoint that the motion was moot because Plaintiff had withdrawn the lis pendens. Nor does Plaintiffaddress them in its opposition to the instant fee motion, with the exception of Plaintiff’s explanation thatthe quiet-title causes of action in the complaint are not alleged against Defendant. Plaintiff’s point,presumably, is that Defendant is not “affected by the real property claim” and therefore service onDefendant was not required. (CCP § 405.22.) That argument would carry a great deal more weight ifDefendant Pacific Private Money were not the only party mentioned in the caption of the lis pendensdocument. The fact that Plaintiff named Pacific Private Money, and no other defendant, in the caption ofthe Notice of Pending Action is at odds with the notion that Plaintiff did not consider Pacific PrivateMoney to be sufficiently “affected by the real property claim” to require the lis pendens document to beserved on them. “[T]he court shall order that the [lis pendens] notice be expunged if the court finds that theclaimant has not established by a preponderance of the evidence the probable validity of the real propertyclaim.” (CCP § 405.32.) In light of Plaintiff’s failure to address Defendant’s contentions about why theclaim will fail, the Court finds that Plaintiff has not established validity. Therefore, the court finds thatDefendant would have prevailed on the Motion if it had gone forward. B. Substantial justification Plaintiff asserts that it, “acted in substantial justification in withdrawing the Laguna Road Property lis pendens when Plaintiff elected, as is its right, to voluntarily dismiss its causes of action for quiet title. Upon deciding to dismiss the quiet title causes of action – the only cause of action requiring the recording of a lis pendens, Plaintiff adopted the only practical approach to the dismissal by withdrawing the lis pendens no longer required because the quiet title cause of action are no longer part of this case. Plaintiff acted with substantial justification in withdrawing the lis pendens.”(Oppo at p. 6.) That is, Plaintiff argues that withdrawing the lis pendens that had been recorded in theinstant case was justified and necessary and done in good faith because there ceased to be any need for itonce the quiet-title causes of action were dismissed. The Court acknowledges that Plaintiff had the legal right remove several causes of action from theinstant case and re-allege them in a new case. The Court also acknowledges that when Plaintiff did that,withdrawing the lis pendens he had filed in the instant case was the right thing to do. However, Plaintiffnever addresses the question of why he filed the new case. It is not at all obvious why the same thingcould not have been accomplished more straightforwardly, without the need for a new $435 first-paperfiling fee and without exposing Plaintiff to an additional case’s worth of discovery demands, by movingto file a First Amended Complaint in the case at bar. Plaintiff cannot have reasonably been concernedthat the Court would deny such a motion at this early stage of the proceedings. What is obvious is that by taking the action it did, Plaintiff created a basis to oppose the Motion,which had been filed six weeks before Plaintiff filed Sanchez and which was set for hearing two weekslater, as moot. Whether or not that was Plaintiff’s motivation for filing the new case and dismissing thecorresponding causes of action in the instant one, the Court finds that doing so does not rise to substantialjustification for withdrawing the lis pendens. Accordingly, Defendant is the “prevailing party” under the Castro analysis described above. C. Imposition of the fees is not unjust The Court sees no reason to conclude that imposition of attorney’s fees would be unjust, and willtherefore impose them.III. Computation of the fee award The standard for calculating attorney fee awards under California law “ordinarily begins with the‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate . . . .The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order tofix the fee at the fair market value for the legal services provided. [Citation.] Such an approach anchorsthe trial court’s analysis to an objective determination of the value of the attorney's services, ensuring thatthe amount awarded is not arbitrary.