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D: OR AN OUN PK SIV INDEX NO. E22-00582NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 01/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORLEANS PEOPLE OF THE STATE OF NEW YORK by LETITIA JAMES, Attorney General of the State of New York. Petitioner. -against- COMPREHENSIVE AT ORLEANS LLC d/b/a THE VILLAGES OF ORLEANS HEALTH AND NOTICE OF ENTRY REHABILITATION CENTER, TELEGRAPH REALTY LLC, CHMS GROUP LLC, VILLAGES OF ORLEANS Index No E22-00582 LLC, ML KIDS HOLDINGS LLC, BERNARD FUCHS. JOEL EDELSTEIN, ISRAEL FREUND. GERALD FUCHS, TOVA FUCHS, DAVID GAST, SAM HALPER, EPHRAM LAHASKY, BENJAMIN LANDA, JOSHUA FARKOVITS,. TERESA LICHTSCHEIN, and DEBBIE KORNGUT Respondents. PLEASE TAKE NOTICE, that the attached document is a true and correct copy of the Order to Show Cause of the Orleans County Supreme Court (Hon. Frank Caruso, J.S.C.) in the above-captioned action dated January 23, 2023 and duly entered in the Orleans County Clerk’s Office on January 23, 2023, a copy of which is annexed hereto. Dated: January 25, 2023 Uniondale, New York HARRIS BEACH PLLC wha er “Glenn M. Jones Attorneys for Jones ens Bernard Fuchs and Comprehensive at Orleans LLC D/B/A The Villages of Orleans Health and Rehabilitation Center 333 Earle Ovington Blvd, Suite 901 Uniondale, NY 11553 (516) 880-8494 GJones@harrisbeach.com TO: All parties via NYSCEF HARRIS BEACH devon Lan 1 of 346= INDEX NO. E22-00582 :NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 01/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORLEANS PEOPLE OF THE STATE OF NEW YORK, by Index No. E22-00582 LETITIA JAMES, Attorney General of the State of New York, ORDER TO SHOW CAUSE Petitioner, —against— COMPREHENSIVE AT ORLEANS LLC d/b/a THE VILLAGES OF ORLEANS HEALTH AND REHABILITATION CENTER, TELEGRAPH REALTY LLC, CHMS GROUP LLC, VILLAGES OF ORLEANS LLC, ML KIDS HOLDING LLC, BERNARD FUCHS, JOEL EDELSTEIN, ISRAEL FREUND, GERALD FUCHS, TOVA FUCHS, DAVID GAST, SAM HALPER, EPHRAM LAHASKY, BENJAMIN LANDA, JOSHUA FARKOVITS, TERESA LICHTSCHEIN, and DEBBIE KORNGUT, Respondents. PLEASE TAKE NOTICE, that upon the accompanying Affirmations of Glenn M. Jones, with exhibits A - H, John G. Martin, Cornelius D. Murray and Alyssa A. Friedman, dated January 18, 2023 and the Memorandum of Law in support of all Respondents’ joint application for a temporary stay and an extension of time, dated January 18, 2023, and upon all the papers and proceedings had herein, LET PETITIONER SHOW CAUSE on 4 akuar 3 29, 2023 at_Z* cd ame) before the Hon. Frank Caruso, at 1 South Main Street, Suite 3, Albion, New York 14411, why an Order should not be issued granting Respondents’ application for an extension of time to answer, move, or otherwise respond to Plaintiff's Verified Petition dated November 29, 2022 (“Petition”), pursuant to CPLR 2004 and 3012(d), for a period of 90 days, up through and including April 19, 2023. 2106f326= INDEX NO. E22-00582 :NYSCEF DOC. NO. 212 RECEIVED NYSCEF: 01/28/2023 SUFFICIENT CAUSE appearing therefore, it is ORDERED that pending the decision on this Order to Show Cause, the proceedings in this matter, including but not limited to, Respondents’ deadline to respond to the Verified Petition, and the hearing date scheduled for January 30, 2023 are stayed; and, IT IS FURTHER ORDERED, that service of a copy of this Order, and the papers upon which it is based, upon Petitioner’s counsel by electronic filing on NYSCEF and e-mail on or before the Z 7_ day of January, 2023 be deemed sufficient service; and IT IS FURTHER ORDERED, that Petitioner’s responding papers, if any, shall be served and filed with the Court on or before the 27 day of January, 2023; IT IS FURTHER ORDERED, that reply papers, if any, shall be served no later than _ prior to the return date hereof. ENTER: Dakd “Jannat y 25, 2023 ‘rank Caruso GRANTED LN AZ. COURT CLERK 3206f326D O AN OUN INDEX NO. E22-00582NYSCEF Doc. NO. 212 RECEIVED NYSCEF: 01/26/2023 Affirmation of Glenn M. Jones in support of OTSC 4 of 346= INDEX NO. E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORLEANS PEOPLE OF THE STATE OF NEW YORK by LETITIA JAMES, Attorney General of the State of New York, Petitioner, -against- COMPREHENSIVE AT ORLEANS LLC d/b/a THE VILLAGES OF ORLEANS HEALTH AND REHABILITATION CENTER, TELEGRAPH REALTY Index No.: E22-00582 LLC, CHMS GROUP LLC, VILLAGES OF ORLEANS LLC, ML KIDS HOLDINGS LLC, BERNARD FUCHS, JOEL EDELSTEIN, ISRAEL FREUND, GERALD FUCHS, TOVA FUCHS, DAVID GAST, SAM HALPER, EPHRAM LAHASKY, BENJAMIN LANDA, JOSHUA FARKOVITS, TERESA LICHTSCHEIN, and DEBBIE KORNGUT Respondents. GLENN M. JONES, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, affirms, pursuant to CPLR 2106, as follows: 1 I am a member of the law firm Harris Beach PLLC, attorneys for Respondents Comprehensive at Orleans LLC d/b/a The Village of Orleans Health and Rehabilitation Center and Bernard Fuchs (collectively, “Comprehensive at Orleans”), and, as such, am fully familiar with the facts and circ*mstances asserted herein. 2 I respectfully submit this affirmation on behalf of all Respondents in this proceeding seeking an Order extending their time to answer, move, or otherwise respond to Petitioner’s Verified Petition dated November 29, 2022 (“Petition”), pursuant to CPLR 2004 and 3012(d), along with a stay of proceedings pending a determination on that request, together with any such other and further relief as the Court deems just and proper. HARRIS BEACH = devon Lan 5106f386= INDEX NO. E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 Procedural History 3 Petitioner commenced this special proceeding by electronically filing the Petition on November 29, 2022, in the Orleans County Clerk’s Office, a copy of which is attached as Exhibit “A.” 4 The Petition, which is the purported culmination of Petitioner’s 2-and-a-half-year investigation, is accompanied by 14 affidavits, referencing and attaching 143 exhibits and a 42- page memorandum of law, collectively totaling approximately 2,967 pages. 5 Upon review of Petitioner’s submission, and based upon the complex nature of the allegations, legal theories and relief sought, on December 28, 2022, in a web conference with my co-counsel Dennis Vacco, Special Assistant Attorneys General Soo Young Chang, Maura O’Donnell and Jared Goldman, Respondents sought the extension requested herein, and did so on behalf of all 17 respondents. Special Assistant Attorney General O’Donnell stated that she was unable to decide on Respondents’ request and asked that we put it in writing. 6. On January 5, 2023, I wrote to Petitioner’s office to seek the extension requested herein. A copy of my January 5, 2023, letter is attached as Exhibit “B.” 7 Petitioner responded by letter dated January 11, 2023, rejecting that request, a copy of which is attached as Exhibit “C”. 8 Subsequently, and in Respondents’ continued good faith effort to resolve this issue without court intervention, the collective respondents further consulted to reach a proposal to address Petitioner’s concerns relative to the brief delay an extension would cause. Through that effort, the collective respondents agreed to reduce our request to 60 days, have a consultant monitor the care at the facility and to reduce rent capping it at the amount needed to meet its HUD debt service obligations, with the remainder escrowed to remain available if and as needed HARRIS BEACH: 6206f386= INDEX NO E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 for care provided by the Facility. Also, Comprehensive at Orleans agrees not to take distributions for the duration of the litigation or a period of 1 year, whichever comes first. This offer was conveyed via email on January 16, 2023, and on January 17, 2023 it was rejected in totality by the Petitioner, thus necessitating the instant motion. 9. The Petitioner in rejecting the Respondents’ efforts presented the Respondents with a draft Assurance of Discontinuance (“AOD”), a copy of which is attached as Exhibit “D”, suggesting that the Respondents settle the matter by conceding to the Petitioners terms. By presenting this AOD at a time when all we asked for was a reasonable extension shows that the Petitioners were never inclined to act in good faith and necessitates our filing this application to the Court. 10. Respondents maintain that an extension is warranted for the reasons described below and in Respondents’ memorandum of law. ll. Respondents’ application is timely, as the time to respond to the Petition, up to and including January 23, 2023, has not yet expired. Argument 12. As indicated above, this proceeding follows a two-and-a-half-year investigation, during which Petitioner, among other things, reviewed a number of resident records, facility documents and files, procured affidavits and conducted depositions and interviews. In addition to attaching certain of those documents to its Petition, sometimes in redacted form, the Petition includes an affidavit by Petitioner’s medical analyst, offering alleged findings and opinions (NYSCEF No. 40). 