Order (proposed) (Movement #002) - order that interrupts the action, the judge has fired and canceled Lis Pens's 22 April 2019 (2024)

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Decision

Barry Maiten vs anat ebgi, et al.

28. augustus 2024 |23Stcv11238

Case No.: 23STCV11238 Hearing Date: August 28, 2024 Department: 82 Barry Maiten Case No. 23STCV11238 v. Hearing: August 28, 2024 Location: Stanley Mosk Courthouse Department: 82 Anat Ebgi, et al. Judge: Stephen I. Goorvitch [Interim] Order granting prosecutors a request for seizure. INTRODUCTION Plaintiff Barry Maiten (Plaintiff) seeks garnishment against Defendants Anat Ebgi and Joshua Michael Rosenblatt (Defendants) in the amount of $63,074.[142] Defendant opposes the requests, which are granted. LEGAL STANDARD Upon the filing of the complaint or at any time thereafter, the plaintiff may apply for the right to sue under this Article by filing a petition for writ in the court in which the action is brought. (Code Civ. Proc. § 484.010.) The attachment law statutes are subject to strict construction. (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) Unless otherwise provided by law, garnishment may be ordered only in an action for a claim or claims for money, each of which is based on a contract, express or implied, wherein the total amount of the claim(s) is a fixed or easily determinable amount of not less than five hundred dollars ($500), exclusive of costs, interest and attorneys' fees. (Code Civ. Proc. § 483.010.) The court shall issue a seizure if the court finds all of the following: (1) The claim upon which the seizure is based is a seizable claim. Paragraph 2. The claimant has established the probable merits of the claim on which the seizure is based. Section 3. The attachment is not claimed for a purpose other than collecting the claim on which the attachment rests. (4) The amount to be guaranteed by the expenditure is greater than zero. (Code Civ. Proc. § 484.090.) A claim has probable cause when it is more likely than not that the plaintiff will obtain judgment against the defendant on that claim. (Code Civ. Proc. § 481.190.) The application must be supported by an affidavit showing that, on the facts alleged, the plaintiff is entitled to judgment on the claim on which the attachment is based. ¿(Code Civ. Proc. § 484.030.) ¿In contested cases, the court must consider the relative merits of the respective parties' positions and make a determination as to ¿the likely outcome of the trial.¿ (Hobbs v. Weiss (1999) ) 73 Cal. App.4th 76, 80.) Section 482.040 of the Code of Civil Procedure provides in pertinent part: The facts set forth in any affidavit filed under this title shall be set forth with particulars. Unless this title specifically permits matters to be proved by information and belief, each affidavit shall affirmatively demonstrate that the employee, if given as a witness, can competently testify to the facts set forth therein. With regard to matters arising from information and beliefs, the statement must state the facts on which the employee's belief is based and demonstrate the nature of his information and the reliability of his informant. The affiliate can be any person, whether or not a party to the action, who has knowledge of the facts. DISCUSSION A. Notice Plaintiff provided sufficient notice and Defendant objected to the applications. B. Probable Validity of the Claimant's Claim The application is based on the claimant's claim for breach of a written contract (lease agreement). To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract; (2) the plaintiff's performance or excuse for nonperformance; (3) breach of contract by defendant; and (4) the damages suffered by the plaintiff as a result of the infringement. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.) Plaintiff presents evidence that he entered into a commercial lease agreement with Defendant in February 2017 and that Defendant stopped paying the monthly rent of $2,636.38 USD. , after the Covid-19 pandemic started. (See Maiten Dec. ¶¶ 3-4 and Exhibit A, including option to extend, and Exhibit B.) Plaintiff also provides evidence of the following: Defendants served 30 days' notice on October 5, 2020, but have terminated their occupancy of the property after the 30 days have expired. In January 2021, the defendant sent an email to the plaintiffs' representatives indicating that the defendant would vacate the premises within 30 days. When the 30 days expired, the defendants did not hand over the keys or confirm that they had left the property. They continued to keep the utilities in their names and pay the utility bills. Plaintiff discovered that Defendant had left the premises on or about July 31, 2021. (Maiten decl. ¶¶ 5-8.) Plaintiff seeks to recover capital damages for 16 months (April 2020 to July 2021) of unpaid rent of $2,636.38, for a total of $42,182.08 in unpaid rent. Plaintiff also seeks recovery of late fees in the amount of $6,854.59; interest of $4,218.21; and attorneys' fees and costs (pursuant to an indemnity provision in the lease) of $13,644.8 or $15,000. Plaintiff also alleges that Defendants are entitled to a credit of $3,825.34 for their security deposit (less $1,000 in labor and materials for water damage to the property). (Id. ¶¶ 8-13.) The court cannot determine from the plaintiff's statement how the interest was calculated. Furthermore, the claimant appears to have confused the calculation of late collection