Superior Court, State of California



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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |20CV371800 |Michelle Dang vs Michael Tran |Defendant’s Motion for Judgment on the Pleadings is DENIED. Please scroll down to|

| | | |Line 1 for full tentative opinion. Court to prepare formal order. |

|LINE 2 | 22CV403419 |FAIRILLIA TURNER vs TRINITY FINANCIAL |Shellpoint’s Demurrer to the Third, Fourth, and Fifth Causes of Action is |

| | |SERVICES LLC |OVERRULED. Shellpoint’s Demurrer to the Sixth Cause of Action is SUSTAINED WITH |

| | | |TEN DAYS LEAVE TO AMEND. Please scroll down to Lines 2, 3 and 4 for full |

| | | |tentative opinion. Court to prepare formal order. |

|LINE 3 |22CV403419 |FAIRILLIA TURNER vs TRINITY FINANCIAL |Shellpoint’s Motion to Strike the request for attorneys’ fees is DENIED. |

| | |SERVICES LLC |Shellpoint’s Motion to Strike the request for punitive damages is SUSTAINED WITH |

| | | |TEN DAYS LEAVE TO AMEND. Please scroll down to Lines 2, 3 and 4 for full |

| | | |tentative opinion. Court to prepare formal order. |

|LINE 4 |22CV403419 |FAIRILLIA TURNER vs TRINITY FINANCIAL |Trinity’s Demurrer to the FAC is SUSTAINED WITHOUT LEAVE TO AMEND. Please scroll |

| | |SERVICES LLC |down to Lines 2, 3 and 4 for full tentative opinion. Court to prepare formal |

| | | |order. |

|LINE 5 |20CV370481 |Keren Guy et al vs Noa Inbar-Hershkovitz |Pursuant to Stipulation by the Parties, the motion for summary judgment hearing is|

| | |et al |continued to September 26, 2023 at 9 a.m. in Department 6. |

|LINE 6 |21CV375332 |Chris Wilson vs SoundHound Inc. et al |Defendants’ Demurrer is continued to June 8, 2023 at 9 a.m. in Department 6. |

|LINE 7 |21CV375332 |Chris Wilson vs SoundHound Inc. et al |Plaintiff’s Motion for Sanctions is GRANTED, in part. SoundHound does not dispute|

| | | |that it has failed to comply with the Court’s September 29, 2022 discovery order; |

| | | |it not only offers no explanation for this failure to comply with a court order, |

| | | |but it fails to even mention that order or its document production in its |

| | | |opposition. This flagrant disregard of the discovery rules and court orders is |

| | | |disturbing and must be addressed. While the Court agrees that some sort of |

| | | |sanction, in addition to the $8,160 in monetary sanctions Plaintiff requests, is |

| | | |appropriate at this point. The Court is considering striking SoundHound’s |

| | | |response to the First Amended Complaint and invites the Parties to appear for |

| | | |argument. |

|LINE 8 |21CV375332 |Chris Wilson vs SoundHound Inc. et al |Soundhound’s Motion to Quash Third Party Subpoena is GRANTED. Although the Court |

| | | |understands Google has refused to comply with the subpoena, the subpoena in its |

| | | |current form is overbroad. To the extent Plaintiff pursues discovery from Google |

| | | |in a future third party subpoena, such subpoena must include a relevant date |

| | | |limitation and be limited to (a) the recovery of Plaintiff’s SoundHound email |

| | | |and/or (b) specific relevant SoundHound custodians regarding relevant specific |

| | | |topics. Moving party to prepare formal order. |

|LINE 9 |21CV375332 |Chris Wilson vs SoundHound Inc. et al |Plaintiff’s Motion to Compel Deposition and for Sanctions is GRANTED. Please |

| | | |scroll down to Line 9 for full tentative ruling. Court to prepare formal order. |

|LINE 10 |21CV378991 |Frederick Hart, Jr. vs Michael Hart et al |Defendants’ Motion to Correct Discovery Order is DENIED. The Parties’ cross |

| | | |motions for attorney fees are DENIED. Please scroll down to Line 10 for full |

| | | |tentative opinion. Court to prepare formal order. |

|LINE 11 |19CV358454 |Mark Bettelheim vs Lorenzo Rios et al |Defendants’ Motion for Attorney Fees is GRANTED. However, there is insufficient |

| | | |information for the Court to determine the amount of fees to be awarded. The |

| | | |Court thus orders Defendants to submit a further declaration no later than 4 pm on|

| | | |June 16, 2023. Plaintiff shall have until 4 p.m. on June 23, 2023 to submit a |

| | | |response. These additional submissions shall be served, filed, and emailed to |

| | | |Department6@. Please scroll down to Line 11 for full tentative |

| | | |opinion. Court to prepare formal order. |

|LINE 12 |20CV363586 |Joel Martinez et al vs MATHEW ENTERPRISE, |Motion withdrawn. |

| | |INC. et al | |

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Calendar Line 1

Case Name: Michelle Dang v. Michael Tran

Case No.: 20CV371800

Before the Court is Defendant Michael Tran’s motion for judgment on the pleadings as to Plaintiff Michelle Dang’s first amended complaint (“FAC”). Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

A. Factual

This is an action for breach of contract. According to Plaintiff’s allegations (with which Defendant disagrees) around June 2011, Dang and Tran began living together and they continued to live together until 2019. (FAC, ¶ 4.) Around December 2012, they got married. (FAC, ¶ 5.) In December 2014, they had a wedding reception and invited their friends and family to celebrate their union. (FAC, ¶ 6.)

In June 2014, they moved into a house they picked and purchased together, located at 10791 Dougherty Avenue, Morgan Hill, California 95037 (the “Property”). (FAC, ¶ 7.) Dang’s friends and family loaned her approximately $140,000, which she contributed towards the purchase of the Property. (Id.) At the time of the purchase, the parties agreed only Tran’s name would be on the title and he declined Dang’s requests to be added to the title thereafter. (Id.)

About July 2017, the parties purchased a restaurant in San Mateo, California and converted it to the Mordisko Café bakery shop (the “Café”). (FAC, ¶ 8.) Tran worked there full time and paid himself from the earnings of the Café. (Id.) Dang also worked full time at the Café, but she was not paid from the earnings of the Café. (Id.) Tran represented to Dang that she would be paid as soon as there was sufficient income from the operation of the Café to pay them both. (Id.) Dang contributed her earnings and financial contributions from herself, her family, and friends for the purpose of acquiring assets such as the Property and the Café, and for purposes of paying the mortgage, their expenses, and other debts. (FAC, ¶ 9.)

