Complaint-Civil Party: Plaintiff Wayzata Woods Apartments LLC Index #1 August 26, 2024 (2024)

Case Info

Parties

Case

Metropolitan Holdings L.L.C. vs BPH Holdings Inc, Bekah Saliterman, Jamieson Phyle, and the unknown heirs of Deborah K.Saliterman, also known as Deborah Kay Saliterman.

Aug 26, 2024 |Open |Reduced Mortgage Redemption |Reduced Mortgage Redemption |27-CV-24-12498

Case

Hampshire 10660 LLC vs Desiree Talamantes, John Doe, Jane Doe

Aug 27, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-6013

Case

Millennium Management, LLC vs Ashley Martinez

Aug 28, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-6032

Case

MPLS Real Estate Holdings I, LLC vs Amani Miller, John Doe, Mary Roe

Aug 27, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-6010

Case

Sedona Hills Apartments, LLC vs Willie Shaw, John Doe, Jane Doe

Aug 26, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5909

Case

Minneapolis Stone Arch Partners, LP vs Shelbie Opdahl, John/Jane Doe(s)

Aug 26, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5927

Case

Dominium Management Services, LLC vs Marcus Howze and any other occupants

Aug 26, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5925

Case

Trilogy Properties of MN, LLC vs Robert Flippin and Tia Howze

Aug 29, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-6067

Case

Aug 27, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5996

Ruling

KB SALT LAKE III, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS FITNESS INTERNATIONAL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY

Aug 28, 2024 |23CHCV00792

Case Number: 23CHCV00792 Hearing Date: August 28, 2024 Dept: F43 KB Salt Lake III, LLC vs. Fitness International, LLC Trial Date: 9-23-24 MOTION FOR JUDGMENT ON THE PLEADINGS MOVING PARTY: Plaintiffs HWP One, LLC and APG De Soto-SPE, LLC RESPONDING PARTY: Defendant Fitness International, LLC RELIEF REQUESTED Plaintiffs have requested that the Court enter an order granting judgment on the pleadings in favor of Plaintiffs and against Defendant for the following affirmative defenses in Defendants answer: · Fifth Affirmative Defense: Bad Faith Collusion · Sixth Affirmative Defense: Bad Faith Collusion · Seventh Affirmative Defense: Unclean Hands Collusion · Eighth Affirmative Defense: Unclean Hands Collusion RULING: Motion for judgment on the pleadings is granted with leave to amend. SUMMARY OF ACTION Plaintiffs HWP One, LLC and APG De Soto-SPE, LLC (Plaintiffs) allege that Defendant Fitness International, LLC (Defendant) stopped paying rent to hundreds of its landlords across the country during the COVID-19 pandemic. This case concerns one of those lessors, KB Salt Lake III, LLC (KB). KB was Plaintiffs predecessor-in-interest. Prior cases, which Plaintiffs cite in their request for judicial notice, have already determined that Defendant breached its lease with KB. The matters at issue in this case are the calculation of damages and mitigation. Despite this, Defendant is still attempting to assert affirmative defenses based on what Plaintiffs argue are conclusory allegations that are unrelated to the claims at issue in this case. The defenses allege that KBs counsel colluded by discussing litigation strategy with counsel for the other landlords that Defendant was litigating against. Plaintiffs argue that Defendants defenses are devoid of factual detail and fail as a matter of law. Furthermore, Plaintiffs argue that any alleged collusion would be distinct from the claims at issue in this case and could not negate Plaintiffs right to recover on its claims in this case. Defendant argues in its opposition that it has pleaded facts sufficient to state the defenses. It also argues that the unclean hands and faith defenses are directly connected to the claims at issue because the alleged improper collusion arises of the rent litigation between Defendant and the landlords. Plaintiffs argue in their reply that the affirmative defenses fail to plead sufficient facts to constitute valid defenses. Plaintiffs also argue that Defendant fails to address the legal deficiencies in its defenses. Plaintiffs Request for Judicial Notice: Plaintiffs request that the Court take judicial notice of court filings from related cases. The Court takes judicial notice of these documents. ANALYSIS A motion for judgment on the pleadings has the same function as a general demurrer and, except as provided for CCP § 438, the rules governing demurrers apply. (See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) A motion for judgment on the pleadings may be granted when the answer does not state facts sufficient to constitute a defense to the complaint. (CCP § 438(c)(1)(A).) The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed. (CCP § 438(d).) The determination of whether an answer states a defense is governed by the same principles that apply in determining if a complaint states a cause of action. (South Shore Land Co. v Petersen (1964) 226 Cal.App.2d 725, 732.) For a party to successfully allege affirmative defenses for bad faith and unclear hands, they must allege that the plaintiff has acted unconscionably, in bad faith, or inequitably in the matter in which the plaintiff seeks relief. (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 432.) For the Fifth and Seventh Affirmative Defenses for bad faith collusion and unclean hands collusion with Kids from the Valley, all Defendant has alleged is that HWP-APGs claims are barred because of their bad faith, or because of the bad-faith of their predecessor-in-interest. On information and belief, HWP-APGs predecessor-in-interest, KB Salt, colluded with the owner of the adjacent parcel, Kids from the Valley IX, LLC (Kids) in order to exacerbate KB Salts damages. (Answer, ¶¶ 5, 7.) Defendant does not allege how KB or Plaintiffs colluded with the Kids. Nor does Defendant allege how KB or Plaintiffs acted unconscionably, in bad faith, or inequitably. Defendant also does not allege how Plaintiffs conduct allegedly exacerbated any damages. For the Sixth and Eighth Affirmative Defenses for bad faith collusion and unclean hands collusion with third parties, Defendant alleges that HWP-APGs claims are barred because of their bad faith, or because of the bad-faith of their predecessor-in-interest. On information and belief, HWP-APGs and/or its predecessor-in-interest, KB Salt, colluded with Fitnesss other landlords in order to increase the settlement figures and/or increase the rent those landlords could demand as part of any settlement and extension of existing leases. Fitness insists upon confidentiality provisions in its leases to protect against collusion between landlords, but on information and belief, counsel for KB Salt engaged in routine telephone and/or Zoom conferences with counsel for other landlords in order to strategize and coordinate their litigation and settlement approaches. Upon information and belief, by doing so, KB Salt and/or HWP-APG formed a de facto cartel in which they unfairly obtained market power used to unfairly set settlement and future rent prices adverse to Fitness. (Answer, ¶¶ 6, 8.) These defenses do not allege any conduct by Plaintiffs or their predecessor-in-interest. Instead, these defenses only allege conduct by KBs counsel. Nor has Defendant alleged anything that would constitute bad faith or unclean hands because, as Plaintiffs argue, there is nothing inherently wrong with coordinating litigation and settlement approaches. Defendant also does not allege that KB or Plaintiffs breached any particular confidentiality obligation in connection with the lease at issue. It only alleges that Defendant insists on confidentiality provisions. Even if Plaintiffs or KB breached a confidentiality provision, that would not be a material breach that would excuse Defendants rent obligations. Defendant argues in opposition that it has pleaded sufficient facts to support its affirmative defenses, but as discussed above, that is not the case. Based on the foregoing, Plaintiffs motion can be granted based on the lack of factual allegations in Defendants affirmative defenses. However, the Court will address Plaintiffs other arguments, as well. Plaintiffs argue that Defendant has not stated facts sufficient to constitute an antitrust violation defense. However, Defendant argues in its opposition that it has not alleged an antitrust violation and does not need to do so. Defendant has not pled any facts that would indicate that competition was restrained or injured in any way. Defendant has not pleaded any facts that there was a formation and operation of a conspiracy. Defendant has also not pleaded any facts demonstrating damages because of a conspiracy. Furthermore, any communications between KBs counsel and other landlords counsel would not constitute bad faith or unclean hands. These types of strategic communications are immune. (See Rubin v. Green (1993) 4 Cal.4th 1187; see also Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (holding privilege applies to communications relating to litigation efforts even if made outside the courtroom).) Finally, the claims of bad faith and unclean hands are not connected to the claims at issue because the defenses do not allege any alleged wrongful conduct on the part of Plaintiffs or their predecessor in entering the lease or in their conduct as lessors. Nor does Defendant allege that its failure to pay rent had anything to do with the alleged collusion between landlords. Any alleged wrongful conduct occurred after Defendant breached the lease. Plaintiffs motion for judgment on the pleadings is granted for Defendants Fifth through Eighth Affirmative Defenses. Defendant is given 30 days leave to amend its answer. Moving party to give notice to all parties.

