ORDER ( PROPOSED ) (Motion #001) - Proposed Order August 13, 2018 (2024)

Case

Christopher Jeffrey v. Southold Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |809385/2024

Case

Thomas Kuzma v. Smithtown Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |809366/2024

Case

Charles Lucie v. Smithtown Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |809377/2024

Case

John Peters, Patricia Peters v. Francesco Pellegrino, Linda Pellegrino

Aug 07, 2024 |Real Property - Other (Article 15 adv possession) |Real Property - Other (Article 15 adv possession) |619553/2024

Case

U.S. Bank Trust National Association, Not In Its Individual Capacity But Solely As Owner Trustee For Rcf 2 Acquisition Trust v. Donald Thomas, Ann Thomas, Clerk Of The Suffolk County District Court, Clerk Of The Suffolk County Traffic And Parking Violations Agency, Commissioner Of Taxation And Finance, People Of The State Of New York, John Doe Number One Through John Doe Number Ten

Aug 07, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |619629/2024

Case

Aug 09, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |619751/2024

Case

Aug 01, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |619050/2024

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Aug 07, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |619721/2024

Case

Ashley Crane v. Smithtown Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |809369/2024

Ruling

BPP SHIRAZ HAMP LP, A DELAWARE LIMITED PARTNERSHIP VS SHIPGADGET CORP., A CALIFORNIA CORPORATION, ET AL.

Aug 27, 2024 |Shannon M Gerhart |22PSCV03100

Case Number: 22PSCV03100 Hearing Date: August 27, 2024 Dept: H Plaintiff BPP Shiraz Hamp LPs Application for Default Judgment is GRANTED; however, attorneys fees are reduced from $3,088.88 to $3,084.78 (i.e., $2,890 + 1% of $19,478.45). Background This is an unlawful detainer action regarding the commercial property located at 17709 E. Valley Boulevard, Unit B, City of Industry, CA 91744. On December 29, 2022, Plaintiff BPP Shiraz Hamp LP (Plaintiff) filed a complaint, asserting a single cause of action of unlawful detainer against Defendants Shipgadget Corp. (Shipgadget). Xuemei Liu (Liu) and Does 1-10. On January 11, 2023, the Clerk entered default against Shipgadget and Liu. On February 3, 2023, the Clerk entered default against All Other Occupants In Possession; that same day, the Clerk entered default judgment for possession only. An Order to Show Cause Re: Default Judgment is set for August 27, 2024. Discussion Plaintiffs Application for Default Judgment is granted; however, attorneys fees are reduced from $3,088.88 to $3,084.78 (i.e., $2,890 + 1% of $19,478.45). Plaintiff is directed to submit a new proposed judgment reflecting this revised amount.

Ruling

BINFORD ROAD LLC VS PAUL DEN BESTE

Aug 15, 2024 |CV2104251

DATE: 08/13/24 TIME: 1:30 P.M. DEPT: A CASE NO: CV2104251PRESIDING: HON. STEPHEN P. FRECCEROREPORTER: CLERK: RON BAKERPLAINTIFF: BINFORD ROAD LLC vs.DEFENDANT: PAUL DEN BESTENATURE OF PROCEEDINGS: MOTION — OTHER: TO APPOINT SUCCESSORRECEIVER, ETC. RULINGBefore the Court is Defendant Paul Den Beste’s (“Defendant”) motion for the appointment of asuccessor receiver. The parties appeared for a case management conference on August 9, 2024and agreed that the motion should be granted. The hearing set for August 13, 2024 is thereforeVACATED and the motion is GRANTED.The Court notes, however, Defendant asserts in his moving papers that the receiver is an“indispensable” party to this litigation. To the extent Defendant seeks to join any party to thislitigation, whether indispensable or otherwise, or to the extent he seeks other relief, he may onlydo so only through a properly noticed motion set for hearing before the Court. The Court’spresent order is limited to granting the request for appointment of a successor trustee.As set forth at the case management conference, the parties shall file and serve their nominationsfor a receiver and proposed order for the receivership as follows: 1 The parties submit nominations, together with a summary of qualifications for the nominee, along with a proposed order for the receivership on August 16, 2024. 2. Any objections or response to the opposing side’s submission on August 23, 2024.Unless otherwise ordered, the Court will take the matter under submission and issue an orderwithout a hearing.CV2104251 All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B)to contest the tentative decision. Parties who request oral argument are required to appear inperson or remotely by ZOOM. Regardless of whether a party requests oral argument inaccordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with theannounced ruling as required by Marin County Superior Court Local Rules, Rule 2.11. The Zoom appearance information for August, 2024 is as follows: https:/Avww.zoomgov.com/j/1602925171?pwd=NUdsaVlabHNrNjZGZjFsVjVSTUVqQT09 Meeting ID: 160 292 5171 Passcode: 868745 If you are unable to join by video, you may join by telephone by calling (669) 254-5252and using the above-provided passcode, Zoom appearance information may also be found onthe Court’s website: https:/Avww.marin.courts.ca.go'Page 2 of 2

Ruling

STANFORD COURT PROPERTIES, LLC VS VERT WESTSIDE, LLC, ET AL.