About June 2019, the parties broke up and Tran moved out of the Property. (FAC, ¶ 17.) Tran subsequently admitted to Dang and others that Dang was entitled to receive her 50% interest in the community property assets of the Property and the Café, and Tran repeatedly promised to pay Dang a monthly payment of $5,000 per month for twelve months towards the payoff of her 50% interest in the Café. (FAC, ¶ 18.) Tran failed to honor his promises. (FAC, ¶ 19.) After Dang requested an accounting of the joint property acquired and accumulated during their time together, Tran denied the existence of their mutual understanding. (FAC, 21.)

B. Procedural

ON OCTOBER 8, 2020, DANG INITIATED THIS ACTION FOR DAMAGES AND TO IMPRESS CONSTRUCTIVE TRUST. ON DECEMBER 27, 2022, DANG FILED HER FAC, WHICH ASSERTS CLAIMS FOR: (1) BREACH OF EXPRESS ORAL COHABITATION AGREEMENT; (2) BREACH OF IMPLIED ORAL COHABITATION AGREEMENT; (3) TO IMPRESS CONSTRUCTIVE TRUST; (4) FOR AN ACCOUNTING; (5) UNJUST ENRICHMENT; (6) DECLARATORY RELIEF; (7) FRAUD AND DECEIT-INTENTIONAL MISREPRESENTATION; (8) FRAUD AND DECEIT-PROMISE WITHOUT INTENTION TO PERFORM; (9) WRONGFUL EVICTION; AND (10) BREACH OF FIDUCIARY DUTIES. ON MARCH 10, 2023, TRAN FILED THE INSTANT MOTION. ON MAY 9, 2023, DANG FILED HER OPPOSITION. ON MAY 24, 2023, TRAN FILED HIS REPLY.

II. Preliminary Matters

A. SERVICE

DANG STATES THAT THE MOTION AND ACCOMPANYING PAPERS WERE NOT SERVED AND SHE DOES NOT WAIVE SERVICE.

Code of Civil Procedure section 1005, subdivision (b), requires all moving and supporting papers to be served and filed at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) Here, the Court has no record of a proof of service for the moving papers. Dang asserts that she does not waive service, however, she filed substantive opposition to the motion. Therefore, service is waived. (See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7 [“[i]t is well settled that the appearance of a party at the hearing of a motion and [their] opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.”].) Therefore, the Court will address the motion on its merits.

B. Dang’s Evidentiary Objections

DANG OBJECTS TO TRAN’S DECLARATION AND ANY ARGUMENTS IN HIS MEMORANDUM OF POINTS AND AUTHORITIES (“MPA”) THAT INCLUDE REFERENCES TO HIS DECLARATION. SHE FURTHER MOVES TO STRIKE PAGE 4, LINE 12 THROUGH PAGE 9, LINE 16 FROM HIS MPA.

First, Tran’s arguments in his memorandum of points and authorities are not evidence. (See Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.) Moreover, the Court cannot consider extrinsic evidence in ruling on a motion for judgment on the pleadings. Thus, the Court has not considered Tran’s declaration or any arguments based on extrinsic evidence. The Court also notes that there is no authority for the filing of evidentiary objections in the context of a motion for judgment on the pleadings. Therefore, Dang’s objections will not be considered or ruled upon. For the reasons stated above, the Court declines to strike portions of Tran’s MPA, however, it will not consider any arguments or materials that go beyond the pleading.

III. Legal Standard

A motion for judgment on the pleadings is the functional equivalent of a general demurrer. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254 (Shea).) A defendant can move for judgment on the pleadings on the grounds that (1) the court has no jurisdiction of the subject of the cause of action alleged in the complaint and/or (2) the complaint does not state sufficient facts to constitute a cause of action.  (Code Civ. Proc., § 438, subd. (c)(1)(B)(i)-(ii).)  “The grounds for the motion must appear on the face of the complaint, and in any matters subject to judicial notice. The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea, supra, 110 Cal.App.4th at p. 1254, internal citations omitted; Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.)

IV. Analysis

Although Tran states that he moves for judgment on the pleadings, his arguments pertain to Dang’s ability to prove the allegations in the FAC. Contrary to Tran’s assertion, it is not Dang’s burden at this stage to prove the elements of her claims. Moreover, Tran repeatedly misstates the legal standard for a motion for judgment on the pleadings by a defendant, attempts to apply the legal standard for a motion for summary judgment, and relies heavily on evidence and materials beyond the pleading. This is improper for a motion for judgment on the pleadings. (See Code Civ. Proc., § 438 [“[t]he grounds for motion…shall appear on the face of the challenged pleading…”]; Shea, supra, 110 Cal.App.4th at p. 1254 [“[t]he court accepts as true all material factual allegations…”]; see also Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214 [“[A] demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.”].) Based on his arguments and supporting materials, it is clear to the Court that a motion for summary judgment would have been more appropriate.

Because Tran only raises arguments as to Dang’s ability to substantiate her claims as opposed to the sufficiency of the allegations in the FAC, the motion for judgment on the pleadings is without merit.

Accordingly, the motion for judgment on the pleadings is DENIED.

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Calendar Lines 2, 3 & 4

Case Name: Turner v. Trinity Financial Services, et al.

Case No.: 22CV403419

Before the Court are defendant Newrez LLC dba Shellpoint Mortgage Servicing, LLC’s (“Shellpoint”) demurrer to the First Amended Complaint (“FAC”) filed by plaintiff Fairillia Turner (“Turner”) and motion to strike portions therein, and defendant Trinity Financial Services, LLC’s (“Trinity”) demurrer to the FAC. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

A. Factual

This action arises out of an allegedly wrongful foreclosure of a residential property. According to the operative FAC, in August 2004 Turner purchased the property located at 315 Grandpark Circle in San Jose (the “Property”), which was secured by a Deed of Trust (“DOT”) held by World Savings Bank. (FAC, ¶¶ 9-10.) The DOT is now held by both Shellpoint and Trinity; Trinity foreclosed on the Property by virtue of its position as second lienholder and sold it at a trustee’s sale in September 2022. (Id., ¶ 1.) Shellpoint, the first position lienholder, now seeks to foreclose on the Property as well. (Ibid.)