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 30, 2024 |23CV-0203590

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203590This matter is on calendar for review regarding status of default judgment. The Court notes that Plaintiff’s Requestto Enter Default Judgment was denied without prejudice on June 22, 2024. It appears that no further attemptshave been made to resolve the matter. An appearance is necessary on today’s calendar.

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 26, 2024 |23CV-0203590

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203590This matter is on calendar for review regarding status of default judgment. The Court notes that Plaintiff’s Requestto Enter Default Judgment was denied without prejudice on June 22, 2024. It appears that no further attemptshave been made to resolve the matter. An appearance is necessary on today’s calendar.

Ruling

PETER HART, ET AL. VS NINE-O-ONE TENTH STREET CONDOMINIUM ASSOCIATIONN-PROFIT, ET AL.

Aug 30, 2024 |6/18/2022 |23SMCV00641

Case Number: 23SMCV00641 Hearing Date: August 30, 2024 Dept: I Although the court remains somewhat skeptical, the court does note that there is a new party. While the court doubts that the ROE amendment came as a total shock, the fact remains that the party was newly added. The court will also take the parties at their word that they are more than a little bit optimistic that the case will settle, although the court recognizes that no promise to settle was made. Finally, the court set the trial date before giving the warning it now gives that it will not continue cases. In light of all of that, the court will discuss the matter with counsel. At present, the court is inclined to set a TSC for after the mediation date given the parties optimism that the matter will resolve. The court notes that had it been aware that the ROE amendment would necessitate a continuance of the trial, it likely would have either denied the amendment or set a hearing to determine the effect on the trial.