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) In calculating the lodestar, “The reasonable hourly rate is that prevailing in the community forsimilar work.” (PLCM Group, supra, 22 Cal.4th at p. 1095.) “The general rule is ‘[t]he relevant“community” is that where the court is located,’ unless the party claiming fees demonstrates that hiringlocal counsel was impracticable or local counsel was not available.” (Marshall v. Webster (2020) 54Cal.App.5th 275, 285-286; see also Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226Cal.App.4th 26,72 [“fee awards generally should be based on reasonable local hourly rates”]; Horsford v.Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 398-399 [different rulewhere plaintiff demonstrated inability to hire local counsel].) “[T]he trial court has broad authority to determine the amount of a reasonable fee.” (PLCMGroup, supra, 22 Cal.4th at p. 1095.) “The determination of what constitutes reasonable attorney fees iscommitted to the discretion of the trial court. [Citation.] The experienced trial judge is the best judge ofthe value of professional services rendered in his or her court.” (Rey v. Madera Unified School Dist.(2012) 203 Cal.App.4th 1223, 1240.) A. Defendant’s request In the Supplemental Declaration of Brianna Milligan accompanying the request for attorney’sfees, Defendant requests fees as follows, as well as $60 for the filing fee for the Motion: Jacoby Perez Researching and evaluating grounds for Motion: 5 hours Preparing and finalizing Motion: 5 hours Reviewing and revising reply: 1.2 hours Total: 11.2 hours @ $525/hour Brianna Milligan Reviewing opposition and preparing reply and declaration: 4.2 hours Reviewing billing charges and preparing declaration re. fees: 1.5 hours Preparing supplemental brief re. fees: 2 hours Anticipated time at hearing: 1 hour Total: 8.7 hours @ $455/hour B. Defendant’s arithmetic is in error Defendant requests a total of $17,773.35 in fees and costs. That figure is the sum of $13,755.00for Mr. Perez’s time, $3,503.35 for 7.7 hours of Ms. Milligan’s time attributable to preparing the Replyand the fee request, an additional $455 for Ms. Milligan’s anticipated time at the hearing on the feerequest, and the $60 filing fee. Those figures do add up to $17,773.35. However, there are two problems with the calculation. The first is very small: 7.7 hours at$455/hour is $3,503.50, not $3,503.35. Thus, Defendant presumably intends to request a total of$3,958.50 for 8.7 hours of Ms. Milligan’s time, not $3,958.35. The second is considerably larger. Mr. Perez, according to Ms. Milligan’s declaration, has “spent5 hours researching and evaluating the grounds for the Motion to Expunge the Lis Pendens, and anadditional 5 hours preparing and finalizing the Motion to Expunge the Lis Pendens. Mr. Perez alsoreviewed and revised Defendant’s Reply Brief to Plaintiff’s Opposition to the Motion to Expunge the LisPendens and spent 1.2 hours doing so.” (Milligan Dec., ¶ 6.) That is a total of 11.2 hours. Mr. Perez’sbilling rate is $525/hour. (Milligan Dec., ¶ 7.) 11.2 hours at $525/hour is $5,880. It is not $13,755, theamount claimed for Mr. Perez’s time. $13,775 divided by $525 is 26.2. The claimed amount, therefore,appears to be based on an additional 15 hours of Mr. Perez’s time that are not accounted for in thedeclaration. The Court will interpret Defendant’s request as being for 11.2 hours of Mr. Perez’s time at$525/hour ($5,880), 8.7 hours of Ms. Milligan’s time at $455/hour ($3,958.50), and $60 in filing fees, fora total of $9,898.50. D. Time 1. Motion to expunge Defendant claims a total of 10 hours of Mr. Perez’s time in connection with the researching anddrafting the Motion. The memorandum of points and authority is detailed and fact-intensive, and includesextensive citation to authority. Its complexity is tied to the complexity of the complaint in this matter: itargues, inter alia, that Plaintiff is unlikely to succeed on eight separate causes of action. However, theCourt notes that in his declaration accompanying the Reply, Mr. Perez declares that he spent only 6.5hours on the motion: “2 hours doing preliminary research to form the basis for this expungement motion,”and “4.5 hours preparing the motion to expunge.” Mr. Perez was clearly referring to the motion itself, notto the reply memorandum, as he claims an additional 4.3 hours for that. Ms. Milligan’s declaration does not explain why Mr. Perez now appears to have spent 10 hoursresearching and drafting the motion. The Court will take Mr. Perez at his word, and award attorney’s feesfor 6.5 hours for preparing the Motion. 