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BANK OF NEW YORK MELLON AS TRUSTEE FOR HOLDERS OF THE GE-WMC ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2005-2 V SIMPLICE, NIVA
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Ruling
JENNIFER BORROMEO VS. TERESA LEUNG ET AL
Aug 02, 2024 |CUD24675403
Real Property/Housing Court Law and Motion Calendar for August 2, 2024 line 9. Defendant's Demurrer to Complaint is SUSTAINED in part and OVERRULED in part. Demurrer is sustained with leave to amend to join Fernando P. Borromeo and Aida Borromeo as a parties to this action. Demurrer is otherwise overruled. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.
Ruling
ABIMAEL G. GARCIA VS BEST FOR YOU MOVING, A CALIFORNIA CORPORATION, ET AL.
Aug 01, 2024 |24NWCV00210
Case Number: 24NWCV00210 Hearing Date: August 1, 2024 Dept: C GARCIA v. BEST FOR YOU MOVING CASE NO.: 24NWCV00210 HEARING: 08/01/24 #7 Plaintiff ABIMAEL G. GARCIAs unopposed application for right to attach order and writ of attachment against Defendant ARTUR SHAKHNZAROV is GRANTED. An undertaking of $10,000.00 is ordered as provided for by statute. Moving Party to give notice. No Opposition filed as of July 29, 2024. Plaintiff ABIMAEL G. GARCIA (Plaintiff) applies for a writ of attachment against Defendant ARTUR SHAKHNAZAROV (Defendant) in the amount of $860,384.56. Plaintiff filed this action on January 22, 2024 against Defendants BEST FOR YOU MOVING (Best for You); and ARTUR SHAKHNAZAROV (Guarantor). This case is based on Best for Yous breach and default of its commercial lease of real property owned by Plaintiff, and Defendant/Guarantors guaranty of said commercial lease. The application [for a writ of attachment] 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. (CCP §484.030.) The declarations in the moving papers must contain evidentiary facts, stated with particularity and based on actual personal knowledge with all documentary evidence properly identified and authenticated. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79-80.) 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. (Id. at 80.) At the hearing, the court shall consider the showing made by the parties appearing and shall issue a right to attach order, which shall state the amount to be secured by the attachment determined by the court in accordance with Section 483.015 or 483.020, if it 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. (CCP § 484.090(a).) The court's determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of the additional evidence or points and authorities. (CCP § 484.090(d).) CLAIM: 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. (CCP 483.010.) Plaintiff's claim against a natural person must arise out of the defendant's conduct of a trade, business or profession. (CCP § 483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4. CCP 483.010.) The court has the power to determine disputed facts on the basis of preponderance of evidence as disclosed in the declarations. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) The claim is for money and based upon written agreements, whose total sums are more than $500. The claim is supported by the declaration of Abimael Garcia, attesting that Plaintiff and Defendants entered into an Agreement, that Defendant Best for You is in default, and that Defendant Shakhnazarov failed to perform his duties under the guaranty of the commercial lease. Plaintiffs application indicates that the claim arises out of a debt owed by Defendants trade, business, or profession. The claim is proper. PROBABLE VALIDITY: 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. (CCP § 481.190.) Plaintiff has established probable validity of its claim by presenting evidence of the Invoices between the parties. This application is unopposed. Based on a preponderance of the evidence, the court finds Plaintiffs claim has probable validity because it is more likely than not that Plaintiff will obtain a judgment. PURPOSE OF ATTACHMENT: The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. AMOUNT OF WRIT: The writ will issue for the amount of the claimed indebtedness, plus an amount to cover costs and allowable attorney fees as determined by the court reduced by& any security interest held by plaintiff in defendant's property. (CCP § 483.015.) A writ of attachment issued without the mandated bond is void. (Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882.) Defendant must produce detailed, factual declarations showing the nature and extent of the claimed offset. (Weil & Brown, Civil Procedure Before Trial at 9:933.) The amount of the writ against Defendant is $860,384.56 and an undertaking of $10,000.00 is ordered as provided by statute. (CCP § 489.220.)