13. Prior to filing this action, Petitioner did not share any of the depositions, affidavits or exhibits attached to the Petition, and, in fact, over the two and a half years in which it ee 7306f386= INDEX NO E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 conducted its investigation, made a point of letting Respondents know it was not required to do so. Nor did Petitioner discuss the nature or intent of its investigation. Thus, the suggestion in Petitioner’s January 11" letter (Ex. B) that “this did not come as a surprise to Respondents, who have been aware of the OAG’s investigation for at least two years” is categorically false. 14. Petitioner’s investigation, commenced during the Covid-19 pandemic, focused on numerous for-profit nursing homes, including, but not limited to, Comprehensive at Orleans. The initial phase of Petitioner’s investigation resulted in the release of a report, a copy of which is attached as Exhibit “E”, which focused on for-profit nursing homes stating, among other things, “OAG has continued to continue to conduct in-depth investigations involving the COVID-19 impact at over 20 facilities, and to monitor and follow up with the facilities that were subject of initial investigations” (see Ex. E at p. 42). During its investigation, Petitioner did not make any other communications regarding the state and nature of the investigation, including whether it intended to commence a lawsuit. In fact, they specifically refused to do so. 1S. In fact, the first time I heard Respondents were going to be the subject of a lawsuit was when Petitioner’s office informed me of its intent without any detail the evening before the Petition was filed, and in further detail the following day at Petitioner’s live television press conference. 16. To effectively respond to the inflammatory and inaccurate allegations in the Petition, fairness and equity require that Respondents be given the opportunity to conduct a meaningful review of Petitioner’s submission, which is anticipated to include: (i) obtaining unredacted versions of certain documents, (ii) completing expert analysis, (iii) meeting with witnesses, (iv) reviewing complete deposition transcripts and the thousands of documents filed ee 8406f386= INDEX NO E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 with the Petition, and (v) preparing affidavits to respond to and rebut the affidavits submitted by Petitioner. 17. Further, and contrary to Petitioner’s suggestion, no prejudice will result, because the extension requested is brief, particularly relative to the amount of time Petitioner took to complete its investigation prior to filing the Petition, i.e., approximately 900 days. The significance of that time span is two-fold, particularly insofar as Petitioner claims prejudice would result from an extension. 18. First, Petitioner’s allegations are historical with most of them taking place during the height of the pandemic in 2020 and 2021. The allegations took place in full view of Petitioner and its day-to-day regulators. In fact, none of the allegations came as a surprise to Petitioner since they were witnessed and addressed by the government’s regulators including the New York Department of Health (“DOH”) and the U.S. Centers for Medicaid and Medicare Services (“CMS”). 19. Indeed, and as acknowledged in the Petition, in March 2021, CMS designated the facility a Special Focus Facility (“SFF”), whereupon CMS required that it be visited in person by survey teams twice as frequently that other nursing homes (see CMS Center for Clinical Standards and Quality/Quality Safety & Oversight Group, Special Focus Facility memorandum, available at https://www.cms.gov/Medicare/Provider-Enrollment-and- Certification/CertificationandComplianc/Downloads/SFFList.pdf, last accessed January 17, 2023, attached hereto as Exhibit “F”). 20. CMS expects that within 18-24 months after a facility is identified as an SFF nursing home, there will be one of three possible outcomes: ee 9506f386= INDEX NO. E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 (a) The nursing home graduates from the SFF program because it has made significant improvements in quality of care — and those improvements are continued overtime; (b) The nursing home is terminated from participation in the Medicare and Medicaid programs... (c) The nursing home is provided with some additional time to continue in the SFF program because there has been very promising progress, such as the sale of the nursing home to another owner with a much better track record of providing quality care (see CMS Special Focus Facility (“SFE”) Initiative - background, available at https://www.cms.gov/Medicare/Provider-Enrollment-and- Certification/CertificationandComplianc/downloads/SFFBackground.pdf, last accessed January 17, 2023, attached hereto as Exhibit “G”). 21. On February 18, 2022, Petitioner graduated from the SFF program less than one year after being designated a Special Focus Facility (see Ex. F at Table B, Facilities That Have Graduated from the SFF Program, at p. 3). 22. Petitioner had knowledge of the allegations for more than two years yet took no steps to prevent new patients from being admitted or existing patients from being treated at any point prior to filing the Petition. Indeed, even once it filed the Petition, Petitioner did not seek a preliminary injunction of any kind. Instead, Petitioner apparently determined the relief sought could await resolution of the litigation. HARRIS BEACH: 16 oF B16= INDEX NO E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 23. That Petitioner now claims urgency in contesting Respondents’ extension request is thus quite telling. Similarly telling are Petitioner’s actions and inactions over that interval, which included graduating the facility from a special focus program. 24. At bottom, and while Respondents concede the allegations in the Petition are significant, Petitioner’s actions demonstrate that additional time can and should be afforded to permit Respondents a reasonable amount of time to evaluate the allegations and respond. 25. Second, the amount of time Respondents are seeking pales in comparison to the amount of time Petitioner took investigating and preparing the Petition and accompanying documents. Petitioner cannot reasonably suggest that an investigation that took more than 2 years to complete is capable of a swift response, particularly one that requires evaluating claims and contentions set forth in affidavits which have been redacted to omit the names of certain affiants and other information and/or otherwise require expert analysis and proof. 26. Indeed, Petitioner’s own submission concedes the complex nature of this case, suggesting it was necessary to exceed the permissible 7,000 word-limit permissible under Rule 202.8-b of the Uniform Rules of Supreme Court, and asks this Court to permit submissions far exceeding the same (NYSCEF No. 161). In fact, Petitioner’s Memorandum of law is 13,208 words, and the Affidavits of Detective Jaimie Krzyskoski, Medical Analyst Jennifer Cronkhite and Auditor-Investigator Milan Shah are 18,039, 23,654, and 19,233, respectively (see NYSCEF Nos. 160, 3, 40, 41). 27. Upon information and belief, Petitioner’s request, made nunc pro tunc, and by letter only, a copy of which is attached as Exhibit “H”, remains pending as of the date of this submission. That posture, particularly when coupled with Petitioner’s blatant refusal to consent to an adjournment, leaves Respondents in the untenable position of potentially responding to ee 17 oF 6= INDEX NO E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF 01/26/2023 these very dense and detailed documents which could ultimately be for naught if Petitioner’s request is denied. 28 Ata minimum, Respondents object to Petitioner’s letter request for permission to exceed the permissible word limit and submit that Petitioner’s alleged need to submit such factually complex and lengthy submissions demonstrates this matter is not ripe or appropriate for a summary determination and otherwise supports Respondents’ extension request herein. 