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RETURN DATE: FEBRUARY 4, 2020 SUPERIOR COURT MIDFIRST BANK JUDICIAL DISTRICT OF HARTFORD Vv. AT HARTFORD TAZEL N LIEBERT, ET AL. JANUARY 10, 2020 COMPLAINT 1. The Plaintiff, MidFirst Bank has an office and place of business with an address of 999 N.W. Grand Boulevard, Suite 100, Oklahoma City, OK 73118. 2. At all times complained of herein, the Defendant(s), Hazel N Liebert, owned real property situated in the Town of Canton, County of Hartford and State of Connect icut known as 50 E Hill Rd Unit 4D, Canton, (hereinafter the “Property”) being more particularly described in Schedule A attached hereto and made a part hereof. 3. On or about October 21, 2009, the Defendant(s), Hazel N Liebert, executed and delivered toQuicken Loans Inc., a Note (the “Note”) for a loan in the original principal amount of $121 ,921.00. 4. On said date to secure said Note the Defendant(s), Hazel N Liebert, did execute and deliver toMortgage Electronic Registration Systems, Inc. as nominee for Quicken Loans Inc., a Mortgage on theProperty. Said Mortgage was dated October 21, 2009 and recorded November 10, 2009 in Volume 372 atPage 913 of the Canton Land Records. Said Mortgage was thereafter assigned to MidFirst Bank by virtueFile: 020702F01of an Assignment of Mortgage dated December 27, 2019 and recorded January 7, 2020 in Volume 451 at Page 105 of the Canton Land Records. The Plaintiff, MidFirs t Bank, is the holder of said Note. 5. Said Note is in default due to non - payment of monthly install ments of principal and interest, and the Plaintiff, MidFirst Bank as the holder of said N ote has elected to accelerate the balance due on said Note, to declare said Note to be due in full and to foreclose the Mortgage securing said Note. 6. The Defendant(s) have failed and neglected to cure the default, The Plaintiff has elected to accelerate the balance due on said Note, to declare said Note to be due in full and to foreclose the Mortgage securing said Note. As of December 31, 2019, the amount due and owing is $104,588.88, plus accruing interest, fees and collection costs. 7. The following liens or encumbrances claim to have an interest in the Property which liens or encumbrances are prior in right to the Mortgage herein: a. The Town/City of Canton may claim an interest in the Property by virtue of inchoate liens for real estate taxes. b. The Glenwood Condominium Association, Inc. may claim an interest in said premises by virtue ofa statutory lien for priority common charges pursuant to the provisio ns of Sec. 47- 258(b) of the Connecticut General Statutes, 8. The following liens or encumbrances claim to have an interest in the Property which liens or encumbrances are subsequent in right to the Mortgage herein: File: 020702F0eea. The Defendant, Glenwood Condominium Association, Inc. may claim an interest in said premises by virtue of common charges in excess of the statutory priority. 9. The Defendant(s) Hazel N Liebert, is/are the owners of the equity of redemption of the Property and, on information and belief, are in possession of the Property. 10. The Plaintiff, MidFirst Bank, caused a Lis Pendens to be recorded on the Land Records of the Town of Canton.File: 020702F01WHEREFORE, the plaintiff claims: Foreclosure of the Mortgage; Foreclosure of Mortgage pursuant to Conn. Gen. Stat. Sec 49-17; Possession of the Property; A reasonable attorney's fee (unless same has been precluded by virtue ofa Bankruptcy filing); Interest (unless same has been precluded by virtue ofa Bankruptcy filing); Costs of suit (unless same has been precluded by virtue ofa Bankruptcy filing); Deficiency Judgment against the makers of, or obligors on, the Note described herein, and/or their Estate, if deceased (unless same has been precluded by virtue of a Bankruptcy filing); and 8 Such other and further relief as the Court may deem just and equitable Notice is hereby given to the Defendant(s) that the Plaintiff intends to seek satisfact ion of any judgment rendered in its favor in this action out of any debt accruing to said Defendant(s) by reason of their personal