Ruling

BRUCE DWAIN COPELAND VS AMY PHAM

Aug 28, 2024 |22STCV10036

Case Number: 22STCV10036 Hearing Date: August 28, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: August 28, 2024 TRIAL DATE: NOT SET CASE: Bruce Dwain Copeland v. Amy Pham CASE NO.: 22STCV10036 (1)MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS (2) MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSION; REQUEST FOR SANCTIONS MOVING PARTY: (1)(2) Defendant Amy Pham RESPONDING PARTY(S): No response on eCourt as of 08/23/24 CASE HISTORY: · 03/23/22: Complaint filed. · 03/14/23: First Amended Complaint filed. · 05/24/23: Plaintiff deemed vexatious litigant. · 07/05/23: Notice of Appeal filed. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is an action for quiet title and injunctive relief. Plaintiff contends that Defendant is fraudulently claiming ownership of the property in which Plaintiff resides and which he contends that he owns. Plaintiff moves to compel responses to requests for production propounded to Defendant Amy Pham. TENTATIVE RULING: Defendants Motion to Compel Responses to Requests for Production is DENIED. Defendants Motion to Compel Responses to Requests for Admissions is DENIED. Defendants Motion to Compel Responses to Form Interrogatories is DENIED. Defendant request for sanctions is DENIED. This ruling is conditioned on the payment of $120 in filing fees within 10 days of this order. DISCUSSION: Defendant moves to compel responses to requests for production and also purports to move to compel responses to form interrogatories and requests for admissions. Improper Service of Motion Defendants proof of service states that this motion was served by electronic service on February 14, 2024. Under Code of Civil Procedure section 1010.6, an unrepresented party may only be served by electronic service when express consent has been manifested by either (1) serving notice on all parties and filing the notice with the Court, or (2) by manifesting affirmative consent through electronic means with the Court or its electronic filing service provider and providing the partys electronic address with that consent for the purpose of receiving electronic service. (Code Civ. Proc. § 1010.6(c).) Plaintiff never submitted any notice or manifestation of affirmative consent to receive electronic service to the Court. Were this the only defect in the motion, the Court would be inclined to continue the matter and order proper service on Plaintiff. However, other deficiencies in the motion are so severe that outright denial is warranted for the reasons stated below. Multiple Motions Defendant purports to move to compel responses to three sets of discovery: one set of requests for productions, one set of form interrogatories, and one set of requests for admissions. Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[Motions to compel compliance with separate discovery requests ordinarily should be filed separately.].) Plaintiff should have reserved three separate hearings for three motions to compel. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect. This ruling is therefore conditioned on the payment of $120 in additional filing fees. Requests for Production Defendant moves to compel responses to requests for production, but admits that Plaintiff responded to the requests for production propounded upon him, albeit only with objections. (Defendants Exh. 1.) A motion to compel responses is only available when the party to whom the inspection demand is propounded fails to respond. (Code Civ. Proc. § 2031.300(b).) As Plaintiff objected, he did not fail to respond to discovery, notwithstanding the merit of those objections. Defendant is therefore not entitled to an order compelling responses. Requests for Admissions Defendant purports to move to compel responses to requests for admissions. No such motion is authorized by the Discovery Act, which only permits motions to either deem the truth of matters stated in requests for admissions when no response has been received, or to compel further responses when the response is inadequate. (Code Civ. Proc. §§ 2033.280; 2033.290.) Defendant is therefore not entitled to compel responses to requests for admissions. Form Interrogatories Defendant also purports to move to compel responses to form interrogatories. However, no form interrogatories were included in the exhibit containing the discovery requests purportedly served on Plaintiff. Defendant has therefore failed to demonstrate that she served discovery for which a response may be compelled. (See Code Civ. Proc. § 2030.080.) Sanctions Defendant also requests sanctions in connection with this motion. However, as Defendant is not the prevailing party, Defendant is not entitled to sanctions. CONCLUSION Accordingly, Defendants Motion to Compel Responses to Requests for Production is DENIED. Defendants Motion to Compel Responses to Requests for Admissions is DENIED. Defendants Motion to Compel Responses to Form Interrogatories is DENIED. Defendant request for sanctions is DENIED. This ruling is conditioned on the payment of $120 in filing fees within 10 days of this order. Moving Party to give notice. IT IS SO ORDERED. Dated August 28, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Ruling