29 In light of the foregoing, it is respectfully requested Respondents be given 90 days, or up through and including until April 19, 2023, to file an answer, move or otherwise respond to the Petition, and to stay proceedings pending a determination on that request, as no prejudice will inure to Petitioner other than Respondents having a meaningful opportunity to challenge the allegations asserted in the Petition. Dated: January 18, 2023 Uniondale, New York hp Glenn M. Jones HARRIS BEACH 1B OF 6= INDEX NO. E22-00582 :NYSCEF DOC. NO. 2722 RECEIVED NYSCEF: 01/26/2023 CERTIFICATION Thereby certify that the foregoing affirmation complies with the word-count limitation in Rule 202.8-b of the Uniform Rules for the Supreme Court and the County Court (22 NYCRR § 202.8-b) because it contains 1,893 words, excluding the caption, signature block, and this certification, fh re Dated: January 18, 2023 Glenn MJones HARRIS BEACH 1D OF 6= INDEX NO. E22-00582 :NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 01/26/2023 Exhibit A 14 of 346= INDEX NO. E22-00582 :NYSCEF DOC. NO. 278 RECEIVED NYSCEF: @1/28/20223 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORLEANS -. PEOPLE OF THE STATE OF NEW YORK, by LETITIA JAMES, Attorney General of the State of New York, Petitioner, Index No. VERIFIED PETITION - against - COMPREHENSIVE AT ORLEANS LLC d/b/a THE VILLAGES OF ORLEANS HEALTH AND REHABILITATION CENTER, TELEGRAPH REALTY LLC, CHMS GROUP LLC, VILLAGES OF ORLEANS LLC, ML KIDS HOLDINGS LLC, BERNARD FUCHS, JOEL EDELSTEIN, ISRAEL FREUND, GERALD FUCHS, TOVA FUCHS, DAVID GAST, SAM HALPER, EPHRAM LAHASKY, BENJAMIN LANDA, JOSHUA FARKOVITS, TERESA LICHTSCHEIN, and DEBBIE KORNGUT, Respondents. pane nnn nn nnn ee The People of the State of New York, by their attorney Letitia James, Attorney General of the State of New York (the “Attorney General” or “Petitioner”), respectfully submit: PRELIMINARY STATEMENT 1 Comprehensive at Orleans LLC d/b/a The Villages of Orleans Health and Rehabilitation Center (“The Villages”) is a for-profit 120-bed nursing home located at 14012 Route 31 in the Village of Albion, County of Orleans, State of New York, which is home! to over 100 vulnerable, frail, elderly, or disabled individuals, most of whom are Medicaid and/or Medicare beneficiaries whose care is funded by New York and federal taxpayers. 1 “For the vast majority of residents, the residential health care facility is their last home,” and its residents “depend upon the facility to meet every basic human need.” (10 NYCRR § 415.1[a][1].) 1 16 off 15= INDEX NO. E22-00582 :NYSCEF DOC. NO. 278 RECEIVED NYSCEF: @1/28/20223 2 Petitioner brings this proceeding pursuant to, inter alia, Executive Law § 63(12) against Respondents to seek injunctive relief to expose and stop the persistent fraud and illegality of the persons who have operated, owned, and controlled The Villages, and to seek restitution, disgorgement, rescission, civil penalties, and costs against any person that has engaged in or otherwise demonstrated repeated illegal and/or fraudulent acts, including: (1) repeated neglect and inhumane mistreatment of The Villages’ residents who have suffered while in Respondents’ charge; and (2) a long history of insufficient and unqualified staffing and poor quality of care in violation and in reckless disregard of numerous New York State rules, regulations, and laws, including the Tweed Law, Executive Law § 63-c, which authorizes the Attorney General to recover public monies “without right obtained, received, converted, or disposed of.” Petitioner also brings this special proceeding to bring transparency to the reality that much of the human pain, actual harm, and humiliation experienced by the individuals who have lived at The Villages was preventable and can be prevented in the future. As detailed herein, Respondents did not provide The Villages’ residents with even the most basic care and necessities, such as hygiene, prescribed medications, meals, phones, and hot water, and created conditions wherein those who lived at The Villages routinely sat unattended in dirty adult diapers for hours on end; suffered from unnecessary physical and mental decline; were deprived of essential medical treatment; suffered from pressure sores, infections, and other preventable ailments; and were forced to live in a dilapidated facility, despite receipt of tens of millions of dollars in government reimbursem*nt. 3. The Villages’ egregious history of insufficient and unqualified staffing and poor quality of care is directly traceable to Respondents’ unconscionable conversion of millions of dollars in “up-front profit” taken from The Villages. In flagrant disregard of their legal duties, from January 1, 2015 to the present, Respondents took either directly or through related-party 16 off 15= INDEX NO. E22-00582 :NYSCEF DOC. NO. 278 RECEIVED NYSCEF: @1/28/20223 transactions, over $18.6 million from The Villages that should have been spent on ensuring adequate resident care, but was instead used by Respondents to unnecessarily and unjustly enrich themselves at the expense of The Villages’ residents. 4 At all relevant times, New York law has imposed on The Villages, as a nursing home facility, and those who own, operate, and control it, a “special obligation” to care for its residents; and to ensure that the facility has sufficient staffing “to assure the highest practicable quality of life” for each resident and to provide its residents with the necessary “care and services,” including clinical care, in accordance with each resident’s individualized care plan. (See 10 NYCRR § 415.1[a] [nursing homes — minimum standards]; 10 NYCRR 8 415.3[f] [right to clinical care and treatment]; 10 NYCRR § 415.12 [quality of care]; 10 NYCRR § 415.13 [nursing services]; see also 42 CFR § 483.25 [quality of care]; 42 CFR § 483.35 [nursing services]; 42 CFR § 483.10 [resident rights]; PHL § 2803-c(3) [“Patient’s Bill of Rights”].) Respondents repeatedly violated these regulations during the relevant time period. 5. Furthermore, Respondents repeatedly committed acts of neglect against residents of The Villages in violation of Public Health Law § 2803-d(7). (See 10 NYCRR § 81.1[c] [defining “neglect” as “failure to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care . . . including but not limited to: nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living”].) 6. Through the interviews of residents and employees of The Villages, analysis of medical records of residents, and additional evidence as set forth in the accompanying affidavits, the Attorney General’s findings demonstrate that Respondents repeatedly prioritized their personal profit over The Villages’ duty to provide required resident care and required staffing, thereby causing physical and emotional harm to vulnerable people who lived at the nursing home, and By aff 15= INDEX NO. E22-00582 :NYSCEF DOC. NO. 278 RECEIVED NYSCEF: @1/28/20223 stripping them of their dignity. Neglect and mistreatment at The Villages includes the following illustrative, but not exhaustive, examples: Suicidal Patient Ignored to Death: A woman known as Resident 38? was admitted to The Villages in early 2020, for rehabilitation of a fractured left femur. Shortly after admission, Resident 38 began refusing medications and food, and spoke of wanting to die. An outside psychology consultant determined that Resident 38 was at high risk for self-harm and ordered checks on her condition every 30 minutes. Nonetheless, The Villages repeatedly failed to monitor Resident 38 and she was found dead 20 days later. The Villages failed to report Resident 38’s death to the New York State Department of Health as required. (Affidavit of Medical Analyst Jennifer Cronkhite, R.N. [“Medical Analyst Aff.”] 4 11-16.) Delayed Wound Treatment, Unexplained Doping and Death: Resident 42 was admitted to The Villages on January 6, 2021, with a Stage II pressure sore near the base of her spine, but it was not treated for the first time until 18 days later.? By June 24, Resident 42 suffered from two Stage III pressure sores. A specialty wound care consultant recommended a treatment regime, yet The Villages did not order this new treatment until nearly a week later, and did not provide a new dressing until July 1. When the consultant re-assessed Resident 42’s wounds on July 7, both wounds had deteriorated to “unstageable.” Additionally, The Villages gave Resident 42 psychotropic medication, purportedly for “severe anxiety,” a diagnosis which cannot be found in Resident 42’s medical records. Resident 42 was also frequently given medications for nausea, cough, and pain, without documented clinical need. Resident 42 was found unresponsive on July 13, and her records are silent as to what care, if any, she was provided before being sent to the hospital, where she died on July 13, 2021, from acute cardiopulmonary arrest secondary to respiratory failure. Staff at The Villages failed to notify Resident 42’s healthcare proxy that she was sent to the hospital. (Medical Analyst Aff. {] 72-82.) Mother of Resident Teaches Seizure Care to Nursing Staff: Resident 35 suffers from a rare genetic disorder and had three seizures upon admission to The ? To shield protected health information, residents are referenced herein by numerical identifiers, rather than names. Residents’ numerical identifiers are consistent throughout Petitioner’s papers. 