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FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 604631/2015 INDEX NO. F I LED : SUF FOLK COUNTY CLERK 05 / 01 2015 0 2 : 14 PM) RECEIVED NYSCEF: 05/01/2015 NYSCEF DOC. NO. 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintift SUMMONS Index No. -vs- JOSEPH M. MIRRO A/K/A JOSEPH MIRRO; JENNIFER T. MIRRO A/K/A JENNIFER MIRRO; BANK OF #1-5" AMERICA, N.A.;"JOHN DOE and "JANE DOE #1- 5" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants. Mortgaged Premises: 34 LAUREL DRIVE SAYVILLE, NY 11782 TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the Complaint in the above entitled action and to serve a copy of your Answer on the plaintiffs attorney within twenty (20) days of the service of this Summons, exclusive of the day of service, or within thirty (30) days after service of the same is complete where service is made in any manner other than by personal delivery within the State. The United States of America, if designated as a defendant in this action, may answer or appear within sixty (60) days of service. Your failure to appear or to answer will result in a judgment against you by default for the relief demanded in the Complaint. In the event that a deficiency balance remains from the sale proceeds, a judgment may be entered against you, unless the Defendant obtained a bankruptcy discharge and such other or further relief as may be just and equitable. NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing an answer with the court, a default judgment may be entered and you can lose your home. Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property.FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 Help for Homeowners in Foreclosure New York State Law requires that we send you this notice about the foreclosure process. Please read it carefully. Summons and Complaint You are in danger of losing your home. If you fail to respond to the summons and complaint in this foreclosure action, you may lose your home. Please read the summons and complaint carefully. You should immediately contact an attorney or your local legal aid office to obtain advice on how to protect yourself. Sources of Information and Assistance The State encourages you to become informed about your options in foreclosure. In addition to seeking assistance from an attorney or legal aid office, there are government agencies and non-profit organizations that you may contact for information about possible options, including trying to work with your lender during this process. To locate an entity near you, you may call the toll free helpline maintained the New York State Department of Financial Services at 1-800- by ' 342-3736 or visit the Department's website at www.dfs.ny.gov. Foreclosure Rescue Scams "save" Be careful of people who approach you with offers to your home. These are individuals who watch for notices of foreclosure actions in order to unfairly profit from a homeowner's distress. You should be extremely careful about any such promises and any suggestions that you pay them a fee or sign over your deed. State law requires anyone offering such services for profit to enter into a contract which fully describes the services they will perform and fees they will charge, and which prohibits them from taking any money from you until they have completed all such promised services. 5 1303 Notice 52714FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 Sending a payment to your mortgage company will not stop this foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT. SUFFOLK County is designated as the place of trial. The basis of venue is the location of the mortgaged premises. Dated: April 2, 2015 Victor Spinelli Es FEIN, SUCH & C E, LLP Plainti6' Attorneys for Plaintiff COUNTRY' 1400 OLD COUNTRY ROAD STE C103 WESTBURY, NY 11590 Telephone No. 516/394-6921 YCHN1523FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 NATURE AND OBJECT OF ACTION The object of the above action is to foreclose a Purchase Money Mortgage held by the Plaintiff and recorded in the County of SUFFOLK, State of New York as more particularly described in the Complaint herein. TO THE DEFENDANT(S), except JOSEPH M. MIRRO A/K/A JOSEPH MIRRO and JENNIFER T. MIRRO A/K/A JENNIFER MIRRO; the plaintiff makes no personal claim against you in this action. TO THE DEFENDANT(S), except JOSEPH M. MIRRO A/K/A JOSEPH MIRRO and JENNIFER T. MIRRO A/K/A JENNIFER MIRRO: IF, AND ONLY IF, you have received or will receive a Bankruptcy Discharge Order which includes this debt, the