Gordon Panzak vs. City of Fowler

Aug 29, 2024 |22CECG01769

Re: Panzak v. City of Fowler, et al. Case No. 22CECG01769Hearing Date: August 29, 2024 (Dept. 502)Motion: Defendants City of Fowler, et al.’s, Special Motion to Strike the First Amended Complaint Pursuant to Code of Civil Procedure Section 425.16 Defendant Gregory Myers’ Special Motion to Strike the First Amended Complaint Pursuant to Code of Civil Procedure Section 425.16 Defendant City of Fowler, et al.’s, Motion to Strike Punitive DamagesTentative Ruling: To grant the special motion to strike filed by the City of Fowler defendants, as tothe entire first amended complaint, without leave to amend. To grant the special motion to strike filed by defendant Gregory Myers as to theentire first amended complaint, without leave to amend. To grant attorney’s fees to Mr.Myers in the amount of $2,580. Plaintiff shall pay sanctions to Mr. Myers within 30 days ofthe date of service of this order. To deny the City’s motion to strike the prayer for punitive damages from the firstamended complaint as moot in light of the court’s ruling on the special motions to strike.Defendants shall submit proposed judgments consistent with the language of the court’sorder within 10 days of the date of service of this order.Explanation: General Principles Regarding Special Motions to Strike: Under Code of CivilProcedure section 425.16, “[a] cause of action against a person arising from any act ofthat person in furtherance of the person's right of petition or free speech under the UnitedStates Constitution or the California Constitution in connection with a public issue shall besubject to a special motion to strike, unless the court determines that the plaintiff hasestablished that there is a probability that the plaintiff will prevail on the claim.” (CodeCiv. Proc., § 425.16, subd. (b)(1).) “In making its determination, the court shall consider the pleadings, andsupporting and opposing affidavits stating the facts upon which the liability or defense isbased.” (Code Civ. Proc., § 425.16, subd. (b)(2).) “As used in this section, ‘act in furtherance of a person's right of petition or freespeech under the United States or California Constitution in connection with a publicissue’ includes: (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 underconsideration or review by a legislative, executive, or judicial body, or any other officialproceeding authorized by law, (3) any written or oral statement or writing made in aplace 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 the constitutional right ofpetition or the constitutional right of free speech in connection with a public issue or anissue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).) Also, “in any action subject to subdivision (b), a prevailing defendant on a specialmotion to strike shall be entitled to recover that defendant's attorney's fees and costs. Ifthe court finds that a special motion to strike is frivolous or is solely intended to causeunnecessary delay, the court shall award costs and reasonable attorney's fees to aplaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16,subd. (c)(1).) “Resolution of an anti-SLAPP motion involves two steps. First, the defendant mustestablish that the challenged claim arises from activity protected by section 425.16. Ifthe defendant makes the required showing, the burden shifts to the plaintiff todemonstrate the merit of the claim by establishing a probability of success. We havedescribed this second step as a ‘summary-judgment-like procedure.’ The court does notweigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether theplaintiff has stated a legally sufficient claim and made a prima facie factual showingsufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, andevaluates the defendant's showing only to determine if it defeats the plaintiff's claim asa matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Baral v.Schnitt (2016) 1 Cal.5th 376, 384–385, citations and footnotes omitted.) “Thus, inevaluating anti-SLAPP motions, ‘courts should consider the elements of the challengedclaim and what actions by the defendant supply those elements and consequently formthe basis for liability.’” (Wong v. Wong (2019) 43 Cal.App.5th 358, 364, quoting Park, supra,at p. 1063.) Timeliness of the Motions and Plaintiff’s Other Procedural Objections: Plaintiff hasargued in his opposition that the City of Fowler defendants’ motion is untimely as it shouldhave been filed within 30 days, and that defendant Myers waived his right to bring themotions because he filed his answer before filing the special motion to strike. However,plaintiff’s objections are misplaced. Under Code of Civil Procedure section 425.16, subdivision (f), “The special motionmay be filed within 60 days of the service of the complaint or, in the court's discretion, atany later time upon terms it deems proper.” (Code Civ. Proc., § 425.16, subd. (f).) Here,the defendants filed their motions within 60 days1 of the date they were served with thecomplaint, so the motions are timely. There is no requirement that the special motion to1 Plaintiff served defendants on April 16, 2024 by personal delivery, so 60 days from the date ofservice was June 15, 2024. However, June 15, 2024 was a Saturday, so the last day to file themotion was Monday, June 17, 2024. Myers filed his special motion to strike on June 14, 2024, andthe City of Fowler filed its motion on June 17, 2024.strike be filed before or concurrently with the defendant’s answer. Therefore, plaintiff’scontention that the motions are untimely or that defendants waived their right to bringthe motions is simply incorrect. In addition, to the extent that plaintiff objects that the defendants failed to meetand confer or discuss filing the special motions to strike with him before filing them, thereis no meet and confer requirement in section 425.16. The moving party simply needs tobring the motion within 60 days of service of the complaint or pleading that it seeks tostrike. (Code Civ. Proc., § 425.16, subd. (f).) Likewise, there is no requirement that themoving party state that the motion is being brought in “good faith” or that it is not broughtfor the purpose of delay or harassment. Also, to the extent that plaintiff objects to the City’s motion on the ground that itfails to specify the items in the first amended complaint that the City is objecting to,plaintiff appears to be confusing a special motion to strike under section 425.16 with a“standard” motion to strike under section 435 or 436. Unlike a standard motion to strike,which targets specific allegations or prayers for relief that are improperly alleged, aspecial motion to strike seeks to strike out whole causes of action or entire complaints onthe ground that they are improper SLAPP actions. (Code Civ. Proc., § 425.16, subd.