under Article 13.4 (10% of the amount due or $100, whichever is greater) with the calculation of interest under Article 13.5. (See Maiten Decl. ¶¶ 9-10.) The court will grant a late payment garnishment in the amount of $4,218.21, as this amount is clear from the lease. ($42,182.08 x 10%). The court does not award interest because the plaintiffs' calculations are flawed. Furthermore, it is unclear from the plaintiff's documents whether attorneys' fees of $13,644.8 or $15,000 are being sought. The court awards fees and costs in the lesser amount. Defendants have not convincingly rebutted Plaintiff's evidence regarding a likely valid contractual claim for unpaid rent from April 2020 to July 2021. Defendants admit that they have not paid the rent as of March 29, 2020 and that they have retained ownership of the property until at least January 2021. (Ebgi Decl. (Ibid.) They also implicitly admit that they did not get the keys until July 2021. (Id. ¶ 7.) Defendants provide no evidence of any notice or written communication between January and July 2021 showing that they informed Plaintiff that they had left (See Ebgi Verk. ¶¶ 4-7 and Exh. A.) The Court is not convinced that the pandemic prevented Defendants from returning the keys in any way or indicating that they were on their way (See Maiten Verk. ¶ 7.) Based on the foregoing, the Plaintiff files a claim on probable cause against Defendant for the reduced amount of $56,219.75 ($42,182.08 + $4,218.21 + $13,644.8 - $3,825.34 C. Basis for Garnishment. The probable cause plaintiff establishes a sufficient basis for seizure. [An expense will relate to a claim for damages for breach of contract, where the damages are readily ascertainable from the contract, and the basis for calculating damages appears reasonable and clear. It is not decisive that the compensation has not been settled. [Citations.] But the contract for which the suit is brought must provide a standard by which the amount due can be clearly determined, and there must exist a basis on which damages can be determined by evidence. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App. 4th 537, 541.) Here, plaintiff's motion for attachment is based on a contract claim for which the total amount allegedly owed exceeds $500. The claim is not backed by real estate. The plaintiff's claim arises from the defendant's practice of a profession, i.e. a commercial art gallery. Defendants argue that the plaintiff's damages are not certain and cannot be easily determined, because, among other things, the number of months of unpaid rent is in dispute. (Contradiction 1.) The plaintiff's damages are certain and can be readily inferred from the terms of the lease and the plaintiff's statement. A dispute about the amount of compensation does not mean that the damage cannot be easily determined and calculated based on the rental conditions. Defendants are essentially asking questions about the likely validity of plaintiffs' claims, not whether the damages are fixed and verifiable. D. Purpose and scope of the attachment The court is of the opinion that the attachment has not been requested for a purpose other than the collection of the claim on which the attachment is based, and that the amount to be insured by the attachment is greater than zero . E. Reduction of the amount required to be secured and exceptions. Defendant does not argue or demonstrate that the amount of the seizure should be reduced pursuant to Section 483.015(b) of the Code of Civil Procedure. Defendant has not applied for any exemptions. F. Subject to Property Plaintiff demands seizure against defendants, natural persons, of items referred to in Article 487.010(c) and (d) of the Code of Civil Procedure. (Application § 9c.) This request is correct. The plaintiff is not required under Section 484.020(e) to describe with further specificity the property being seized. (See Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal. App. 3d 260, 267-268 [expanded application complies with CCP section 484.020(e)].) G. Civil Code Section 489.210 Legal proceedings require: that the claimant makes an undertaking before the seizure is made. Section 489.220, with exceptions, allows a bond of $10,000. Neither side has advocated for another venture. CONCLUSION AND DECISION Based on the foregoing, the court finds as follows: 1. The garnishment motion is granted in the reduced amount of $56,219.75 against each defendant. Even if the court issues separate summonses, the plaintiff is not required to seize more than $56,219.75, i.e. the summons are intended to be joint and several. 2. The plaintiff shall submit a bond for each summons in the amount of $10,000. /// /// 3. Plaintiff's attorney will prepare and file a revised Order of Garnishment After Hearing and Order for Garnishment on Forms AT-120, reflecting the court's decision. 4. The plaintiff's attorney must serve notice and proof of service with the court. IT IS AS ORDERED Dated: August 28, 2024 ______________________ Stephen I. Goorvitch Supreme Court Judge [1] Plaintiff filed four motions for attachment on May 22, 30, and 31, 2024, three against Rosenblatt and one against Ebgi. All four files seek disgorgement of $63,074.42, although three seek attorneys' fees of $13,644.88, while one (against Rosenblatt) seeks attorneys' fees of $15,000. The court treats these summonses as one motion for attachment in the amount of $63,074.42 against both Rosenblatt and Ebgi, jointly and severally.