Turner alleges that she has unsuccessfully, on multiple occasions, attempted to modify her loan since 2013. (FAC, ¶ 11.) Turner’s modification efforts with Trinity began in 2017, but Trinity never worked with her in good faith, nor provided an explanation for its denial of her modification applications. (Id., ¶¶ 12, 14-15.)

On July 22, 2022, Turner submitted a “Uniform Borrower Assistance Form” to Shellpoint stating her desire to sell the home to the company, but never received a decision regarding her application. (FAC, ¶¶ 17-18.) Shellpoint scheduled a foreclosure sale for the Property on September 28, 2022.

B. Procedural

Turner initiated this action on September 2, 2022. The operative FAC was filed on September 27, 2022 asserting: (1) violation of Civil Code § 2923.5[1] (against Trinity); (2) violation of Section 2923.6 (against Trinity); (3) violation of Section 2924.11 (against Shellpoint); (4) violation of Section 2923.7 (against all defendants); (5) violation of 12 C.F.R. § 1024.41(g) (against Shellpoint); and (6) violation of Bus. & Prof. Code § 17200 (“UCL”) (against all defendants).

On November 18, 2022, Trinity filed the instant demurrer to the FAC in its entirety and the second, fourth and sixth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) On March 8, 2023, Shellpoint filed its own demurrer to the first, third, fourth, fifth and sixth causes of action on the ground of failure to state facts sufficient to constitute a cause of action and the motion to strike portions of the FAC. (Code Civ. Proc., §§ 430.10, subd. (e), 435 and 436.) Turner opposes both motions.

II. Shellpoint’s Demurrer

A. Third Cause of Action: Violation of Section 2924.11

In the third cause of action, Turner alleges that Shellpoint violated Section 2924.11 by recording a Notice of Trustee’s Sale (“NOTS”) while her Uniform Borrower Assistance (“UBAF”) and Loss Mitigation Opt-Out forms were pending. (FAC, ¶¶ 37-39.)

Section 2924.11 is part of the Homeowner Bill of Rights (the “HBOR”), a series of statutes drafted by the California Legislature to “address more pointedly the foreclosure crises in … [the] state” and to place specific limitations on the nonjudicial foreclosures of owner-occupied residential real property. Section 2924.11 prohibits the practice commonly known as “dual tracking,” which occurs when “a lender or servicer pursues foreclosure while simultaneously going through the motions of reviewing a borrower’s application for foreclosure mitigation, without a good faith intent to entertain the application.” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 296.)

Shellpoint asserts that its demurrer to the third cause of action should be sustained because Turner fails to plead facts demonstrating that it committed a material violation of Section 2924.11. It notes that Turner’s claim is predicated on two different applications: one submitted in 2016 that Shellpoint purportedly confirmed was complete two days prior to recording a NOTS, and the UABF and Loss Mitigation Opt-Out in July 2022. (FAC, ¶¶ 35, 37.) The 2016 application, Shellpoint maintains, cannot fulfill the “materiality” element of this claim because Turner had plenty of time between then and now to reapply or follow up on the status of her application because it has not sold the property in foreclosure. It continues that there can be no material violation as to her 2022 application because she admits her intention was to sell the Property to Shellpoint and she was opting out of loss mitigation. If Turner was not trying to retain the Property, Shellpoint asserts, what was the material violation?

Shellpoint’s argument is not persuasive. As Turner responds in her opposition, Section 2924.11 is not expressly limited to foreclosure prevention alternatives in the form of home retention options. Turner’s stated intention was to reach an agreement with Shellpoint on a short sale and the Court is not aware of any authority, and Shellpoint has not identified any, which excludes short sales from the ambit of Section 2924.11. As this is the only argument submitted by Shellpoint in support of its attack on this claim, its demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

B. Fourth Cause of Action: Violation of Section 2923.7

In the fourth cause of action, Turner alleges that Shellpoint violated Section 2923.7 by failing to provide her with a single point of contract (“SPOC”).

Section 2923.7 provides that “[u]pon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.” (Civ. Code, § 2923.7, subd. (a).) The section defines “single point of contact” as an individual or team of personnel, each of whom has the ability and authority to perform the responsibilities stated under Section 2923.7, subdivisions (b) through (d).  (Civ. Code § 2923.7, subd. (e).) “The mortgage servicer shall ensure that each member of the team is knowledgeable about the borrower’s situation and current status in the alternatives to foreclosure process.”  (Id.)      

Shellpoint maintains, as it did with the preceding claim, that its demurrer to this cause of action should be sustained because Turner has not pleaded that it committed a material violation of Section 2923.7. More specifically, it asserts that Plaintiff has not articulated how its alleged failure to appoint a SPOC materially affected her modification application or Trinity’s foreclosure sale.

As Turner responds, she separately pleads Trinity and Shellpoint’s violations of Section 2923.7 and makes clear the consequences of each defendants’ conduct, consequently, her allegations against Trinity have no bearing on the sufficiency of her allegations against Shellpoint. (FAC, ¶¶ 45-46.) For Shellpoint, Turner alleges that as a result of Shellpoint’s failure to establish a SPOC, the Property “is at risk for being sold at foreclosure while she was in the process of short selling the [P]roperty ….” (Id. at ¶ 46.) Turner specifically pleads that she received no communication from Shellpoint concerning her July 2022 application to short sell her home. (Id., ¶¶ 43-44.) The Court believes these allegations are sufficient to plead a material violation of the statute. Turner allegedly received no communication from Shellpoint before it scheduled a foreclosure sale to address the status of her application to pursue foreclosure alternatives, and the purpose of an SPOC is to enable and maintain such communication. In the absence of it, the Property is subject to the very thing that Turner is attempting to avoid.

Consequently, Shellpoint’s demurrer to the fourth cause of action is OVERRULED.

C. Fifth Cause of Action: Violation of 12 C.F.R. § 1024.41(g)

Turner’s fifth cause of action is based on allegations that Shellpoint violated subdivision (g) of 12 C.F.R. section 1024.41 by conducting a foreclosure sale before notifying her that she was not eligible for a loss mitigation option.

Section 1024.41, subdivision (g), which is part of the Real Estate Settlement Procedures Act, is essentially the federal version of Section 2924.11. That is, it provides that if a borrower submits a complete loss mitigation application within a specified time, a servicer shall not move for foreclosure judgment or conduct a foreclosure sale unless certain conditions are met. 