(b)(1).) Therefore, when a defendant brings a special motion to strike, it is not requiredto specify each allegation or prayer that is being challenged, and instead they shouldmove to dismiss the entire complaint or one or more causes of action within thecomplaint. As a result, plaintiff’s objection here is misplaced. Plaintiff also raises a number of other evidentiary or procedural objections to theCity’s motion, but the objections are not well taken and the court intends to overrulethem. (See Plaintiff’s Objections to the City’s Motion, p. 2.) The City of Fowler Defendants’ Motion: The court intends to grant the City of Fowlerdefendants’ special motion to strike the entire first amended complaint. The City has metit* burden of showing that the entire FAC is based on protected conduct by the City. In particular, plaintiff has alleged that he had previously filed an action againstthe City of Fowler, which placed the City on notice that plaintiff suffered from healthissues and physical vulnerability. (FAC, p. 2, seventh to twelfth paragraphs.) Defendantswere also aware of the fact that plaintiff’s property rights were “grandfathered in” undera California Supreme Court ruling and the 1977 Fowler City Code. (FAC, p. 2, lastparagraph.) The parties had agreed to submit the dispute over whether there was apublic right of way on plaintiff’s property to the Superior Court in the underlying casenumber 17CECG02635. (FAC, p. 3, second paragraph.) Nevertheless, “On or about June 14, 2021, under the guise of doing a waterimprovement on Adams Ave, City of Fowler, the Defendants, entered and excavatedthe Plaintiff's property and placed 2 large handicap sidewalk ramps on the propertylocated at 405 E. Adams Ave.” (FAC, p. 3, third paragraph.) “Despite the fact that theissue of the Public Right of Way's existence and other related issues were before theFresno County Superior Court, the Defendant's [sic] gave no advanced notice of theiraction to the Plaintiff, nor did the Defendants seek permission of the Superior Court toobtain permission to do the entry, excavation, and placement of the concrete ramps onPlaintiff’s property.” (FAC, p. 3, fourth paragraph.) After plaintiff called the City’s attorneyand the contractor to complain about the intrusion on his property, no further work tookplace for another four days. However, on the fifth day, the defendants returned with apolice escort and “recommenced their trespass and vandalism on the Plaintiff’sproperty.” (FAC, p. 3, fifth to seventh paragraphs.) Plaintiff then contacted attorney Gregory Myers to discuss a settlement of theunderlying case. (FAC, p. 3, last paragraph.) Myers asked plaintiff to call him and discussthe matter. (Ibid.) However, during the phone conversation, Myers allegedly stated thathe was recording the conversation. (Ibid.) Plaintiff contends that the recording wasmade without his prior knowledge and consent, which violated the Penal Code. He thenimmediately terminated the conversation. (FAC, p. 4, first paragraph.) Plaintiff’s offerwas rejected, and then then filed his current complaint. (FAC, p. 4, second paragraph.) However, plaintiff’s entire first amended complaint is based on protected conductby the City of Fowler and its councilmembers, officers, and staff. As discussed above,section 426.16 states that “‘act in furtherance of a person's right of petition or free speechunder the United States or California Constitution in connection with a public issue’includes: (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 writtenor oral statement or writing made in connection with an issue under consideration orreview by a legislative, executive, or judicial body, or any other official proceedingauthorized by law, (3) any written or oral statement or writing made in a place open tothe public or a public forum in connection with an issue of public interest, or (4) any otherconduct in furtherance of the exercise of the constitutional right of petition or theconstitutional right of free speech in connection with a public issue or an issue of publicinterest.” (Code Civ. Proc., § 425.16, subd. (e).) Here, the City Council’s decision to approve the project to install sidewalks andhandicap ramps on plaintiff’s property was an act in furtherance of the right to petitionor free speech, as the City Council conducted a public hearing and debated whetherto approve the public works project, and then granted its approval of the project. (SeeCity’s Request for Judicial Notice, Walls decl., Exhibits A, B, C, D, E. The court intends totake judicial notice of the documents as official acts of the City.) The City caused aRecord of Survey to be conducted with regard to the property lines surrounding plaintiff’sproperty, which indicated that there was a public right of way next to the property.(Exhibit A to Walls decl.) The City then conducted a hearing2 and approved theconstruction project for reconstruction of Adams Avenue, which was awarded to DonBerry Construction. (Exhibit B to Walls decl., p. 2, ¶ 8 (C).) City Manager Wilma Quansigned the contract with Don Berry Construction shortly after the City Council approvedthe project. (Exhibit C to Walls decl., p. 5.) Deputy City Clerk Angela Vasquez witnessedthe execution of the agreement. (Ibid.) Thus, it is apparent from the allegations of the first amended complaint thatplaintiff is suing the City of Fowler, the City Council members, and the City’s staff basedon their decision to approve the project to install sidewalks and handicap ramps on ornear his property. Yet such conduct is clearly “an act in furtherance of the right of freespeech of petition” under section 425.16, so the burden shifts to plaintiff to show by2Due to the ongoing Covid pandemic, the public was not allowed to attend the hearing inperson. However, the public was allowed to access the meeting via teleconference. (Exhibit B,p. 1, first paragraph.)admissible evidence that he has a probability of prevailing on his claims against the City.(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Here, plaintiff has not met his burden of showing that he has a probability ofprevailing on his claims. Plaintiff has not submitted any admissible evidence that wouldtend to show that he can prevail on any of his claims. Most of his opposition consists ofprocedural legal arguments, which are without merit as discussed above. He argues inconclusory fashion that “the acts related to enforcement, of Legislative Acts are notProtected Acts.” (Opposition, p. 2, ¶ 11.) However, this argument is unsupported by anyevidence or legal authority, and the court intends to disregard it. Plaintiff also submits his own declaration, in which he repeats the same factualallegations that form the basis for his complaint. (Panzak decl., ¶¶ 4-13.) He claims thatthe City and the other defendants were aware of the pending litigation against them incase number 17CECG02635, but they decided to use “self-help” against his property. (Id.at ¶ 5.) The City’s attorney, Mr. Velez, also allegedly told plaintiff that he had advised theCity to refrain from any actions against plaintiff’s property while the litigation waspending, but the defendants did not heed his advice. (Id. at ¶¶ 6-8.) The defendantssubmitted the boundary dispute to the court in the underlying case, and they did notgive plaintiff any notice or an opportunity to be heard before they went forward with theproject. (Id. at ¶¶ 9, 10.) “The City employees, contractors, and other unknown partiesentered into a criminal conspiracy to violate Penal Code section 182.