Aug 16, 2024 |22STCV38450

Case Number: 22STCV38450 Hearing Date: August 16, 2024 Dept: 82 Stanford Court Properties, LLC, Case No. 22STCV38450 v. Hearing: August 16, 2024 Location: Stanley Mosk Courthouse Department: 82 Vert Westside, LLC, et al. Judge: Stephen I. Goorvitch [Tentative] Order Granting Plaintiffs Application for Writ of Attachment INTRODUCTION Plaintiff Stanford Court Properties, LLC (Stanford or Plaintiff) filed this action against Defendant Vert Westside, LLC (Vert or Defendant), among others. Plaintiff owns the property located at 3011 Wilshire Boulevard in Santa Monica, California (the property), which Defendant leases. Plaintiff alleges that Defendant breached the lease by failing to pay the rent and then fraudulently transferred asserts to the other defendants, Vert Sports LLC and Vert Sports LA LP. Now, Plaintiff seeks a writ of attachment against Defendant in the amount of $955,760.53. The application is granted. LEGAL STANDARD Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought. (Code Civ. Proc. § 484.010.) Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees. (Code Civ. Proc. § 483.010.) The court shall issue a right to attach order if the court finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (4) The amount to be secured by the attachment is greater than zero. (Code Civ. Proc. § 484.090.) A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc. § 481.190.) The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.¿ (Code Civ. Proc. § 484.030.)¿ In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.¿ (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) The Attachment Law statutes are subject to strict construction. (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) EVIDENTIARY ISSUES Defendant objects to portions of the declaration of Jonathan Moss. The court need not rule on these objections, because the challenged portions of this declaration are not relevant to the courts decision. (See Code Civ. Proc. § 437c(q).) The court rules as follows on Defendants objections to the declaration of Ian DeLaat: Paragraphs 1 through 26 Overruled Paragraphs 27 through 39 The court need not rule on these objections because they are not relevant to the courts decision on this application. (See Code Civ. Proc. § 437c(q).) DISCUSSION A. Unverified Application on Form AT-105 Plaintiffs application on form AT-105 is signed by Plaintiffs attorney but is not executed under oath. This is an issue because an application for writ of attachment shall be executed under oath and shall include all of the following: & (c) A statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (d) A statement that the applicant has no information or belief that the claim is discharged in a proceeding under Title 11 of the United States Code (Bankruptcy) or that the prosecution of the action is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy). (Code Civ. Proc. § 484.020.) Plaintiff has satisfied the requirement of subsection (c) by virtue of the sworn declaration of Ian DeLaat. (See DeLaat Decl. ¶ 24.) However, Plaintiff has not provided a verified statement verifying that the claim has not been discharged in bankruptcy and that this case is not stayed by virtue of a bankruptcy proceeding. Therefore, the courts ruling is conditioned on Plaintiff filing a declaration that satisfies this requirement. B. Basis of Attachment Plaintiff asserts a proper basis for attachment. A writ of attachment may be issued based upon a claim for readily ascertainable monetary damages in excess of $500 (exclusive of costs, interest, and attorneys fees) stemming from a breach of contract provided that the claim is not secured by any interest in real property arising from the agreement. (See Code Civ. Proc. § 483.010(a) & (b).) [A]n attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App. 4th 537, 541.) In this case, Plaintiff seeks a writ of attachment based upon the breach of a lease not secured by real property. Plaintiffs damages are fixed and readily ascertainable from the terms of the lease and Plaintiffs declarations. C. Probable Validity of Plaintiffs Claim The application is based on Plaintiffs cause of action for breach of lease. To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendants breach of the contract; and (4) damages incurred by plaintiff as a result of the breach. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.) 1. Existence of the Lease In September 2004, Plaintiffs predecessor, Stanford Court Properties, a general partnership, and Defendants predecessor, Vert Center of Santa Monica, Inc., entered into a commercial lease whereby Defendants predecessor leased the property. (See DeLaat Decl. Exh. 3-4; Turner Decl. ¶7, Exh. X, RFA No. 1.) In August 2008, Defendants predecessor assigned its interest in the Lease to Defendant. (See DeLaat Decl., ¶ 4, Exhibit B; Turner Decl., ¶ 8, Exh. X, RFA No. 2.) The terms of the Lease were subsequently amended by a First Amendment, a Second Amendment, and a Third Amendment (amendments). (DeLaat Decl. ¶¶ 5-7, Exh. C-E; Turner Decl. ¶¶ 9-11, Exh. X, RFA Nos. 3-5.) Defendant contends that the application is not supported by the Declaration of any person who claims to have personal knowledge of any party entering into the Lease in 2004, or any subsequent amendment or assignment of the Lease. (Oppo. 6:21-23.) This argument is unpersuasive. Plaintiff submits a declaration of Ian DeLaat, a portfolio manager for Kennedy Wilson Properties, Ltd., the property manager for Plaintiff. DeLaat declares that he has personal knowledge of the facts stated in his declaration; that he is responsible for the day-to-day management of the Building, as well as managing tenants payments of rent and ensuring tenants compliance with leases; and that he is familiar with the Lease and the amendments. (DeLaat Decl. ¶¶ 1-2.) Given his responsibility for management of the Premises, DeLaat shows personal knowledge to authenticate the Lease and amendments. Furthermore, Defendant admitted the authenticity of the Lease and amendments in its responses to requests for admissions served by Plaintiff in this action. (Turner Decl. ¶¶ 7-11, Exh. X, RFAs Nos. 1-5.) Defendant also contends that Plaintiff does not sets forth competent evidence as to how Plaintiff (Stanford LLC) obtained its purported interest in the Lease, as it was not the original lessor. (Oppo. 5:19-20.) DeLaat declares that Plaintiff holds all the rights, title, and interest of the Landlord under the Lease. (DeLaat Decl. ¶ 8.) Further, in the Third Amendment dated July 3, 2019, which was signed by Defendant, Plaintiff was the named landlord as the successor to Stanford Court Properties, a general partnership. (See DeLaat and Turner Decls. Exh. E.) Finally, and perhaps most important, Defendant also made payments to Plaintiff after the Third Amendment was executed. (DeLaat Decl. Exh. M.) Defendant does not rebut this evidence, which is sufficient to support Plaintiffs claim that it is the landlord under the Lease. 2. Plaintiffs Performance, Defendants Breach, and Plaintiffs Damages Plaintiff submits evidence that it performed its obligations under the Lease, including by delivering possession of the Premises to Defendant and its predecessor. (DeLaat Decl. ¶ 9.) The amendments prove that the Premises were delivered to Defendant. (Id. Exh. C-E.) Further, Defendant made payments on the Lease until at least January 2020, and thereby acknowledged Plaintiffs delivery of the Premises. (Id. ¶ 15.) Plaintiff submits evidence that Defendant breached the Lease by failing to make payments due starting in or around January 2020, and that Plaintiff has suffered damages of $909,760.53. Specifically, pursuant to the Lease and amendments, Defendant is required to pay (1) Fixed Minimum Monthly Rent, as defined in the Lease; (2) a pro-rata share of all costs and expenses incurred by Landlord in operating and maintaining the Shopping Center (Common Area Maintenance Charges); (3) a share of annual taxes and assessments; (4) a pro-rata share of insurance premiums for the shopping center; (5) late charges in the amount of 10% for unpaid rent or other amounts due under the Lease; and (6) interest on past due amounts, as defined in the Lease. (See Plaintiffs Memorandum 5-8; DeLaat and Turner Decls. Exh. A-E.) DeLaat, the property manager, declares that beginning in or around January 2020, Tenant began failing to pay Rent in full and has carried an unpaid balance since that time, which has continually increased. Particularly, Tenant has failed to pay Fixed Minimum, Monthly Rent Common Area Maintenance (CAM) Charges and administrative costs, pro-rata share of Taxes, and pro-rata share of insurance premiums, and amounts owed for reconciliations. (DeLaat Decl. ¶ 15.) DeLaat authenticates a Lease Ledger, made and updated by Landlord as a record of instalments of Rent becoming due, and of Tenants payment or non-payment of the same. (Id. ¶ 17.) DeLaat also states that in accordance with the terms more fully set forth in the Lease, at the beginning of the year, Landlord provided Tenant with a statement showing the estimated charges for CAM, Insurance, Administrative Fees, and Taxes for the year, and Tenant was obligated to pay 1/12 of Tenants Share of said estimated annual charges, with Tenants Share calculated based on the Floor Area of the Premises as compared to the Floor Area of the Shopping Center. The monthly amounts determined and charge to Tenant are reflected on Exhibit M, the Lease Ledger. (Id. ¶ 18.) DeLaat declares that Tenant has not disputed the calculations or the amounts owed. However, Tenant has failed to pay these amounts in full since early 2020, as reflected on the Lease Ledger. (Ibid.) DeLaats declaration and the Lease Ledger show a total amount due on the Lease of $555,218.09 as of December 2022, when the complaint was filed. (Id. Exh. M.) Plaintiff acknowledges an offset of $2,400, resulting in $552,818.09 in past due rent and other charges as of the filing of the complaint on December 9, 2022. (Id. ¶ 23.) Plaintiff also submits evidence that the Lease was set to expire on July 31, 2024, and Defendant vacated the Premises on or about August 23, 2022. Pursuant to section 19(b)(3) of the Lease, Plaintiff is entitled to [t]he difference, if any, between (a) all rents and other charges for the balance of the Term of this Lease, less (b) any rents and other charges that Tenant proves: (a) Landlord will receive by reason of the reletting of the demised premises; or (b) Landlord could obtain in reletting the demised premises by acting reasonably in the circ*mstances then prevailing&. (DeLaat Decl. Exh. A [bold italics added].) Plaintiff submits calculations, totaling $356,942.44, of the amount of rent due under section 19(b)(3) from the filing of the Complaint on December 9, 2022 through the July 31, 2024 Expiration Date of the Lease. (Id. ¶ 22 and Exh. N.) Accordingly, Plaintiff