Shellpoint argues that Turner has failed to state a claim for violation of this code section because she fails to allege that it deemed her application “complete,” and her self-serving allegation that the application was complete is insufficient to establish as much because she does not indicate what specific materials were submitted. This argument is unavailing.

While it is true that the prohibition against moving for a foreclosure judgment or conducting a foreclosure sale provided by subdivision (g) of Section 1024.41 is triggered only by the borrower’s submission of a “complete” loss mitigation application, Shellpoint cites no authority which provides that Turner must specifically plead what she submitted in order to state a claim for violation of this subdivision, or that simply pleading that she submitted a “complete” application is insufficient. (FAC, ¶ 15.) Consequently, Shellpoint’s demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

D. Sixth Cause of Action: Violation of UCL

In her remaining cause of action, Turner alleges that Shellpoint’s preceding statutory violations constitute unlawful, unfair and/or fraudulent business practices in violation of the UCL.

The UCL prohibits, and provides civil remedies for, unfair competition, which it defines as “any unlawful, unfair or fraudulent business act or practice.”  (Kwikset Corp. v. Superior Court (Benson) (2011) 51 Cal.4th 310, 320 (“Kwikset”), citing Bus. & Prof. Code, § 17200.)  It covers a wide range of conduct, “embrac[ing] anything that can properly be called a business practice and that at the same time is forbidden by law.”  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.)  “Section 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices.  In addition, under section 17200, a practice may be deemed unfair or deceptive even if not proscribed by some other law.  Thus, there are three varieties of unfair competition: practices which are unlawful, or unfair, or fraudulent.” (Blakemore v. Superior Court (2005) 129 CalApp.4th 36, 48.)

Shellpoint maintains that Turner’s UCL claim fails for two reasons. First, it argues that she lacks standing to assert such a cause of action. Second, it insists that Turner has not pleaded any conduct by Shellpoint that would be considered wrongful under the UCL. As for the second argument, Turner’s UCL claim is based on the conduct that gave rise to the preceding causes of action and because several of those statutory claims survive demurrer they can serve as predicate “unlawful practices” that violate the UCL.

As for the issue of standing, to bring a claim for a UCL violation, a plaintiff must have “suffered injury in fact and [have] lost money or property as a result of such unfair competition.” (Bus. & Prof. Code, § 17204.) To satisfy this requirement, a party must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.”  (Kwikset Corp. v. Supe. Ct. (2011) 51 Cal.4th 310, 322.) In the FAC, Turner alleges that as a result of Shellpoint’s wrongful conduct, she has “suffered various injuries according to proof at trial, including but not limited to the imminent loss of property.” (FAC, ¶ 60.) Shellpoint persuasively argues that Turner has not established the causation component of her standing to bring a UCL claim, i.e., that its conduct, as opposed to Turner’s own default on her loan, caused her to face the imminent loss of her home and incur related damages (e.g., foreclosure fees, interest, etc.). Consequently, in the absence of standing, Turner has not stated a claim for violation of the UCL and Shellpoint’s demurrer to the sixth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

III. Shellpoint’s Motion to Strike

Shellpoint moves to strike the following portions of the FAC: request for attorney’s fees allegations related thereto (FAC, ¶¶ 39, 47, 61); request for disgorgement of damages; and request for punitive damages. Shellpoint asserts that the foregoing should be struck from the FAC because Turner has not pleaded facts establishing an entitlement to such damages.

First, except where attorney’s fees are specifically allowed by statute or by contract of the parties, they are not recoverable by a successful litigant. (Code Civ. Proc., § 1021; Hendrix v. Hendrix (1955) 130 Cal.App.2d 379, 383.) Shellpoint asserts that Turner’s request for attorney’s fees must be struck because she has not pleaded a contractual or statutory basis for attorney’s fees.

In her opposition, Turner responds that she is entitled to recover attorney’s fees under Section 22 of the DOT. She explains that under this section, the lender is entitled to recover its attorney’s fees, and this provision is made reciprocal by Civil Code section 1717. This argument is well taken. Section 1717 provides that in an action on a contract that provides for attorney fees and costs, the party prevailing on the contract is entitled to reasonable attorney fees as well as other costs. (Civ. Code, § 1717, subd. (a).) While Turner has no contractual claim per se, the gravamen of this action is her effort to avoid enforcement of the note and DOT, i.e., her lawsuit has arisen from the defendants’ alleged conduct in the course of enforcing the terms of these documents through foreclosure. (See, e.g., Yoon v. CAM IX Trust (2021) 60 Cal.App.5th 388, 392-393.) Thus, she has pleaded an entitlement to attorney’s fees.

Turning to Turner’s request for punitive damages, the right to recover such damages requires proof of “oppression, fraud, or malice” on the part of the defendant by “clear and convincing evidence.”  (Civ. Code, § 3294, subd. (a).)   For pleading purposes, to support a prayer for punitive or exemplary damages, the complaint must allege “ultimate facts of the defendant’s oppression, fraud or malice.”  (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.)  Simply pleading the statutory terms “oppression, fraud or malice” is insufficient to adequately allege punitive damages, but only to the extent that the complaint pleads facts to support those allegations.  (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511.)  Therefore, specific factual allegations demonstrating oppression, fraud or malice are required.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  However, the complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct.  (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255).   Where the defendant is a corporation, punitive damages are available only where its officer, director, or managing agent authorized or ratified the conduct for which punitive damages are awarded. (Civ. Code, § 3294, subd. (b).)

Under the punitive damages statute, “malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294, subd. (c)(1).)  “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  (Id., § 3294, subd. (c)(2).)  “Despicable conduct,” in turn, has been described as conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)  Finally, “fraud” is defined within the statute as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  (Civ. Code, § 3294, subd. (c)(3).)  Shellpoint argues that Turner’s request for punitive damages must be stuck because (1) she has not pleaded facts establishing that it engaged in fraudulent, malicious or oppressive conduct and (2) she has not pleaded ratification as required where the defendant is a corporation. The Court finds both arguments persuasive.

In the FAC, Turner does not identify the basis for her punitive damages request, i.e., malice, oppression, or fraud. Further, there are no allegations that an officer, director, or managing director of Shellpoint “authorized or ratified the conduct” for which the punitive damages are being sought. Thus, the Court agrees with Shellpoint that Turner has not pleaded facts establish an entitlement to punitive damages.

In accordance with the foregoing, Shellpoint’s motion to strike is DENIED as to the request for attorney’s fees and disgorgement of damages[2] and GRANTED WITH 10 DAYS’ LEAVE TO AMEND as to the request for punitive damages.