2. Reply Defendant claims a total of 5.4 hours in connection with drafting the Reply: 4.2 hours of Ms.Milligan’s time and 1.2 of Mr. Perez’s. The Reply was a well-justified response to Plaintiff’s contentionthat the Motion was moot. The Court finds the 4.2 hours claimed by Ms. Milligan for preparing the replyto be reasonable. However, the Court will not award the 1.2 hours for Mr. Perez’s time on the replybecause 4.2 hours should have been sufficient to prepare the memorandum and no review should havebeen necessary. As noted above, Mr. Perez states in his declaration accompanying the Reply that he “spent 4.3hours reviewing and researching Plaintiff’s Opposition and in preparing Defendant’s Reply Brief and inmaking this Declaration.” The Court finds the 4.3 hour figure unreasonable. The Oppositionfundamentally says no more than that the motion is moot because the lis pendens was withdrawn; thattakes no significant time to review. The declaration is one page long (exclusive of the jurat), much ofwhich consists of the list of defendants; it also cannot have taken significant time. 4.3 hours is no lessreasonable than the 4.2 hours claimed by Ms. Milligan for preparing the reply, but if Ms. Milligan spent4.2 hours preparing it, it is unreasonable to award Mr. Perez an additional 4.3 hours for doing the samething. Accordingly, the Court will award attorney’s fees for 4.2 hours of Ms. Milligan’s time inconnection with the reply. 3. Fee request Defendant claims a total of 3.5 hours of Ms. Milligan’s time in connection with the fee request,consisting of 1.5 hours for reviewing billing charges and preparing the declaration, and 2 hours fordrafting the motion. The Court finds the 1.5 hour figure excessive. The Court again notes that Mr. Perezdescribed the time he spent on the original motion in his declaration accompanying the reply; no furtherreview was necessary to determine that figure. Ms. Milligan cannot reasonably have spent an hour and ahalf determining her own time in connection with the reply, and her time spent preparing the fee requestcannot even have been entered into anything she could review while she was engaged in that exact task. The Court will award 2.2 hours of attorney’s fees in connection with the fee request, consisting oftwo hours to draft the memorandum and .2 hours to review billing records. 4. Anticipated time for hearing The Court will not award attorney’s fees for appearance at the hearing set for July 10 at this time.If the tentative ruling is contested and the hearing takes place, the Court will be amenable to a request toincrease the fee award to cover the time spent by Defendant’s counsel. 5. Total time Thus, the Court will award attorney’s fees for 6.5 hours of Mr. Perez’s time and 6.4 hours of Ms.Milligan’s time. E. Hourly rates As noted above, “The reasonable hourly rate is that prevailing in the community for similar work.”(PLCM Group, supra, 22 Cal.4th at p. 1095.) As noted above, the relevant “community” is the “forumdistrict,” here Sonoma county. (Nishiki, supra, 25 Cal.App.5th at p. 898.) Fees are limited to localhourly rates unless the party seeking fees has made a good-faith but unsuccessful effort to find localcounsel. (Horsford, sura, 132 Cal.App.4th at pp. 398-399.) Defendant’s counsel is located in Irvine. Defendant has not suggested that it has attempted to hirelocal counsel instead. Therefore, the Court will adjust the hourly rates requested by counsel to reflectSonoma County rates. Defendant has also not provided any information about Mr. Perez’s and Ms.Milligan’s level of skill and experience or their positions within the firm, but the Court takes judicialnotice that the State Bar website indicates that Mr. Perez has seven years’ practice experience and Ms.Milligan has three. On that basis, the Court will set Mr. Perez’s rate, based on the reasonable ratesgenerally awarded to counsel of similar skill and experience in Sonoma County, to $450/hour, and Ms.Milligan’s to $400/hour.IV. Conclusion The Court awards Defendant $5,545 in fees and costs, consisting of $2,925 for 6.5 hours of Mr.Perez’s time at $450/hour, $2,560 for 6.4 hours of Ms. Milligan’s time at $400/hour, and the $60 filingfee.