submits evidence that it has suffered principal damages of $909,760.53 ($552,818.09+$356,942.44). Finally, pursuant to Code of Civil Procedure section 482.110(b), the amount to be secured by the attachment may include an estimated amount for costs and allowable attorneys fees. (bold italics added.) Pursuant to section 19 of the Lease, Plaintiff is entitled to reasonable attorneys fees and costs incurred by Defendants breach of the Lease. Plaintiffs attorney estimates that Plaintiff will incur at least $45,000 in fees and $1,000 in costs prosecuting this action through trial. (See Turner Decl. ¶ 4; DeLaat Decl. ¶ 23.) Considering the fees and costs associated with this attachment proceeding, the discovery in which the parties are engaged, other motion practice that may be necessary, and a trial, the court finds these estimates to be reasonable (and probably too low). In opposition, Defendant has not submitted declarations or other evidence disputing Plaintiffs evidence that: (1) Defendant failed to pay rent and other charges starting in December 2020; (2) Defendant vacated the Premises in August 2022, before the Lease expired; and (3) Defendant owes $909,760.53 in rent, other charges, and interest due through the expiration of the lease. Instead, Defendant raises a series of legal arguments which the court has considered. a. Evidentiary objections to the lease ledger Defendant contends that DeLaat presents no foundation that he or KWP is a custodian of the Lease Ledger, or that he is a qualified witness as to the identity and the mode of the preparation of the Lease Ledger. (Oppo. 6-7.) DeLaat is the property manager for the Premises and is responsible for the day-to-day management of the Building, as well as managing tenants payments of rent and ensuring tenants compliance with leases. (DeLaat Decl. ¶¶ 1-2.) He shows personal knowledge for his testimony that Defendant began failing to pay rent in January 2020. (Id. ¶ 15.) Much of Plaintiffs damages may be calculated by reference to the number of months of non-payment and the monthly rent, as specified in the Lease and amendments. The ledger submitted as Exhibit M, and the calculations of future rent submitted as Exhibit N, provide such calculations. Further, on this record, the court concludes that DeLaat provides sufficient foundation to admit Exhibit M as a business record. (See DeLaat Decl. ¶ 17; Evid. Code § 1271.) Evidence Code section 1271 permits admission of a business record to establish the truth of the matters stated therein if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness. The court has broad discretion: A trial court has wide discretion in determining whether a qualified witness possesses sufficient personal knowledge of the identity and mode of preparation of documents for purposes of the business records exception. Indeed, any qualified witness who is knowledgeable about the documents may lay the foundation for introduction of business recordsthe witness need not be the custodian or the person who created the record. Thus, a qualified witness need not be the custodian, the person who created the record, or one with personal knowledge in order for a business record to be admissible under the hearsay exception. (Estate of OConnor (2017) 16 Cal.App.5th 159, 170, internal citations and quotations omitted.) Plaintiff has provided sufficient evidence to satisfy the court. In relevant part, DeLaat declares: I am responsible for the day-to-day management of the Building, as well as managing tenants payments of rent and ensuring tenants compliance with leases&. [¶¶] I am the custodian for the Lease Ledger submitted Exhibit M, and I am the most qualified to testify as to its identity and contents. The Lease Ledger is a business record, made and updated by Landlord as a record of instalments of Rent becoming due, and of Tenants payment or non-payment of the same. It is made in the ordinary course of business and each entry is made at or near the time of the event it reflects. Specifically, the Lease Ledger is a computer-generated document, which is automatically updated and maintained by Landlords accounting software, Yardi. For example, on the first of the month when a payment becomes due, the program automatically updates the Lease Ledger to show the payment being owed in the Charges column. If and when payment is received, it is reflected in the payments column, and the Balance running total is reduced by the corresponding amount. Accordingly, the Balance column for any given date shows the total amount owed on such date, taking into account all charges due, and all payments received as of such date. As a business practice, all payments received are recorded in Yardi, and Landlords personnel also review the Lease Ledger to approve the billings and confirm the receipt of payments each month. The total amount of unpaid Rent is calculated by simply adding up each unpaid amount shown on the Lease Ledger. (DeLaat Decl. ¶¶ 2, 17 [bold italics added].) Considering DeLaats role as Plaintiffs property manager responsible for tenants payments of rent and ensuring tenants compliance with leases, the court concludes that DeLaat has adequately authenticated the Lease Ledger and provided evidence supporting all elements of its admission as a business record under section 1271, including evidence that the sources of information and method and time of preparation were such as to indicate its trustworthiness. Notably, Defendant has not provided any evidence calling into question DeLaats description of the process by which the ledger is created. [I]t is not necessary that the witness called to present foundational facts have personal knowledge of every transaction; he need only be familiar with the procedures followed. (Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 448.) Defendants objections to the Lease Ledger are overruled. b. Defendants Failure to Mitigate Defense Defendant acknowledges that Landlord has not leased out the Wilshire Blvd. Property and it presently sits vacant. (Oppo. 12:8-9.) Nonetheless, Defendant contends that Plaintiff has not shown that its damages for unpaid rent from August 23, 2022, after Defendant vacated the Premises, until the expiration of the Lease are fixed and readily ascertainable because Plaintiff did not provide substantive responses to [d]iscovery which might shed light on their mitigation efforts. (Oppo. 13:20.) On this record, Defendants failure-to-mitigate arguments lack merit. Pursuant to section 19(b)(3) of the Lease and Civil Code section 1951.2, Defendant has the burden to prove that Plaintiff failed to take reasonable steps to mitigate damages. (See Lu v. Grewal (2005) 130 Cal.App.4th 841, 849-850.) Defendant does not submit any evidence that Plaintiff could have, with reasonable efforts, relet the Premises prior to the expiration date. Defendants contention that Plaintiff served objections to discovery served on May 24, 2024, is not evidence of a failure to mitigate damages. (See Shern Decl. ¶¶ 3-4.) c. Estimated Attorneys Fees and Costs Defendant contends that Plaintiffs counsels estimate of fees and costs in the amount of $46,000 lacks definiteness. (Oppo. 13-14.) Code of Civil Procedure section 482.110(b) expressly authorizes the court to include in the attachment an estimated amount for costs and allowable attorneys fees. (bold italics added.) Defendant could have provided a declaration of its attorney or other evidence disputing the reasonableness of Plaintiffs estimate. Defendant failed to do so. In assessing the reasonableness of hourly billing rates, the court may rely on its own knowledge and familiarity with the legal market, as well as the difficult or complexity of the litigation. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 437.) Plaintiffs estimate of $45,000 in attorneys fees and $1,000 in costs is imminently reasonable (and is relatively low). D. Purpose and Amount of Attachment Code of Civil Procedure section 484.090 states that the Court shall issue a right to attach order if the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero. The court finds that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachments is based and the amount to be secured by the attachment is greater than zero. E. Reduction of Amount to be Secured by Attachment; and Exemptions Defendant does not argue, or show, that the amounts of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b). Defendant also has not claimed any exemptions. F. Subject Property Defendant is a limited liability corporation and not a natural person. Accordingly, all corporate property for which a method of levy is provided by Article 2 (commencing with Section 488.300) of Chapter 8 may be attached. (CCP § 487.010(a).) G. The Application is Directed Only at Defendant Vert Westside, LLC Defendant contends that the Plaintiffs Memorandum & is muddled and confusing, with portions of the points and authorities & indicating that Plaintiff seeks the RTAO against other named Defendants as well. (Oppo. 2:18-22.) The application itself, on form AT-105, only seeks a writ of attachment against Defendant Vert Westside, LLC. To the extent Plaintiffs memorandum refers to claims against other named defendants or suggests that Plaintiff was seeking attachment against all defendants, Defendant Vert Westside, LLC does not show any prejudice because the opposition brief responds to the merits of the specific claim made against Vert Westside, LLC. In this ruling, the court only analyzes the claims and arguments relevant to the application for attachment against Defendant Vert Westside, LLC. H. Undertaking Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. Section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000. Neither party has argued for a different amount of undertaking. CONCLUSION AND ORDER Based upon the foregoing, the court orders as follows: 1. The application for writ of attachment is GRANTED in the amount requested of $955,760.53. 2. This order is stayed until further order of the court. 3. The court will not issue the writ, until Plaintiff provides a declaration under penalty of perjury by someone with sufficient knowledge (who is not litigation counsel) stating: [T]he applicant has no information or belief that the claim is discharged in a proceeding under Title 11 of the United States Code (Bankruptcy) or that the prosecution of the action is stayed in a proceeding under Title 11 of the United States Code (Bankruptcy), as required by Code of Civil Procedure section 484.020. 3. The court issues an Order to Show Cause why the stay of this order should not be lifted, and why the writ of attachment should not be issued, for Tuesday, August 20, 2024, at 9:30 a.m. 4. Plaintiffs counsel shall provide notice and file proof of service with the court. IT IS SO ORDERED. Dated: August 16, 2024 ______________________ Stephen I. Goorvitch Superior Court Judge