3 There are four stages used to categorize pressure sores, plus an additional category of pressure sores which are referred to as “unstageable.” A Stage II pressure sore involves a partial thickness loss of dermis (the inner layer of the two main layers of skin) presenting as a shallow open ulcer with a red or pink wound bed, without slough (a mass of dead tissue separating from the ulcer). Stage III pressure sores involve full-thickness skin loss potentially extending into the subcutaneous tissue layer. An unstageable sore is where there is full thickness tissue loss in which actual depth of the sore is completely obscured by wet or dry necrotic (dead) tissue in the wound bed. It is a very serious condition. (See Medical Analyst Aff. 1] 151-156.) 4 8 off 15= INDEX NO. E22-00582 :NYSCEF DOC. NO. 278 RECEIVED NYSCEF: @1/28/20223 Villages in November 2020 because The Villages failed to timely obtain and administer her anti-seizure medication as ordered, after which she was rushed to the hospital where she stayed for over two weeks. After discharge back to The Villages, Resident 35 suffered numerous falls resulting in bruising, bleeding, and tooth injury. Resident 35 frequently soiled herself because staff did not promptly respond to her call bell, and because she was unable to get to the bathroom without assistance. In April 2022, a Detective from the Attorney General’s Medicaid Fraud Control Unit observed that staff did not help Resident 35 eat despite orders in her care plan requiring that Resident 35 be properly positioned to eat safely, monitored to prevent choking, and assisted with utensils and guiding food into her mouth. The Villages’ staff were so ill-trained that Resident 35’s mother posted seizure instructions on the wall of Resident 35’s room after seeing Resident 35 suffer a seizure while staff did not know what to do. Resident 35’s mother spent months trying to arrange a transfer to a different facility. Those efforts were finally successful in April 2022. Resident 35 currently resides at the new facility. (Affidavit of Detective Jaimie Krzyskoski [“Detective Aff.”] {4 221- 226; Medical Analyst Aff. {| 17-23; Affidavit of Donna Kelly [“Kelly Aff.”] {9 9, 14, 18-20, 22, 37-47.) Amputee Sits in Urine, Awaiting Medication: Resident 43 was admitted to The Villages in late 2020 after a leg amputation in order to regain enough strength to use a prosthetic leg and live independently. During his three-month stay at The Villages, Resident 43 had few physical therapy sessions, which he described as “laughable.” In the Physical Therapy room, he was left to sit without exercise. Due to his amputation, Resident 43’s care plan called for two staffers to assist him with cleaning himself, but staff frequently failed to timely change his adult diaper and, as a result, he often sat in a puddle of his own urine for hours. When interviewed in March 2022, Resident 43 was living at a different facility and reported he was “making great progress.” He stated that if he had received proper treatment and care at The Villages, he “would be back home by now.” (Detective Aff. (9 175-194; Medical Analyst Aff. 94 33-37.) “Wouldn’t put a dog in Villages”: Resident 50 arrived at The Villages in December 2020 for rehabilitation after knee surgery. During a video call, Resident 50’s wife saw he was lying in bed with only a diaper on, atop a rubber mat, without sheets or blankets. Resident 50’s wife found bruises on his head, face, and arms, yet The Villages did not notify her about or explain these injuries. At The Villages, Resident 50 became “a stranger” to his wife, and “could not communicate verbally.” After his wife transferred Resident 50 to a different facility, he was able to eat, talk, and laugh again. Resident 50’s wife now holds that she ““wouldn’t put a dog in Villages.” Resident 50 passed away in November 2021 from COVID-19. (Affidavit of Margarette Volkmar [Volkmar Aff.”] 94 7- 27.) B® aff 15= INDEX NO. E22-00582 :NYSCEF DOC. NO. 278 RECEIVED NYSCEF: @1/28/20223 7. Respondents’ persistent violations of their duty to care for The Villages’ residents began long before the COVID-19 pandemic, and continue to the present.* Almost immediately after Respondents took control of The Villages in January 2015, The Villages’ Five Star quality ratings plummeted, becoming among the worst in the State. In May 2020, the New York State Department of Health (“DOH”) declared The Villages to be in “Immediate Jeopardy” for violating COVID-19 protocols, causing or likely causing, “serious injury, harm, impairment, or death to a resident.”® (See 42 CFR § 488.301 [defining “Immediate Jeopardy”].) Less than a year later, in March 2021, the U.S. Centers for Medicare and Medicaid Services (“CMS”) designated The Villages as a S
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Ned J Gian, Mary F Gian v. Town Of Clarence
Jul 18, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |SC0048/2024
Case
Lakeview Loan Servicing, Llc, v. John Joseph Jewett, John Doe #1 Through John Doe #12 the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint,
Jul 17, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |810335/2024
Ruling
Charles Cox vs Richard Mroczek, et al
Jul 19, 2024 |23CV02337
23CV02337COX v. MROCZEK, et al. CONFIRMATION OF 6/28/24 ORDER TO GRANT DEFENDANTS’ MOTION TO STRIKE COMPLAINT AND OBJECTION TO DECLARATION OF NONMONETARY STATUS The court has reviewed plaintiff’s Notification of Objection to and Disapproval of AnyProposed Order or Other Order: 1) Granting Defendants’ Motion to Strike the Complaint; or 2)Striking Plaintiff’s First Amended Complaint. Plaintiff’s objections merely go to the process bywhich parties engage on proposed orders; CRC 3.1312 has no impact on the power of the courtto strike plaintiff’s amended complaint and dismiss this action. The court’s previous order of 6/28/24 granting defendants’ motion to strike plaintiff’samended complaint is confirmed, as is dismissal of this action. Defendants are ordered to submita formal dismissal order for the court’s signature. Page 1 of 2Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 2 of 2
Ruling
Juanita Olson vs Lidia Ryan
Jul 19, 2024 |21CV00921
21CV00921OLSON v. RYAN DEFENDANT RYAN’S MOTION FOR RECONSIDERATION The motion is denied. Within 10 days after service upon the party of written notice of entry of the order andbased upon new or different facts, circ*mstances, or law, a party may make application to thesame judge or court that made the order, to reconsider the matter and modify, amend, or revokethe prior order. (CCP § 1008.) Defendant has not offered any new facts, law or circ*mstances warrantingreconsideration of the court’s March 25, 2024, Final Judgment. The court also notes that theproceeds from the partition sale have been distributed to the parties. (Referee’s Post-DispositionReport, 5/14/24.) The court orders the check received by the referee for $148.50 distributed to the refereefor his unpaid hours in handling the close of escrow. (Referee Declaration, 6/4/24.) The courtalso discharges the referee.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
THE PICO PLACE LLC VS FREDDIE LEWIS
Jul 16, 2024 |24STCV01908
Case Number: 24STCV01908 Hearing Date: July 16, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING THE PICO PLACE LLC, vs. FREDDIE LEWIS. Case No.: 24STCV01908 Hearing Date: July 16, 2024 Plaintiff The Pico Place LLCs unopposed motion for summary judgment is granted. Plaintiff The Pico Place LLC (Pico Place) (Plaintiff) moves unopposed for summary judgment against Defendant Freddie Lewis (Lewis) (Defendant). (Notice of Motion, pg. 2; C.C.P. §§437c, 1107.7.) Plaintiff moves on the grounds there is no material disputed facts rendering summary judgment appropriate regarding possession of the property commonly known as 6565 S Western Ave., #3, Los Angeles, CA 90047. (Notice of Motion, pg. 2.) Procedural Background On January 12, 2024, Plaintiff had Defendant served with a Three-Day Notice to Pay Rent or Quit for rent owed for the rental period of March 2023 through January 2024 in the amount of $40,100.00. (Decl. of Saghian ¶6, Exhs. 2, 3.) On January 25, 2024, Plaintiff filed the operative Complaint against Defendant for unlawful detainer. On or about February 7, 2024, Defendant filed an Answer. On or about April 3, 2024, Defendant filed for Voluntary Chapter 13 Bankruptcy through the California Central Bankruptcy Court, Case No. 2:24-bk-12573-VZ. The case was automatically dismissed on April 25, 2024, for Defendants failure to file schedules, statements and/or plan. (5/31/24 Notice of Lodging.) On May 30, 2024, Plaintiff filed the instant motion for summary judgment. As of the date of this hearing Defendant has not filed an opposition. Summary of Allegations