Judge Christopher K. Lui, Case Number: 22STCV13690, Date: 2023-08-09 Tentative Ruling

Judge: Christopher K. Lui, Case: 22STCV13690, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV13690 Hearing Date: October 17, 2023 Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

This is an action to quiet title to the subject property against a deed of trust which was deemed to have been reconveyed by a prior judgment, but which was re-recorded by Defendants.

Defendant Lorenzo Espinoza moves to dissolve the preliminary injunction.

TENTATIVE RULING

Defendant Lorenzo Espinoza’s motion to dissolve the preliminary injunction is DENIED.

Defendant Espinoza’s answer is ordered STRICKEN and his DEFAULT ENTERED.

Plaintiff may move for judgment quieting title, which cannot be obtained by way of a default judgment. Rather, this must occur pursuant to a noticed-hearing, and Defendant given an opportunity to appear and produce evidence. (Paterra v. Hansen (2021) 64 Cal.App.5th 507, 532-33.)

ANALYSIS

Motion To Dissolve Preliminary Injunction

Request For Judicial Notice

Plaintiff requests that the Court take judicial notice of the following:

1. The Quiet Title Judgment which was recorded in the Official Records of Los Angeles County on October 5, 2007 as Instrument No. 20072294980, attached hereto as EXHIBIT 1 to the concurrently filed Steinberg Decl.

2. The Court’s June 9, 2022 Minute Order granting United Lender’s motion for preliminary injunction in this action, attached hereto as EXHIBIT 2 to the concurrently filed Steinberg Decl.

3. The deed of trust purported to secure a $20,000 debt in favor of Stone Sam, Inc. recorded as Instrument No. 01-1886201 in the Official Records of Los Angeles County on October 4, 2001, (the “Stone Sam Deed of Trust”) attached hereto as EXHIBIT 3 to the concurrently filed Steinberg Decl.

4. The assignment of deed of trust recorded on February 16, 2022 as Instrument No. 20220191456 in the Official Records of Los Angeles County, attached hereto as EXHIBIT 4 to concurrently filed Steinberg Decl.

5. The Entity Details from the State of Delaware2 regarding Stone Sam Inc. confirming that Stone Sam Inc.’s status is void or tax delinquent since March 1, 2002, attached hereto as EXHIBIT 5 to the concurrently filed Steinberg Decl.

6. The Business Search – Entity Detail for Stone Sam Inc. from the California Secretary of State’s website, attached hereto as EXHIBIT 6 to the concurrently filed Steinberg Decl.

7. The June 14, 2022 default of Stone Sam entered in this action, attached hereto as EXHIBIT 7 to the concurrently filed Steinberg Decl.

8. The Court’s October 20, 2022 Minute Order on Espinoza’s motion to set aside the default in this action, attached hereto as EXHIBIT 8 to the concurrently filed Steinberg Decl.

9. Espinoza’s October 20, 2021 verified complaint (without exhibits) filed in Orange County Superior Court; Case No. 01226850, attached hereto as EXHIBIT 9 to the concurrently filed Steinberg Decl.

10. The March 9, 2022, dismissal of the Orange County Superior Court; Case No. 01226850 action, attached hereto as EXHIBIT 12 to the concurrently filed Steinberg Decl.

11. The April 29, 2019 order of Hon. Andre De La Cruz in an Orange County Superior Court matter finding Espinoza to be a vexatious litigant, attached hereto as EXHIBIT to the concurrently filed Steinberg Decl.

12. The 2007 verified complaint filed on behalf of Mr. Gallarzo to quiet title to the Property in the Los Angeles Superior Court attached hereto as EXHIBIT A to the concurrently filed Niebow Decl.

13. The May 19, 2023 Notice of Ruling related to United Lender’s motion, ordering Mr. Espinoza to appear for deposition, attached hereto as EXHIBIT 15 to the concurrently filed Steinberg Decl.

14. The June 14, 2022, Notice of Ruling of the June 9, 2022 preliminary injunction order attached hereto as EXHIBIT 16 to the concurrently filed Steinberg Decl.

15. The 2007 Prove-Up Statement filed on behalf of Mr. Gallarzo attached hereto as EXHIBIT B to the concurrently filed Niebow Decl.

16. The Notice of Lis Pendens filed in the Orange County action by Mr. Espinoza attached hereto as EXHIBIT 17 to the concurrently filed Steinberg Decl.

17. The September 11, 2023 minute order regarding United Lender’s motion for terminating and monetary sanctions attached hereto as EXHIBIT 18 to the concurrently filed Steinberg Decl.

18. September 11, 2023 ruling regarding United Lender’s motion for terminating and monetary sanctions attached hereto as EXHIBIT 19 to the concurrently filed Steinberg Decl.