Ruling

BRIAN JOSEPH VS JAMES D HONODEL, ET AL.

Aug 15, 2024 |21NWCV00698

Case Number: 21NWCV00698 Hearing Date: August 15, 2024 Dept: C Brian Joseph vs James D Honodel, et al., Case No.: 21NWCV00698 This is an action for Quiet Title. Defendants James D. Honodel and Marina Honodel apply ex parte for an order expunging Notice of Pendency of Action and for Attorneys Fees and Costs. Defendants contend Plaintiff Brian Joseph has improperly failed to withdraw his Lis Pendens recorded against the title of their property despite agreeing to do so in the settlement of this action, and despite having received $200,000 from Defendants. Defendants argue Plaintiff insists that Defendants must pay him an additional $150,000 before he will withdraw the lis pendens. Defendants also argue that they will be irreparably harmed because they are currently in escrow for the sale of their home and escrow cannot close until the Notice of Pending Action filed by Plaintiff is ordered expunged from the title of Defendants property. The ex parte application is DENIED. On June 11, 2024, the Court on its own motion dismissed this lawsuit in its entirety because all issues had been resolved. The Court found that Plaintiff vacated the property on April 14, 2024 and he has received the funds pursuant to the January 18, 2024 settlement agreement. Furthermore, a dismissal was filed on May 2, 2024 in the unlawful detainer case. There is no indication the Court has retained jurisdiction to enforce settlement pursuant to CCP § 664.6. Moving party to give notice.

Ruling

DANIEL MAHGEREFTEH VS ALEX NEHORAYAN, ET AL.

