Related Contentin Hartford County
Case
NATIONSTAR MORTGAGE LLC v. MCKNEY, CHAD, HEIR OF CHADWICK A. MCKNEY Et Al
Aug 27, 2024 |P00 - Property - Foreclosure |HHB-CV24-6089207-S
Case
TOWPATH ASSOCIATION, INC. v. DONAHUE, JAMES Et Al
Aug 26, 2024 |P00 - Property - Foreclosure |HHD-CV24-6190329-S
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HOMEOWNERS FINANCE CO. v. EMROTH, LLC Et Al
Aug 27, 2024 |P00 - Property - Foreclosure |HHD-CV24-6190442-S
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LAKEVIEW LOAN SERVICING, LLC v. RUSNACK, JAMES, AKA RUSNAK JAMES Et Al
Aug 30, 2024 |P00 - Property - Foreclosure |HHD-CV24-6190605-S
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HOMEOWNERS FINANCE CO. v. WHYTE, SANIKE
Aug 27, 2024 |P00 - Property - Foreclosure |HHD-CV24-6190441-S
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LIBERTY BANK v. BUGBEE, WILLIAM, AS TRUSTEE FOR CASH BUGBEE Et Al
Aug 28, 2024 |P00 - Property - Foreclosure |HHB-CV24-6089250-S
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CONNECTICUT HOUSING FINANCE AUTHORITY v. ANNELLI, ANDREW G Et Al
Aug 26, 2024 |P00 - Property - Foreclosure |HHB-CV24-6089150-S
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PLANET HOME LENDING, LLC v. SLIPSKI, KAREN Et Al
Aug 27, 2024 |P00 - Property - Foreclosure |HHD-CV24-6190361-S
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HERITAGE GLEN CONDOMINIUM ASSOCIATION, INC. v. PAGLIUGHI, ANGELA Et Al
Aug 28, 2024 |P00 - Property - Foreclosure |HHB-CV24-6089256-S
Ruling
Jules, Scott vs. Galvan, Anais
Sep 09, 2024 |S-CV-0052677
S-CV-0052677 Jules, Scott vs. Galvan, AnaisNo appearance required. CMC is continued to 11/25/24 at 2pm in Dept. 1.Complaint is not at issue. Need status as to ROE Cross Defendants.
Ruling
FCS055088 - PALOMINO, TORIBIO VS. GUZMAN, JUAN PATOJA (DMS)
Aug 26, 2024 |FCS055088
FCS055088Motion for Attorneys’ FeesTENTATIVE RULINGPlaintiffs’ motion for award of attorneys’ fees is granted in part.Unless attorney’s fees are specifically authorized by statute or the parties have enteredinto an agreement for attorney’s fees, each party to a lawsuit must pay his or her ownattorney’s fees. (Code Civ. Proc. § 1021; Mountain Air Enters., LLC v. SundownerTowers, LLC (2017) 3 Cal.5th 744, 751; Tract 19051 Homeowners Ass’n v. Kemp(2015) 60 Cal.4th 1135, 1142.) Plaintiffs have not established that the parties enteredinto any agreement for attorney’s fees or that attorney’s fees are authorized by statutefor their causes of action for violation of the Unfair Competition Law, breach of thecovenant of quiet enjoyment, and negligence. However, the prevailing party is entitledto recover attorney’s fees for a habitability claim pursuant to Civil Code section 1942.4.(Civ. Code § 1942.4(b)(2).)When a cause of action for which attorney’s fees are authorized by statute is joined withother causes of action for which attorney’s fees may not be awarded, the prevailingparty may only recover on the statutory cause of action unless “the liability issues are sointerrelated that it would have been impossible to separate them into claims for whichattorney fees are properly awarded and claims for which they are not”. (Akins v. Enter.Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1133.) If the moving party does not“meaningfully” enlighten the court as to an appropriate apportionment, the court “shouldexercise its discretion in assigning a reasonable percentage … or simply cast themaside.” (Bell v. Vista Unified Sch. Dist. (2000) 82 Cal.App.4th 672, 689.)Plaintiffs claim 30.5 hours in prosecuting this action at an hourly rate of $395 for a totalof $12,047.50 (Decl. of Phillips, ¶ 2, Exh. 1), which appear to have been reasonablyincurred and reasonable in amount. However, Plaintiffs make no attempt to properlyapportion the fees between the habitability claim and the other causes of action and nobasis for reasonable apportionment appears from the descriptions of the tasks given incounsel’s time record.Having considered the superfluousness and derivative natures of the causes of actionfor violation of the UCL and the negligence claims, and the distinctness of the conductunderlying the quiet enjoyment and habitability claims, the court apportions 50 percentof the fees to the habitability cause of action. Plaintiffs are awarded $6,023.75 inattorney’s fees as the prevailing party for that claim.Plaintiffs also improperly seek court costs of $1,084.12 as part of this motion. Plaintiffsmust claim these costs in accordance with the rules adopted by the Judicial Council.