Decision

Jennifer Johnson vs Simone Bellinger, et al.

03. September 2024 |22Stcv32796

Business number: 22stCV32796 Hearing Date: 3 September 2024 Section: 71 Superior Court of California County or Los Angeles Department 71 Provisional ruling Jennifer Johnson, against Simone Bellinger, et al. Why the complaint should not be rejected and/or has the claimant's adviser$ 250 sanctioned for not made the following reasons: 1. No request for a court decision (CIV-100) .2. No proposed judgment (JUD-100). 3.Nee dismisses.4.The address stated on proofFrom personal service for Aaron J. Byrd and Robert Byrd, Jr., is incorrect.Specify the required required.(See for example Falahati v. Kondo (2005) 127 CAL.App.4Th 823, 830-831 [Court of Justice in addition to its jurisdiction, and the resulting default is invalid if the court assigns a standard decision in one amounts that are greater than thoserequired in the complaint, including whether the complaint does not specify the amount searched for].).

Decision

FCS055088 - Palomino, Toribio vs.Guzman, Juan Dams (DMS)

26. augustus 2024 |FCS055088

FCS055088Motion for advice from the festivatential Remefitsips' suggestion of advice from Advieshal.(Code Civ. Proc. About calm enjoyment and negligence. Initially, the ruling party has the right to repair lawyers for a requirement for a requirement of the Civil Code 1942.4. (CIV. About the legal employment, unless "the liability problems Sofinter-relatedthat it would have been impossible to separate them in claims that costs are correctly allocated and claims that they are not "(Akins v. Enter. Car Co. (2000) 79 Cal.App.4Th 1127, 1133.)If the moving party does not "use meaningfully" the court about a suitable distribution, "the court" "the freedom" is to grant a reasonable percentage .. "(Bell v. Vista Unified Sch. Dist. (2000) 82 CAL.App.4Th 672, 689.) Claimants claim 30.5 hours in prosecution of this promotion at an hourly rate of $ 395 for a total of $ 12,047.50 (decl. Van Phillips, ¶ 2, Exh.sagskerne trieshowever, not to try to give reimbursem*nts between the residential claim and the other causes of action and Nobasis for reasonable distribution, are shown in the descriptions of the tasks of the negligence requirements and the implementation of the implementation of silent pleasure and the requirements forHabitat, the court distributes 50 percent of the reimbursem*nts to the residential tree.zoomgov.com/j/161155464?pwd=T3U4qlbgwwnwagliexjtcgxivhrxzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzza: 5464#, 8181857575) 14154494000 ,, 1611554664#,, ,,*818575# US (US SPANISH LINE)

Decision

Peter Hart, et al.vs Nine-Oe Tenth Street Condominium Association-Profit, et al.

30. augustus 2024 |18-8-2022 |23SMCV00641

Business number: 23smcv00641 Consultation date: 30 August 2024 Division: Although the court remains somewhat skeptical, the court notes that there is a new party.Party has recently been added.Does not continue with business.Was aware that the roe -amendment proposal would require a continuation of the process, it would probably have refused the change or have set up a hearing to decide the impact on the process.