Aug 13, 2024 |24SMCV01892

Case Number: 24SMCV01892 Hearing Date: August 13, 2024 Dept: M CASE NAME: Mahgerefteh v. Nehorayan, et al. CASE NO.: 24SMCV01892 MOTION: Motion for Summary Judgment HEARING DATE: 8/13/2024 Legal Standard A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189 Cal.App.3d 1542, 1544.)¿ [A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to subdivision (t). (CCP,¿§ 437c(t).)¿ To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, [a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment& (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion may not be denied on grounds of credibility, except when¿a material fact is the witnesss¿state of mind and that fact is sought to be established solely by the [witnesss] affirmation thereof. (CCP, § 437c(e).)¿ Once the moving party has met their burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP § 437c(p)(1).) [T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.¿(Consumer Cause, Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿ ¿ The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding. (Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (Ibid.)¿ In an unlawful detainer action, notice of a motion for summary judgment must be given in compliance with Code of Civil Procedure sections 1013 and 1170.7. (CRC 3.1351(a).) CCP §¿1170.7 provides that a motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c. (CCP, §¿1170.7.) Any opposition to the motion and any reply to an opposition may be made orally at the time of hearing. (CRC 3.1351(b).) If a party seeks to have a written opposition considered in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing. (CRC 3.1351(c).) Service must be by personal delivery, facsimile transmission, express mail, or other means consistent with CCP §§¿1010-1013, and reasonably calculated to ensure delivery to the other party or parties no later than the close of business on the court day before the hearing. (Id.) The court, in its discretion, may consider written opposition filed later. (Id.) Analysis Plaintiff Daniel Mahgerefteh moves for summary judgment against Defendants Alex and Marjan Nehorayan on his unlawful detainer complaint. The basic elements of unlawful detainer are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default[]; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed. (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.) A three-day written notice to perform or quit is proper to evict tenants who have violated any other material covenant of their rental agreement. (CCP § 1161(3); see Civ. Code § 1946.2(c).) The sole issue before the court in an unlawful detainer action is the right to possession. (Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900, 906.) Proving proper service on lessees of a valid three-day notice to pay or quit is essential to declaring lessors judgment for possession under Code of Civil Procedure section 1161. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425.) Plaintiff owns the residential real property located at 719 North Bedford Drive; Beverly Hills, CA 90210. (UMF 1.) Defendants occupy the Premises pursuant to a written rental agreement (the Lease) and are the only named tenants on the Lease. (UMF 2; Mahgerefteh Decl., Ex. 1.) The Lease provides the following relevant provisions: 1. PROPERTY: The Premises are for the sole use as a personal residence by the following named person(s) only: Alex Nehorayan and Marjan Nehorayan. Any person in the Premises, other than those listed in this paragraph are considered guests. Guests are not permitted to stay more than 14 days written consent. [&] 17. ALTERATIONS; REPAIRS: Unless otherwise specified by law or paragraph 25C, without Housing Provider's prior written consent, (i) Tenant shall not make any repairs, alterations or improvements in or about the Premises including: painting, wallpapering, adding or changing locks, installing antenna or satellite dish(es), placing signs, displays or exhibits, or using screws, fastening devices, large nails or adhesive materials. [&] 27. TEMPORARY RELOCATION: Subject to local law, Tenant agrees, upon demand of Housing Provider, to temporarily vacate Premises for a reasonable period, to allow for fumigation (or other methods) to control wood destroying pests or organisms, or other repairs to Premises. Tenant agrees to comply with all instructions and requirements necessary to prepare Premises to accommodate pest control, fumigation or other work, including bagging or storage of food and medicine, and removal of perishables and valuables. Tenant shall only be entitled to a credit of Rent equal to the per diem Rent for the period of time Tenant is required to vacate Premises. (UMF 3; Mahgerefteh Decl., Ex. 1.) Plaintiff presents evidence that Defendants committed three material breaches of the Lease as to the above provisions, which provided the basis for their notice to quit. First, there are additional occupants residing at the Premises that are not listed as tenants in the Lease. (UMF 4.) Second, an unpermitted closet was built upstairs. (UMF 5.) Third, Defendants failed to comply with Plaintiffs request to temporarily vacate the Premises for repairs as required by the Lease. On March 13, 2024, Plaintiff sent Defendants a letter demanding Defendants temporarily vacate the Premises for unspecified repairs in accordance with paragraph 27 of the Lease and provided alternative housing options. (UMF 6.) The purpose of the repairs is not clear from the UMFs or from the attached demand letter. (Mahgerefteh Decl., Exs. 2-3.) The only potential repair mentioned is Plaintiffs demand that the closet be removed and brought back to its original condition. (Id.) Defendants failed to vacate or provide their preferred alternative housing. (UMF 6.) On April 8, 2024, Plaintiff served Defendants with a Notice to Cure or Quit (First Notice) at the Premises. (UMF 7.) Defendants failed to comply with the first notice. (UMF 8.) On April 12, 2024, Plaintiff served Defendants with a second Notice to Quit at the Premises. (UMF 9.) Defendants failed to comply with the second Notice. (UMF 10.) Additional Occupants Strictly construed, Plaintiff does not demonstrate a breach of paragraph 1 of the Lease. This paragraph states that The Premises are for the sole use as a personal residence by the following named person(s) only: Alex Nehorayan and Marjan Nehorayan. Any person in the Premises, other than those listed in this paragraph are considered guests. Guests are not permitted to stay more than 14 days without Housing Providers written consent. (Ex. 1, ¶ 1, emphasis added.) Plaintiff presents no evidence that the unauthorized co-occupants have stayed more than 14 days. With all reasonable inferences made in favor of the non-moving party, the Court must conclude that they are not unauthorized co-occupants but permitted guests as defined under the Lease. Furthermore, as to the co-occupants, Defendants submit evidence that the allegedly unauthorized co-occupants, Jonah Neborayan and Kayla Nehorayan, are their adult children who reside at the 5-bedroom premises with full knowledge of Plaintiff. (A. Nehorayan Decl., ¶¶ 4-6.) Defendants attach letters and texts messages from Plaintiff, acknowledging the existence of other occupants including their children during May 2023. (A. Nehorayan Decl., Ex. 1.) This creates a dispute of material fact as to Defendants permission to have their adult children living with them. Unpermitted Closet Plaintiff shows a breach of paragraph 17. Plaintiff presents evidence that Defendants added a closet to the premises, which could be considered as repairs, alterations or improvements to the premises. Plaintiff also argues that section 9-1-107 of the City of Beverly Hills municipal code would require a permit. Plaintiff does not furnish this section or provide sufficient argument legal argument on this point. Instead, Plaintiff proffers the declaration of counsel, who states that he talked to someone at the City of Beverly Hills, and they confirmed that a closet is a structure and would require a permit. Further, this additional basis for default is unstated in the Notices to Quit. Thus, the Court would limit the basis of the default to the breach of paragraph 17. With the above evidence, Plaintiff demonstrates that Defendants remain in default due to the unpermitted alteration of the Premises, to wit, the closet. Therefore, Plaintiff meets his burden to show a prima facie case of unlawful detainer on this basis. Defendants demonstrate a dispute of fact as to their breach and default regarding the closet. Defendants argue that Plaintiff waived the specific breaches in question. Waiver is the intentional relinquishment of a known right after knowledge of the facts. (Roesch v. De Mota (1944) 24 Cal.2d 563, 572.) A waiver of a contract provision may be express, based on the waiving partys words, or implied, based on conduct. (Lynch v. California Coastal Commission (2017) 3 Cal.5th 470, 475-476.) For example, waiver may apply where a party acts in manner inconsistent with intent to enforce a right. (Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal. App.4th 743, 753.) In the unlawful detainer context, it has long been held that a landlord's acceptance of rent with knowledge of breach of condition precludes forfeiture of the lease. (Kern Sunset Oil Co. v. Good Roads Oil Co., (1931) 214 Cal. 435, 440; see Salton Community Services Dist. v. Southard (1967) 256 Cal.App.2d 526 [waiver supported where sublessor accepted rent despite knowing for years about continued camping on premises].) The mere breach of a covenant in a lease does not effect its termination. [Citation.] On the happening of such a breach the lessor may elect to disregard it and continue the lease in effect, or rely upon it and declare a forfeiture. [Citation.] Conduct of the lessor, with knowledge of a breach, consistent with the continued existence of the lease and inconsistent with its termination by forfeiture supports an inference the lessor has waived the breach. [Citations.] Acceptance of benefits under the lease is such conduct. [Citation.] (Id. at 533.) It has also been repeatedly held that waiver of a particular breach of a continuing covenant does not waive subsequent similar breaches. (Budaef v. Huber (1961) 194 Cal. App. 2d 12, 20; citing Extension Oil Co. v. Richfield Oil Corp., (1944) 52 Cal.App.2d 105, 108-109 [explaining the nature of continuing covenants].) Defendants submit evidence that they constructed/repaired the complained-of closet with Plaintiffs permission. Mr. Nehorayan states that they had full permission to reinstate the closet to its previous use. (A. Nehorayan Decl., ¶ 7.) Mr. Nehorayan also cites a statement made by Itzhak Bokobza, who explains that in May 2023, he and Mahgerefteh inspected the Premises, and Mahgerefteh made several positive comments about the closet. (Id., Ex. 2.) This contradicts Mahgereftehs statement that he discovered the closet in November 2023. Accordingly, there is a dispute of fact as to whether Plaintiff waived Defendants breach of paragraph 17 by constructing a closet without written permission. Temporary Relocation There would also be a dispute of fact as to the default on the temporary relocation request and paragraph 27. The Lease only requires that tenants agree upon demand to temporarily vacate the Premises for a reasonable period to allow for other repairs to Premises and that they would follow all instructions and requirements necessary for such work. Plaintiff does not show the need for the repairs or that the proposed length of time (31 days) was reasonable. Therefore, Plaintiff has not demonstrated that Defendants were obliged to relocate for a reasonable period of time for necessary work/repairs. Also, Plaintiff is not clear on what repairs or work was needed which required 31 days of temporary relocation. If Plaintiff desired to repair the closet back to its former state, then Defendants default would depend on whether Plaintiff permitted the closet. In other words, if Plaintiff waived his objection to the closet, then he would have necessarily waived his right to force Defendants to vacate the property for Plaintiff to remove the closet. Therefore, because there is a dispute of fact as to Plaintiffs authorization of the closet, there is also a dispute of fact as to the temporary relocation request. Plaintiff argues that he could not have waived these provisions because there is an anti-waiver provision in the Lease, stating at paragraph 31: The waiver of any breach shall not be construed as a continuing waiver of the same or any subsequent breach. However, Plaintiff presents no authority that a party cannot waive a particular breach in light of such a provision. Instead, Plaintiffs cited authority suggests that this provision would only operate to limit their waiver from applying to subsequent similar breaches. (Budaef, supra, 194 Cal. App. 2d at 20.) Accordingly, the motion is DENIED.