(Code Civ. Proc. § 1034(a).)Department 7 is inviting you to a scheduled ZoomGov meeting.Join ZoomGov Meetinghttps://solano-courts-ca-gov.zoomgov.com/j/1611554664?pwd=T3U4QlBGWWNWaGlieXJTcGxIVHRXZz09Meeting ID: 161 155 4664Passcode: 818575One tap mobile+16692545252,,1611554664#,,,,*818575# US (San Jose)+14154494000,,1611554664#,,,,*818575# US (US Spanish Line)
Ruling
P.J. McAuliffe Family Partnership, L.P. vs. The Testate or Intestate Successors of Nora McAuliffe, et al.
Aug 31, 2024 |23CV-0202994
SUCCESSORS OF NORA MCAULIFFE, ET AL.Case Number: 23CV-0202994Tentative Ruling on Motion for Judgment on the Pleadings: This is an action to quiet title todormant mineral rights. Plaintiff P.J. McAuliffe Family Partnership, LP brings this motion forjudgment on the pleadings against Defendant John P. “Jack” McAuliffe pursuant to Code of CivilProcedure section 43(c)(1)(A). Plaintiff argues that the First Amended Complaint (FAC) statesfacts sufficient to constitute a cause or causes of action against the Defendant and the Answer doesnot state facts sufficient to constitute a defense to the complaint. The motion is unopposed.Meet and Confer: “The moving party shall file and serve with the motion for judgment on thepleadings a declaration stating” the attempts made to meet and confer. CCP § 439(a)(3). TheDeclaration of Michael Ricks provides sufficient evidence of Plaintiff’s meet and confer efforts.Request for Judicial Notice: The Court GRANTS Plaintiff’s request for judicial notice of the priorOrders in this case, and that certain requests were deemed admitted pursuant to this Court’s Order,pursuant to Evid. Code § 452(d) and 453.Merits of Motion: CCP § 438(c)(1)(A) provides a plaintiff may move for judgment on thepleadings if the complaint states sufficient facts to constitute a cause of action and the answer doesnot state facts sufficient to constitute a defense to the complaint. The grounds for the motion shallappear on the face of the challenged pleading or from any other matter of which the court may takejudicial notice. CCP § 438(d). The Court may take judicial notice of responses to discoveryrecords pursuant to Evidence Code §§ 452(d) and 453. Arce v. Kaiser Foundation Health Plan,Inc. (2010) 181 Cal.App.4th 471, 485. A motion for judgment on the pleadings has the samefunction as a general demurrer but is made after the time for demurrer has expired. Except asprovided by CCP § 438, the rules governing demurrers apply. Cloud v. Northrop Grumman Corp.(1998) 67 CA4th 995, 999.Plaintiff’s First Amended Complaint is the operative pleading. It alleges causes of action for: 1)Quiet Title Against or Termination of Dormant Mineral rights Pursuant to Civ. Code 883.110, etseq., 2) Common Law Abandonment of Mineral Rights, 3) Declaratory Relief.First Cause of Action: Quiet Title or Termination of Dormant Mineral Rights. The owner of realproperty subject to a mineral right may bring an action to terminate the mineral right pursuant tothis article if the mineral right is dormant. Cal. Civ. Code § 883.210. A mineral right is dormantif all of the following conditions are satisfied for a period of 20 years immediately precedingcommencement of the action to terminate the mineral right: (a) There is no production of theminerals and no exploration, drilling, mining, development, or other operations that affect theminerals, whether on or below the surface of the real property or on other property, whether or notunitized or pooled with the real property; (b) No separate property tax assessment is made of themineral right or, if made, no taxes are paid on the assessment; (c) No instrument creating,reserving, transferring, or otherwise evidencing the mineral right is recorded. Cal. Civ. Code §883.220. Plaintiff’s FAC alleges the required conditions have been satisfied. (FAC ¶¶2, 36-39.)Defendant filed a document entitled “Request for Dismissal” on September 20, 2023. The partiesstipulated