Plaintiff alleges it is the owner of 6565 S Western Ave., #3, Los Angeles, CA 90047, Los Angeles County (Premises). (Complaint ¶¶3-4.) Plaintiff alleges on or about February 1, 2023, Defendant agreed to rent the premises as a month-to-month tenancy and agreed to pay monthly rent of $4,000.00 on the first of the month. (Complaint ¶6a.) Plaintiff alleges this oral agreement was made with Plaintiff, and a copy of the written agreement is not attached to the Complaint because the written agreement is no tin the possession of the landlord or the landlords employees and agents, and because this action is solely for nonpayment of rent. (Complaint ¶¶6b, f.) Plaintiff alleges the tenancy is not subject to the Tenant Protection Act of 2019 because the tenancy is commercial in nature. (Complaint ¶7a.) Plaintiff alleges the tenancy was terminated for at-fault just cause, under §1946.2(b)(1). (Complaint ¶8a.) Plaintiff alleges Defendant and all unknown occupants were served a 3-day notice to pay rent or quit. (Complaint ¶¶9a(1), e, Exh. 2.) Plaintiff alleges the notice was served on Defendant by personally handing a copy to Defendant on January 12, 2024. (Complaint ¶¶10a(1).) Plaintiff alleges on January 18, 2024, the period stated in the notice expired at the end of the day and Defendant failed to comply with the requirements of the notice by that date. (Complaint ¶9b.) Plaintiff requests possession of the premises, costs incurred in this proceeding, including past-due rent of $40,100.00, reasonable attorney fees, forfeiture of the agreement, and damages at the rate of $133.33 per day for fair rental value of the premises from January 19, 2024, for each day Defendants remains in possession through entry of judgment. (Complaint ¶¶13, 19.) Legal Standard A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (C.C.P. §437c(c).) Unlawful Detainer (1st COA) To establish a claim for unlawful detainer, a plaintiff must prove the following elements: (1) plaintiff owns/leases the property; (2) plaintiff rented/subleased the property to defendant; (3) under the lease/rental agreement/sublease, defendant was required to pay rent in a specified amount per period; (4) plaintiff properly gave defendant three days written notice to pay the rent or vacate the property; (5) as of the date of the three-day notice, at least the amount stated in the three-day notice was due; (6) defendant did not pay the amount stated in the notice within three days after service/receipt of the notice; and (7) defendant is still occupying the property. (See C.C.P. §1161; CACI 4302.) Plaintiff submitted undisputed evidence that it owns the Premises leased to Defendant. (Decl. of Saghian ¶4, Exh. 1.) Plaintiff submitted undisputed evidence that it entered into an oral lease agreement for the Premises with Defendant on February 1, 2023, for the amount of $4,000.00 to be paid on the first day of each calendar month. (Decl. of Saghian ¶5.) Plaintiff submitted undisputed evidence that the three-day notice of pay rent or quit was personally served to Defendant. (Decl. of Saghian ¶6, Exhs. 2, 3.) Plaintiff submitted undisputed evidence that after the three-day notice of pay rent or quit, Defendant failed to pay or quit possession of the Premises, and Plaintiff has not received any rent from Defendant since March 2023 and Defendant is still in possession of the Premises. (Decl. of Saghian ¶8.) Plaintiff met its burden to demonstrate there is no triable issue of material fact and it is entitled to judgment as a matter of law. Ordinarily, Plaintiff would shift the burden to Defendant to raise a triable issue of material fact. However, this motion is unopposed, and no burden-shifting is applicable. Accordingly, Plaintiffs unopposed motion for summary judgement is granted. Conclusion Plaintiffs unopposed motion for summary judgment against Defendant is granted. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court
Ruling
KRISTOPHER LAMBERSON, ET AL. VS DENNIS SCHROEDER
Jul 17, 2024 |24VECV00135
Case Number: 24VECV00135 Hearing Date: July 17, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT Kristopher Lamberson, et al., Plaintiffs, v. Dennis Schroeder, Defendant. Case Number Department 24VECV00135 107 COURTS [TENTATIVE] RULING RE: Demurrer [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: Defendant Dennis Schroeder demurs to the first amended complaint brought by plaintiffs Kristopher Lamberson, Dante Santana, and Jordan Cox. This court sustains the demurrer without leave to amend. I. BACKGROUND On April 20, 2022, plaintiffs Kristopher Lamberson (Lamberson), Dante Santana (Santana), and Jordan Cox (Cox and, together with Lamberson and Santana, Plaintiffs) leased a property (the Property) from defendant Dennis Schroeder (Defendant and, together with Plaintiffs, Parties) by executing a lease agreement (the Lease). (FAC p. 2, 4.) The Lease expired on May 1, 2023, required a $50,000 security deposit, and called for monthly rent of $35,000. (Ibid.) On May 1, 2023, Plaintiffs vacated the Property, but Defendant did not return the security deposit to them. (Ibid.) Paragraph A of Section 35 of the Lease reads, in relevant part, Landlord and Tenant agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to court action. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. (Complaint Exh. 1.) The Lease identifies Defendant as Landlord and Plaintiffs, inter alios, as Tenant. (Ibid.) On January 10, 2024, Plaintiffs initiated this action by filing a complaint (the Complaint). On March, 19, 2024, Plaintiffs amended the Complaint and filed a first amended complaint (the FAC), which alleges causes of actions for (1) bad faith retention of a security deposit and (2) breach of contract. After Plaintiffs filed the Complaint, Defendants counsel sought to meet and confer with Plaintiffs counsel about the issues raised by the Demurrer and requesting voluntary dismissal in favor of mediation, which request Plaintiffs refused. (Jackson Decl. ¶ 5, Exh. D.) On May 21, 2024, Defendant filed the instant demurrer (the Demurrer). On July 3, 2024, Plaintiffs filed an opposition (the Opposition) to the Demurrer, to which Defendant replied on July 10, 2024. After Defendant brought the Demurrer, Plaintiffs e-mailed Defendant agreeing to move forward with mediation. (Gillick Decl. ¶ 4, Exh. 1.) Defendant e-mailed Plaintiffs the name of a preferred mediator, and Plaintiffs obtained that mediators availability. (Id. at ¶ 5.) Plaintiffs mistakenly forwarded the e-mail with the mediators availability to a non-existent e-mail address instead of to Defendant, and efforts to pursue mediation ceased. (Ibid.; Jackson Decl. ¶ 6.) Plaintiffs indicate that they are no longer willing to move forward with mediation. (Gillick Decl. ¶ 6.) II. PROCEDURAL MATTERS Timeliness of Filings Per California Code of Civil Procedure §¿430.40, subdivision (a), a demurrer to a complaint should be filed within 30 days after service of the complaint. Per California Code of Civil Procedure §¿1005, subdivision (b), moving papers should be filed at least 16 court days before they are set for hearing, oppositions thereto should be filed at least nine court days before the set hearing, and replies to any oppositions should be filed at least five court days before the set hearing. Judges have discretion as to whether to consider or strike an untimely demurrer or pleading. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281; Tuck v. Thuesen (1970) 10 Cal.App.3d 193, 196 (disapproved on other grounds by Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176).)¿¿¿ Plaintiffs filed a proof of service indicating that Defendant was personally served on May 3, 2024. We are satisfied that the Demurrer, the Opposition, and the reply are all timely. The Meet & Confer Requirement California Code of Civil Procedure §¿430.41, subdivision (a) requires parties to meet and confer in good faith before the filing of a demurrer to attempt to informally resolve the objections raised in the demurrer.