Judge: Steven A. Ellis, Case: 22STCV38570, Date: 2025-03-10 Tentative Ruling
Case Number: 22STCV38570 Hearing Date: March 10, 2025 Dept: 29
Kemper
Insurance Company v. Ferguson
22STCV38570
Petition
for Order Striking and Releasing Lien or Other Encumbrance on Property of
Public Officer or Employee filed by Petitioner Neenah A. Ferguson
Tentative
The hearing on the petition is
continued. Petitioner is ordered to serve
all parties and to file proof of service with the Court.
Background
On December 12, 2022, Kemper Insurance Company
(“Plaintiff”) filed this subrogation action against Defendant Neenah Ferguson
(“Defendant”) and Does 1 to 20, inclusive, asserting one cause of action for
general negligence. The Complaint alleges that Plaintiff insured Jonathan
Little (“Little”) under a homeowner’s policy and made payments to Little under
the policy for damages that Plaintiff alleges were caused by Defendant.
On February 13, 2024, default was entered against
Defendant.
On April 25, 2024, Plaintiff dismissed the Doe
defendants.
On September 10, 2024, the Court entered default judgment
against Defendant for $35,177.73, consisting of $33,354.96 in damages,
$1,202.60 in prejudgment interest, and $620.17 in costs.
On February 13, 2025, Defendant filed the instant
Petition for Order Striking and Releasing Lien or Other Encumbrance on Property
of Public Officer or Employee. Defendant also appealed the order entering
default judgment.
“A person shall not
file or record, or direct another to file or record, a lawsuit, lien, or other
encumbrance, including a notice of lis pendens, against another person or
entity knowing it is false, with the intent to harass the person or entity or
to influence or hinder the person in discharging his or her official duties if
the person is a public officer or employee.”
(Code Civ. Proc., §§ 765.010, subd. (b).) “‘Harass’ means engage in
knowing and willful conduct that serves no legitimate purpose.” (Code Civ.
Proc., § 765.010, subd. (a)(1).)
“A person or entity whose property is subject to a lien or
encumbrance in violation of this section [i.e., Code Civ. Proc., § 765.010] may
petition the superior court of the county in which the person or entity resides
or in which the property is located for an order, which may be granted ex
parte, directing the lien or other encumbrance claimant to appear at a hearing
before the court and show cause why the lien or other encumbrance should not be
stricken and other relief provided by this article should not be granted.’’
(Code Civ. Proc., § 765.010, subd. (c)(1).)
“A petition under this article shall state the grounds upon
which relief is requested, and shall be supported by the affidavit of the
petitioner or the petitioner’s attorney setting forth a concise statement of
the facts upon which the motion is based.” (Code Civ. Proc., § 765.020.)
“The court shall schedule the hearing no earlier than 14 days
after the date of the order. The scheduled date of the hearing shall allow
adequate time for notice of the hearing.” (Code Civ. Proc., § 765.010, subd.
(c)(2).)
“If the court determines that the lien or other encumbrance is
in violation of Section 765.010, the court shall issue an order striking and
releasing the lien or other encumbrance and may award costs and reasonable
attorney’s fees to the petitioner to be paid by the lien or other encumbrance
claimant. If the court determines that the lien or other encumbrance is valid,
the court shall issue an order so stating and may award costs and reasonable
attorney’s fees to the encumbrance claimant to be paid by the petitioner. The
court may direct that an order issued pursuant to this section be recorded.”
(Code Civ. Proc., § 765.030.)
Discussion
Defendant has filed a petition for Order Striking and
Releasing Lien or Other Encumbrance on Property of Public Officer or Employee,
arguing that the lien on a property known as 6428 Blaisdell Ave. S. Richfield,
MN 55423 is illegal because that property does not belong to the Defendant. In
the petition, Defendant asks the Court to (1) set an Order to Show Cause why
the lien should not be stricken and released, and (2) enter an order striking
and releasing that lien. (Petition, Item 9.)
However, the Court notes that Defendant did not file
proof of service of the petition with the Court. (See Cal. Rules of Court, rule
3.1300(c) [“Proof of service of the moving papers must be filed no later than
five court days before the time appointed for the hearing”].)
Therefore, the Court will continue the hearing and
require Defendant to serve her petition on Plaintiff and file a proof of
service before the next hearing date.
Conclusion
The Petition
for Order Striking and Releasing Lien or Other Encumbrance on Property of
Public Officer or Employee filed by Petitioner Neenah A. Ferguson is CONTINUED for
approximately 30 days to 4/__/ 25, at 1:30 PM, Dept. 29, Spring Street
Courthouse. Defendant Neenah Ferguson is ordered to serve her petition on
Plaintiff Kemper Insurance Company. Defendant is further ordered to file, at
least 5 days before the next hearing, proof of service of that petition.
Moving party to give notice.