Decision

James Lee vs Emaar La Properties, LLC

27. augustus 2024 |SC129270

Case Number: SC129270 Date of Hearing: August 27, 2024 Division: 207 TENTATIVE ORDER DIVISION 207 DATE OF HEARING August 27, 2024 CASE NUMBER SC129270 MOTION Motion for Attorneys' Fees MOVING PARTIES, LLC and Real Estate Plaintiff, Inc. OPPOSITE No MOVEMENT Cross Depository Emaar LA Properties, LLC (Emaar) and EJL Homes Realty & Construction, Inc. (EJL) (together, cross-complainants) filed the Operative Second Amended Cross-Complaint (SACC) against the cross-accused. JCL Contractors, Inc. (JCL) is pursuing five lawsuits alleging (1) breach of a written contract; (2) Breach of Express Warranty; (3) Breach of Implied Warranties; (4) Negligence; and (5) Declaratory relief arising from a dispute over JCL's improper work on a 22-story luxury high-rise project called Beverly West. Default judgment was filed against JCL on July 11, 2024, and cross-plaintiff requested default judgment against JCL. Complainants separately seek attorneys' fees of $277,822.75 from Lee, Landrum & Ingle and $49,845.90 from Pursiano Law, LLP. JCL was in default and therefore did not oppose the proposal. LEGAL STANDARD Code of Civil Procedure section 1033.5, which sets forth the costs recoverable by a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys' fees when authorized by contract, statute or statute. (Code of Civil Proc., § 1033.5, subd. (a)(10).) Code of Civil Proc. section 1021 provides [except that attorneys' fees are specifically provided by law, the extent and manner of compensation for attorneys and legal advisors shall be left to the consent of the parties, express or implied[&.] Similarly, section 1717 of the Civil Code left provides [i] any action with respect to a contract where the contract specifically provides that attorneys' fees and costs incurred in the performance of that contract shall be awarded to either party or to the prevailing party, whereupon the party finds that such party is, prevailing under the contract, regardless of whether he or she is the party named in the contract, shall be entitled to reasonable attorneys' fees in addition to other costs. (Civil Code, § 1717, subd. (a).) The Code of Civil Procedure defines the prevailing party as follows: [T]he party with a net monetary recovery, a defendant in whose favor a dismissal has been entered, a defendant where neither the plaintiff nor the defendant receives any form of compensation, and a defendant against the plaintiffs who do not recover any form of compensation against the defendant. If a party obtains relief other than monetary relief and in situations other than those specified, the prevailing party will be determined as determined by the court, and in these circ*mstances the court may, in its discretion, grant or disallow costs ​​and, if permitted, the distribution of costs. costs between the parties to the same or unfavorable parties in accordance with the rules adopted pursuant to Article 1034. (Code Civ. Proc., § 1032, subd. (a)(4).) ANALYSIS Clause 14.1.9 of the parties' contract provides: 14.1 Default . The occurrence of one or more of the following events and their continuation for a period of forty-eight (48) hours after written or oral notification thereof by the Contractor to the Trading Counterparty shall constitute an “Event of Default” on the part of the Trading Counterparty: 14.1 .1 The Trade Contractor fails to complete the work or part thereof in a timely manner, or in the opinion of the contractor the Trade Contractor makes insufficient progress with the work, either due to a lack of materials. , personnel or otherwise [. . .] 14.1.3 The Contractor or other Trade Contractor(s) shall be unable to proceed with the Project or any part thereof as a result of the act of the Trade Contractor or any employee, agent, subcontractor, supplier or invitee of the Trade contractor. or of any person or labor organization impersonating or attempting to represent an employee of the Trade Contractor, or that the presence of the Trade Contractor or its subcontractors on the project causes labor relations problems, including but not limited to strikes, strikes, delays or disruptions to the contractor's activities; 14.1.4 The Commercial Contractor fails to correct any defects in the materials or workmanship supplied by it when and as required by the Contractor or the Contractor's external peer reviewers [. . .] 14.1.7 Trade Contractor replaces materials without written permission from Contractor; 14.1.8 Commercial contractor transfers its obligations, or part thereof, to another commercial contractor or supplier without the prior written consent of the contractor; or 14.1.9 the Merchant breaches any other provision of this Agreement; IN THE EVENT OF FAILURE, CONTRACTOR MAY, WITHOUT FURTHER NOTICE TO TRADE CONTRACTOR, TERMINATE THIS AGREEMENT IN WHOLE OR IN PART EITHER THROUGH ITS OWN EMPLOYEES OR THROUGH A TRADE SUPPLIER OF MATERIALS OR LABOR OF A TRADE SUPPLIER AND IN SUCH TERMINATION THE TRADE CONTRACTOR LIABLE TO THE CONTRACTOR FOR ANY LOSS, DAMAGE OR COSTS ARISING DIRECTLY OR INDIRECTLY FROM ANY SUCH INFRINGEMENT, INCORPORATED OR PAID BY THE CONTRACTOR. THE COSTS AND DAMAGES ARISING FROM THE ABOVE ACTIONS ARE DEDUCTIBLE FROM ANY AMOUNTS DUE OR INCURRED BY CONTRACTOR UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN CONTRACTOR OR ITS SUPPLIERS SHALL NOT BE CONSIDERED A RELEASE OR RECEIPT OF ANY LIABILITY OF THE TRADE CONTRACTOR, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR ANY LOSS OR LIABILITY OF THE TRADE CONTRACTOR IN ADDITION TO SUCH DEDUCTIONS. IF THE CONTRACTOR IS REQUIRED TO USE ITS OWN LABOR TO COMPLETE ALL OR PART OF THE WORK UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO WARRANTY SERVICE WORK, THE CONTRACTOR'S LABOR SHALL BE AGREED TO 50 HOURS. IF THE CONTRACTOR, THROUGH ITS OWN EMPLOYEES OR SUCH TRADE CONTRACTOR, PERFORMS THE WORK IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION, HE MAY USE OR ALLOW SUCH TRADE CONTRACTOR TO REVIEW THE DATE OF GIVING SUCH NOTICE. (Exhibit 1.) In connection with the motion for default judgment, appellants presented evidence that JCL failed to correct the defective workmanship it performed. Therefore, cross-complainants are generally entitled to recover their reasonable attorneys' fees, as are prevailing parties. In support of the motion, the opposing party submitted the affidavits of attorneys for David S. Lee and David T. Pursiano, along with invoices showing that Pursiano Law, LLP incurred $49,845.90 in legal fees. The cross-complainant also seeks $277,822.75 in attorneys' fees for Lee, Landrum & Ingle, but David S. Lee's affidavit and attached invoices total only $277,522.75 in attorneys' fees. CONCLUSION For the foregoing reasons, the Court grants plaintiff's motion for attorneys' fees in the amount of $49,845.90 for Pursiano Law, LLP and $277,522.75 for Lee, Landrum & Ingle. Furthermore, the Court will include the award of attorneys' fees in the final default judgment entered against JCL. DATE: August 27, 2024 ________________________ Michael E. Whitaker Judge of the Superior Court

