Judge Lee W. Tsao, Case Number: 22NWCV00993, Date: 2024-09-19 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00993, Date: 2024-09-19 Tentative Ruling

Case Number: 22NWCV00993 Hearing Date: September 19, 2024 Dept: C

RAMIREZ v. FAUST

CASE NO.: 22NWCV03970

HEARING: 09/19/24

Defendant ESTATE OF LEDA FAUST’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED without prejudice.

Moving Party to give notice.

No Opposition filed as of September 16, 2024.

This action for quiet title by adverse possession was filed by Plaintiffs PAIGE A. BURKE and LEONARDO RAMIREZ (collectively “Plaintiffs”) against Defendants LEON FAUST; LEDA FAUST TRUSTEES OF FAUST TRUST; ROGER E. FAUST; and Does 1 through 25, inclusive; and All Persons Unknown, Claiming Any Legal Or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs Title, or any Cloud on Plaintiffs Title or Any Cloud on Plaintiffs Title Thereto, Named herein, as Does 26 through 100, inclusive, on October 13, 2022.

On August 28, 2023, the operative First Amended Complaint (“FAC”) was filed. Plaintiffs “seek to quiet title and or in the alternative by adverse possession to the subject property plus any additional relief.” (FAC ¶1/)

Plaintiffs’ FAC asserts the following causes of action:

(1) Quiet Title;

(2) Abandonment;

(3) Exclusive Easement;

(4) Recovery Under the Doctrine of Estoppel;

(5) Declaratory Relief; and

(6) Clerk of the Court Sign all Necessary Documentation

The Subject Motion for Summary Judgment/Adjudication (“Motion”) was FILED on July 1, 2024 by Defendant ESTATE OF LEDA FAUST, Personal Representative Taylor Moore (“Estate of Leda Faust”).

As of September 16, 2024, no Opposition has been filed/lodged with the Court. The Proof of Service for the Motion was separately FILED on July 3, 2024, and states that the Motion and documents filed in conjunction therewith, was served on July 1, 2024 at 3:41 p.m. “BY CONSTRUCTIVE SERVICE PURSUANT TO 1011(a) [¶] BY POSTING IN A CONSPICUOUS PLACE… there being no person of equitable age to receive the documents.” (See 07/03/24 POS). The documents were “posted” in a conspicuous location at Plaintiffs’ Counsel’s law office located at 8137 3^rd Street. 1^st Floor, Downey CA 90241. Service of a motion may be accomplished by delivery to the party’s attorney. (CCP §1011.) “[S]ervice may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be made as follows: [¶] (a) If upon an attorney, service may be made at the attorney’s office, by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being service, with a receptionist or with a person having charge thereof. If there is no person in the office with whom the notice or papers may be left for purposes of this subdivision at the time service is to be effected, service may be made by leaving them between the hours of 9 a.m. and 5 p.m., in a conspicuous place in the office….” (Id.) Therefore, as an initial matter, the Court finds that the Motion was properly served in a manner consistent with the rules of civil procedure and the lack of Opposition cannot be attributed to improper service.

Notwithstanding, the Motion is DENIED without prejudice on procedural grounds.

There is no evidence or exhibits attached to, or filed in conjunction with any of the Moving Papers. In fact, the Separate Statement, consisting of only 3 material facts, does not reference any supporting evidence. (See generally, Separate Statement). Motions for summary judgment/adjudication “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken…. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (CCP §437c(b)(1).) Where no evidence has been submitted to support the arguments raised by the Moving Party, summary judgment/adjudication cannot be granted.

The Moving Papers indicate that “[e]ach of the named defendants, LEON FAUST, LEDA FAUST and ROGER FAUST, are deceased. According to the Verified Complaint, LEON FAUST and LEDA FAUST predeceased their son, ROGER FAUST…. Roger died in 2015. [¶] Defendant, TAYLOR MOORE, Personal Representative of the Estate of LEDA FAUST, was appointed by the court on June 8, 2023.” (Motion 3:8-14.) The Court notes that no Notice of Related Case pertaining to the existence or filing of any probate action has been filed in this subject action. Moreover, no Declaration in compliance with CCP §377.32 has been filed with this Court. At this time, it is unclear as to whether Taylor Moore is authorized to act on behalf of Defendant Leda Faust.