Ruling
WEST IDAHO LLC VS CATHERINE ZHANG
Aug 05, 2024 |21SMUD00229
Case Number: 21SMUD00229 Hearing Date: August 5, 2024 Dept: P Tentative Ruling West Idaho, LLC v. Zhang, Case No. 21SMUD00229 Hearing date June 12, 2024, continued to 08/05/2024 Cross-defendant West Idahos Motion for Summary Judgment and/or Summary Adjudication as to Cross-complainant Zhangs -- UNOPPOSED Cross-defendant West Idaho LLC moves for summary judgment as to Zhangs cross complaint. The motion is unopposed. West Idaho sued Zhang for unlawful detainer. Zhang cross-complained, alleging (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) forcible detainer and (4) conversion. The cross-complaint alleges a security guard employed by West Idaho pointed a gun towards her door, and West Idaho changed the locks on her apartment. A party is entitled to bring a motion for summary judgment where there are no triable issues of fact and moving party is entitled to judgment as a matter of law. Code Civ. Proc., § 437c(c). Defendant bears the initial burden of establishing one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Id. subd. (p)(2). Only when this initial burden is met does the burden shift to the opposing party to show a triable issue of material fact. Id. A party may move for summary adjudication as to one or more causes of action if the party contends the cause of action has no merit. Id. subd. (f)(1). A party may move for summary adjudication as an alternative to summary judgment and shall proceed in all procedural respects as a motion for summary judgment. Id. subd. (f)(2). Even though a motion for summary judgment is unopposed, the court cannot grant summary judgment unless defendant meets its initial burden. See Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305. The scope of the defendants initial burden is defined by the pleadings. See 580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal.App.3d 1, 18. Intentional Infliction of Emotional Distress The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted. West Idaho argues Zhang cannot establish the conduct was outrageous. Deciding whether conduct is outrageous is usually a question of fact. So v. Shin (2013) 212 Cal.App.4th 652, 672, as modified on denial of reh'g (Jan. 28, 2013). A defendants conduct is considered to be extreme and outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007; Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. Defendants argue the video footage is undisputed evidence that the security guards conduct was not extreme or outrageous. Video of the incident shows the guard was holding a phone, not a gun (UMF No. 5). The guard Mohseni states when he was at the premises on March 5, 2021, he did not have a gun in his possession. Mohseni Decl. ¶5. Defendant meets the initial burden of showing there was no extreme or outrageous conduct; the burden shifts to plaintiff to show a triable issue of material fact. As no opposition has been filed, Zhang has not established a question of material fact as to any conduct that was extreme or outrageous. Negligent Infliction of Emotional Distress The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588-589. The emotional distress suffered by the plaintiff must be so severe and enduring that no reasonable person could be expected to endure it. Bogard v. Employers Causalty Co. (1985) 164 Cal.App.3d 602, 617-618. A landlord owes a tenant a duty of reasonable care in providing and maintaining the rented premises in a safe condition. Civ. Code §1714(a); Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1189. This means a landlord in caring for the property, must act toward the tenant as a reasonable person under all of the circ*mstances. Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779. West Idaho argues Zhang cannot establish that West Idaho breached any duty. West Idaho presents evidence that Mohseni went to Zhangs apartment to investigate a noise complaint. UMF No. 2. Video evidence demonstrates Mohsenis hand was holding a phone, not a gun. UMF No. 5. Mohseni states that he did not have a gun in possession during the incident. Mohseni Decl. ¶5. Mohseni acted reasonably in investigating the noise complaint by appearing in-person. Moving party meets its initial burden regarding the NIED claim. No opposition has been filed; Zhang has not raised a question of material fact as to the NIED claim. Forcible Detainer A person is guilty of a forcible detainer who either: (1) By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise. (2) Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. Cal. Code Civ. Proc. §1160 Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to retrieve her possessions make it guilty of forcible detainer. West Idaho argues the forcible detainer claim fails because Zhang voluntarily vacated the premises before the locks were changed. It presents evidence of her voluntarily vacating prior to West Idaho changing the locks. UMF No. 10. Zhang returned her key to West Idahos leasing office, and all of her belongings were vacated prior to West Idaho changing the Premises locks. UMF No. 11. Section 1160 does not apply unless the defendant who entered the property, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. West Idaho presents evidence that Zhang returned her key to its leasing office, and all her belongings were vacated before it changed the locks. Zhang was no longer occupying the apartment, and West Idaho did not unlawfully enter the property. Defendant meets its initial burden. As no opposition has been filed, Zhang has not raised a question of material fact as to forcible detainer. Conversion Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to obtain her property constitute a wrongful act or disposition of property rights and makes it liable for conversion. The elements for conversion are: (1) the plaintiff owned or had the right to possess the personal property; (2) the defendant disposed of the property in a manner inconsistent with the plaintiffs property rights; and (3) resulting damages. Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 544, as modified on denial of reh'g (Apr. 10, 1996). West Idaho argues Zhang has not shown ownership or right to possession at the time of the alleged conversion, as per the above analysis. West Idaho meets its initial burden; Zhang has not shown any material facts in dispute. GRANTED.
