Judge: Jon R. Takasugi, Case: 21STCV40738, Date: 2025-01-09 Tentative Ruling

Case Number: 21STCV40738    Hearing Date: January 9, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiffs’ motion for an onsite visit is DENIED.

On 11/4/2021, the Jeffrey S. Marks Separate Property Trust established under the Jeffery and Loretta Marks Family Trust, Jeffrey S. Mark as trustee, the Mae Durant family Trust, and South Main Street Properties, LLC (collectively, Plaintiffs) initiated this action.

            On 2/8/2024, Plaintiffs filed a verified third amended complaint (TAC) against the Harb Family Trust dated 11/1/1996, the Irrevocable Trust of chou Bo Chan Chiu (1997) for the benefit of Samson Chiu, and Fusion Investments, LLC (Fusion) alleging: (1) declaratory relief; and (2) quiet title-adverse possession.

            On 12/4/2024, Plaintiffs moved for an order setting a schedule for the trier of fact to visit and view the real property which is the subject of the present case and allow for the examination of witnesses thereat.

Discussion

            Plaintiff argues that the Court would be aided in its task as trier of fact by viewing the site and by allowing for the examination of witnesses thereat. Plaintiffs note that “the site in question is located only 3 miles away from the Court – a 10 minute drive involving no freeways – and traveling to this property would not be inconvenient for the Court or for any party.” (Motion, 4: 24-25.)

            After review, the Court disagrees.

CCP section 651 provides that “where the court finds that such a view would be proper and would aid the trier of fact in its determination of the case, the court may order a view of the following: (1) The property which is the subject of litigation; (2) The place where any relevant event occurred; (3) Any object, demonstration, or experiment, a view of which is relevant and admissible in evidence in the case and which cannot with reasonable convenience be viewed in the courtroom.” (Code. Civ. Proc. §651(a)). (Emphasis added)

Here, Plaintiffs have not adequately shown why pictures, diagrams, or maps of the Alley would not allow the Court to adequately understand the facts and the basis for the quiet title.

Based on the foregoing, Plaintiffs’ motion for an onsite visit is denied.

It is so ordered.

Dated:  January    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.  

Superior Court of California

County of Los Angeles

DEPARTMENT 17

Plaintiff’s preemptory challenge is DENIED.

On 7/23/2013, Plaintiff James McDonald, representing himself in pro per, initiated this action against Dole Group, LLC, Dolce Group Concepts, LLC, Geisha House, LLC, Shereen Arazm (Defendant Koules), Michael Malin, Lonnie Moore, 914 Trust, and 603 Trust.

Now, Plaintiff seeks an order granting the preemptory challenge.

Stubblefield v. Construction Co. v. Superior Court (2000) 81 Cal.App.4^th 762 provides “[a]lthough as a rule a party is limited to a single peremptory challenge in a case …. the statute clearly permits an additional challenge following reversal of a judgment if the same judge is assigned to hear the case on remand.” Given the reversal and assignment to the same judge on remand here, Plaintiff has not exhausted the right to raise a 170.6 challenge, and is permitted an additional challenge.

CCP section 170.6(a)(2) provides (emphasis added):

A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. Notwithstanding paragraph (4), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.

“The analysis of whether or not the meaning of “new trial” is met requires a determination of whether there has been a trial, and whether there will be a retrial… the dividing line in determining whether there had been a trial was whether the trial court's initial decision had “either addressed the merits or otherwise terminated the case.” []We have also addressed the issue of retrial, concluding that a retrial is a “ ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding. [Citations]” (First Fed. Bank of California v. Superior Ct. (2006) 143 Cal.App.4th 310, 314.)

As such, 170.6 is not triggered if any factual or legal determination has been made prior to the reversal. Rather, it is triggered when the reversal and remand involves a motion which would itself require “reexamination of a factual or legal issue that was in controversy in the prior proceeding.” (See Akopyan v. Superior Court (2020) 53 Cal. App. 5th 1094, 1101 ("where the Court of Appeal reverses and remands for redetermination of a motion that does not involve an evaluation of the merits of the underlying action, section 170.6, subdivision (a)(2), is not triggered.")

            Here, the motion in question was a motion to quash for failure to prosecute. Given that the motion was granted, thereby resulting in termination of the action, the Court’s ruling can be said to constitute a “trial.” (First Federal Bank, supra, 143 Cal.App.4th at p. 299; Burdusis v. Superior Court (2005) 133 Cal. App. 4th at 88, 93.)

However, the reversal and remand does not require the Court to redetermine any motion that evaluated the merits of Plaintiff’s claim, nor does it require redetermination of the issues raised in Defendant’s motion to quash. As such, the remand does not require a “‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding. [Citations]” (First Fed. Bank of California v. Superior Ct. (2006) 143 Cal.App.4th 310, 314.)

In First Federal Bank, supra, the Court determined that “it is clear that there was a trial, even limiting the examination to the attorney's fees motion. The trial court made a determination on the merits that First Federal was not entitled to recover its attorney's fees.”  The Court reversed and remanded for a hearing on the amount to be awarded. Such a hearing “[would] require the presentation of evidence and factual and legal determinations as to the nature and amount of the fees sought. Such a reexamination of an issue previously in controversy is a retrial.” (First Federal Bank, supra, 143 Cal.App.4^th 310, 299.)

Here, by contrast, the Court is not being tasked with any reexamination of any issue raised in the prior motion to quash. Rather, the Court of Appeal determined that this case was not barred by the 5-year rule or a failure to prosecute. As such, the case would now proceed on the merits, without any reexamination of any legal or factual issue previously raised.

Accordingly, CCP section 170.6 is not triggered here, as the “retrial” element is not satisfied.

It is so ordered.

Dated:  January    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.