(5), conspiracy topervert or obstruct justice or the due Administration of the Law.” (Id. at ¶ 11.) “Criminalconduct is not protected by SLAPP or any other Provision of Law.” (Id. at ¶ 12.) “Thedefendants were aware that the 1977 City of Fowler Municipal Code ‘grandfathered’the property use of the Plaintiff no later than 1978.” (Id. at ¶ 13.)3 None of plaintiff’s allegations in his declaration constitute evidence that tends toshow that he has a probability of prevailing on his claims. Plaintiff’s primary contentionseems to be that the City and its councilmembers and staff ignored the fact that therewas a pending case regarding the property boundary dispute, and that they hadallegedly agreed to submit the dispute to the court in the underlying action rather thanengage in “self-help” by going forward with the project to improve Adams Avenue.Plaintiff claims that the City engaged in a criminal conspiracy to obstruct justice bymoving forward with the project without notice to plaintiff or approval from the court.Yet plaintiff never alleges that there was any binding court order or stipulation in effectin the underlying case that forbade the City from moving forward with the project.Without a court order or binding stipulation that barred the City from going forward withthe project, the fact that the City approved the project and hired a contractor toconstruct the improvements does not appear to support any type of claim against theCity or its agents or employees. Nor does plaintiff’s evidence show that the City engagedin a criminal conspiracy to obstruct justice, as again there was no court order or bindingagreement that the City violated by approving and moving forward with the project.Plaintiff’s unsupported arguments and legal conclusions are not sufficient to meet hisburden of showing that he has a likelihood of prevailing on his claims.3 The City has objected to plaintiff’s declaration, and the court intends to sustain most of theobjections as they lack foundation and appear to be largely based on hearsay, are improperlegal opinions, and lack personal knowledge. The court will sustain all objections except objections2 and 7, which are overruled. Therefore, since the plaintiff has not met his burden of showing by admissibleevidence that he has a probability of prevailing on his claims, the court intends to grantthe City’s special motion to strike the entire FAC against it, without leave to amend. Myers’ Special Motion to Strike: The court also intends to grant Mr. Myers’ specialmotion to strike the entire first amended complaint against him. The plaintiff’s first amended complaint does not clearly state which causes ofaction are being brought against which defendants. Instead, most of the causes ofaction only vaguely allege that “defendants” committed various acts against him.However, to the extent that plaintiff seeks to state claims against Mr. Myers for the allegedtrespass onto his property and taking of a portion of his property for the purpose ofconstructing a public works project, namely installing a sidewalk and handicap ramps,the first amended complaint is subject to being stricken for the same reasons discussedabove with regard to the City defendants. Plaintiff’s claims against Myers appear to be based on his role as attorney for theCity, but plaintiff has not alleged any facts showing that Mr. Myers was involved in thedecision to approve the project, or that he participated in the project in any way. Evenif he had alleged such facts, Myers’ conduct was protected activity for the same reasonsthat the other City employees’ conduct was protected. Nor has plaintiff presented anyadmissible evidence that Myers did anything to violate his property rights, so he has notmet his burden under the second prong of the anti-SLAPP statute. Myers himself deniesthat he ever entered plaintiff’s property, and plaintiff has not presented any evidence torebut Myers’ denial. (Myers decl., ¶ 5.) Therefore, the court intends to grant the motionto strike the first seven causes of action against Myers. However, the eighth and ninth causes of action are specifically alleged againstMr. Myers. The eight cause of action, which alleges a claim for invasion of privacy, statesthat “The Defendant Gregory Myers did repeatedly and continuously recordconversations with the Plaintiff wherein the Plaintiff had reasonable expectation that theconversation was private and Myers did admit that he had recorded a discussionregarding an offer in settlement and compromise, in violation of the California PenalCode and the right of privacy enjoyed by the Plaintiff.” The ninth cause of action alleges a claim for fraud and deceit. Plaintiff allegesthat “The defendant Gregory Myers did in Bad Faith and in derogation of his duties as anofficer of the court filed unsuccessfully, 2 Demurrers, 21 Motions to Compel Discovery,and a Summary Judgement action. All of the motions were denied by the Court and aspart of the Summary Judgement Proceedings Myers asked the Superior Court to applyBad Faith Sanctions to the Plaintiff to the extent of $20,000. The Sanctions were notauthorized by Law and this was a Bad Faith attempt to discredit the Plaintiff with theCalifornia State Bar and to unlawfully seek an order to have the Plaintiff pay the claimed$20,000 cost directly to defendants. There was no provision in the applicable statute andcases to authorize such action. Thereby attempting and perpetrating a Fraud and Deceiton the Fresno County Superior Court and the Plaintiff’s rights under statute and case law,and his clients who paid his fees, causing the Plaintiff to spend time and effort to respondto frivolous allegations and frivolous motions of the Defendant Myers.” Again, however, Myers has met his burden of showing that the alleged acts andstatements that form the basis for plaintiff’s claims against him were protected speech orpetitioning activity. Plaintiff admits that Myers was acting as the attorney for the City ofFowler and its councilmembers and staff when he filed the motions and engaged insettlement discussions with plaintiff. Filing motions, requesting sanctions, and engagingin settlement negotiations in a pending civil case are an integral part of an attorney’srepresentation of his or her clients, and are therefore “protected activity” under section425.16. Under section 425.16, subdivision (e), “protected activity” includes “any written ororal statement or writing made before a … judicial proceeding…”, as well as “any writtenor oral statement or writing made in connection with an issue under consideration orreview by a …. judicial body...” “‘Any act’ includes communicative conduct such as thefiling, funding, and prosecution of a civil action. This includes qualifying acts committedby attorneys in representing clients in litigation.” (Rusheen v. Cohen (2006) 37 Cal.4th1048, 1056, citations omitted.) Here, Myers’ filings were clearly made in a judicial proceeding and were made inconnection with issues under consideration by a judicial body, as he was representingthe City and its officers, agents and employees in the pending civil action plaintiff hadfiled against them. Also, any statements he made during the settlement negotiationswere made in connection with the pending case, and thus were protected speech. While plaintiff argues in his opposition that Myers’ acts were negligent orfraudulent, and thus were not “protected activity”, he cites to no authorities in support ofhis position. He claims that Myers engaged in various incompetent conduct, includingfiling unsuccessful motions, seeking sanctions without any legal support, and failing topresent settlement offers to his clients. He also contends that Myers made fraudulentstatements and failed to disclose facts that he was under a duty to disclose, includingfailing to convey plaintiff’s settlement offers to his clients. He also points out that the court“chastised” him several times in its tentative rulings on the various motions that he broughtin the underlying action for failing to meet and confer before bringing motions, and forrequesting sanctions without legal support. However, even assuming that plaintiff is correct and that Myers engaged inincompetent representation of his clients, plaintiff has no standing to bring a claimagainst Myers for malpractice, as he was not one of Myers’ clients. In fact, he was theperson who was suing Myers’ clients in the