Ruling
Horacio Gutierrez vs. Shon Talley
Aug 01, 2024 |21CECG00967
Re: Gutierrez v. Talley, et al. Superior Court Case No. 21CECG00967Hearing Date: August 1, 2024 (Dept. 501)Motion: Default Prove-UpTentative Ruling: To deny without prejudice. Alternatively, should plaintiff’s counsel believe that thedefects identified below are curable, he is instructed to call for oral argument to presentadmissible evidence of plaintiff’s basis for the judgment requested and present proof thedefects have been cured.Explanation: Where a cause of action is stated in the complaint, plaintiff merely needs tointroduce evidence establishing a prima facie case for damages. (Johnson v. Stanhiser(1999) 72 Cal.App.4th 357, 361.) A defaulting defendant admits only facts well pleadedin the complaint. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.) It iserroneous to grant a default judgment where the complaint fails to state a cause ofaction. (Rose v. Lawton (1963) 215 Cal.App.2d 18, 19-20; Williams v. Foss (1924) 69 Cal.App. 705, 707-708.) In the case at bench, plaintiff Horatio Gutierrez is seeking a judgment of quiet titleas to the property located at 1835 E. Adams Ave., Fresno, California. Plaintiff filed hisComplaint on April 6, 2021, and subsequently filed his First Amended Complaint onJanuary 29, 2024, naming as defendants Shon Talley, All Persons Unknown Claiming AnyLegal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in theComplaint, or Any Cloud Upon Plaintiff’s Title Thereto, and Does 1 through 35. The firstamended complaint alleged causes of action for (1) Quiet Title, (2) Breach of OralContract, (3) False Promise, (4) Unjust Enrichment, (5) Constructive Trust, (6) DeclaratoryRelief, and (7) Equitable Estoppel. Defendant Talley was served with the First Amended Complaint by substituteservice on February 19, 2024. Defendant Talley’s default was entered April 22, 2024. Does1 through 35 have been dismissed from the action as of May 21, 2024. Defendants “AllPersons Unknown” have neither been served summons through publication nor dismissedfrom the first amended complaint. The request for default judgment presently before thecourt seeks judgment of quiet title against defendant Talley only. (Request for CourtJudgment, ¶ 1.d.) When two or more persons have adverse claims to the same property, any of theclaimants may initiate a quiet title action. The purpose of the action is to eliminate anadverse claim and to establish, perfect, or “quiet” the title of the property in one or moreof the claimants. A complaint to quiet title must be verified and must include: (1) a description ofthe property including both its legal description and its street address or commondesignation; (2) plaintiff's title and the basis upon which it is asserted; (3) the adverseclaims as against which a determination is sought; (4) the date as of which adetermination is sought and, if other than the date the complaint is filed, a statementwhy the determination is sought as of that date; and (5) a prayer for determination ofplaintiff's title against the adverse claims. (Code Civ. Proc., § 761.020.) Plaintiff’s First Amended Complaint includes allegations describing the property atissue (¶ 3), his claim to title (¶¶ 23-26, 31, 38-48), the adverse claims of all defendants (¶¶47, 50-51), the determination is sought as of the date of the filing of the complaint (¶ 49),and a prayer for the determination of plaintiff’s title against defendants’ claims (Prayer,¶ 1). The basis of plaintiff’s claim to title, as alleged, is an oral contract between himselfand defendant Talley in May 2013. (FAC, ¶ 23.) Pursuant to that agreement, Talley was totransfer title of the property to plaintiff if plaintiff prevented the foreclosure of theproperty. (Ibid.) Plaintiff performed on the oral contract by paying $46,053.07 to take theproperty out of foreclosure and has paid off the property’s mortgage and paid $754.58in back taxes. (Id. at ¶¶ 24-26.) Plaintiff thereafter moved into the home on the propertyand has paid for improvements, maintenance and property taxes up to the date of thefiling of the complaint. (Id. at ¶¶ 27-31.) Defendant Talley has lived on the property rent-free since 2013. (Id. at ¶ 32.) Following Talley’s August 2023 release from jail, defendantinformed plaintiff he was the rightful title holder after having inherited the property andtold plaintiff to remove his belonging s from the property. (Id. at ¶¶ 33-35.) DefendantTalley has since locked the property gates. (Id. at ¶ 36.) The allegations supporting plaintiff’s claim to title do not include that legal title wasever transferred to him pursuant to the oral contract with defendant Talley. Thus, anyclaim to title by plaintiff is equitable based on his performance of the oral contract asalleged. The allegations and evidence regarding defendant Talley’s claim to titleindicate he is presently the holder of legal title as the heir of Judy Merle Andrews, whocurrently holds legal title. (FAC, ¶¶ 4-8, Exh. A and B; RJN1 Exh. A-C.) The holder of an equitable interest cannot maintain an action to quiet title againstthe owner of legal title. (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 294-295.) Asplead, plaintiff does not have standing to quiet title of defendant Talley and thereforedoes not state a cause of action to quiet title to the property. Therefore, the requested judgment to quiet title of defendant Talley and nameplaintiff to be sole title holder is denied. Moreover, the proposed order submitted with plaintiff’s request for defaultjudgment includes the order that plaintiff be declared the sole title holder to the property.An in rem judgment quieting title against the whole world, is allowed where plaintiffnames “all persons unknown, claiming any legal or equitable right, title, estate, lien, or1 Plaintiffs Requests for Judicial Notice 1-6 are granted.interest in the property described in the complaint adverse to plaintiff's title, or any cloudupon plaintiff's title thereto.” (Code Civ. Proc., § 762.060, subd. (a).) This statutorylanguage is required if an in rem judgment is sought. However, in that case, plaintiff mustserve such defendant (or class of defendant) by publication of the summons, afterobtaining an order therefor. (Code Civ. Proc., §§ 763.010, subd. (b), 764.030.) Otherwise,any judgment obtained cannot include (cannot be rendered against) this class ofdefendant. Persons not made parties to the action are not bound by the judgment.(Gerhard v. Stephens (1968) 68 Cal.2d 864; Taliaferro v. Riddle (1958) 166 Cal.App.2d 124.) Plaintiff’s complaint includes as defendants “all persons” claiming an interest in thesubject property. To the extent plaintiff seeks in rem judgment against this class ofdefendants, proof of service by publication has not been sought and such judgmentcannot be granted. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 7/29/2024 . (Judge’s initials) (Date)
Ruling
Phillips vs. Murphy, et al.