orally before the Court on March 24, 2024, that this document is deemed the Answerfor both the Original Complaint and the First Amended Complaint. The Answer acknowledgeselement Cal. Civ. Code § 883.220(a) is true and does not address elements (b) or (c). No defensehas been raised. Plaintiff is therefore entitled to judgment on the pleadings as to the First Causeof Action.Second Cause of Action: Common Law Abandonment of Mineral Rights. “Actions to quiet title,like true declaratory relief actions, are generally equitable in nature. A quiet title action is astatutory action that seeks to declare the rights of the parties in realty. The object of the action isto finally settle and determine, as between the parties, all conflicting claims to the property incontroversy, and to decree to each such interest or estate therein as he may be entitled to. Thepurpose of a quiet title action is to determine any adverse claim to the property that the defendantmay assert, and to declare and define any interest held by the defendant, so that the plaintiff mayhave a decree finally adjudicating the extent of his own interest in the property in controversy.”Weeden v. Hoffman (2021) 70 Cal. App. 5th 269, 291 (internal citations omitted).The Supreme Court of California has held that mineral rights are a type of perpetual profit aprendre, which, like easem*nts, are subject to abandonment. Gerhard v. Stephens (1968) 68 Cal.2d 864, 880. “If interests in real property can be and are abandoned, they do not become, as in thecase of personal property, the property of the first appropriator, but instead return to the estate outof which they were carved. The abandonment of a profit a prendre, therefore, because the profitin essence is an easem*nt, does not become subject to the void in ownership that the common lawof land title sought to avoid. If a perpetual right of way or other easem*nt is abandoned, theproperty interest reverts to the servient estate. Similarly, a perpetual right to remove oil and gaswould ordinarily revert to the surface estate, thereby freeing that estate of its burden and permittingits owner more complete utilization and enjoyment of his property.” Id. at 887 (internal citationsomitted).Plaintiff’s FAC alleges Defendants have not produced or attempted to produce the mineral rightsor recorded any instrument evidencing their intention to retain the rights since the 1972 Deed wasrecorded. (FAC ¶ 41.) Plaintiff’s FAC alleges that due to the nonuse and failure to evidence anyintention of retaining the mineral rights, Defendants intended to abandon them. (FAC ¶ 42.)Defendant’s Answer indicates an intent to maintain the mineral rights. (Answer ln.16-18.)However, in its January 25, 2024 Order, this Court deemed admitted Plaintiffs Requests forAdmission, Set One. These admissions establish that Plaintiff conveyed any rights or interestsincluding but not limited to mineral rights in the real property at issue on April 4, 2012. Theadmissions further establish that since April 4, 2012, Defendant has not acquired any rights orinterests, including but not limited to mineral rights, to the real property at issue. These admissionsestablish that Defendant has conveyed any claimed interest in the disputed mineral rights at issue.This does not squarely establish a claim for common law abandonment. Nonetheless, theadmissions do establish that the equitable relief sought by Plaintiff is appropriate.Third Cause of Action: Declaratory Relief. Plaintiffs allege a cause of action for declaratory relief.Declaratory relief is an equitable remedy, not a cause of action. Faunce v. Cate (2013) 222 Cal.App. 4th 166, 173. Plaintiff seeks this Court’s determination that Defendant’s mineral rights inthe subject property have terminated, and have been abandoned, and have therefore merged withthe fee interest in the Property. Based on the foregoing discussion of Plaintiff’s First Cause ofAction for Termination of Dormant Mineral Rights, as well as the Second Cause of Action forAbandonment, the Court finds that Plaintiff is entitled to the relief sought. Additionally, the Courtnotes that its prior Order, dated July 8, 2024, imposed an issue sanction establishing that Defendantindividually and as Trustee