underlying action. Therefore, the alleged factthat Myers may have been incompetent in his representation of his clients does not meanthat his statements and actions in representing them was not “protected activity” undersection 425.16. Likewise, while plaintiff contends that Myers engaged in fraud and therefore hisconduct is not protected, he has not cited to any authorities that hold that allegationsthat an attorney committed fraud during his representation of a client in a civil actionremove the claim from the scope of the anti-SLAPP statute. Simply alleging that anattorney committed fraud during the course of his representation of his clients in apending case is not enough to escape the protections of the anti-SLAPP statute.Otherwise, a plaintiff could always allege that an attorney committed fraud and therebyavoid having his case against the attorney dismissed as a SLAPP action. In any event, here plaintiff has not even alleged the basic elements of a fraudcause of action, including a false statement made by the defendant with knowledge ofits falsity, intent to deceive, justifiable reliance on the statement by the plaintiff, andresulting harm to the plaintiff. (Lim v. The. TV Corp. Internat. (2002) 99 Cal.App.4th 684,694.) Plaintiff does not allege that Myers made intentionally false statements, that heintended to deceive plaintiff, that plaintiff actually and reasonably relied on anystatements made by Myers, or that he was harmed as a result of his reliance. It appearsthat plaintiff is alleging that Myers made statements that were false to the court, butplaintiff himself was not deceived and did not rely on those statements to his detriment.Therefore, plaintiff’s fraud claim is insufficiently alleged as well as being based entirely onMyers’ protected conduct. As a result, the burden shifts to plaintiff to show by admissible evidence that he hasa probability of prevailing on his claims for fraud and invasion of privacy. However,plaintiff has not presented any evidence to support his opposition to Myers’ motion. Heonly submits legal arguments, not separate evidence to show that he may be able toprevail on his claims. He has therefore failed to meet his burden of showing by admissibleevidence that he has a likelihood of prevailing. Nor does it appear that plaintiff could prevail on his claims against Myers, sincethe claims are based on conduct that is protected under the litigation privilege set forthin Civil Code section 47(2). “The principal purpose of section 47(2) is to afford litigantsand witnesses the utmost freedom of access to the courts without fear of being harassedsubsequently by derivative tort actions.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 213,citations omitted.) “To effectuate its vital purposes, the litigation privilege is held to be absolute innature. In Albertson, Justice Traynor, speaking for the court, reasoned that the policy ofencouraging free access to the courts was so important as to require application of theprivilege to torts other than defamation. Accordingly, in the years since Albertson,section 47(2) has been held to immunize defendants from tort liability based on theoriesof abuse of process, intentional infliction of emotional distress, intentional inducement ofbreach of contract, intentional interference with prospective economic advantage, andfraud. The only exception to application of section 47(2) to tort suits has been formalicious prosecution actions. Malicious prosecution actions are permitted because‘[t]he policy of encouraging free access to the courts ... is outweighed by the policy ofaffording redress for individual wrongs when the requirements of favorable termination,lack of probable cause, and malice are satisfied.’” (Id. at pp. 215–216, citations omitted.) “The usual formulation is that the privilege applies to any communication (1) madein judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized bylaw; (3) to achieve the objects of the litigation; and (4) that have some connection orlogical relation to the action.” (Id. at p. 212.) Where the litigation privilege applies, it can show that the plaintiff has noprobability of prevailing on his claims as part of the second prong of the anti-SLAPPmotion analysis. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) In the present case, the litigation privilege clearly applies to the claims againstMyers, as any communications that he made while he was representing the City and itsofficers and employees were privileged. Again, plaintiff’s claims are based on Myers’filing of motions, requests for sanctions, and statements made during settlementnegotiations with plaintiff as part of his representation of the City in the underlying case.Thus, the statements, filings, or other communications were made by Myers as part of theunderlying civil action against the City, they were made by Myers on behalf of his clients,they were made to achieve the objects of the litigation, and they were clearlyconnected to the litigation. Consequently, the communications were absolutelyprivileged under Civil Code section 47(2), and there is no possibility that plaintiff canprevail on his claims based on the communications. As a result, the court intends to grantMyers’ special motion to strike the entire FAC against him. Finally, the court intends to grant Myers’ request for an award of attorney’s feesagainst plaintiff. Under section 425.16, subdivision (c)(1), “Except as provided inparagraph (2), in any action subject to subdivision (b), a prevailing defendant on aspecial motion to strike shall be entitled to recover that defendant's attorney's fees andcosts.” Here, Myers is the prevailing defendant on his special motion to strike, so he isentitled to an award of his fees and costs. Myers has submitted a declaration from his attorney, Laura Riparbelli, in which shestates that she spent 7.9 hours preparing the special motion to strike at a discountedinsurance rate of $300 per hour. (Riparbelli decl., ¶ 3.) Her standard hourly rate is $450.(Ibid.) Another attorney, Alison Buchanan, spent .4 hours evaluating and revising themotion. (Ibid.) Her discounted hourly rate is $400, so her total billing for the motion was$160. (Ibid.) Her standard hourly rate is $650. (Ibid.) In addition, counsel expects tospend another six hours evaluating plaintiff’s opposition, preparing a reply, andappearing at the hearing. (Ibid.) Therefore, counsel requests at least $4,930 in attorney’sfees for the cost of bringing the motion. (Ibid.) Plaintiff complains that the request for fees is excessive, but provides no argument,authorities, or evidence to support his contention. Nevertheless, it does appear thatspending over 14 hours of attorney time to draft and argue a nine-page special motionto strike is somewhat excessive. Although anti-SLAPP motions can be complex anddifficult to brief and argue, the motion in this case was relatively simple andstraightforward, and therefore should not have required over 14 hours to prepare andargue. As a result, the court intends to reduce the amount of fees to $2,580 based oneight hours of attorney time billed at $300 per hour and .4 hours of attorney time billed at$450 per hour. The City’s Motion to Strike Punitive Damages: Finally, since the court intends togrant the special motions to strike the entire FAC against the City and Myers, there is noneed to also grant the City’s motion to strike the prayer for punitive damages. Therefore,the court intends to deny the motion to strike as moot. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 08/28/24 . (Judge’s initials) (Date)

