Judge: Melvin D. Sandvig, Case: PC058794, Date: 2024-11-13 Tentative Ruling

Case Number: PC058794    Hearing Date: November 13, 2024    Dept: F47

Dept. F47

Date: 11/13/24

Case #PC058794

MOTION TO RELEASE DEPOSITED FUNDS TO DEFENDANTS

Motion filed on 4/4/24.

MOVING PARTY: Defendants James B. Rowland III and Jessica R. Rowland

RESPONDING PARTY: Plaintiffs Anthony Fuschillo and Alicia Fuschillo

RELIEF REQUESTED: An order compelling Plaintiffs to release the $10,000.00 in cash deposited with the court on 11/9/18 to Defendants per CCP 996.440.

RULING: The motion is granted.    

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 4/4/24, the Rowlands filed and served the instant motion seeking an order releasing the $10,000.00 in cash deposited with the court on 11/9/18 to Defendants per CCP 996.440.  The Fuschillos have not opposed or otherwise responded to the motion.    

ANALYSIS

CCP 996.440 provides:

(a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action.

(b) The 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. The motion shall not be made or notice of motion served more than one year after the later of the preceding dates.

(c) Notice of motion shall be served on the principal and sureties at least 30 days before the time set for hearing of the motion. The notice shall state the amount of the claim and shall be supported by affidavits setting forth the facts on which the claim is based. The notice and affidavits shall be served in accordance with any procedure authorized by Chapter 5 (commencing with Section 1010).

(d) Judgment shall be entered against the principal and sureties in accordance with the motion unless the principal or sureties serve and file affidavits in opposition to the motion showing such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact. If such a showing is made, the issues to be tried shall be specified by the court. Trial shall be by the court and shall be set for the earliest date convenient to the court, allowing sufficient time for such discovery proceedings as may be requested.

(e) The principal and sureties shall not obtain a stay of the proceedings pending determination of any conflicting claims among beneficiaries.

Based on the unrefuted facts set forth in the motion and supporting declaration, the Rowlands have established that they are entitled to the $10,000.00 in cash deposited with the court by the Fuschillos on 11/9/18.  (See Anaya Decl.)

CONCLUSION

The motion is granted.