Requests Nos. 1, 3, 4 are GRANTED. The Court may take judicial notice of recorded documents. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549, overruled on other grounds in Black Sky Capital, LLC v. Cobb (2019) 7 Cal.5th 156, 165; Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Requests Nos. 2, 7 – 18 are GRANTED per Evid. Code, § 453(d)(court records). Requests Nos. 5, 6, are GRANTED. The Court may take judicial notice of a business entity’s corporate status as reflected in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.)

Discussion

Defendant Lorenzo Espinoza move for an order dissolving the preliminary injunction issued June 9, 2022.

The basis for this motion is stated as follows in the notice of motion:

1) “Notice Motion to modify the 6/9/22 Preliminary Injunction order to Enjoined and Restrained Kareli Investments LLC , David Herrer Florez and or anyone else from sale, transfer interest of property or refinance the property, [sic throughout]”

2) “Notice Motion to hold Plaintiff United Lender LLC in Contempt of this court 6/9/22 preliminary injunction order. VOID THE 6/17/22 Grant deed from United Lender LLC to Kareli Investments LLC, David Herrera Flores (Exhibit A) [sic throughout, bold emphasis omitted].”

For judicial declaration of its interest of the property pursuant to Cal. Code Civ. Proc. 1060,

1) Copy of the 6/17/22 Grant deed from United lender LLC to Karelli Investments LLC, David Herrera Flores (Exhibit A)

2) Copy of this 6/9/22 Court Injunction Order, Exhibit B

3) Copy of this 6/9/22 Court Minute Order, Exhibit C

4) Copy of WFG Property title insurance. Exhibit D

5) Copy of Notice of default recorded. Exhibit E

6) Copy The June 9, 222 Plaintiffs United Lender LLC Notice motion sought the following relief. (Notice Motion (Exhibit F )

7) [Proposed] Orders (Exhibit G)

[Sic throughout]

The basis premise of this motion, though, appears to be that Plaintiff sold the subject property in violation of the terms of the preliminary injunction. Defendant thus seeks an order holding Plaintiff in contempt.

However, as Plaintiff points out, the preliminary injunction did not prohibit Plaintiff from foreclosing on its Deed of Trust, but rather prohibited Defendant or anyone acting on Defendant’s behalf from proceeding with a nonjudicial foreclosure.

Defendant also argues that the Court’s granting of the preliminary injunction was erroneous. However, a motion for reconsideration of the issuance of the preliminary injunction is untimely under Civ. Proc. Code, § 1008.

Civ. Proc. Code, § 1008 provides:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

. . .

(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.

(Civ. Proc. Code § 1008 [bold emphasis and underlining added].)

Here, not only is a motion for reconsideration untimely under Civ. Proc. Code, § 1008(a), Defendant has not demonstrated that there has been a change of law, nor new or different facts circumstances or law which justify this Court’s reconsideration of the June 9, 2022 order.

As Plaintiff points out, Defendant does not address any of the factors set forth in Civ. Proc. Code, § 533 for dissolution of a preliminary injunction:

In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.

(Civ. Proc. Code § 533 [bold emphasis and underlining added].)

As noted, Defendant has not demonstrated that there has been a change in law or facts since the preliminary injunction was granted, nor that the ends of justice would be served by dissolution of the preliminary injunction.

The Court will not address any new arguments contained in the Reply brief for the first time as a basis for dissolving the preliminary injunction. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before. (Citations omitted.)” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)

Accordingly, the motion to dissolve the preliminary injunction is DENIED.

Moreover, as noted by Plaintiff, after Plaintiff filed this motion, the Court granted Plaintiff’s motion for terminating sanctions against Defendant Espinoza in pertinent part as follows:

Plaintiff United Lender, LLC's motion for terminating sanctions is GRANTED, but partially stayed until October 17, 2023. Within 5 days of this order, Plaintiff shall, by email and overnight courier, provide Defendant Espinoza with three potential deposition dates between September 17, 2023 and October 16, 2023. If Defendant Espinoza appears for deposition on one of those three dates, the Court will vacate the portion of this order imposing terminating sanctions. However, if Plaintiff's counsel provides proposed dates, and Defendant Espinoza fails to appear, his answer will be ordered stricken and his default entered.

(September 11, 2023 Minute Order.)

Pursuant to the Declaration of Andrew H. Steinberg filed on November 11, 2023, Plaintiff complied with the Court’ notice order but Defendant failed to respond or appear for his deposition. (Steinberg Decl., ¶¶ 2, 3.) As such, Defendant Espinoza’s answer is ordered STRICKEN and his DEFAULT ENTERED.