¿The demurring party is required to file and serve with the demurrer a declaration either confirming that parties were unable to resolve the issues raised by the demurrer despite having met and conferred or that the opposing party failed to meet and confer with the demurring party in good faith. (Cal. Code Civ. Proc. §¿430.41, subd. (a)(3).) Defendant filed with the complaint a declaration by his counsel indicating that parties met and conferred before the filing of the Demurrer but were unable to resolve the issues raised thereby. (Jackson Decl. ¶ 3.) We are satisfied that this requirement has been met. III. LEGAL STANDARD As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿A complaint is sufficient if it contains [a]¿statement¿of the¿facts¿constituting the cause of action, in ordinary and concise language. (Cal. Code Civ. Proc. §¿425.10(a)(1).) Under this standard, a complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)¿¿¿ [W]here the only issue litigated is covered by the arbitration clause, and where plaintiff has not first pursued or attempted to pursue his arbitration remedy, it should be held that (1) plaintiff has impliedly waived his right to arbitrate, such that defendant could elect to submit the matter to the jurisdiction of the court; (2) defendant may also elect to demur or move for summary judgment on the ground that the plaintiff has failed to exhaust arbitration remedies; and (3) defendant may also elect to move for a stay of proceedings pending arbitration if defendant also moves to compel arbitration. (Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 899, emphasis added.) Mediation provisions are interpreted according to the ordinary rules of contract interpretation. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1518.) The words of a contract are to be understood in their ordinary and popular sense. (Civil Code § 1644) We interpret the intent and scope of the agreement by focusing on the usual and ordinary meaning of the language used and the circ*mstances under which the agreement was made. (Frei v. Davey, supra, at 1518, quoting Lloyd's Underwriters v. Craig & Rush, Inc. (1994) 26 Cal.App.4th 1194, 119798.) IV. DISCUSSION The Demurrer Defendant demurs to both causes of action in the FAC pursuant to California Code of Civil Procedure Sections 430.10(a), (b) and/or (e) on the ground that the parties expressly agreed to mediate any dispute or claim arising between them out of [the Lease], or any resulting transaction, before resorting to court action, but Plaintiffs prematurely filed this action prior to engaging in required alternative dispute resolution. (Notice of Demurrer p. 2.) Parties disagree about whether the Lease mandates mediation before this action may be brought in this court. (Demurrer p. 5; Opposition p. 2.) Plaintiffs sole argument is that [m]ediation is a condition precedent to attorneys fees only. (Opposition p. 2.) We disagree. Plaintiffs interpretation of the Leases mediation provision is contrary to the plain meaning of its language. The Lease requires parties to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to court action. The subsequent sentences in the mediation provision regarding attorneys fees add to Parties agreement to mediate; they do not create conditions precedent to it. Following Charles J. Rounds Co. v. Joint Council of Teamsters No. 42, supra, 4 Cal.3d 888 at 899, Defendant may demur to the FAC. Because both causes of action brought by the FAC arise between Parties, all of whom are parties to the Lease, out of the Lease, Plaintiffs were required by Section 35 of the Lease to pursue mediation before bringing this action. In other words, the only issues being litigated are covered by the mediation clause, and Plaintiffs have not first pursued or attempted to pursue mediation. Therefore, following Charles J. Rounds Co. v. Joint Council of Teamsters No. 42, supra, at 899, Defendant may (1) submit the matter to the jurisdiction of this court, (2) demur to the FAC, or (3) move to compel arbitration and a stay of proceedings. Defendant, by bringing the Demurrer, elects the second of its options. We recognize that Charles J. Rounds Co. v. Joint Council of Teamsters No. 42, supra, 4 Cal.3d 888 at 899 refers only to arbitration agreements and not to mediation agreements or generally to all alternative dispute resolution agreements. However, Plaintiffs do not raise this argument in the Opposition and have thus waived it. (See Assad v. Southern Pacific Transportation Co. (1996) 42 Cal.App.4th 1609, 1615 [stating that complete silence in an opposition to a motion, as to an issue, results in a waiver the right to argue the matter in trial court and on appeal].) Additionally, we are satisfied that courts generally treat arbitration agreements and mediation agreements similarly. We therefore consider Charles J. Rounds Co. v. Joint Council of Teamsters No. 42, supra, at 899 to be applicable to all alternative dispute resolution agreements. We also recognize that Charles J. Rounds Co. v. Joint Council of Teamsters No. 42, supra, 4 Cal.3d 888 at 899 only permits a defendant to demur to a complaint if the plaintiff has not pursued or attempted to pursue its alternative dispute resolution remedies. (Emphasis added.) However, Plaintiffs do not argue in the Opposition that the Demurrer should be overruled because they attempted to pursue mediation, and Plaintiffs therefore waive the argument. (See Assad v. Southern Pacific Transportation Co., supra, 42 Cal.App.4th 1609 at 1615.) Additionally, we find Plaintiffs efforts to pursue mediation to be inadequate or non-existent. Plaintiffs were required by Section 35 of the Lease to have pursued mediation before bringing the Complaint, but all of Plaintiffs efforts to pursue mediation occurred after Defendant brought the Demurrer. Additionally, Plaintiffs mediation efforts consist of seeking Defendants preferred mediator and obtaining that mediators availability. Then, Plaintiffs never e-mailed the mediators availability to Defendant, and thereby ended mediation efforts. We do not find these efforts to amount to a real or significant attempt to pursue mediation. Leave to Amend Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) Courts generally allow at least one time to amend a complaint, after sustaining a demurrer, even without any request for leave to amend. (McDonald v. Superior Court (1986) 180 Cal. App. 3d 297, 303.) While this is the first time a demurrer has been sustained in this action, we do not see any reasonable possibility that Plaintiffs failure to pursue mediation before bringing this action can be cured by amendment. Rather, to bring their claims, Plaintiffs must first pursue mediation, and only if and after these efforts fail may Plaintiffs pursue litigation. Accordingly, this court SUSTAINS the Demurrer without leave to amend. Dated: July 17, 2024 __________________________________ Hon. Eric Harmon Judge of the Superior Court
Ruling
MALIBU ROAD HOMEOWNERS ASSOCIATION, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT CORPORATION VS ELISA PERLMAN
Jul 16, 2024 |23SMCV02555
Case Number: 23SMCV02555 Hearing Date: July 16, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 16, 2024 CASE NUMBER 23SMCV02555 (c/w 23SMCV03059) MOTION Motion for a Preliminary Injunction MOVING PARTY Defendant and Cross-Complainant Elisa Perlman OPPOSING PARTY Plaintiff and Cross-Defendant Malibu Road Homeowners Association BACKGROUND The consolidated actions arise from a dispute between Defendant and Cross-Complainant Elisa Perlman (Perlman), and her neighbors, Andrea and Gelly Valero (collectively, the Valeros). Cross-Defendant Andrea Valero (Valero) was also the sole member of the board of directors for the Plaintiff and Cross-Defendant Malibu Road Homeowners Association (HOA) that governs the property during most of the events giving rise to the consolidated actions. The Valeros and the HOA brought two separate lawsuits against Perlman stemming from the same factual dispute concerning water leaks into the Valeros unit, allegedly caused by Perlman. Perlman filed a Cross-Complaint against the HOA and Valero, alleging nineteen causes of action for breach of the CC&Rs; breach of other governing documents; violations of Civil Code sections 5210; 4950; 4910; 4920; 4765; 5600; 4923; 4930; 5605; 4925; 4935; 5610; 5615; and 4040; two causes of action for breach of fiduciary duties; and declaratory relief. Perlman now move for a preliminary injunction enjoining the HOA from collecting special assessments, including any late fees or interest, by foreclosing on Perlmans home for the duration of the consolidated actions. The HOA opposes the motion and Perlman replies. REQEST FOR JUDICIAL NOTICE Perlman requests Judicial Notice of: 1. Restated Declaration of Covenants, Conditions & Restrictions for 25366 Malibu Road recorded on July 30, 2018, in the Official Records of Los Angeles County as Document No. 20180761460 (a true and correct copy of which is attached as Exhibit 1.) 2. Certificate of Amendment to Restated Declaration of Covenants, Conditions and Restrictions for the Malibu Road Homeowners Association recorded on March 19, 2024, in the Official Records of Los Angeles County as Document No. 20240180312 (a true and correct copy of which is attached as Exhibit 2.) Courts can take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorders office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute. (Ibid.) Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions. (Ibid.) Therefore, the Court takes judicial notice of the existence, recordation, and legal consequences of Exhibits 1 and 2. LEGAL STANDARD Pursuant to Code of Civil Procedure section 527, subdivision (a), [a] preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. (Code Civ. Proc., § 527, subd. (a).) The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowners Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc., § 526, subd. (a); Husain v. McDonalds Corp. (2012) 205 Cal.App.4th 860, 866-867 (hereafter Husain).) The balancing of harm between the parties involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. (Husain, supra, 205 Cal.App.4th at p. 867.) The decision to grant a preliminary injunction rests in the sound discretion of the trial court . . . before the trial court can exercise its discretion the applicant must make a prima facie showing of entitlement to injunctive relief. The applicant must demonstrate a real threat of immediate and irreparable injury. (Triple A Machine Shop, Inc. v. State of Cal. (1989) 213 Cal.App.3d 131, 138.) [A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff, and the party seeking injunctive relief bears the burden to prove its absence. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564-1565.) ANALYSIS The trial courts consider two interrelated questions in deciding whether to issue a preliminary injunction: 1) are the plaintiffs likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant; and 2) is there a reasonable probability that the plaintiffs will prevail on the merits. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.) 1. IMMEDIATE AND IRREPARABLE HARM Under Code of Civil Procedure section 526, an injunction may be granted [w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. (Code Civ. Proc., § 526, subd. (a)(2).) The threat of irreparable harm must be imminent as opposed to a mere possibility of harm sometime in the future. An injunction cannot issue in a vacuum based on the proponents fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity. (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) Plaintiffs need not wait until they have suffered actual harm before applying for an injunction, however, they may seek injunctive relief against threatened infringement of their rights. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) Perlman contends that already during the pendency of this lawsuit, the HOA has twice attempted special assessments against Perlman, and continues to assess late fees thereon, in order to raise money for its legal fees to prosecute the instant lawsuits against Perlman. (Galal Decl. ¶¶ 2-10 and Exs. AA, BB, CC, DD, EE, FF, GG, and HH thereto; Perlman Decl. ¶¶ 11-31 and Exhibits A through P attached thereto.) As a result, the HOA can now record a lien and start foreclosure proceeding whenever it wants. (Perlman Decl. ¶ 30.) Indeed, three days after the Motion was filed, Perlman received a pre-lien notice letter from the HOAs counsel, threatening to record a lien and commence foreclosure proceedings thereafter. (Supp. Galal Decl. ¶ 2-3 and Ex. II thereto.) Thus, Perlman has demonstrated that if the requested injunction does not issue, she will suffer irreparable harm (losing her home to foreclosure) that far exceeds the potential pecuniary harm to the HOA (delay in obtaining the special assessment amounts owed until after the litigation). 2. REASONABLE PROBABILITY OF SUCCESS ON THE MERITS A preliminary injunction may not issue unless it is reasonably probable that the moving party will prevail on the merits. (San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442; see Costa Mesa City Employees Association v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 309 [no injunction may issue unless there is at least some possibility of success].) The first special assessment appears no longer at issue because the HOA withdrew it. (Perlman Decl. ¶ 16; Opp. at p. 13:16-21.) Plaintiff contends the second assessment is invalid because it is based on an unrecorded amendment to the operative Covenants, Conditions & Restrictions (CC&R). Specifically, the CC&Rs requires that modifications or amendments to the CC&Rs can only be effectuated by the affirmative vote or written approval of at (sic) majority of the Owners entitled to vote and Said amendments shall be effective upon recordation in the Office of the Recorder of Los Angeles County. (RJN Ex. 1 at p. 67, Art. XIV, Section 14.2.) At the March 8, 2024 special meeting of members, the membership voted on two changes relevant to this motion: (1) to modify the original uniform rate of assessments to a variable rate of assessment based on percentage interest for each unit; and (2) to issue the second special assessment for $50,000, to be allocated based upon each owners percentage interest in the assessment. (Perlman Decl. ¶ 22-24 and Exs. K-L thereto.) However, because both issues were passed in the same meeting, the first resolution had not yet been recorded, such that the allocation of the second special assessment could not properly be based on that amendment. Further, Perlman argues that the assessment itself is an abuse of the Valeros majority stake in the HOA to improperly shift the Valeros and HOAs legal expenses to Perlman, in violation of their fiduciary duties to her. In support, Perlman provides the various inconsistent and changing grounds the HOA has provided ,for the assessments, including the statement that the second assessment is to pay the HOAs legal expenses. (Perlman Decl. ¶¶ 11-12, 22, 26 and Exs. K & M thereto.) In Opposition, the HOA argues that the Lamden rule (which it contends is akin to the business judgment rule for homeowners associations) requires that the Court defer to the HOAs judgment in assessing the second special assessment. Specifically, Lamden explains: Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise. (Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253.) The HOA also argues that it owes its members no fiduciary duties except those required by statute or the CC&Rs, and is not otherwise required to deal fairly with its members in good faith. Here, the Court finds that Perlman has established a probability of establishing that the HOA violated the CC&Rs by issuing the second special assessment allocated according to the unrecorded (and therefore invalid) amendment it had just passed in the same meeting, an issue the Opposition does not squarely address. Similarly, even if it were procedurally proper, the HOAs disproportionate allocation of the second special assessment for legal fees to Perlman appears to violate the American Rule that each party must generally pay its own attorneys fees, unless otherwise provided by statute or agreement. (See Code Civ. Proc., §§ 1033.5, subd. (a)(10); 1021; 1717.) 3. UNDERTAKING Section 529 of the Code of Civil Procedure provides, On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. (Emphases added.) However, an undertaking is not required if the party to be enjoined either waives or forfeits the right to an undertaking. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739.) Here, neither party has specified what the amount of the undertaking should be, and it is unclear what, if any damages the HOA will incur by reason of the injunction, which merely delays the HOAs ability to collect on Perlmans special assessment by foreclosing on Perlmans home during the pendency of this lawsuit. Should the HOA ultimately prevail in the lawsuit, it may simply foreclose on Perlmans property at that point to collect the assessment Perlman owes. Thus, there is no indication that the HOA will suffer any damages by reason of this delay, and the HOA has not specified any. As such, the Court finds that the HOA has forfeited its right to an undertaking by failing to specify what damages it would incur by reason of the injunctions delay. CONCLUSION AND ORDER Therefore, the Court grants Perlmans motion for a preliminary injunction, in part, and enjoins the HOA from foreclosing on Perlmans property to collect special assessments during the pendency of the consolidated actions. Further, because the Court cannot discern any damages that the HOA will suffer by reason of the delay, and the HOA has not specified any, the Court finds the HOA has forfeited its right to an undertaking. Perlman shall prepare and lodge a proposed Order in conformance with the Courts ruling on or before July 30, 2024. Further, the Court orders Perlman to provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 16, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court
Ruling
LESBIA LUCRECIA MONTOYA VS HORACIO F. MONTOYA
Jul 16, 2024 |23STCV17316