IV. Trinity’s Demurrer

A. Trinity’s Request for Judicial Notice

Trinity requests that the Court take judicial notice of: DOT recorded in 2006 (Exhibit 1); DOT recorded in 2007 (Exhibit 2); Assignment of DOT recorded in 2014 (Exhibit 3); Notice of Default for the Property (Exhibit 4); complaint filed in Turner v. Trinity Financial Services, LLC, Santa Clara Superior Court, Case No. 20CV366806 (the “2020 Action”) (Exhibit 5); Order re: Defendant’s Demurrer to Complaint in the 2020 Action (Exhibit 6); Notice of Entry of Order Granting Ex Parte Application for an Order Dismissing Complaint for Failure to Amend in the 2020 Action (Exhibit 7); Notice of Entry of Judgment of Dismissal in the 2020 Action (Exhibit 8); Declaration in Support of Opposition re: Dismissal filed in In re Fairillia Turner in U.S. Bankruptcy Court for the Northern District of California, Case No. 20-51632 (the “Bankruptcy Action”) (Exhibit 9); Dismissal Order effective June 30, 2020 in the Bankruptcy Action (Exhibit 10); NOTS recorded in July 2022 (Exhibit 11); Order for Individuals in Chapter 13 to File Requested Documents and Notice of Automatic Dismissal filed in the Bankruptcy Action (Exhibit 12); and Order and Notice of Dismissal for Failure to Comply in the Bankruptcy Action (Exhibit 13).

The foregoing are proper subjects of judicial notice as recorded property records (Exhibits 1-4) and court records (Exhibits 5-13). (Evid. Code, § 452, subds. (d) and (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 [“a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face”].)

Accordingly, Trinity’s request for judicial notice is GRANTED.

B. Analysis

1. Collateral Estoppel

Trinity first asserts that Turner’s FAC fails in its entirety because she already unsuccessfully attempted to litigate the same claims in the 2020 Action and is therefore collaterally estopped from re-asserting them here.

The doctrine of collateral estoppel bars “relitigation of an issue decided at a previous proceeding ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’”  (Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90, quoting People v. Carter (2005) 36 Cal.4th 1215, 1240.) Collateral estoppel bars not only relitigation of issues that were actually litigated, but also those that could have been litigated in the prior proceeding. (Los Angeles Branch NAACP v. Los Angeles United School Dist. (9th Cir. 1984) 750 F.2d 731, 737, 739.) A demurrer is properly sustained where judicially noticeable facts show that collateral estoppel applies.  (See Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1275.) “The party asserting collateral estoppel bears the burden of establishing these requirements.”  (Lucido v. Superior Court (People) (1990) 51 Cal.3d 335, 341.)    

It is not necessary that there be complete identity between the causes of action in the prior and subsequent actions for collateral estoppel to apply; the principal of the doctrine does not depend on the legal theory used but the primary right asserted. (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1237.)

Here, Trinity contends that both the 2020 Action and the FAC attempt to address the same primary right invasion: damages allegedly suffered by Turner from the nonjudicial foreclosure initiated by Trinity with its recording of a Notice of Default in March 2020. Because the 2020 Action terminated in a judgment in its favor, it continues, Turner is barred from relitigating claims based on the same facts.

Turner responds that her claims are not barred because they are predicated on conduct which occurred after the 2020 Action was dismissed. Indeed, when the action was dismissed, Trinity had not yet sold the Property at a foreclosure sale as it is now alleged to have done in the FAC. Given this factual distinction, which is not addressed by Trinity, the Court is not persuaded that all of Turner’s claims against this defendant are necessarily barred by the doctrine of collateral estoppel. Thus, it will not sustain Trinity’s demurrer on this basis.

2. First, Second and Third Causes of Action: Violation of Sections 2923.5, 2923.6 and 2923.7

Trinity persuasively argues that its demurrer to the first, second and third causes of action should be sustained because none of the statutes at issue apply to a junior lienholder like itself. Indeed, the provisions of these statutes make clear that they apply only to “first lien mortgage[s] and deed[s] of trust.” (Civ. Code, §§ 2923.5, subd. (f) [stating that this “section shall only apply to mortgages or deeds of trust described in Section 2924.15”], 2924.15, subd. (a) [stating that Section 2923.5 “shall apply only to a first lien mortgage or deed of trust[.]”], 2923.6, subds. (c) [“[i]f a borrower submits a complete application for a first lien modification …”] and (i), 2923.7, subd. (f) [stating that this “section shall only apply to mortgages or deeds of trust described in Section 2924.15”].) Turner does not address this argument in her opposition, and thus impliedly concedes its merits. Accordingly, Trinity’s demurrer to the first, second and third causes of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

3. Sixth Cause of Action: Violation of UCL

Given the failure of the preceding claims, which serve as predicate “unlawful” practices for the purposes of the sixth cause of action, the Court agrees with Trinity that Turner fails to state a claim for violation of the UCL. Additionally, the Court agrees with Trinity that Turner has failed to plead facts establishing that she has standing to assert a UCL claim due to her failure to demonstrate that her claimed injuries were the result of Trinity’s purported wrongful conduct as opposed to her own default on her loan. Therefore, Trinity’s demurrer to the sixth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.[3]

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Case Name: Chris Wilson vs SoundHound Inc. et al

Case No.: 21CV375332

Before the Court is Plaintiff’s Motion to Compel a Person Most Knowledgeable Deposition and for Sanctions. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

This is generally an action for wrongful termination. Plaintiff was Defendant SoundHound, Inc.’s employee for approximately 8 months before he was terminated. This motion concerns Plaintiff’s efforts to obtain a document production from and deposition dates for SoundHound’s person most knowledgeable deposition.

Plaintiff first asked SoundHound for deposition dates in November 2021. Plaintiff followed up again on February 4, 2022 and June 24, 2022 and did not receive dates. On July 18, 2022, Plaintiff served a notice of deposition for August 17, 2022. On August 11, 2022, SoundHound served objections, stated it “will not be producing a witness on August 17, 2022” and provided no alternative dates. Plaintiff responded to these objections on August 23, 2022, followed up on September 8, 2022, and September 16, 2022, but Plaintiff still did not receive a firm date. On November 1, 2022, Plaintiff served a second deposition notice for December 7, 2022. SoundHound again objected to this deposition notice, in part because “Plaintiff’s counsel unilaterally selected this deposition date without prior notice to or consultation with counsel for Defendant”, and provided January 9, 10, 11, 18 or 19 as potential deposition dates, noting that they still had to clear those dates with their client. On December 2, 2022, Plaintiff asked for dates that had been cleared; Plaintiff received no response.