Ruling

YOAN KOH VS IN S. PARK, ET AL.

Aug 14, 2024 |23STCV09835

Case Number: 23STCV09835 Hearing Date: August 14, 2024 Dept: 78 Superior Court of California County of Los Angeles Department 78 ¿ YOAN KOH, Plaintiff(s), vs. IN S. PARK, et al., Defendant(s). Case No.: 23STCV09835 Hearing Date: August 14, 2024 [TENTATIVE] ORDER CONTINUING MOTION FOR EVIDENTIARY AND MONETARY SANCTIONS Plaintiff Yoan Koh (Plaintiff) filed this action against defendants In S. Park, HN H. Lee, CIFIC Union International Inc. dba Compass Real Estate, Daniel Kim, Compass California Inc., and Does 1 to 50, alleging that in June 2020, Plaintiff entered into a residential purchase agreement with defendants to purchase a property at 1028 South Wilton Place, Los Angeles, California 90019. Defendants did not disclose at the time of the sale that (1) the garage converted into a living unit did not pass inspections by the Los Angeles Department of Building and Safety (LADBS), (2) repairs of the main residence after fire damage did not pass LADBS inspections, and (3) the value of the property was substantially less than the price he offered and paid due to the undisclosed defects. The complaint sets forth four causes of action for (1) failure to disclose, (2) intentional misrepresentation, (3) negligent misrepresentation, and (4) breach of fiduciary duty. Defendants Pacific Union International Inc. dba Compass Real Estate, Daniel Kim, and Compass California, Inc. (collectively Defendants) move for the imposition of evidentiary and monetary sanctions against Plaintiff for his failure to comply with the Courts March 19, 2024 and March 29, 2024 Orders to serve verified responses to discovery. The instant motion was served on Plaintiffs counsel. The Court notes that Plaintiffs attorney of record, Steven J. Barkin (Mr. Barkin) of the Law Offices of Steven J. Barkin, is no longer eligible to practice law in California as of July 2, 2024 according to the California State Bar. Further, as of July 27, 2024, Mr. Barkins license has been ordered inactive. In other words, Plaintiff is effectively in pro per at this time since his counsel is no longer eligible to represent him. The Court is skeptical that Plaintiff is aware of the State Bars action against Mr. Barkin, or that Plaintiff is aware of the instant motion seeking sanctions against him. Adequate notice and an opportunity to be heard are a requirement before sanctions may be issued under the due process clauses of the California and United States Constitutions. (E.g. Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 208; Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.) In light of the above, the Court orders Defendants to serve Plaintiff the moving papers directly in order to provide him notice and the opportunity to contest the motion, should he seek to do so. The Hearing on Motion for Sanctions is CONTINUED to _____________________ in Dept. 78 of Stanley Mosk Courthouse. Defendants are to serve and file proof of service on Plaintiff within the meaning of CCP § 1005(b). Moving Party is ordered to give notice. DATED: August 13, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Ruling