Aug 04, 2024 |22CV-0201197
PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197Tentative Ruling on Motion for Court Order Appointing Real Estate Appraiser: KathrynPhillips, as successor trustee of the Ronald Leroy Smith Living Trust, seeks an order appointing areal estate appraiser pursuant to CCP § 874.311 et seq. Phillips, in her capacity as Trustee of theTrust, has a 50% interest in real property commonly known as 9786 Old Oregon Trail (“Property”)in Redding. The remaining 50% interest is held by Darlene Clark, who is deceased. Clark’s knownheirs are her four sons: Jim Murphy, Johnny Murphy, Terry Murphy, and Roger Murphy. Thefour sons as well as the unknown testate and intestate successors, as well as any other unknownparties claiming any interest in the property, have been served notice of this suit either personallyor by publication, pursuant to this Court’s order. Default was entered as to all Defendants on April29, 2024.The Court finds that the appropriate manner to determine the value of the real property under thecirc*mstances presented is to order an appraisal by a “disinterested real estate appraiser.” CCP §874.316(a) & (d). The Court appoints Sprenkel Appraisals as proposed by the Plaintiff.The motion is GRANTED. A proposed order was lodged with the Court and will be executed.This matter is set for Monday, September 9, 2024, at 9:00 a.m. in Department 64 forconfirmation of filing of the Appraisal.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************
Ruling
MOCHE ZIV, ET AL., VS HERTZEL ILLULIAN, ET AL.,
Aug 02, 2024 |6/18/2022 |SC124878
Case Number: SC124878 Hearing Date: August 2, 2024 Dept: I The court has been in communication with the referee, Judge Horn. Judge Horn reminded the court that his wife served as an alternate juror in Illulian v. Rav-Noy, Case No., SC123117. In that case, by stipulation, alternates were allowed to sit in the jury room (but not participate in deliberations). There is a motion for a new trial pending before the court in that case and in papers recently submitted Judge Horns wife has signed a declaration relevant thereto. Although the court and Judge Horn are confident that Judge Horn could be fair and impartial and unbiased, both believe that in an abundance of caution and given these unusual circ*mstances it is better to allow either party to request that a new referee be appointed. The court therefore requests the parties to file a JOINT statement within 10 court days that says either A new referee is requested or Both parties waive any potential conflict. If the former is issued, the parties are not to disclose who seeks a new referee. Should that occur, the court will vacate the current order of reference and the next referee on the list will be next in order. The court also is concerned that defendants are now unrepresented and that as a result Illulian has not done what is needed in the reference. If that continues with the referee, the court will consider vacating the reference, holding Illulian in default, and issuing a judgment consistent with Zivs request, or, in the alternative, allowing Ziv to request monetary damages based on the diminution of the value of his property. The court reminds Illulian that the Zivs are competent to testify as to the diminution of the value of his own property, but Illulian will not be competent to rebut that testimony without retaining an expert.
Ruling
MARTHA CONTRERAS VS OSBALDO CONTRERAS, ET AL.
Aug 05, 2024 |23STCV23415
Case Number: 23STCV23415 Hearing Date: August 5, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 5, 2024 Case Name: Contreras v. Contreras, et al. Case No.: 23STCV23415 Matter: Motion to Consolidate Moving Party: Plaintiff Martha Contreras Responding Party: Unopposed Notice: OK Ruling: The Motion to Consolidate is denied without prejudice. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Plaintiff Martha Conteras seeks to consolidate the instant action with an unlawful detainer matter, case no. 23LBUD03038. The Motion is denied, without prejudice, because the two cases at issue are not in the same department and there has been no attempt to relate the cases. (Local Rule 3.3(g)(1) [Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.].) Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
NOSHIN KHOBIAN VS MORTEZA FARZADMEHR, ET AL.