of the Leonore McAuliffe 1993 Trust, has no interest in any mineralrights in the Property identified in ¶ 2 of the First Amended Complaint.Where a motion for judgment on the pleadings is granted as to the complaint, the Court normallygrants the opposing side leave to amend its answer unless it appears from the pleadings thatamendment is incapable of otherwise affecting the outcome. Given not just the deficiencies ofMcAuliffe’s answer, but also the Court’s judicially noticed prior orders confirming McAuliffe hasno mineral rights in the property, the Court finds that no amendment will affect the Court’s rulingon this Motion for Judgment on the Pleadings. Leave to amend is therefore not indicated.Plaintiff’s Motion for Judgment on the pleadings is GRANTED without leave to amend. Aproposed order has been lodged with the Court and will be executed.
Ruling
COLEMAN vs. SANCHEZ, et al.
Aug 31, 2024 |CVCV21-0197682
COLEMAN VS. SANCHEZ, ET AL.Case Number: CVCV21-0197682This matter is on calendar for review regarding status of judgment. A Judgment was filed andexecuted on August 9, 2024. Notice of Entry of Judgment was filed August 20, 2024. Noappearance is necessary on today’s calendar.
Ruling
Sol Selection, LLC vs. All persons unknown
Aug 26, 2024 |23CV-0203591
SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203591This matter is on calendar for review regarding status of default judgment. On June 5, 2024, thisCourt issued its Ruling after a June 3, 2024 Default Prove Up hearing. The Court denied therequest to enter default judgment without prejudice. Nothing further has been filed. Anappearance is necessary on today’s calendar to provide the Court with a status of defaultjudgment.
Ruling
BARRY MAITEN VS ANAT EBGI, ET AL.
Aug 28, 2024 |23STCV11238
Case Number: 23STCV11238 Hearing Date: August 28, 2024 Dept: 82 Barry Maiten Case No. 23STCV11238 v. Hearing: August 28, 2024 Location: Stanley Mosk Courthouse Department: 82 Anat Ebgi, et al. Judge: Stephen I. Goorvitch [Tentative] Order Granting Plaintiffs Application for Writ of Attachment INTRODUCTION Plaintiff Barry Maiten (Plaintiff) moves for writs of attachment against Defendants Anat Ebgi and Joshua Michael Rosenblatt (Defendants) in the amount of $63,074.42.[1] Defendants oppose the applications, which are granted. LEGAL STANDARD Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought. (Code Civ. Proc. § 484.010.) The Attachment Law statutes are subject to strict construction. (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees. (Code Civ. Proc. § 483.010.) The court shall issue a right to attach order if the court finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (4) The amount to be secured by the attachment is greater than zero. (Code Civ. Proc. § 484.090.) A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc. § 481.190.) The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based. ¿(Code Civ. Proc. § 484.030.)¿In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.¿ (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) Code of Civil Procedure section 482.040 states in pertinent part: The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein. As to matters shown by information and belief, the affidavit shall state the facts on which the affiant's belief is based, showing the nature of his information and the reliability of his informant. The affiant may be any person, whether or not a party to the action, who has knowledge of the facts. DISCUSSION A. Notice Plaintiff has provided sufficient notice, and Defendants filed oppositions to the applications. B. Probable Validity of Plaintiffs Claims The application is based on Plaintiffs cause of action for breach of written contract (lease). To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendants breach of the contract; and (4) damages incurred by plaintiff as a result of the breach. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.) Plaintiff submits evidence that he entered a commercial lease with Defendants in February 2017, and that Defendants ceased paying the monthly rent of $2,636.38 on April 1, 2020, after the Covid-19 pandemic commenced. (See Maiten Decl. ¶¶ 3-4 and Exh. A, including Option to Extend, and Exh. B.) Plaintiff also submits evidence of the following: Defendants provided a 30-day notice on October 5, 2020, but continued their occupancy of the premises after the 30 days had expired. In January 2021, Defendants sent an email to Plaintiffs representatives indicating that Defendants would vacate the premises in 30 days. When the 30 days had expired, Defendants did not surrender the keys or confirm that they had vacated the premises. They continued to keep the utilities in their name and pay the utility bills. Plaintiff discovered that Defendants had abandoned the premises on or about July 31, 2021. (Maiten Decl. ¶¶ 5-8.) Plaintiff seeks recovery of principal damages for 16 months (April 2020 to July 2021) of unpaid rent of $2,636.38, for a total of $42,182.08 in unpaid rent. Plaintiff also seeks recovery of late fees of $6,854.59; interest of $4,218.21; and attorneys fees and costs (pursuant to a fee provision in the lease) of either $13,644.8 or $15,000. Plaintiff also indicates that Defendants are entitled to a credit of $3,825.34 for their security deposit (after subtracting $1,000 in labor and material for water damage to the premises). (Id. ¶¶ 8-13.) The court cannot discern from Plaintiffs declaration how the interest was calculated. Further, Plaintiff appears to have confused the calculation of late charges pursuant to paragraph 13.4 (10% of overdue amount or $100, whichever is greater), with the calculation of interest under paragraph 13.5. (See Maiten Decl. ¶¶ 9-10.) The court will grant attachment of late charges of $4,218.21, as that amount is clear under the lease. ($42,182.08 x 10%). The court does not grant attachment of any interest, as Plaintiffs calculations are deficient. Further, Plaintiffs applications are unclear as to whether attorneys fees of $13,644.8 or $15,000 are requested. The court grants attachment of fees and costs in the lesser amount. Defendants have not persuasively opposed Plaintiffs evidence of a probably valid contract claim for unpaid rent from April 2020 to July 2021. Defendants concede that they failed to pay rent starting March 29, 2020, and retained possession of the premises until at least January 2021. (Ebgi Decl. ¶¶ 3-6.) Defendants concede that they served a 30-day notice in October 2020, but did not vacate. (Ibid.) They also implicitly concede that they did not return the keys until July 2021. (Id. ¶ 7.) Defendants do not submit evidence of any notice or written communications between January and July 2021 showing that they informed Plaintiff that they vacated. (See Ebgi Decl. ¶¶ 4-7 and Exh. A.) The court is not persuaded that the pandemic prevented Defendants from returning the keys in some fashion or giving notice that they were vacating. (See Maiten Decl. ¶ 7.) Based on the foregoing, Plaintiff shows a probably valid claim against Defendants in the reduced amount of $56,219.75 ($42,182.08 + $4,218.21 + $13,644.8 - $3,825.34). C. Basis of Attachment Probable Plaintiff establishes a sufficient basis for attachment. [A]n attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. The fact that the damages are unliquidated is not determinative. [Citations.] But the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App. 4th 537, 541.) Here, Plaintiffs application for writ of attachment is based on a contract claim for which the total amount allegedly due is in excess of $500. The claim is not secured by real property. Plaintiffs claim arises from Defendants conduct of a trade or business, i.e. commercial art gallery. Defendants argue that Plaintiffs damages are not fixed and readily ascertainable because the number of months of unpaid rent, among other issues, are in dispute. (Oppo. 1.) Plaintiffs damages are fixed and readily ascertainable from the terms of the lease and Plaintiffs declaration. A dispute about the amount of damages does not mean that the damages cannot be readily ascertained and calculated from the lease terms. At heart, Defendants raise issues about the probable validity of Plaintiffs claim, not whether the damages are fixed and ascertainable. D. Purpose and Amount of Attachment The court finds that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachments is based and the amount to be secured by the