On January 27, 2023, Plaintiff served a third notice of deposition for February 23, 2023 along with a cover letter giving notice that SoundHound’s failure to produce a witness on that date would result in Plaintiff filing the present motion to compel and for terminating sanctions. SoundHound objected to the notice, again based in part on the fact that “Plaintiff’s counsel unilaterally selected this deposition date without prior notice to or consultation with counsel for Defendant.” SoundHound then proposed March 16, 21, 23 or 24. Plaintiff responded asking Defendant to “confirm, in writing, your and the PMK’s availability on March 21, per the statement in your Objection.” Plaintiff received no response as of the time this motion was filed.

Plaintiff seeks several remedies for this delay, including monetary sanctions and terminating sanctions in the form of striking SoundHound’s answer. SoundHound responds that it has now tentatively scheduled June 9, 2023 for the personal most knowledgeable deposition, thus this motion is moot. As explained below, the Court disagrees.

II. Relevant Discovery Standards

Discovery management plainly lies “within the sound discretion of the trial court.” People v. Sup. Ct. (2001) 94 Cal.App.4th 980, 987; see also Orange County Water Dist. v. The Arnold Eng’g Co. (2018) 31 Cal.App.5th 96, 119 (judge’s discretionary functions include managing discovery and trial proceedings before them). In fact, case law teaches that it is up to judges to make sure that the discovery process is not abused. See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal. App. 4th 216, 221 (discovery abuse is a spreading cancer; judges must be aggressive in curbing abuse; discovery statutes are prone to misuse absent judicial consideration for burden; courts must insist that discovery be used to facilitate litigation rather than as a weapon); accord Obregon v. Superior Court (1998) 67 Cal. App. 4th 424, 43.

Code of Civil Procedure section 2023.020 states: “the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as result of that conduct.” (Emphasis added; see also Moore v. Mercer (2016) 4 Cal.App.5th 424, 448 (failure to participate in meet and confer process in good faith is independent discovery abuse for which sanctions are authorized by statute); Ellis v. Toshiba Am. Info. Sys., Inc. (2013) 218 Cal.App.4th 843, 879-880 (substantial monetary sanction appropriate for failure to cooperate in setting protocol for expert inspection as ordered).) This monetary sanction is mandatory regardless of how the court rules on the offending party’s motion. (Cal. Code Civ. Proc. §2023.020.)

Code of Civil Procedure section 2031.310(i) provides: “if a party fails to obey an order compelling further responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (See also Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154.) There are four types of terminating sanctions: (1) striking pleadings in whole or in part; (2) staying further proceedings by a party until it obeys a discovery order; (3) dismissing the action or part of it; and (4) rendering a default judgment. (Code of Civ. Pro. §2023.030(d).) An issue sanction either orders that designated facts be taken as established or prohibits a party from supporting or opposing designated claims or defenses. (Code of Civ. Pro. §2023.030(b); Kuhns v. State (1992) 8 Cal.App.4th 982, 989; Marriage of Chakko (2004) 115 Cal.App.4th 104, 109-110.

III. Analysis

It appears to the Court that, once again, Plaintiff would not have obtained this discovery without filing a motion. In its September 29, 2022 order granting Plaintiff’s motion to compel documents and for sanctions the Court (Hon. Christopher Rudy) found:

As to the request for sanctions, it appears to the Court that this motion was necessary. At the time of its last meet and confer letter to Plaintiff on March 1, 2022 Defendant was adamant that no documents would be produced in response to the disputed requests. On March 8, 2022 Plaintiff sought to further meet and confer and sought an extension of time to file a motion to compel. There was no response. If the time for making the motion had been allowed to expire, the Court has no reason to believe that any documents would have been produced.

Based [on] opposition papers and on the comments made at oral argument, it appears the Defendant delayed in producing documents because there was a pending public offering of Defendant’s stock that would ultimately result in many of the requested documents being made public. The Court understands why Defendant delayed, but cannot accept that as a justification for refusing to respond to the discovery. Furthermore, when Defendant finally responded, the response was months after the motion was made and incomplete.

The Court is very concerned about what appears to be a pattern from SoundHound regarding its discovery obligations. Terminating sanctions require a failure to comply with a court order, which the Court does not find to be present on this request for a person most knowledgeable deposition. However, the Court does find that to be the case with respect to Plaintiff’s motion concerning SoundHound’s failure to comply with the Court’s September 29, 2022 order and will address that issue separately. In connection with this motion, the Court grants the relief below, including monetary sanctions.

SoundHound is ordered to:

1. Produce all documents not subject to the attorney-client privilege, requested in the attached Notice of Deposition last served by Plaintiff prior to the first session of the deposition of its Person(s) Most Knowledgeable no later than June 7, 2023. For any documents withheld on privilege grounds, a privilege log must accompany the production of non-privileged documents and must also be provided no later than June 7, 2023.

2. Produce its Person(s) Most Knowledgeable for deposition on June 9, 2023 and on June 30, 2023 pursuant to the Notice of Deposition last served by Plaintiff.

3. Pay monetary sanctions in the amount of $5,460 to Plaintiff within 30 days of service of this final order.

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Case Name: Frederick Hart, Jr. vs Michael Hart et al

Case No.: 21CV378991

Before the Court is Defendants’ Motion to Correct Discovery Order. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

This case generally concerns a breach of contract and fraud action between siblings over property previously owned by their now deceased mother. This motion, however, is directed to a February 14, 2023 discovery hearing and the order this Court issued after that hearing. The hearing concerned Plaintiff’s Motion to Compel Defendants’ Further Responses to Form and Special Interrogatories, Requests for Production and Requests for Admission and for Sanctions and Defendants’ Motion for Protective Order. The Court issued its tentative ruling on February 10, 2023, denying sanctions and granting, in part, the motions to compel and for protective order. However, the substance of those rulings is not the subject of Defendants’ request for relief in the present motion.