Ruling

ROCK CREEK CAPITAL, LLC VS NORMA S CARCAMO

Jul 11, 2024 |23CHCV00264

Case Number: 23CHCV00264 Hearing Date: July 11, 2024 Dept: F47 Dept. F47 Date: 7/11/24 Case #23CHCV00264 MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED Motion filed on 4/4/24. MOVING PARTY: Plaintiff Rock Creek Capital, LLC RESPONDING PARTY: Defendant Norma S. Carcamo NOTICE: ok RELIEF REQUESTED: An order deeming the truth of matters specified in Plaintiffs Request for Admissions served on Defendant Norma S. Carcamo. RULING: The motion is granted. SUMMARY OF ACTION & PROCEDURAL HISTORY On 1/30/23, Plaintiff Rock Creek Capital, LLC (Plaintiff) filed this action against Defendant Norma S. Carcamo (Defendant) for breach of contract. On 4/4/23, Defendant, representing herself, filed an answer to the complaint. On 2/2/24, Plaintiff served Defendant, by U.S. Mail, with Requests for Admissions, Set 1. (Aguirre Decl., Ex.1). Defendant failed to serve responses. (Aguirre Decl.). Therefore, on 4/4/24, Plaintiff filed and served the instant motion seeking an order deeming the truth of matters specified in Plaintiffs Request for Admissions served on Defendant. Defendant has not opposed or otherwise responded to the motion. ANALYSIS Due to Defendants failure to respond to the Requests for Admissions, Plaintiff is entitled to an order deeming the matters admitted. CCP 2033.280(b), (c). CONCLUSION The motion is granted.

Ruling

Creditors Adjustment Bureau, Inc., vs. Castro

Jul 12, 2024 |23CVG-00362

CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTROCase Number: 23CVG-00362Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. movesfor terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in theamount of $1,572.75 for each motion.Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, andset for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days beforethe hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For serviceby email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated bycounting backwards from the hearing date but excluding the hearing date. CCP § 12c.Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holidayof May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail nolater than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was servedon May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion isdenied.Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted.Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & TractSociety of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally beimposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justificationhas been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary orissue sanctions. Without additional evidence, terminating sanctions would be premature.The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect thedenial.Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates thismatter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance isnecessary on today’s calendar to discuss available trial dates.

Ruling

LVNV Funding, LLC vs Esther Canal An Individual

Jul 10, 2024 |23CV-01524

23CV-01524 LVNV Funding, LLC v. Esther CanalCourt TrialAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance.

Ruling

DIMERCO EXPRESS USA CORP. VS CONCORD DISPLAYS, LLC, A LIMITED LIABILITY COMPANY

Jul 12, 2024 |22AHCV00898

Case Number: 22AHCV00898 Hearing Date: July 12, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT DIMERCO EXPRESS USA CORP., Plaintiff(s), vs. CONCORD DISPLAYS, LLC, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22AHCV00898 [TENTATIVE] ORDER RE: APPLICATION FOR DEFAULT JUDGMENT Dept. 3 8:30 a.m. July 12, 2024 ) Plaintiff Dimerco Express USA Corp. (Plaintiff) requests a default judgment against defendant Concord Displays, LLC (Defendant) in the amount of $24,630.97. On May 23, 2042, Plaintiff filed a declaration of counsel attaching a settlement agreement which provides for the entry of a stipulated judgment pursuant to Code of Civil Procedure section 664.6. In light of this agreement, Plaintiffs attempt to secure a default judgment is procedurally incorrect. Plaintiff should be moving for entry of a judgment pursuant to stipulation and submit a proposed judgment that reflects its stipulated nature. Accordingly, the hearing on the default prove-up is vacated and the Court sets an OSC re: Dismissal for _____________ in order to allow Plaintiff time to file a noticed motion. Dated this 12th day of July, 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Ruling