plaintiff is solely attempting to enforce its mortgage lien rights in the subject real property and makes no personal claim against you. In that event, nothing contained in these or any papers served or filed or to be served or filed in this action will be an attempt to collect fi'om you or to find you personally liable for the discharged debt. plaintiffFILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintift COMPLAINT Index No. -vs- JOSEPH M. MIRRO A/K/A JOSEPH MIRRO; JENNIFER T. MIRRO A/K/A JENNIFER MIRRO; BANK OF #1-5" AMERICA, N.A.; "JOHN DOE and "JANE DOE #1- 5" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants. The plaintiff herein, by FEIN, SUCH & CRANE, LLP, its attorneys, complains of the defendants above named, and for its cause of action, alleges: First: The plaintiff is a banking corporation duly licensed, organized and existing pursuant to the laws of the United States of America. Second: Upon information and belief, at all times hereinafter mentioned, the defendant(s) A" reside or conduct business at the address set forth in "Schedule annexed hereto (any that are corporations being organized and existing under the laws of the State set forth therein), and are made defendants in this action in the capacities and for the reasons alleged therein. Third: That the United States of America, the People of the State of New York, the State Tax Commission of the State of New York, the Industrial Commissioner of the State of New York, and all other agencies or instrumentalities of the Federal, State or local government, however designated, if named as defendants, are made parties solely by reason of the facts set B." forth in the annexed "ScheduleFILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 Fourth: That heretofore, to secure a sum of money to the stated Lender, its successor and assigns, the defendants duly executed, acknowledged and delivered to the stated Lender, a certain bond(s) or note(s) whereby they bound their successors or heirs, executors, administrators and assigns, jointly and severally, in the amount of said sum, as more fully described in the C," annexed "Schedule said schedule being a copy of the bond(s) or note(s), or accurate reference to the assumption agreement(s) evidencing indebtedness to plaintiff, together with the terms of repayment of said sum and rights of the plaintiff Fifth: Plaintiff is the holder of the Note referenced in paragraph FOURTH and entitled to enforce the Note. The Note was payable to Plaintiff or indorsed (specifically or in blank) and negotiated to PlaintifE A copy of the Note with the indorsem*nt(s) and/or allonge(s) is annexed hereto as Schedule "C". Sixth: That as security for the payment of said indebtedness, a Purchase Money D," Mortgage(s) was executed as annexed hereto in "Schedule acknowledged and delivered to the stated Lender/Mortgagee, its successors and assigns, wherein the named mortgagor or mortgagors bargained, granted and sold to the mortgagee named therein, its successors and Premises" assigns, the premises more particularly described therein (hereinafter, the "Mortgaged Premises") under certain conditions with rights, duties and privileges between the parties as described therein. Seventh: Plaintiff is current holder of the Mortgage securing the Note, the originals of which are in Plaintiffs possession and control, and Plaintiff is otherwise entitled to enforce the subject Mortgage and Note pursuant to law. Eighth: That said mortgage(s) was duly recorded and the mortgage tax(es) due thereon was duly paid in the County Clerk's Office at the place and time that appears therein. Ninth: On March 18, 2011, a Home Affordable Modification Agreement was executed Plaintiff PlaintiffFILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 by JOSEPH M. MIRRO A/K/A JOSEPH MIRRO and JENNIFER T. MIRRO A/K/A JENNIFER MIRRO to modify the Consolidated Mortgage in Liber M00021873 of Mortgages, at Page 386, et seq., to reflect a new principal balance of $377,776.47, attached hereto as Schedule "F". Said Home Affordable Modification Agreement is not in recordable form. Plaintiff hereby requests that this Court order that a copy of said Home Affordable Modification Agreement along with accompanying New York State Tax Law Section 255 Affidavit be recorded by the SUFFOLK County Clerk and that said Home Affordable Modification Agreement have the full force and effect of a mortgage instrument otherwise in recordable form. Tenth: That Plaintiff has complied with all applicable provisions of the RPAPL Section 1304 and