Before pronouncing the rulings, the Court’s order states:

Plaintiff Frederick Hart Jr.’s Motion to Compel and for Sanctions and Defendant’s Motion for Protective Order came on for hearing before the Court on February 14, 2023 at 9:00 a.m. in Department 6. The Court posted its tentative ruling on February 10, 2023 pursuant to California Rule of Court 3.1308. The substance of the tentative ruling was not contested. Plaintiff Frederick Hart Jr. appeared during the hearing to ask the Court to clarify (1) that Defendants had to supplement their response to Form Interrogatory 17 given the Court’s order that they respond to the ten Requests for Admission above the 35 [given] the Court’s denial of Plaintiff’s motion to compel further responses to Form Interrogatories and (2) that Plaintiff is not precluded from the ability to draft and serve additional Special Interrogatories in the event discovery discloses new material for which such Special Interrogatories would be appropriate. Plaintiff represented that he informed Defendants that he would be appearing at the hearing to make these requests. Defendants did not appear.

The Court then issued its final ruling, which did make these minor changes because the Court found them to plug some holes present in the tentative ruling. The Court was also careful to disclose Plaintiff’s representations and requests made during the hearing. After receiving this order, Defendants’ counsel immediately emailed the Court directly, demanding that the Court change its order and insisting that Defendants were not informed that Plaintiff planned to appear at the hearing. The Court directed Defendants that the proper method for seeking relief from the Court was through a motion, which Defendants then submitted.

The Parties spend significant time analyzing the proper method for providing notice of an intent to appear and contest a tentative ruling. Wading through the fray, two things are clear to the Court: (1) the statutory scheme permits the court to provide notice methods for appearing to contest a tentative ruling other than in person and by telephone and (2) Plaintiff’s counsel submits evidence that he called the court, he emailed Plaintiff, and the email he sent was delivered to Plaintiff. Despite this evidence, which includes a copy of the actual email Plaintiff sent, Defendants accuse Plaintiff’s counsel of fraud.

The Court understands that the Parties have already complied with the Court’s February 14, 2023 discovery order, thus any correction would be moot. However, the Court finds this to be an appropriate opportunity to remind both counsel of the high level of trust, confidence and professionalism lawyers must exemplify while practicing law. For example, consider the Santa Clara County Bar Association’s Code of Professional Conduct:

Preamble: This Code should be read in the context of the lawyer’s underlying duty to zealously represent the lawyer’s client. Nothing in this Code should be read to denigrate the lawyer’s duty of zealous representation. However, all lawyers are encouraged to zealously represent their clients within the highest bounds of professionalism. The legal profession must strive for the highest standards of lawyer behavior to elevate and enhance the profession’s service to justice. Attorneys who do not comport themselves in the manner prescribed in this Code compromise the integrity and the reputation of the Bench and the Bar.

Section 9-Communications with Adversaries: A lawyer should at all times be civil, courteous, and accurate in communicating with adversaries, whether in writing or orally.

For example:

• A lawyer should not send any written communication assigning to opposing counsel or a self-represented litigant a position that party has not taken or to create a “record” of events that have not occurred.

• A lawyer should not copy the court on any written communication between counsel or between a lawyer and a self-represented litigant unless permitted or invited by the court.

The Court is confident the Parties’ counsel are familiar with these tenets, but it can be helpful for all of us to have a reminder of what our profession means now and then.

The Parties’ cross motions for sanctions are DENIED.

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Case Name: Mark Bettelheim v. Lorenzo Rios, et. al.

Case No.: 19CV358454

Before the Court is Defendants’ Motion for Attorney Fees. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

IV. Background

Plaintiff Mark Bettelheim initiated this lawsuit on November 8, 2019 asserting (1) intentional infliction of emotional distress, (2) violation of the Davis-Stirling Act, (3) self-dealing, (4) breach of fiduciary duty, and (5) violation of business and professions code section 17200 et. seq. Defendants answered the complaint on December 19, 2019.

According to the Complaint, Mr. Bettelheim owns a condominium unit in the Pigeon Loft Condominium Project (“Property”). (Complaint, ¶3.) Defendant Lorenzo Rios was acting as the director on the board of the Pigeon Loft Condominium Association (“HOA”) despite not being elected to that position. (Complaint, ¶4.) Defendant Norma Rios is his wife, also acted as a director on the HOA board without being elected, and together they own a condominium unit in the same complex as Mr. Bettelheim. (Complaint, ¶4-5.) The complaint alleged Defendants “unlawfully usurped control of a homeowners association by refusing to have elections for years.” (Complaint, ¶1.)

Plaintiff further alleged Defendants prevented lawfully required HOA elections to go forward and engaged in “a many-year campaign of terror on Plaintiff, an autistic individual.” (Complaint, ¶¶8-18.) This “campaign of terror” included emailing Plaintiff on October 1, 2019 to notify him “that ‘the foreclosure is proceeding,’ and that Plaintiff would likely be ‘evacuated of unit 444’ the next week.” (Complaint, ¶19.) Plaintiff makes numerous other allegations of wrongdoing stemming from Defendants’ “control” of the HOA, including failing to properly utilize HOA dues to maintain the Property until the maintenance issues directly impacted Defendants, failing to issue Plaintiff a parking pass for three years, wrongfully accusing Plaintiff of failing to pay dues, and the like. (See, generally, Complaint.) Plaintiff’s allegations all arise out of the HOA rules and requirements. (Id.)

In July 2020, Plaintiff moved for appointment of a receiver, again based on the alleged failure of Defendants to hold elections or to properly maintain the Property. The Court (Hon. Sunil Kulkarni) denied Plaintiff’s motion, stating:

Appointing a receiver is a far-reaching, expensive remedy. The Court does not believe that Plaintiff has shown enough to justify appointment of a receiver at this time. It’s not clear that any of the problems that supposedly need repair will deteriorate drastically or irreversibly before trial. And there are many factual issues that need resolution with regard to Plaintiff’s claims about improper elections and board members. Trial is coming up in early November 2020 that is the best place to resolve all of these factual disputes. The Court therefore DENIES the motion. (9/10/2020 Minute Order.)

On October 8, 2021 Defendants moved for summary judgment. Pursuant to stipulation, in April 2022, the Parties agreed to continue the hearing on that motion from March5, 2022 to June 21, 2022 due to a severe injury suffered by Plaintiff’s then-counsel. On April 28, 2023, Plaintiff submitted a substitution of counsel form at which time Plaintiff’s current counsel of record entered the case. Shortly thereafter, on June 7, 2022, the same day his opposition to Defendants’ summary judgment motion was due, Plaintiff requested that the entire action be dismissed without prejudice. This motion for attorney fees followed on December 5, 2022.