Aug 05, 2024 |22SMCV01860
Case Number: 22SMCV01860 Hearing Date: August 5, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 5, 2024 CASE NUMBER 22SMCV01860 MOTION Motion for Summary Judgment/Adjudication MOVING PARTIES Defendants Morteza Farzadmehr; Shahla Farzadmehr Delijani; and Morteza Farzadmehr, as the Trustee of Progressive Trust OPPOSING PARTY Plaintiff Noshin Khobian, as Trustee of JNK Family Trust MOVING PAPERS: Notice of Motion and Motion for Summary Judgment/Adjudication; Memorandum of Points and Authorities Declaration of Mohamad Ali Molai Declaration of Morteza Farzadmehr Declaration of Arsen Margossian Declaration of Shahla Farzadmehr Delijani Declaration of Afshin Farzadmehr Declaration of Saul Reiss Request for Judicial Notice Notice of Lodging of Deposition Transcript Deposition Transcript Changes Separate Statement of Undisputed Material Facts OPPOSITION PAPERS: Opposition to Motion for Summary Judgment/Adjudication; Memorandum of Points and Authorities Declaration of Ali R. Moghaddami Declaration of Charlie Tzeng Declaration of Cyrus Azarmy Declaration of Noshin Khobian Declaration of Jacob Khobian Separate Statement of Undisputed Material Facts REPLY PAPERS: Reply to Plaintiffs Opposition to Motion for Summary Judgment/Adjudication Evidentiary Objections Request for Judicial Notice BACKGROUND On October 14, 2022, Plaintiff Noshin Khobian as Trustee of JNK Family Trust (Plaintiff) filed the verified complaint against Defendants Morteza Farzadmehr, both individually and as Trustee of Progressive Trust, and Shahla Farzadmehr Delijani (Defendants) alleging three causes of action for (1) negligence; (2) nuisance; and (3) trespass. Defendants now move for summary judgment, or in the alternative, adjudication, as to the following issues: Issue No. 1: Summary Adjudication should be granted as to the First Cause of Action of the Complaint for Negligence because the claim is time barred. Issue No. 2: Summary Adjudication should be granted as to the Second Cause of Action of the Complaint for Nuisance because the claim is time barred. Issue No. 3: Summary Adjudication should be granted as to the Third Cause of Action of the Complaint for Trespass because the claim is time barred. Issue No. 4: Summary Adjudication should be granted as to the First Cause of Action of the Complaint for Negligence because Defendants owed no duty to Plaintiff. Issue No. 5: Summary Adjudication should be granted as to the Second Cause of Action of the Complaint for Nuisance because Defendants did not create a nuisance. Issue No. 6: Summary Adjudication should be granted as to the Third Cause of Action of the Complaint for Trespass because Defendants did not trespass into Plaintiffs property. Issue No. 7: Summary Adjudication should be granted as to the First Cause of Action of the Complaint for Negligence because the claim is barred by the doctrines of laches and unclean hands. Issue No. 8: Summary Adjudication should be granted as to the Second Cause of Action of the Complaint for Nuisance because the claim is barred by the doctrines of laches and unclean hands. Issue No. 9: Summary Adjudication should be granted as to the Third Cause of Action of the Complaint for Trespass because the claim is barred by the doctrines of laches and unclean hands. Plaintiff opposes the motion and Defendants reply. REQUESTS FOR JUDICIAL NOTICE In connection with the motion, Plaintiff requests judicial notice of the following: Exhibit 1: Grant Deed, Instrument Number 20100064168 Exhibit 2: Verified Complaint filed in this action Exhibit 3: Grant Deed Instrument Number 01 1201991 Exhibit 4: Defendants Verified Answer to Plaintiffs Verified Complaint Exhibit 5: Plaintiffs Ex Parte Application for Mandatory Injunction Exhibit 6: Minute Order, dated March 6, 2023 Exhibit 7: Minute Order, dated March 14, 2023 Exhibit 8: Minute Order dated February 2, 2023 Regarding Exhibits 2, 4, 5, 6, 7, and 8, Judicial notice may be taken of records of any court in this State. (Evid. Code, § 452, subd. (d)(1).) Because the requested documents are part of the Courts record for this case, the Court may take judicial notice of them. (Ibid.) However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) Accordingly, the Court takes judicial notice of the existence of Plaintiffs Ex Parte Application for Mandatory Injunction, the Verified Complaint and Verified Answer filed in this matter as a court record, but not the truth of the allegations contained therein. The Court may, however, consider the allegations of the verified pleadings as evidence. Similarly, the Court takes judicial notice of the Minute Orders, and the truth of the results reached therein. Regarding Exhibits 1 and 3, Courts can take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-65.) The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorders office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute. (Ibid.) Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions. (Ibid.) Therefore, the Court similarly takes judicial notice of Exhibits 1 and 3. In connection with the reply, Defendants requests judicial notice of the following: Exhibit 9: The search result of Charles Tzeng on the Department of Consumer Affairs website Exhibit 10: The search result of Charles Tzeng on the Department of Consumer Affairs website Exhibit 11: The search result conducted on the Department of Consumer Affairs website as to the requirements for becoming a licensed structural engineer. The Court does not generally consider reply evidence, as it deprives the opposing party of a fair opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.) Therefore, the Court does not take judicial notice of Exhibits 9, 10, or 11. EVIDENTIARY OBJECTIONS A. DECLARATION OF NOSHIN KHOBIAN · Paragraph 7, 3:19-20: Sustained