Banking Law, and specifically with Banking Law § 595-a and 6-1 and 6-m if applicable, in securing the aforementioned indebtedness and at all times thereafter. In accordance with RPAPL Section 1304, a 90 day notice was sent to the borrower at least 90 days ago but within the last 12 months. The 90 day notice was sent at least 90 days before the commencement of this foreclosure action. Further, the notice under RPAPL Section 1304 was in 14-point type, contained the statutorily dictated language and the addresses and phone numbers of at least five US Department of Housing and Urban Development approved housing counseling agencies in the region where the borrower resides and was mailed by registered or certified mail and first class mail to the last known address of the borrower. Plaintiff has fully and completely complied with the RPAPL Section 1304. Further, Plaintiff has complied fully with RPAPL Section 1306 filing requirements in that the filing with the superintendent was completed within three (3) business days of the mailing. Eleventh: That the defendants, JOSEPH M. MIRRO A/K/A JOSEPH MIRRO and JENNIFER T. MIRRO A/K/A JENNIFER MIRRO, have failed to comply with the conditions of plaintiffFILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 the mortgage(s) or bond(s) by failing to pay portions of principal, interest or taxes, assessments, water rates, insurance premiums, escrow and/or other charges, all as more fully described in "Schedule E". Twelfth: That plaintiff elects herein to call due the entire amount secured by the mortgage(s) as more than thirty (30) days have elapsed since the date of default. E" Thirteenth: That "Schedule sets forth the principal balance due, the default date and rate at which interest accrues and is owing since defendant(s) default. Fourteenth: That in order to protect its security, the plaintiff has paid, if set forth in "Schedule or may be compelled to pay the pendency of this local assess- E", during action, taxes, ments, water rates, insurance premiums and other charges assessed to the Mortgaged Premises, and hereby requests that any sums paid by it for said purposes, with interest thereon, be added to the sum otherwise due, be deemed secured by the mortgage(s) and be adjudged a valid lien on the Mortgaged Premises. Fifteenth: That the defendants herein have or claim to have some interest in, or lien upon, the Mortgaged Premises or some part thereof which interest or lien, if any, accrued subsequent to the lien of the plaintiffs mortgage(s). Sixteenth: That the plaintiff is now the true and lawful holder of the said bond(s)/note(s) and is mortgagee of record or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note; and there have been no prior proceedings, at law or otherwise, to collect or enforce the bond(s)/note(s) or mortgage(s) and no such proceedings are currently pending. Seventeenth: That Schedules "A", "B", "C", "D", "E", and "F", be incorporated and made part of the Complaint with the same force and effect as if they were completely and fully set forth plaintiffFILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 wherever reference is made to them herein. Eighteenth: The plaintiff shall not be deemed to have waived, altered, released or changed its election herein by reason of any payment after the commencement of this action of any or all of the defaults mentioned herein and such election shall continue to be effective. WHEREFORE, plaintiff demands judgment adjudging and decreeing the amounts due it for principal, interest, costs and reasonable attorneys', fees if provided for in the bond(s), note(s) or mortgage(s), and that the defendants, and any persons claiming by, through or under them subsequent to the commencement of this action, and every other person or corporation whose right, title, conveyance or encumbrance of the Mortgaged Premises is subsequent or recorded subsequent to the plaintiffs interest, be forever barred and foreclosed of all right, claim, lien, interest or equity of redemption in and to the Mortgaged Premises; that the Mortgaged Premises, or part thereof, be decreed to be sold according to law as may be necessary to raise the amounts due for principal, interest, costs, allowances and disbursem*nts, together with any monies advanced and paid by the plaintiff; that the plaintiff be paid the amounts due on said bond(s), note(s) and mortgage(s), and any sums paid by the plaintiff to protect the lien of its mortgage(s) out of the proceeds from the sale thereof, with interest thereon from the respective dates