Ruling

OATES PENA vs. OATES LUCAS, et al.

Sep 01, 2024 |CVCV21-0197372

OATES PENA VS. OATES LUCAS, ET AL.Case Number: CVCV21-0197372Tentative Ruling on Motion & Request for Expungement of Lis Pendens and Award of Attorneys’ Feesand Costs: Defendant/Cross-Complainant Rachel Oates Lucas moves for an Order expunging the Lis Pendensfiled by Plaintiff/Cross-Defendant Sharon Oates Pena on May 21, 2021, for the real property located at 1703Ridge Drive, Redding, CA 96001. Despite being properly served, Sharon Oates Pena did not file an Opposition.Procedural Defect. On August 23, 2024, Defendant/Cross-Complainant filed a “Notice ofSupplemental/Amended Motion & Supplemental/Amended Motion for Order….” The new document was notfiled in compliance with CCP § 1005(b) which requires service on a motion at least 16 court days before thehearing date. Consideration of the late filed document would violate CCP § 1005 and Plaintiff/Cross-Defendant’sdue process rights. Accordingly, the Court did not review nor did it consider the late filing in ruling on merits ofthis motion.Merits of Motion. “At any time after notice of pendency of action has been recorded, any party, or any nonpartywith an interest in the real property affected thereby, may apply to the court in which the action is pending toexpunge the notice.” CCP § 405.30. “[T]he court shall order that the notice be expunged if the court finds thatthe claimant has not established by a preponderance of the evidence the probable validity of the real propertyclaim. The court shall not order an undertaking to be given as a condition of expunging the notice if the courtfinds the claimant has not established the probable validity of the real property claim.” CCP § 405.32. “Theclaimant shall have the burden of proof under Sections 405.31 and 405.32.” CCP § 405.30.In this matter, the Complaint filed by Sharon Oates Pena on May 21, 2021, has been dismissed in its entirety. Ajury trial was held on the Cross-Complaint filed by Rachel Oates Lucas and the portion tried to the Court iscurrently under submission. As the party who filed the lis pendens, Sharon Oates Pena bears the burden ofestablishing the validity of her real property claim. There are currently no real property claims filed by SharonOates Pena. Additionally, Sharon Oates Pena did not file an Opposition to the motion and did not provide anyevidence. Accordingly, the Court GRANTS the motion for expungement of the lis pendens. No undertaking isrequired. No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, until the time within which a petition for writ of mandate may be filed pursuant to Section 405.39 has expired. No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, after a petition for writ of mandate has been timely filed pursuant to Section 405.39, until the proceeding commenced by the petition is finally adjudicated. This section imposes no duty on the county recorder to determine whether the requirements of this section or of any order expunging a notice of pendency of action have been met.CCP § 405.35 No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party. The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days. A copy of the petition for writ of mandate shall be delivered to the clerk of the court which issued the order with a request that it be placed in the court file.CCP § 405.39.Therefore, while the Court intends to issue the Order forthwith, Rachel Oates Lucas is not permitted to record theOrder until twenty days after service of the written order. The Court notes that the prayer for relief requests theCourt provide notice to the Shasta County Recorder’s Office. That is not ordered. Rachel Oates Lucas can recordthe Order after properly serving the Order and after the waiting time has passed, assuming that no petition forwrit of mandate is filed as noted above.“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonableattorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted withsubstantial justification or that other circ*mstances make the imposition of attorney’s fees and costs unjust.” CCP§ 405.38. Rachel Oates Lucas is the prevailing party on this motion and has provided evidence of attorney’s feesincurred in bringing the motion in the amount of $2,625. This is evidenced by the Declaration of Mark C. Lucasin which he attaches a billing sheet reflecting 12.5 hours either spent or anticipated to be spent at the rate of $200per hour. The Court finds both the hours spent and the $200 hourly fee to be reasonable. The Court does not findthat Sharon Oates Pena acted with substantial justification or that the circ*mstances make the imposition ofattorney’s fees unjust. The Court awards attorney’s fees to Rachel Oates Lucas in the amount of $2,625.In summary, the motion is GRANTED. The lis pendens is ordered expunged. No undertaking is required. RachelOates Lucas is the prevailing party on the motion and is awarded attorney’s fees in the amount of $2,625. Aproposed Order was provided, however, it will need to be modified to reflect the Court’s ruling.Tentative Ruling on Motion to Deem Plaintiff/Cross-Defendant a Vexatious Litigant Per CCP § 391, et seq.and Probate Code § 1970, et seq.: Defendant/Cross-Complainant Rachel Oates Lucas moves for an orderdeeming Plaintiff/Cross-Defendant Sharon Oates Pena a vexatious litigant along with several other prayers forrelief. Despite being properly served, Plaintiff/Cross-Defendant Sharon Oates Lucas did not file an Opposition.The Court notes that the hearing was originally supposed to occur on August 26, 2024. However, the hearingwas continued to today’s date, September 3, 2024, due to the court calendar. The Court provided notice of thecontinued hearing date to both parties in its Order dated July 31, 2024.A vexatious litigant is a person who does any of the following: (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence. (5) After being restrained pursuant to a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 of the Family Code, and while the restraining order is still in place, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be meritless and caused the person protected by the order to be harassed or intimidated.CCP § 391(b).A Defendant can move for an order requiring the Plaintiff who is a vexatious litigant to furnish security or for anorder dismissing the litigation. CCP § 391.1. A hearing is required and evidence must be provided for the Courtto impose the requirement that surety be posted. CCP § 391.3(a). Per CCP § 391.7, a party may request thatthe Court issue prefiling order, but again, evidence would need to be presented.Rachel Oates Lucas did not provide any evidence to support the motion. There is no declaration providingevidentiary support for the assertions made in the moving papers. There is no request for judicial notice.As no evidence has been presented upon which the Court can make the requested findings, the motion is DENIEDwithout prejudice. A proposed Order was not provided as required per Local Rule 5.17(D). Rachel Oates Lucasis to prepare the Order.

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 26, 2024 |23CV-0203591

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