Foundation · Paragraph 7, 3:20-22: Sustained Foundation · Paragraph 7, Exhibit 17: Sustained Relevance · Paragraph 8: Sustained Foundation/Inadmissible Hearsay · Paragraph 10: Overruled · Paragraph 11: Sustained Relevance · Paragraph 14, 4:24-5:2: Sustained Foundation · Paragraph 14, 5:5-8: Sustained - Foundation · Paragraph 15: Overruled · Paragraph 17: Overruled · Paragraph 18: Sustained - Foundation B. DECLARATION OF JACOB KHOBIAN · Paragraph 3: Sustained Foundation/Declaration is incomplete. · Paragraph 4: Sustained Foundation C. DECLARATION OF CYRUS AZARAMY · Paragraph 7: Sustained DAmico v. Board of Med. Examiners[1] D. DECLARATION OF CHARLIE TZENG · Entire Declaration: Sustained Relevance/Immaterial to the issues raised by the moving parties. E. DECLARATION OF ALI R. MOGHADDAMI · Entire Declaration: Overruled · Paragraph 5: Sustained Foundation · Paragraph 6: Sustained - Foundation · Paragraph 7: Sustained - Foundation · Paragraph 9: Sustained - Foundation · Paragraph 10: Sustained Foundation · Paragraph 12: Sustained Foundation/Inadmissible Hearsay · Paragraph 13: Sustained Foundation/Relevance · Paragraph 15: Sustained - Foundation · Paragraph 16, 3:7 Sustained Inadmissible Hearsay · Paragraph 16, 3:9-10: Sustained - Relevance · Paragraph 19: Sustained - Foundation · Paragraph 21: Sustained - Foundation · Paragraph 22: Sustained - Foundation · Paragraph 24: Sustained - Foundation · Paragraph 25: Sustained - Foundation LEGAL STANDARDS MOTION FOR SUMMARY JUDGMENT/ADJUDICATION [T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter Aguilar).) ¿[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility. (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party].) A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) Additionally, in line with Aguilar, [o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) DISCUSSION 1. ISSUE 1-3: STATUTE OF LIMITATIONS The statute of limitations for [a]n action for trespass upon or injury to real property is three years. (Civ. Code, § 338, subd. (b).) All three of Plaintiffs causes of action for negligence, nuisance, and trespass, allege damage to Plaintiffs property. Therefore, the statute of limitations for all three causes of action is three years. Defendants Evidence In support of their argument that the 3-year statute of limitations has lapsed, Defendants point to the verified complaint, which provides Plaintiff first noticed damage to the retaining wall and the tree roots raising the driveway blocks sometime in or about March 2010. (Complaint at ¶ 17.) Yet Plaintiff did not file the instant lawsuit until twelve and a half years later, on October 14, 2022. This issue previously addressed on a demurrer, where Plaintiff argued that the alleged trespass and nuisance was continuing, as opposed to permanent, such that the statute of limitations does not bar the claims. The Court explained: Whether a trespass or nuisance claim for an encroachment is barred by the statute of limitations turns on whether the encroachment is continuing or permanent. For permanent encroachments, the three-year statute of limitations begins to run on the date the encroachment began, and bars all claims brought after its passage. For continuing encroachments, a plaintiff may assert a claim even if the encroachment began outside the limitations period, but is limited to recovering damages incurred in the preceding three-year period. (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 605.) Courts consider several factors in determining whether an encroachment is continuing or permanent: [W]hen deciding whether a trespass or nuisance is permanent or continuing, previously considered whether the circ*mstances of a structures construction indicate an intention that the trespass shall be permanent (Kafka v. Bozio (1923) 191 Cal. 746, 750) and whether a trespass or nuisance's impact may vary over time. (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 234.) More recently, however, our Supreme Court acknowledged the crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated. [Citation]. (Mangini, supra, 12 Cal.4th at p. 1097.) Under this test, sometimes referred to as the abatability test (see, e.g., Beck, supra, 44 Cal.App.4th at p. 1220), a trespass or nuisance is continuing if it can be remedied at a reasonable cost by reasonable means. (Mangini, supra, 12 Cal.4th at p. 1103.) (Id. at 608-609.) (Minute Order, Feb. 2, 2023 at pp. 2-3.) The Court further explained, Where a nuisance is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created. [&] On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character. (Minute Order, Feb. 2, 2023 at p. 3 [quoting Phillipsi v. Pasadena (1945) 27 Cal.2d 104, 107.) Applying the law to the Verified Complaint, the Court noted: Plaintiffs Complaint alleges continuing and worsening damage from the encroachment of Defendants trees which can be abated at any time through the removal or maintenance of Defendants trees. (See Complaint at ¶17 [alleging roots caused extensive damage to plaintiffs property and caused a raised crack in the foundation of plaintiffs house leading to multiple raised and uneven cracks with the interior walls and floor of Plaintiffs house]; ¶¶26-27 [alleging Plaintiffs property has and will continue to be damaged by the encroachment]; ¶31 [alleging ongoing damages]; ¶32 [alleging damages to the main structure will continue to worsen and increase]; ¶40 [alleging the roots will grow and expand and further damage Plaintiff[sic] Property; ¶¶30, 44 [alleging encroachment could be abated with removal and maintenance of the trees].) (Minute Order, Feb. 2, 2023 at p. 3.) Ultimately, the Court held that Whether an encroachment is continuing or permanent is a question of fact, not law and, construing the allegations of the Verified