attachment is greater than zero. E. Reduction of Amount to be Secured, and Exemptions Defendants do not argue, or show, that the amount of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b). Defendants have not claimed any exemptions. F. Subject Property Plaintiff requests attachments against Defendants, natural persons, of items listed in Code of Civil Procedure section 487.010(c) and (d). (Application ¶ 9c.) That request is proper. Plaintiff is not required by section 484.020(e) to describe the property sought for attachment with further specificity. (See Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal. App. 3d 260, 267-268 [all-inclusive application satisfies CCP section 484.020(e)].) G. Undertaking Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. Section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000. Neither party has argued for a different amount of undertaking. CONCLUSION AND ORDER Based upon the foregoing, the court orders as follows: 1. The application for writ of attachment is granted in the reduced amount of $56,219.75 against each defendant. Although the court is issuing separate writs, Plaintiff shall not attach more than $56,219.75, i.e., the writs are intended to be joint and several. 2. Plaintiff shall post an undertaking in the amount of $10,000 for each writ. /// /// 3. Plaintiffs counsel shall prepare and lodge revised Right to Attach Order After Hearing and Order for Issuance of Writ of Attachment on Forms AT-120 reflecting the courts ruling. 4. Plaintiffs counsel shall provide notice and file proof of service with the court. IT IS SO ORDERED Dated: August 28, 2024 ______________________ Stephen I. Goorvitch Superior Court Judge [1] Plaintiff filed four applications for writ of attachment on May 22, 30, and 31, 2024, three against Rosenblatt and one against Ebgi. All four applications seek attachment of $63,074.42, albeit three seek attorneys fees of $13,644.88, while one (against Rosenblatt) seeks attorneys fees of $15,000. The court treats these applications as one application seeking attachment of $63,074.42 against both Rosenblatt and Ebgi, jointly and severally.
Ruling
RUSSELL M FRANDSEN, ET AL. VS ALEX FOXMAN, ET AL.
Aug 28, 2024 |24VECV00579
Case Number: 24VECV00579 Hearing Date: August 28, 2024 Dept: T 24VECV00579 RUSSELL M FRANDSEN, et al. vs ALEX FOXMANThe application to post rent is denied. Defendant's opposition indicates that they have vacated the premises. Therefore, possession is no longer in issue. Accordingly, the case is no longer entitled to trial priority. Defendants have consented to the entry of a judgment for possession.
Ruling
FCS059299 - SHARMA, R V GOMEZ, LUIS R, ET AL (DMS)
Sep 01, 2024 |FCS059299
FCS059299SHARMA’s Demurrer to GOMEZ’s First Amended Cross-ComplaintTENTATIVE RULINGPlaintiff and Cross-Defendant RAJ SHARMA (“SHARMA”) demurs to Defendant andCross-Complainant LUIS R. GOMEZ’s (“GOMEZ”) first amended cross-complaint(“GOMEZ 1ACC”) asserting causes of action for indemnity under Labor Code section2802, failure to provide itemized wage statements under Labor Code section 226, andcommon law indemnity. Summarized, SHARMA’s first amended complaint in this casealleges that GOMEZ refuses to remove his construction equipment and debris presenton and damaging SHARMA’s agricultural land; the GOMEZ 1ACC alleges that GOMEZwas SHARMA’s employee by oral agreement and SHARMA committed labor lawviolations.Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency ofthe complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather thanevidentiary facts, but the plaintiff must set forth the essential facts of his or her case“with reasonable precision and with particularity sufficient to acquaint [the] defendantwith the nature, source and extent” of the plaintiff’s claim. (Doheny Park TerraceHomeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007)42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The court “assume[s] the truth ofthe allegations in the complaint, but do[es] not assume the truth of contentions,deductions, or conclusions of law.” (California Logistics, Inc. v. State of California(2008) 161 Cal.App.4th 242, 247.)Labor Code Section 2802 Indemnification. The GOMEZ 1ACC’s first cause of actionis for indemnification pursuant to Labor Code section 2802. The elements of such acause of action are (1) the employee made expenditures or suffered losses, (2) theexpenditures or losses were incurred in direct consequence of the employee’sdischarge of his duties or obedience to the directions of his employer, and (3) theexpenditures or losses were necessary. (Lab. Code, § 2802, subd. (a); Cassady v.Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 231.)GOMEZ does not sufficiently allege this cause of action. The GOMEZ 1ACC containsonly a conclusory allegation that he was SHARMA’s employee, without sufficient factualdetail to demonstrate in what way SHARMA functioned as an employer. (Martinez v.Combs (2010) 49 Cal.4th 35 [to employ for wage & hour purposes is to control work,permit to work, or engage for work].) Further, to maintain this cause of action anemployee must show that expenditures were incurred in consequence of work dutiesand/or directions and were necessary. Without information as to what GOMEZ’s workduties and/or directions were these elements are not sufficiently alleged. Nor doesGOMEZ clearly state expenditures or losses. He states only that he “suffered and/orwill suffer damages.” (GOMEZ 1ACC at ¶ 9.)Itemized Wage Statements. Labor Code section 226, subdivision (a) requiresemployers to furnish their employees with itemized wage statements showing details ofwages such as hours worked and pay rates for those hours. (Furry v. East BayPublishing, LLC (2018) 30 Cal.App.5th 1072, 1083.) As stated, GOMEZ’s allegations ofemployment under SHARMA are insufficient.Common Law Indemnification. The GOMEZ 1ACC states neither a loss to beindemnified against nor an agreement under which SHARMA must contractuallyindemnify GOMEZ or a situation wherein the two are joint tortfeasors entitled toequitable indemnity as regards each other. (Great Western Drywall, Inc. v. InterstateFire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1041 [requirements for indemnity].)Leave to Amend. Leave to amend is proper where identified defects are amenable tocure. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) It is the pleading party’sburden to show the trial court that a reasonable possibility exists that amendment cancure identified defects in that party’s pleading. (Murphy v. Twitter, Inc. (2018) 60Cal.App.5th 12, 42.) GOMEZ’s filings demonstrate a reasonable possibility thatamendment can cure the identified defects in the GOMEZ 1ACC.Conclusion. SHARMA’s demurrer is sustained with leave to amend. GOMEZ is to fileany amended pleading within thirty days of the date of this order.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)
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WELLS FARGO BANK, N.A. v. MCLAUGHLIN, JAY Et Al
Apr 26, 2022 |Joseph M. Shortall |P00 - Property - Foreclosure |HHB-CV22-6072104-S
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TOWER DB XI TRUST 2021-1 v. DYER, JUSTIN D. Et Al
Feb 21, 2024 |P00 - Property - Foreclosure |HHD-CV24-6180881-S
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NEWREZ LLC D/B/A SHELLPOINT MORTGAGE SERVICING v. GHORBANI-MOGHADDAM, HAMED Et Al
Jan 22, 2024 |Joseph M. Shortall |P00 - Property - Foreclosure |HHB-CV24-6084000-S
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HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED v. FRIMPONG-ANINAKWA, KOFI Et Al
Mar 14, 2024 |P00 - Property - Foreclosure |HHD-CV24-6181883-S
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NEWREZ LLC D/B/A SHELLPOINT MORTGAGE SERVICING v. GHORBANI-MOGHADDAM, HAMED Et Al
Jan 22, 2024 |Joseph M. Shortall |P00 - Property - Foreclosure |HHB-CV24-6084000-S
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FEDERAL HOME LOAN MORTGAGE CORPORATION, AS TRUSTEE v. VUMBACK, PAUL D Et Al
Jan 18, 2024 |Joseph M. Shortall |P00 - Property - Foreclosure |HHB-CV24-6083934-S
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TOWER DB XI TRUST 2021-1 v. DYER, JUSTIN D. Et Al
Feb 21, 2024 |P00 - Property - Foreclosure |HHD-CV24-6180881-S
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NEWREZ LLC DBA SHELLPOINT MORTGAGE SERVICING v. MERCED, STEPHANIE Et Al
Apr 26, 2024 |P00 - Property - Foreclosure |HHD-CV24-6183950-S