Case Number: 23STCV17316 Hearing Date: July 16, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING LESBIA LUCRECIA MONTOYA, Plaintiff, v. HORACIO F. MONTOYA; et al., Defendants. Case No: 23STCV17316 Hearing Date: July 16, 2024 Calendar Number: 3 Defendant Horacio F. Montoya moves for relief from the Courts November 16, 2023 order for the partition of the property located at 854-645 1/2 East 50th Street, Los Angeles, California 90011 (the Property), which Defendant and Plaintiff Lesbia Lucrecia Montoya (Plaintiff) own as joint tenants. The Court DENIES Defendants motion. Background Plaintiff and Defendant each own a 50 percent share of the Property as joint tenants. On July 24, 2023, Plaintiff filed this action, stating claims for (1) partition; (2) accounting; (3) breach of fiduciary duty; and (4) unjust enrichment. The complaint was verified. On November 16, 2023, the Court granted Plaintiffs motion for partition of the Property pursuant to the stipulation of the parties (the November 16 Order). On January 24, 2024, the Court entered an interlocutory judgment of partition of the Property and appointed Blake C. Alsbrook (the Referee) as referee to complete the partition sale of the Property. On June 28, 2024, the Court granted the Referees ex parte application for an order directing the Clerk of the court to issue a writ of possession in favor of the Referee and against Defendant and all occupants residing at the Property (the June 28 Order). On June 25, 2024, Defendant filed this motion, which is styled as an appeal and seeks relief from the November 26 Order. Discussion Defendants motion is called in different parts of the motion an appeal and as a motion to strike the sale of the Property. The motion states that it seeks relief under Code of Civil Procedure, section 904.1 the statute governing grounds for appeal on the basis that the Courts November 16 Order was wrong. To the Courts knowledge, Defendant has not followed the procedures for filing an appeal and in any event, the Court is not able to consider appeals of its own judgments. Defendants motion could be characterized as a motion for reconsideration, and the Court will consider it as such. Within ten days of service of an order, a party may move for reconsideration based on new facts, circ*mstances, or law. (Code Civ. Proc., § 1008, subd. (a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The moving party shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circ*mstances are claimed to be shown. (Code Civ. Proc., § 1008, subd .(a).) [T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) The legislative intent was to restrict motions for reconsideration to circ*mstances where a party offers the court some fact or circ*mstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) If those requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling. (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order. (Code Civ. Proc., § 1008, subd. (c).) Defendant argues that the November 16 was wrong because (1) the property has many repairs to be made which would increase its market value if completed; (2) the property has a mortgage of $497,840.00, for which Defendant is solely responsible; and (3) the property has been on the market for more than three months and has not sold. None of these arguments provide a basis for reconsideration. Knowledge of the mortgage was available to Defendant at the time of the order in fact, Defendant first informed the referee of the mortgage shortly after the order and refused to provide the Referee with financial information about it. (Alsbrook Declaration in Support of Ex Parte Application for Writ of Possession (Alsbrook Decl.) ¶ 9.) The Referee also learned shortly after his appointment that Defendant was occupying the Property which would give him access to knowledge of any defects in need of repair. (Alsbrook Decl. ¶ 4.) Finally, the Referee has received an offer to buy the Property. (Alsbrook Decl. ¶ 12.) The Referee represented in his ex parte brief that the offer was for a purchase price of $660,000.00. (Ex Parte Application for Writ of Possession at p. 2:19-25.) The Referee declared that it was Defendants continued residence at the Property that was delaying the sale. (Alsbrook Decl. ¶ 12.) Defendants first two arguments could have been presented at the original hearing for the motion, and are therefore not new facts. The delay in the sale of the Property appears to be a result of Defendants own conduct, and not a result of an inability to find a buyer. The Court therefore denies Defendants motion.
Ruling
LEGGETT, JANAE vs KEMP, HIRAM
Jul 17, 2024 |CV-23-002213
CV-23-002213 – LEGGETT, JANAE vs KEMP, HIRAM – Defendant’s Motion to Dismiss for Failure to Comply with Court Order, Failure to Provide Discovery, and Failure to Pay Sanctions – DENIED.According to the proof of service, the motion papers were only served via email. Plaintiff is self-represented. Electronic service on an unrepresented party requires express consent that is established either by “[s]erving a notice on all parties and filing the notice with the court”; or (ii) “[m]anifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service.” (Code Civ. Proc., § 1010.6(c)(3)(i-ii).) It appears that neither of these conditions applies in this case.Furthermore, the notice of motion and motion fail to state the code section(s) under which Defendant is moving for dismissal. In the supporting memorandum, Defendant states that his request is made under Code of Civil Procedure § 581(g). Section 581(g) concerns delay in prosecution. Plaintiff timely served the Defendant with a copy of the summons and complaint, and Defendant has not shown that Plaintiff has been purposefully trying to slow the action down through her delay in serving Defendant with amended discovery responses.Defendant alternatively asks the Court to dismiss the complaint on its own motion under Code of Civil Procedure § 583. Section583 was repealed in 1984.To the extent that the motion can be deemed a request for a terminating sanction under Code of Civil Procedure §§ 2023.010 and 2023.030, the motion is still insufficient. Plaintiff provided at least some discovery responses in the form of answers to the interrogatories and documents responsive to the requests for production. If Defendant believed the responses were inadequate, then the next step would be to move to compel further responses and have the Court independently determine the adequacy of the responses. Instead, Defendant sought terminating sanctions.The Court also notes that it did not place a timeframe on the payment of monetary sanctions in its original minute orders. (See 3-8-24 MOs.) In any case, the sanctions awards are enforceable as judgments but, in and of themselves, are insufficient grounds to warrant dismissal of the complaint. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615, as modified (Dec. 6, 1995).)Defendant’s ”supplement” to the motion filed on July 11, 2024, was untimely filed and improperly raised new arguments. The Court disregards it.Plaintiff’s opposition was untimely filed and the Court was unable to review it prior to preparing this ruling.
Ruling
AHLUWALIA, NIRMAL KUMAR vs KHACHO, ESAM a)
Jul 17, 2024 |CV-22-003529
CV-22-003529 – AHLUWALIA, NIRMAL KUMAR vs KHACHO, ESAM – a) Plaintiffs’ Motion to Continue or Dismiss Time-Barred Motion for Summary Judgment - DROPPED; b) Plaintiff’s Motion to Continue Trial DROPPED; c) Plaintiffs’ Motion to be Relieved from Deemed Admissions (CCP 2033.300 (a)) – DROPPED.a-c) Following Plaintiff’s failure to file their pleadings herein, despite two continuances granted by the Court for that purpose, this motion is dropped.
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Jul 17, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |810356/2024
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Lakeview Loan Servicing, Llc v. Kyle Earl Wagner AKA KYLE E. WAGNER AKA KYLE WAGNER, United States Of America, Secretary Of Housing And Urban Development, New City Funding Corp., People Of The State Of New York, New York State Department Of Taxation And Finance, Lafarge North America, John And/Or Jane Doe 1 Through John And/Or Jane Doe 12, The Last Twelve Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or lien upon the premises, described in the complaint
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Keybank National Association s/b/m First Niagara Bank, N.A. v. Raymond J. Benacquista a/k/a Raymond Benacquista, if he be living and if he be dead, the respective heirs at law, next of kin, distributes, executors, administrators, trustees, devisees, legatees. assignees, lienors, creditors and successors in interest and generally all person, New York State Department Of Taxation And Finance, United States Of America/Department Of Treasury/Internal Revenue Service, John Doe 1 and 2, the Names of the “John Doe” Defendants Being Fictitious and Unknown to Plaintiff, but Intended to be Tenants, or Occupants, if any, Having or Claiming an Interest in the Premises Described Herein
Jul 09, 2019 |Catherine NUGENT PANEPINT |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |808453/2019