SURENDRA BHAVNANI VS GREENLEAF DIAMONDS, LLC

Jul 11, 2024 |23STCV07247

Case Number: 23STCV07247 Hearing Date: July 11, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 SURENDRA BHAVNANI DBA LAXMI IMPEX, Plaintiff, v. GREENLEAF DIAMONDS, LLC, ANDRE SENGUL DBA GREENLEAF DIAMONDS, and DOES 1 through 20, Defendants. Case No.: 23STCV07247 Hearing Date: July 11, 2024 Trial Date: N/A [TENTATIVE] RULING RE: Defendant Andre Sengul dba Greenleaf Diamonds, LLCs Motion to Set Aside Default and Default Judgment On May 16, 2023, Plaintiff SURENDRA BHAVNANI DBA LAXMI IMPEX (Plaintiff) filed the operative First Amended Complaint (FAC) against Defendants GREENLEAF DIAMONDS, LLC (GDL), ANDRE SENGUL DBA GREELEAF DIAMONDS (Sengul), and DOES 1 through 20 (collectively, Defendants). The FAC asserts the following causes of action against all Defendants: 1. Breach of Contract 2. Book Account 3. Goods Sold and Delivered On June 28, 2023, default was entered against Defendant Sengul. Subsequently, default judgment was entered against Defendant Sengul in the amount of $101,364.86 on October 20, 2023. Defendant Sengul now brings a Motion to Set Aside/Vacate Default and Default Judgment, which Plaintiff has not opposed. A proof of service is attached to the motion showing service on Plaintiffs counsel at the address on the Judgment entered 10/20/23. After review, the Court GRANTS the Motion because Defendant Sengul has shown he did not have actual notice of the action in time to defend on the merits. Background Allegations This action involves seven written contractual agreements between Plaintiff and Defendant Sengul for the sale of certain diamonds to Defendants in the amounts of $394.00, $30,294.00, $5,680.00, $17,769.00, $14,650.00, $3,300.00, and $285.00. (Compl., ¶9, Ex. 1.) Each agreement was to be paid in full within 120 days from the date of each memorandum. (Id.) Defendant Sengul failed to make any payments on the seven agreements resulting in a balance owed of $72,372.00. (Id. at ¶10.) Plaintiff made a demand for payment on the balance due and Defendant Sengul has refused to pay it. (Id. at ¶11.) Motion to Set Aside/Vacate Default and Default Judgment Legal Standard: When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i)¿two years after entry of a default judgment against him or her; or (ii)¿180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc., § 473.5(a).)¿¿ ¿ A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the partys lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (Code Civ. Proc., § 473.5(b).) ¿ Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. (Code Civ. Proc., § 473.5(c).) Here, Defendant Sengul contends he has been living in Maui, Hawaii for the past ten years and working at his business Greenleaf Diamonds in Maui at the time the purported service of process was rendered. (Sengul Decl., ¶¶2-3, 7, Exs. 1-2.) Defendant Sengul further contends that the 4220 Mesa Drive, La Canada, Flintridge, CA property where the purported service of process was effectuated is his investment Airbnb property that was being rented out by third-party guests during the time service was rendered. (Id. at ¶¶4-5, Exs. 3-4.) Moreover, Defendant Sengul asserts he became aware of this pending case in early March of this year, when he received a notice letter from his California bank that a deposition subpoena for his bank records had been issued by Plaintiffs counsel Timothy Krantz. (Id. at ¶¶6, 13.) Defendant Sengul has provided photographic evidence that he was not physically present in California when the alleged personal service was effectuated. Defendant Sengul has also produced evidence that the property where service was effectuated was occupied by Airbnb guests at the time when service was rendered. Additionally, Defendant Sengul has submitted a proposed Answer with the instant motion. Lastly, Plaintiff has not opposed the present motion as to contest the arguments and evidence raised therein. Therefore, Defendant Sengul presents sufficient grounds for discretionary relief under Code of Civil Procedure Section 473.5. Conclusion Based on the foregoing, Defendant Andre Sengul dba Greenleaf Diamonds, LLCs Motion to Set Aside/Vacate Default and Default Judgment is GRANTED. Defendant Sengul is ordered to file his Answer within 20 days of this order.

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