of attorneys' payment thereof, costs and expenses of this action and reasonable fees, if provided for in the bond(s), note(s) or mortgage(s), provided the amount of the sale proceeds permits said payment; that any of the parties hereto may purchase the Mortgaged Premises at sale; that this Court, if requested, forthwith appoint a Receiver of the rents and profits of the Mortgaged Premises with the usual powers and duties associated therewith; that the defendants JOSEPH M. MIRRO A/K/A JOSEPH MIRRO and JENNIFER T. MIRRO A/K/A JENNIFER MIRRO be adjudged to pay any remaining deficiency unless the Defendant obtained a bankruptcy discharge;FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 and that the County Clerk be directed to recordHome Affordable Modification Agreement executed on March 18, 2011 and such other or further relief as may be just and equitable. The plaintiff hereby reserves its right to share in surplus monies from the sale by virtue of its position as a judgment or other lien creditor, excluding the mortgage(s) foreclosed herein. Dated: April 2, 2015 Victor Spine sq. FEIN, SUCH & CRANE, LLP Attorneys for Plaintiff 1400 OLD COUNTRY ROAD STE C103 WESTBURY, NY 11590 Telephone: 516/394-6921 YCHN1523FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 "A" - DEFENDANTS SCHEDULE DEFENDANTS CAPACITY JOSEPH M. MIRRO A/K/A Defendant(s), who executed a certain Purchase Money Mortgage to MORTGAGE JOSEPH MIRRO and ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR JENNIFER T. MIRRO A/K/A FLORIDA CAPITAL BANK, N.A. DBA FLORIDA CAPITAL BANK JENNIFER MIRRO MORTGAGE to secure the sum of $358,500.00, which was recorded in the 34 LAUREL DRIVE SUFFOLK County Clerk's Office on November 23, 2005, in Liber M00021178 of SAYVILLE, NY 11782 Mortgages, at Page 751, et seq. Said Mortgage was assigned by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FLORIDA CAPITAL BANK, N.A. DBA FLORIDA CAPITAL BANK MORTGAGE to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR U.S. MORTGAGE CORPORATION D/B/A MORTGAGE CONCEPTS by Assignment dated October 22, 2008 and recorded on October 19, 2009 in the Office of the County Clerk in Liber M00021873 of at page 385, et seq. Defendants then executed a Mortgage to Mortgages MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR US MORTGAGE CORPORATION D/B/A MORTGAGE CONCEPTS, A NEW YORK BANKING CORPORATION to secure the sum of $17,500.00 dated July 11, 2008 and recorded on October 1, 2008 in Liber M00021755 of Mortgages, at Page 902, et seq. Consolidation, Extension and Modification Agreement to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR US MORTGAGE CORPORATION D/B/A MORTGAGE CONCEPTS, A NEW YORK BANKING CORPORATION dated July 11, 2008 and recorded on October 19, 2009 in Liber M00021873 of Mortgages, at Page 386, et seq. consolidates by its terms the Mortgages in Liber M00021178, at Page 751 and Liber M00021755, at Page 902 to create a single lien in the amount of $376,000.00. Said Consolidated Mortgage was assigned by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR US MORTGAGE CORPORATION DBA MORTGAGE CONCEPTS to JPMORGAN CHASE BANK, NATIONAL ASSOCIATION by Assignment dated September 2, 2014 and recorded on October 23, 2014 in Liber M00022535 of Mortgages, at Page 331, et seq. On March 18, 2011, a Home Affordable Modification Agreement was executed by JOSEPH M. MIRRO A/K/A JOSEPH MIRRO and JENNIFER T. MIRRO A/K/A JENNIFER MIRRO to modify the Consolidated Mortgage in Liber M00021873 of Mortgages, at Page 386, et seq., to reflect a new principal balance of $377,776.47. Plaintiff will request that the Court order that the Home Affordable Modification Agreement be recorded by the SUFFOLK County Clerk. BANK OF AMERICA, N.A. Subordinate mortgagee by virtue of mortgage to secure the sum of $50,000.00, 100 NORTH TRYON STREET dated May 16, 2007 and recorded on June 15, 2007 in Liber M00021553, Page CHARLOTTE, NC 28255 197. Said mortgage(s) is/are inferior to the Plaintiffs mortgage recorded in Liber M00021873, at Page 386 on October 19, 2009, and which is further inferior to Agreement" any amounts secured by the "Home Affordable Modification proposed to be recorded herein as any amounts secured thereunder were contemplated by the original mortgage recorded on November 23, 2005, in Liber M00021178, at Page 751,FILED: SUFFOLK COUNTY CLERK 03/27/2018 03:20 PM INDEX NO. 604631/2015NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 03/27/2018 JOHN DOE # 1-5 Said names being fictitious, it being the intention of Plaintiff to designate any and and JANE DOE # 1-5 all occupants, tenants, persons or corporations, if any, having or claiming an 34 LAUREL DRIVE interest in or lien upon the pr