services, (unless same has been precluded by virtue of a Bankrupt cy filing). Dated at Hartford, Connecticut on January 10, 2020, Plaintiff, By. MaCalla Raymer Vibert Pierce, LLC 50 Weston Street Hartford, CT 06120 860-808-0606 Emily |. MicConnell Its Attorneys Juris No. 101589File: 020702F01RETURN DATE: FEBRUARY 4, 2020 SUPERIOR COURT MIDFIRST BANK JUDICIAL DISTRICT OF HARTFORD Vv. AT HARTFORD HAZEL N LIEBERT, ET AL. JANUARY 10, 2020 INFORMATION RELATING TO “VALIDATION NOTICE” This Writ, Summons and Cony plaint are legal documents used to commence a lawsuit with regards to the debt referenced within them. You must follow the instructions provided therein should you wish preserve your interests in the suit, even if you dispute the validity to or the amount of the debt, As lawyers, this office may file papers in the suit ac cording to the Statutes, Rules of Court and Standing Orders in Connecticut. The “Validation Notice” which has been or will be sent to the borrower(s) (“consumers”) in no way alters their rights or obligations with respect to this lawsuit. If you are the borrower (“consumer’ 2 *), and if you notify us that the debt or any portion thereof is disputed, or if you request proof of the debt or the name and address of the original creditor within the thirty (30) day time period of the validation notice, we will stop our collection efforts includin g this foreclo: sure suit until we mail the requested information to you.File: 020702F01RETURN DATE: FEBRUARY 4, 2020 SUPERIOR COURT MIDFIRST BANK JUDICIAL DISTRICT OF HARTFORD V. AT HARTFORD HAZEL N LIEBERT, ET AL. JANUARY 10, 2020 STATEMENT OF AMOUNT IN DEMAND The amount, legal interest, or property in demand is not less than $15,000.00, exclusive of interest and costs. Plaintiff 4) By! McCalla Raymer Leibert Pierce, LLC 50 Weston Street Hartford, CT 06120 860-808-0606 Emily i. MeConnel Its Attorneys Juris No. 101589File: 020702F01EXHIBIT “A” THE LAND REE TO HEREID iN BELOW §$ SITUATED IN THE COUNTY OF ‘Hartford, STATE iS DESCRIBED AS FOLLOWS: OF Conodeticut, AND ALL THAT GRAN REAL fRoreRTy, SITUATED IN THE TowN STATE OF CO! OF CANTON, COUNTY OF #.HARTFORD, AND AS UNIT 4D OF GLEN WoT PACHED TH TO AND, AN UNDIMI DED 1.0459 PERCENTAGE = a COMMON ELEMENTS ip SACRA TIES APPU IRTENANT THERE TO, AS SET FORTH IN THE “pRCLARATION = COMMON = te AT PAGES 1 ess IN THE CANTON LAND ine ane Ore 12, as Fre Reco ED GN JUNE 14,Wey AND “GLENWOOD you ATED ey 40, 85 AND RECORDED ON May 23, Was AT StS aN DECLARATION" WHICH TN THD CANTON LAND RECORDS, TO ‘REFERENCE IS HEREBY MADE, SAID ot LIMITED COMMON ELI PREMISES 7O AND SUBJECT $0 THE STON ELEMENTS aeeC SITUATED ONruntuant THOSE AMENDED, WHICH WH! HIP ACT (PUBLIC AC ACT 83-474) OF THE m ME PREMISES ARE MORE PARTICULARLY SHOWN, ‘ON ‘TOTES. AS. KNOWN AS Gi A CERTAI N MAP ERD consul fin ENGIN 5 UNDARY SU! Aver THE cae FOR ENGINEERDSROPERITINC, EERS, 13 SOUTH ELM § is 40" CERTIFIED sUBStAt 4, J 1984 AND ‘APA0649223, SHEET 3. L984.” AS REVISED FEPRUARY 17, 1984, APRIL 1 OF | SCALE 1984 WHICH MAP 15 DECEMBER io, sas AMENDED eee A-? DEGREE oF ACCURACY OF SURVEYS AND MAPS, ay Pe R- BRAGG, THE CONNECTE UT ASSOCIATION OF L, SURVEYOR, INC, LS Ko. an, vere MAP IS FILED IN THE OFFIC IN AND TO WHICH MAP REIFERENCE MA’ E OF THE TOWN CLERK SAID Se a CONVEYED TOGETHER WITH AND SUBJECT TO THE EAsem*nTS, COVE! THE BENEFITS, RIGHTS, PRIVILEC RESTRICTIONS, AGREEMENTS, AND CONTAINEDBros ID DECLARATION, AS AMENDED. AND RE! SERVATIONS. ALL AS SET FORTH SAID PREMISE: aNy AND ALL PROVISI RecuLaTiON On Poe Pal PRIVATE Lcan, DECL: ARATIONS, RESTRI IONS: OR Ee a an oe oe . ANY STATE OF FAL ICTIONS, a ACCURATE SURVEY ge Oe SPECTI ON OF SAID SA PREMISES TO TAXESGN THE List DUE AND PAYABI ANB MUNICIPAL ASSESSMENTS, IF ANY, WHICH THE GRANTEE HEREIN ae CONSIDERATION ASSUMES AXND AGREES TO PAY AS FART Purcel (Ds 47-4 Commonly known as $0 E Hill Re Ape aD, Howeverby, showing this address no additional Cant CT on,06019 coverage is provisdedFile: 020702F01
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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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