Decision

Erlinda B Pangilinan, et al.vs Darius Rutledge, et al.

29. Augustus 2024 |23 Nose 03751

Business number: 23nwcv03751 Consultation date: 29 August 2024 Department: C Pangilinan v. Rutledge Case Nr.: 23NWCV03751 Consultation: 28/08/24 #5 Suspected Smooth Sailing Consultant, LLC;, November 7, 2024 at 1:00 pm10: 30 in departmentse-C.AG subscription Summary Sailing, LLC; 10.30 in departmentse-C.Froving Party to report.Stand -poor institutions were concluded against suspicious Smooth Sailing Consultant, LLC and Darius Rutledge on 2 February 2014, and against the defendant Jennifer Jane Sanchezs (collective suspect) on February 14, 2024. The standard settings must be reserved and the service was reported for later reasons: · posIdentifies that the summons and the complaint were served on the accused Smooth Sailing Consulting LLC on December 22, 2023, but was incorrectly served by the Agent for Service of Process or an authorized person.The address that has been identified on the proof of service was no longer good, because the suspect had moved approximately 2 months earlier.Aimed at exemption for infringement/to catch service.The questions are continued as stated above.) The statements related to the moving newspapers are insufficient and failed as submitted.Is not allowed with reply papers &.In the interest of the justice, the assessment of the profit and absence of prejudices for the party of the opponent, the court gives the relocation parties to archive and earn messages from Errata with signed statements about Jennifer Jane Sanchez and Darius Rutledge linked to 3September 2024. An additional opposition with regard to the new evidence that the moving parties presents can be submitted and served. Code in accordance with the new consultation date.code in accordance with the new consultation date.

Decision

Stad van Bellflower vs 20434 South Santa Fe Avenue, LLC, ET California Limited Liability Company, et al.

27. augustus 2024 |24NWCV01017

Case number: 24NWCV01017 Hearing Date: 27 August 2024 Division: C City of Bellflower vs 20434 South Santa Fe Avenue, LLC, et al.9 Provisional decision Eisers City in the proposal of Bellflower to order for prevention and certification of tax information will be continued untilTuesday, October 15, 2024 at. 10.30 am.Date, that was no earlier than 45 days after the last day of the trial (ie 30 September 2024).In the provision, the proposal is continued by order for prevention and certification of tax information for Tuesday 15 October 2024 at 1 p.m. 10:30 in the SE-C.Opposition and answering panties that must be submitted and earned in accordance with the new consultation date.

Decision

Jason Neel Mod United States Real Estate Corporation, et al

28. augustus 2024 |22CV01758

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

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