Ben Haddad vs. Monroe RE, LLC

Aug 09, 2024 |C23-02292

C23-02292 CASE NAME: BEN HADDAD VS. MONROE RE, LLC HEARING ON DEMURRER TO: COMPLAINT OF CA DEPT. OF SOCIAL SERVICES FILED BY: *TENTATIVE RULING:*The Demurrer of the California Department of Social Services to the first amended complaint of PlaintiffsBen Haddad and Joni Haddad is sustained. Because this is the first time the complaint is being tested bydemurrer, Plaintiffs have leave to amend.Plaintiffs have until August 19, 2024 to file and serve a second amended complaint. If Defendant intendsto demur, the demurrer hearing will take place on October 11, 2024 at 9:00 a.m. in Department 18. Thedemurrer must be filed sufficiently in advance of the October 11 hearing date to comply with CCP SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024section 1005(b). Opposition and reply briefing shall be pursuant to code. Defendant must call the clerk’sattention to this order when filing the demurrer. This may be done in the comment box if the documentis e-filed.BACKGROUNDPlaintiffs bought 5536 Johnston Road (the Haddad Property) on January 28, 2005 for use as a residence.(FAC ¶¶ 1, 3.) The Haddad Property is subject to a non-exclusive easem*nt in favor of an adjacentproperty owned by Defendant Monroe Operations, LLC (the Monroe Property), which consists of a rightof way used as a roadway (the easem*nt). (Id. ¶¶ 9, 10.) The easem*nt is the only route of access toeither property from a public street. (Ibid.)On or about July 30, 2021, Defendant Monroe Operations applied to Defendant California Departmentof Social Services (the Department) for a license to operate a group home, called the “NewportAcademy-Arena,” (the Facility), at the Monroe Property. (FAC ¶ 15.) The application included arepresentation that Monroe Operations owned the Monroe Property via a grant deed from DefendantMonroe RE, LLC. (Ibid.) The Department granted the License, which allows the operation of a facilitywith up to six children as residents, on or about August 4, 2021. (Id., ¶16 and Exh. 6.)Plaintiffs allege traffic along the easem*nt has increased to approximately 70 to 80 trips per day, upfrom six-to-twelve trips per day, since the License (FAC ¶¶ 20, 22.) Plaintiffs allege that the “reasonableprojected increase in the volume of traffic” would be “twelve to twenty-four trips per day, primarilyduring daylight hours.” (Id. ¶ 21.) The traffic on the easem*nt includes Monroe staff members,commercial food delivery trucks, including traffic generated for the benefit of other Monroe facilities.(Id. at 23.) Plaintiffs further allege that traffic associated with the Facility on a “stand alone” basis andproviding “no services or support to other facilities, would still “exceed by multiples the volume of trafficprojected to result from the potential growth” described in paragraph 21 of the FAC. (FAC ¶ 25.)Plaintiffs allege the increase in traffic has interfered with their use and enjoyment of the HaddadProperty and has accelerated the wear and tear of the asphalt on the easem*nt. (FAC ¶ 31, 32.)Plaintiffs allege the Department issued the License in error because California regulations require anapplicant to “control” the property where the property will be located. Plaintiffs claim that Monroelacked the required control of the Monroe Property when it applied for the License because Monroe’sonly access to the property is via the easem*nt.The operative first amended complaint filed on December 29, 2023 contains the following causes ofaction against the Monroe defendants and the Department: (1) declaratory relief (Monroe Defendants);(2) declaratory relief (the Department); (3) “Petition for Writ of Mandate” (the Department); (4) quiettitle (Monroe Defendants); (5) “Injunction and Damages” (Monroe Defendants); and (6) inversecondemnation (the Department).The Department now demurs to the second, third and sixth causes of action. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024STANDARDS ON DEMURRERA demurrer challenges the legal sufficiency of the complaint on the ground it fails to state factssufficient to constitute a cause of action. (CCP § 430.10(e); Rakestraw v. California Physicians' Service(2000) 81 Cal.App.4th 39, 42-43.) "[W]e are guided by long-settled rules. 'We treat the demurrer asadmitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact orlaw. We also consider matters which may be judicially noticed.' Further, we give the complaint areasonable interpretation reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39Cal.3d 311, 318 [citations omitted].)ANALYSIS(1) Second Cause of Action for Declaratory ReliefThe second cause of action seeks “a declaration that the License conferred on MonroeOperations is invalid or, if the status it confers on Monroe Operations as licensee of the NewportAcademy Arena Facility pursuant to Division 2, Chapter 3, Article 7 (§§ 1566.3 and 1566.5) of the Healthand Safety Code does not extend to the use of the Easem*nt by Monroe Operations or anyone actingunder its authority or direction.” (FAC pages 19-20, Prayer as to Second Cause of Action; see also FAC¶¶17, 42, 43.) The Department argues the second cause of action fails because, among other reasons, aplaintiff may not seek review of an administrative decision through a declaratory relief action. The Courtagrees.It is established that "an action for declaratory relief is not appropriate to review an administrativedecision." (State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 249; Selby Realty Co. v. Cityof San Buenaventura (1973) 10 Cal.3d 110, 127 [same]; Tejon Real Estate, LLC v. City of Los Angeles(2014) 223 Cal.App.4th 149, 155 [same].) Moreover, a complaint that improperly seeks declaratory reliefto review an administrative decision may be dismissed on that ground alone. (Veta, supra, 12 Cal.3d at249; Tejon, supra, 223 Cal.App.4th at 155.)Consistent with these authorities, the demurrer to the second cause of action is sustained. The courtdoes need not address the Department’s remaining arguments as to the sufficiency of the declaratoryrelief cause of action at this time.(2) Third Cause of Action for Writ of MandateIn their third cause of action, Plaintiffs seek a writ of mandate pursuant to CCP section 1085. A writ ofmandate under CCP section 1085 is the method of compelling the performance of a legal, ministerialduty. (Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584.) Mandamuswill lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has aduty to perform, and (3) the petitioner has a clear and beneficial right to performance. (Id. at 584.) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024The Department argues the third cause of action fails because plaintiffs cannot satisfy the requirementsfor writ relief. In particular, the Department argues that Plaintiffs do not identify any ministerial duty theDepartment was bound to perform. The Department claims that licensing decisions involve discretionand are not strictly “ministerial.” (See, e.g., MacDonald v. California (1991) 230 Cal.App.3d 319, 330[licensing of day care facilities is “generally considered to be discretionary rather than mandatory… [i]tis, however, clear that the predominant character of licensing is discretionary.”].)In opposition, Plaintiffs confirm that they do not seek to compel the Department to perform aministerial duty. Plaintiffs state: “CDSS is correct that "[Plaintiffs'] allegations do not identify a'ministerial' duty which CDSS did not perform" and that "No statute compels notice to adjacent propertyowners such as the Haddads as to the issuance of a [group home] license." (Opp. p. 4:1-4.) Plaintiffsclarify instead that the third cause of action is premised on the theory that certain land use decisionshave such a significant impact on nearby property owners so as to constitute a deprivation of propertyrights in violation of the due process clause in the California Constitution, thereby entitling themPlaintiffs to notice and an opportunity to be heard. The Plaintiffs assert, and the Department does notdispute, that procedural unfairness is actionable under section 1085.In arguing the right to a hearing, Plaintiffs rely on Calvert v. County of Yuba (2006) 145 CalApp.4th 613,which they claim is “identical” to this case. Plaintiffs do not allege facts showing that the act ofapproving Monroe’s license was an "adjudicatory" function that required a due process hearing.Assuming that it was, the Court finds that the Monroe license approval does not clear the legal bar set inCalvert for special, personalized notice: the "'significant' or 'substantial' deprivation[] of property."