The clerk’s office originally set the hearing for this motion for March 21, 2023. The Court did not locate a proof of service in the court’s file evincing that an amended notice of motion for that hearing date was served. The Court therefore continued the hearing on this motion to April 27, 2023 and directed Defendants to serve an amended notice of motion. While preparing tentative rulings for the April 27, 2023 hearing, the Court again did not locate a proof of service of the amended notice of motion in the court’s file. However, the Court erroneously indicated in its April 26, 2023 tentative ruling that it would continue the hearing to June 1, 2023 (rather than dismiss the motion without prejudice). The motion was accordingly set to be heard on June 1, 2023.

This time, Defendants did serve an amended notice of motion for this hearing date. The amended notice was served and filed on May 12, 2023. Plaintiff submitted an opposition on May 18, 2023 arguing the Court should deny Defendants’ motion due to insufficient notice under Code of Civil Procedure section 1005(b) because 16 court days before June 1 was May 5, and Defendants did not serve the amended notice of motion until May 12.

V. Legal Standard and Analysis

A. Service of Amended Notice of Motion

Code of Civil Procedure section 1005, subdivision (b), requires all moving and supporting papers to be served and filed at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) Here, the proof of service was served less than 16 days before the hearing. Plaintiff does not argue it was prejudiced by this delay in notice, and Plaintiff plainly had actual notice of this motion long before it received the notice of motion for this June 1, 2023 hearing date since Plaintiff received the Court’s tentative rulings for the prior motions (which rulings Plaintiff references in his opposition) and actually served an opposition to this motion. On these facts and the history of this case, the Court finds Plaintiff waived any irregularities in the notice. (See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7 [“[i]t is well settled that the appearance of a party at the hearing of a motion and [their] opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.”]; see also Moofly Productions, LLC v. Favila (2020) 46 Cal. App. 5th 1, 10.)

Plaintiff may argue that in the above-cited cases the non-moving party opposed the motion on the merits, and here Plaintiff only objected on procedural grounds. The Court considered this point carefully and must reject this argument in this case. First, in cases where the courts have not found a waiver, the non-moving party had received no notice at all and therefore did not appear to oppose the requested relief before that relief was granted. (See e.g., Jones v. Otero (1984) 156 Cal.App.3d 754; St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82; O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 961; Duggan v. Moss (1979) 98 Cal.App.3d 735.) By contrast, Plaintiff long had notice of this motion, which was filed and first served in December 2022 and subsequently appeared on the Court’s law and motion calendar twice. That Plaintiff has had such notice is made clear by its opposition.

Perhaps it is for this reason that Plaintiff does not claim to have suffered any prejudice by the delayed service of the amended notice of motion. Plaintiff’s opposition is a technical one, devoid of any evidence that the technical error had any practical impact on his ability to respond. This is not a small point. A non-moving party with actual notice of a motion who suffers no prejudice by a defect in service that seeks to avoid waiver of defects by filing the sort of opposition Plaintiff filed here is turning the purpose of the notice requirement on its head. Accordingly, the Court views the waiver rule as applying to the particular facts of this case and will address the merits of Defendants’ motion.

B. Attorney Fee Request

Enforcement of recorded CC&Rs of a common interest development, like the Property here, is governed by the Davis-Stirling Common Interest Development Act. Section 5975 of that Act provides: “In an action to enforce the governing documents [of a common interest development], the prevailing party shall be awarded reasonable attorney[] fees and costs.” (Civ. Code §5975(c).) The prevailing party is entitled to such fees “as a matter of right” and the trial court is “obligated to award attorney fees. . .whenever the statutory conditions have been satisfied.” (Champir, LCC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 589, citing Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1152.)

Section 5975 does not define “prevailing party.” (Champir, 66 Cal.App.5th at 590.) The law is well settled, however, that “[t]he analysis of who is a prevailing party under the fee-shifting provisions of the Act focuses on who prevailed ‘on a practical level’ by achieving its main litigation objectives.’” (Id., quoting Rancho Mirage Country Club Homeowners Assn. Hazelbaker (2016) 2 Cal.App.5th 252, 260; Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574; Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94; Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 773.)

“In determining the prevailing party under the Davis-Stirling Act, the court “should ‘compare the relief awarded on the . . . claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made. . . by ‘a comparison of the extent to which each party has succeeded and failed to succeed in its contentions.” (Champir, 66 Cal.App.5th at 592 (internal citations and quotations omitted).) The trial court cannot, as Defendants urge the Court to do, use the definition of “prevailing party” under Code of Civil Procedure section 1032(a)(4). (Id. at 594.) Case law teaches: “this argument, that a litigant who prevails under the cost statute is necessarily the prevailing party for purposes of attorney fees, has been uniformly rejected by the courts of this state.” (Id., quoting Heather Farms, 21 Cal.App.4th at 1572.)

The gravamen of Plaintiff’s Complaint here was Defendants’ alleged failure to hold elections and to otherwise comply with the HOA requirements—exactly the type of case where Section 5975 applies. Plaintiff dismissed the entire action on the same day his opposition to Defendants’ summary judgment motion was due, indicating an inability or lack of preparedness to substantively respond to that motion. Thus, this case is like Salehi, where the court of appeal reversed the trial court’s denial of fees to defendants after plaintiff voluntarily dismissed her action on the eve of trial. (Salehi, 200 Cal.App.4th 1152.) The Court thus finds that Defendants are the prevailing parties in this action and are entitled to their attorney fees under Section 5975.

According to the Declaration of Jennifer Z. Krenzin, Defendants’ counsel incurred $121,992.99 in fees and costs from November 9, 2019 to the present at a rate of $275 per hour. The rate is reasonable in this Silicon Valley market for this type of case. However, this is insufficient information for the Court to determine whether (a) this includes recoverable costs, (b) whether the fees all relate to this matter, or (c) whether the time spent on tasks in this case was reasonable. Accordingly, the Court orders Defendants to submit a further declaration to the Court with this information no later than 4 pm on June 16, 2023. Plaintiff shall have until 4 p.m. on June 23, 2023 to submit a response. These additional submissions shall be served, filed and emailed to Department6@.

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[1] All statutes cited hereafter are from the Civil Code unless otherwise specified.

[2] Shellpoint does not address this request in its memorandum.

[3] While Turner requests leave to amend, she fails to articulate how she can correct the deficiencies in her FAC, as is her burden. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Thus, the Court will not grant her request.

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