Judge: Melvin D. Sandvig, Case: PC058794, Date: 2023-07-10 Tentative Ruling

Case Number: PC058794    Hearing Date: April 5, 2024    Dept: F47

Dept. F47

Date: 4/5/24

Case #PC058794

MOTION TO RELEASE DEPOSITED FUNDS TO DEFENDANTS

Motion filed on 3/11/24.

MOVING PARTY: Defendants/Cross-Complainants James B. Rowland III and Jessica R. Rowland

RESPONDING PARTY: Plaintiffs/Cross-Defendants

RELIEF REQUESTED: An order releasing the $10,000.00 in cash deposited with the court on 11/19/18 to Defendants per CCP 996.440.

RULING: The motion is placed off calendar.    

SUMMARY OF ACTION & PROCEDURAL HISTORY

This action arose out of a dispute between neighboring landowners Plaintiffs/Cross-Defendants Anthony Fuschillo and Alicia Fuschillo (the Fuschillos) and Defendants/Cross-Complainants James B. Rowland III and Jessica R. Rowland (the Rowlands). 

On 9/20/18, the Fuschillos filed their complaint against the Rowlands for: (1) adverse possession, (2) quiet title, (3) prescriptive easement (in the alternative), (4) trespass, (5) trespass to chattels, and (6) conversion. 

On 10/12/18, the Court granted the Fuschillos request for a preliminary injunction and ordered them to post an undertaking in the amount of $10,000.00.  (See 10/12/18 Minute Order; 11/1/18 Order on Preliminary Injunction).

On 10/22/18, the Rowlands filed their original cross-complaint against the Fuschillos for: (1) trespass and (2) quiet title.  On 12/27/18, the Rowlands filed their amended cross-complaint alleging the same two causes of action.  On 11/9/18, the Fuschillos filed a notice of posting the undertaking ordered by the Court. 

After several years of litigation, the matter was scheduled for a jury trial on 3/11/24.  On that day, pursuant to the oral request made by Plaintiff/the Fuschillos, the Court ordered the Rowlands dismissed with prejudice from the Fuschillos’ complaint.  (See 3/11/24 Minute Order).  Similarly, on that date, pursuant to the request of Defendant/Cross-Complainant/the Rowlands, the Court ordered the Fuschillos dismissed with prejudice from the Rowlands’ amended cross-complaint.  Id.

On 3/11/24, the Rowlands filed the instant motion seeking an order releasing the $10,000.00 in cash deposited with the court on 11/19/18 to Defendants per CCP 996.440.  The proof of service attached to the motion indicates that it was executed on 4/5/24 and that the motion was served on the Fuschillos’ counsel by email/e-delivery on 4/5/24.  The date of execution and service set forth in the proof of service could not be correct as the date had not yet occurred at the time the motion was filed on 3/11/24.  As such, the proof of service is defective.  No opposition has been filed.    

ANALYSIS

CCP 996.440(b) provides, in part, that “[t]he motion shall not be made until after entry of the final judgment in the action or proceeding in which the bond is given and the time for appeal has expired or, if an appeal is taken, until the appeal is finally determined.”  It is not clear if the Rowlands are contending that the orders of dismissal entered by the Court on 3/11/24 pursuant to the requests of the parties constitute the “final judgment.”  If so, the instant motion was filed the same day which is before the time for appeal from the dismissals expired.  See CRC 8.822. 

CCP 996.440(c) provides, in part, that “[n]otice of motion shall be served on the principal and sureties at least 30 days before the time set for hearing of the motion.”  Even if the date set forth in the proof of service for the motion is a typographical error and the motion was served on or around the time it was filed on 3/11/24, the service is insufficient because it would not have been at least 30 days before the 4/5/24 hearing date.  No opposition or other response to the motion has been filed to cure the defect in notice.      

CONCLUSION

Based on the foregoing, the motion is placed off calendar.