Complaint most favorably to Plaintiff, determined that it could not sustain the demurrer on the grounds that the statute of limitations barred the claims. (Ibid.) Defendants contend that while the Court was required to accept as true the allegations of the Complaint on demurrer that the Ficus tree was a boundary line tree or was on Defendants property, such that the nature of the harm was a continuing nuisance, as opposed to a permanent trespass, the evidence demonstrates the Ficus tree belongs to Plaintiff and is completely on Plaintiffs property. (UMF Nos. 13-14, 42, 55-59, 81-83, 87-91, 95.) However, Defendants arguments go to the merits of the claim, not whether the trees interference with Plaintiffs property was continuing, as opposed to permanent, in nature. As such, Defendants have not met their burdens of production and persuasion that the interference with Plaintiffs property was permanent, as opposed to continuing. Therefore, the Court denies summary adjudication as to Issues 1-3. 2. ISSUE 4-6: WHETHER THE CAUSES OF ACTON FOR NEGLIGENCE, NUISANCE OR TRESPASS ARE MERITORIOUS Defendants argue that they owed no duty to Plaintiff, did not create a nuisance, and did not commit trespass, because the trunk of the Ficus tree sits entirely on Plaintiffs property, 611 North Camden Avenue, not Defendants property, and the only portion of Ficus the tree on Defendants property are portions of the roots and branches that have encroached upon Defendants property. Further, Defendants contend that they owed no duty to Plaintiff, did not create a nuisance and did not commit trespass, because contend that no other trees, including the Eugenia Tress, caused or contributed to the alleged damage to Plaintiffs property. In short, Defendants assert that there is no merit to Plaintiffs first, second or third causes of action. Defendants Evidence In support, Defendants have produced the declaration of Mohamad Ali Molai, a professional land surveyor who prepared a topographic survey of Defendants property. (Molai Decl. ¶¶ 2-6.) Mr. Molai declares, As indicated in my Survey (Exhibit A), the trunk of the subject Ficus tree is located entirely on 611 N. Camden Drive. Although certain roots and branches of the Ficus tree had crossed the property line, the trunk of the tree was entirely located on 611 N. Camden Drive. (Molai Decl. ¶ 7.) 611 N. Camden Drive is Plaintiffs property. (See Verified Complaint ¶ 2.) Defendants have also produced the declaration of Arsen Margossian, a Certified Consulting Arborist, who conducted a tree assessment on Defendants property. (Margossian Decl. ¶¶ 2-6.) Margossians report indicates: 1/ According to the provided survey plan, the wrought iron fence is located exactly on the property line and the five feet tall brick columns between each section of the wrought iron fence are completely on the abutting property, at 611 N. Camden Dr. The subject tree, a mature multi-stem Weeping Fig (Ficus benjamina) tree, has been planted at the center of the brick column, to which is anchored a steel gate that gives access to the south side yard of the property. Over time, as the tree grew, some of its stems and buttresses encroached onto the 609 N. Camden Dr. The reason for that encroachment is the fact that toward the 609 N. Camden Dr., the stems could grow into the wrought iron fence, while on the opposite side, the concrete walkway has prevented that. I should also confirm that on the 609 N. Camden Dr., roots of this Weeping Fig tree have reached into the narrow planter along the north side of the drive way, past the gate. [&] -Over the 609 N. Camden Dr., the branches reach a distance of 27 feet. -And toward the northwest side, or the 611 N. Camden Dr., all the branches have been cut close to the wrought iron fence. I also observed the presence of another Weeping Fig tree, at the opposite side of the house front, planted by the brick column to which is anchored the steel gate that gives access to the north side yard. And because that tree is very close to a mature American Sweetgum (Liquidambar styraciflua) tree, and a hedgerow of mature Indian Laurel Fig (Ficus macrocarpa) trees, both of which are known to have invasive root systems, that Weeping Fig tree has not grown like the other one and its main crown has even been cut down sometime in the past. 2/ As for the hedgerow past the gate on the north side of the 609 N. Camden Dr. driveway, it consists of Brush Cherry (Eugenia Spp.) trees, planted at various distances, but averaging about 16-18 inches apart. The smallest of these trees has a DBH of two inches, and the biggest has a DBH of 14 inches. But the majority average between five to seven inches DBH. These trees are not known to have aggressive roots like the Fig and Sweetgum trees. The masonry wall on the north side of these trees consists of an old section in the middle, and newer ones at both ends. The section of this old wall which starts opposite the first Brush Cherry tree, is slightly tilted toward the north side, and various cracks are observed quite high from the soil surface grade. It appears that a good section of this old wall has failed sometime in the past, and the masonry blocks have been put back in place, using rough mortar. Without excavating and without a masonry report which can assess accurately the structural integrity of the old wall, my professional opinion is that damage to the old wall is not from the Brush Cherry trees. (Ex. A to Margossian Decl.) Thus, Defendants have met their initial burdens of production and persuasion that they owed no duty to maintain the tree or abate the nuisance, and that they did not commit trespass, because the Ficus tree sits entirely on Plaintiffs property, except for the roots and branches that have encroached upon Defendants property. Further, Defendants