(Calvert, 145 CalApp.4th at 618; Scott, 6 Cal.3d at 544-45.)Calvert was in regard to a county's approval of a mining operator's request for a “vested rights”determination allowing the right to mine “‘aggregate’ (sand, gravel and rock for construction) fromapproximately 3,430 acres” in the 10,000 acres of the “Yuba Goldfields.” (Calvert, supra, 145 Cal.App.4that p. 618.) The petitioners were found to be constitutionally entitled to notice and hearing as theadministrative procedure for a “vested rights” determination was similar to the basic procedure fordetermination of a surface mining permit, which was concededly “‘adjudicatory in nature and thereforesubject to notice and hearing requirements.’” (Id. at p. 625.) The court analyzed whether there were"'significant' or 'substantial' deprivations of property" and concluded that because the approval allowedthe mining company an almost "threefold increase" in mining, and the description of the miningoperation expansion "itself [was] enough to envision significant environmental consequences andadverse effects to adjacent properties," the property owners living adjacent to the mining expansionhad "significant property interests at stake." (Id. at 626.) Therefore, the court found that the petitionershad "adequately described a property deprivation 'substantial' enough to require procedural dueprocess protection" and were "entitled to reasonable notice and an opportunity to be heard" before thecounty made the vested rights determination. (Id. at 627.)Scott v. City of Indian Wells (1972) 6 Cal.3d 54, another “adjacent landowner” case, is also instructive.There, the court addressed the question of whether a city must provide the same notice to nonresidentsliving adjacent to a large development project that it provided to similarly-situated city residents and SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024found that it did. (Scott, 6 Cal.3d at 548.) The Scott plaintiffs owned property just outside the city limitsand adjacent to property within the city. The city approved a large development project that included"two golf courses, tennis courts, clubhouses, . . . 90 individual lots," as well as "a seven-story apartmentbuilding, liquor store, rental office, and heliport." (Id. at 543-45.) The city provided mailed notice only tothose landowners within 300 feet of the development parcel (as required by the city's municipal code)and within city limits. (Id. at 545.) And the plaintiffs, property owners with land just outside the citylimits, argued that the city should have provided them with notice as well since they too lived within 300feet of the development. (Id.)The court held that "development of a parcel on the city's edge [would] substantially affect the valueand usability of an adjacent parcel on the other side of the municipal line" and that "the 'rootrequirement' of the due process clause is 'that an individual be given an opportunity for a hearingbefore he is deprived of any significant property interest.'" (Id. at 548-49 [citation omitted].) Therefore,the city owed "adjoining landowners who are not city residents a duty of notice to the extent given tosimilarly situated city residents." (Id. at 549.)It is hard to see how the above cases are analogous since issuance of the License did not and could nothave been expected to result in anything close to the massive increase in adjacent residentialdevelopment or industrial mining operations as in Calvert and Scott. Even when property owners allegeimpacts to their property interests and values, the court may find that as a matter of law there is nosignificant deprivation of property that triggered due process rights. (See Robinson v. City and County ofSan Francisco (2012) 208 Cal.App.4th 950, 963.)McCaffrey v. Preston (1984) 154 Cal.App.3d 422 also supports that Plaintiffs were not entitled to ahearing on Monroe’s license application. In McCaffrey, the neighbors of a residential facility sought aninjunction enjoining the defendants' operation of the home based upon a restrictive covenant imposedprior to 1979 which stated: "'This property shall be used for single family residential purposes only . . . .[A] breach of any of the foregoing conditions and restrictions shall cause the premises to revert tograntors, their heirs or assigns, each of whom respectively shall have the right of immediate entry uponthe premises . . . .'" (Id., at p. 428.) The trial court refused to grant the injunction, holding the covenantwas personal and enforceable only through the original grantor's reversionary interest, which had sincebeen extinguished. The court held that the neighbors had no right to notice and hearing prior tolicensing the residential care facility because in passing Health & Safety code section 1566, requiringthat licensing residential facilities serving six or fewer persons be treated as any other single-familydwelling for zoning purposes, the legislature determined that such facilities housing six or fewer personshave only a de minimis effect on land. (McCaffrey at 433 [citation omitted].) The court stated thatlicensing those facilities “changes neither the character nor the intensity of the use” and is “dissimilar toland use decisions where notice and an opportunity to be heard are constitutionally required.” (Ibid.[emphasis added].)The foregoing authorities persuade this Court that the licensing decision at issue in this case did notimplicate the right to a due process hearing. Plaintiffs have not alleged sufficient facts showing the SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024Department should have anticipated that granting the License would deprive Plaintiffs of a significantproperty interest because Monroe’s grant deed may have identified an access easem*nt.As an additional reason the demurrer is sustained, “[t]he extraordinary remedy of mandate is notavailable when other remedies at law are adequate.” (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 336.) The License having been granted,Plaintiffs have an adequate remedy at law. Plaintiffs seek a writ commanding the Department to revokeMonroe’s license and provide a hearing at which they can argue the License should not be reinstated.Plaintiffs could not obtain this exact relief in their action against Monroe. However, Plaintiffs appear toacknowledge that they don’t need it. Plaintiffs state in opposition to Monroe’s demurrer that the “neverdisputed the right of Monroe to operate a residential facility. What they dispute is that . . .Monroe . . . isentitled to use the easem*nt . . . at the scale Monroe is using it, which is more than ten times thevolume of traffic that any prior owner of Monroe's property generated or that would have beencontemplated in 1978 when the parties' predecessors…created the easem*nt….” (See Opp to MonroeDemurrer, p. 3:1-7.)If Plaintiffs prove their claims against the Monroe defendants and the Court enjoins the conduct theyclaim violates their rights, this will provide Plaintiffs with an adequate remedy for the harm alleged inthe third cause of action. Therefore, even if Plaintiffs could otherwise show entitlement to mandamusrelief, the third cause of action is barred because Plaintiffs have adequate remedies in their actionagainst Monroe for an injunction (or equivalent monetary damages).For these reasons, the Department’s demurrer to the third cause of action is sustained.(3) Sixth Cause of Action for Inverse CondemnationTo establish liability for inverse condemnation, the plaintiff must prove that: (1) there was a taking ordamaging by a public entity of a valuable property right; (2) that the taking or damaging was for a publicuse; and (3) that the invasion or appropriation directly and specifically affected the property owner tohis or her injury. (City of Los Angeles (2011) 194 Cal. App. 4th 210, 221.)In the sixth cause of action, Plaintiffs do not allege the Department has asserted eminent domain orcondemned any property belonging to them. Instead, Plaintiffs’ theory is that the Department’s act ofapproving Monroe’s permit authorized Monroe to engage in activities that overburden the easem*ntthereby amounting to a taking of Plaintiffs’ property.Where to start. Plaintiffs do not plead a cognizable inverse condemnation claim because, at a minimum,they do not allege any facts showing the purported “taking” of their property was a for a public purpose.Plaintiffs acknowledge that Monroe is a private entity operating a private business. Just becauseCalifornia has passed laws regarding group homes and residential use for purposes of restrictivecovenants and zoning laws does not mean that any alleged taking of property in this case was for apublic purpose. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/09/2024Plaintiffs argue this act constitutes a taking, citing Cedar Point Nursery v. Hassid (2021) 141 S. Ct. 2063, arecent Supreme Court case holding that a California regulation granting union organizers access toprivate property constituted a per se physical taking, as distinguished from a regulatory taking. TheSupreme Court held that “government-authorized invasions of property—whether by plane, boat, cable,or beachcomber—are . . . per se physical takings.” (Id. at 2074.) Here, the Department granted a licenseto operate a group home. Unlike in Cedar Point, it did not adopt a regulation or law granting anyone“formal entitlement” to enter Plaintiffs' property for any reason. Accordingly, such circ*mstances ofphysical invasion of property are not present here.If plaintiffs reassert this cause of action in their second amended complaint, and the Departmentdemurs, the Court anticipates having the benefit of a thoughtful analysis as to why Cedar Point Nurseryapplies.

Ruling

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