have proffered evidence including Margossians report to establish that the Eugenia Trees are not causing damage to Plaintiffs property. (See UMFs 102, 163, 164, 177, 238, 239, 252, 313, 314.) Plaintiffs Evidence Plaintiff produces the testimony and report of Cyrus Azarmy, a professional land surveyor, who indicates, The trunk and roots of the Ficus tree are partially located in each property, but the majority of it is on the 611 Camden Drive property. (Azarmy Decl. ¶ 7.) But Azarmys statement as set forth in paragraph 7 of his declaration: are partially located in each property is not competent evidence. (See Evidentiary Objections, fn. 1 above.) But even if Azarmys statement is competent evidence, Plaintiff has not satisfied her burden of creating a triable issue of material fact. That the trunk and roots of the Ficus tree are partially located in each property, but the majority of it is on Plaintiffs property is consistent with Defendants expert evidence that the trunk is located entirely on Plaintiffs property, and some of the roots and branches have encroached upon Defendants property. In addition, concerning UMFs 105, 158, 159, 160, 167, 180, 233, 234, 235, 242, 255, 308, 309, 310 and 317, Plaintiff failed to raised triable issues of material fact because Plaintiff failed to support the purported disputes concerning such UMFs with either competent evidence (see Evidentiary Objections vis-à-vis Plaintiffs Opposition Separate Statement regarding UMFs 105, 158, 159, 160, 167, 180, 233, 234, 235, 242, 255, 308, 309, 310 and 317), or evidence that substantiates the disputes. In particular, the Court finds Exhibit A to Margossians Declaration and the Deposition Testimony of Plaintiff, 14:12-25, do not support Plaintiffs contentions that the UMFs are in dispute. In addition, Plaintiff has not advanced any other competent evidence to counter Defendants evidence in support of UMFs 102, 163, 164, 177, 238, 239, 252, 313, 314 that none of the trees, including the Eugenia Trees, located on Defendants property caused any damage to Plaintiffs property. (See Evidentiary Objections vis-à-vis Plaintiffs Opposition Separate Statement regarding UMFs 102, 163, 164, 177, 238, 239, 252, 313, 314.) And the only verified assertions in this regard are made on information and belief: 12. Additionally, Plaintiff is informed and believes, and thereon alleges, that there are roughly 22 additional trees Syzigium Paniculatum or Eugenia trees (Hereinafter Eugenia Trees) on the defendants property which have caused major damage to Plaintiff retaining/border wall, separating the wall from its foundation, causing the wall to dangerously lean onto plaintiff's property, creating an imminent risk of harm and peril to any pedestrian 9 walking along the side this wall. (Verified Complaint at ¶ 12.) But Plaintiffs assertions as set forth in paragraph 12 of the complaint have no probative value. (See, e.g., Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 105, fn. 9 [affidavits on information and belief lack probative value and are permitted only when the facts to be established are incapable of positive averment].) Therefore, the Court grants summary adjudication as to Issues 4, 5 and 6. CONCLUSION AND ORDER The Court grants in part and denies in part Defendants Motion for Summary Adjudication. Finding Defendants failed to meet their burdens of production and persuasion to demonstrate that the harm caused by the tree was permanent, as opposed to continuous, the Court denies summary adjudication as to Issues 1, 2, and 3. Finding Defendants met their burden to demonstrate that the trunk of the Ficus tree sits entirely on Plaintiffs property, and none of the other trees, including the Eugenia Trees, on Defendants property caused or contributed damage to Plaintiffs property, and finding Plaintiff has not created any triable issues of material fact, the Court grants summary adjudication as to Issues 4, 5 and 6. Because the Court grants summary adjudication as to Issues 4, 5, and 6, the Court need not address Issues 7, 8 or 9 of Defendants Motion for Summary Adjudication. Further, because the Court denied summary adjudication as to Issues 1, 2 and 3, the Court denies Defendants Motion for Summary Judgment.[2] Defendants shall prepare and file a proposed Order in conformity with the Courts ruling on or before August 19, 2024. Defendants shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: August 5, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court [1] When discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, controverting affidavits submitted by that party may be disregarded. (DAmico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 20-22.) Admissions or concessions made during the course of [deposition testimony] govern and control over contrary declarations lodged at a hearing on a motion for summary judgment. (Visueta v. General Motors Corp. (1991) 234 Cal.3d 1609, 1613.) [A]bsent a credible explanation, a court may disregard a self-serving, conclusory declaration that clearly contradicts deposition testimony, filed in opposition to summary judgment. (Vulk v. State Farm Gen. Ins. Co. (2021) 69 Cal.App.5th 243, 258.) Here, Plaintiff has not proffered a credible explanation regarding the discrepancy between Cyrus Azarmys deposition testimony and declaration regarding the location of the subject Ficus tree. Accordingly, the Court disregards Cyrus Azarmys statement as set forth in paragraph 7 of his declaration: are partially located in each property. [2] The Court notes that Defendants Motion for Summary Judgment is based upon Issues 1 -3 and 7-9 only. (See Defendants Notice of Motion and Motion for Summary Judgment, or in the alternative, for Summary Adjudication.)
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