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Ruling
Aug 20, 2024 |CVRI2403157
B&B CARRIER, INC. VSCVRI2403157 PRELIMINARY INJUNCTIONEAST WEST BANKTentative Ruling: Deny motion.A motion for preliminary injunction must show (1) a probability of prevailing on the merits,and (2) that the balance of hardships favors issuance of the injunction. (O’Connell v. SuperiorCourt (2006) 141 Cal.App.4th 1452, 1463.) However, “[t]he applicant must demonstrate a realthreat of immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California(1989) 213 Cal.App.3d 131, 138.)Here, Plaintiffs will suffer harm because they will lose real property. With regard toPlaintiff’s three causes of action for fraud, a preliminary injunction is neither requested noravailable as a remedy, even if Plaintiff is likely to or in fact, succeeds on the merits of said claims.(Cal. Civil Code § 3343.) The complaint makes no request for injunctive relief in any of the threefraud causes of action. (Complaint, ¶¶ 31, 38, and 44.) “In general, if the plaintiff may be fullycompensated by the payment of damages in the event he prevails, then preliminary injunctiverelief should be denied.” (Tahoe Keys Property Owners' Assn. v. State Water Resources ControlBd. (1994) 23 Cal.App.4th 1459, 1471.) Likewise, Cal. Civil Code § 3343, which covers damagesresulting from the fraudulent sale of property, does not list injunctive relief as an available remedy.Therefore, the fraud claims must not be considered when evaluating Plaintiff’s request for apreliminary injunction.Plaintiff’s fourth cause of action for breach of duty care, honesty, good faith fair dealingand disclosure is only brought against Defendants eXp realty and Robach who are not affiliatedwith the party against whom the preliminary injunction is being sought. Thus, the fourth cause ofaction, and any conduct by eXp Realty or Robach, cannot be considered either.This leaves only Plaintiff’s fifth cause of action for violations of the unfair competition lawas defined by Cal. Business and Professions Code § 17200, et seq. (“UCL”). Business &Professions Code §17200 prohibits any business act or practice that is unlawful, unfair, orfraudulent. A cause of action for violating this statute “borrows” actionable conduct and makes itindependently actionable under the UCL. (Smith v. State Farm (2001) 93 Cal.App.4th 700, 718.)Here, Plaintiff could “borrow” the actionable conduct from the fraud allegations to support his UCLclaim. But, given the deposition testimony that is attached to Bank’s opposition, Plaintiff is notlikely to succeed on his fraud claims. Mr. Butter, who is the owner and CEO of Plaintiff, statesseveral times that he did not discuss the permit issue with Mr. Suk or anyone from Bank prior tomissing his first payment and after the loan was funded. (Declaration of Thomas Robins, ¶ 3,Exhibit 1.)Moreover, relief under the UCL requires ongoing wrongful business conduct. (CaliforniaService Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44, 56-57.) This would requireongoing wrongful business conduct that makes the foreclosure itself wrongful. Plaintiff alleges noongoing fraudulent conduct. The complaint alleges a potential single act that impacted the sale ofthe Property. Additionally, Plaintiff admits that it had defaulted on the loan. (Declaration ofParminder Singh Butter, ¶ 10.) That alone gives Bank the right to foreclose on the Property.Therefore, it is not likely that Plaintiff will succeed in proving that he reasonably relied on anystatements made by Bank or its employees or agents to support the fraud claim against Bank.
Ruling
34-2021-00305326-CU-OR-GDS
Aug 20, 2024 |Unlimited Civil (Other Real Property (not emin...) |34-2021-00305326-CU-OR-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54Tentative RulingDefendants/Cross-Complainants James Brian Putler and Brian Pifferini’s (“Defendants”) motionfor summary judgment, or in the alternative, motion for summary adjudication, is ruled upon asfollows.Plaintiffs’ counsel is admonished for failing to comply with CRC Rule 3.1110(f)(4).The parties’ unopposed requests for judicial notice are granted for the limited scope whichjudicial notice is permitted.BackgroundThis is a boundary dispute between two neighbors. Plaintiffs/Cross-Defendants Michele andAaron Solomon (“Plaintiffs”) allege the following. In 1987, Plaintiffs purchased the real propertylocated at 2031 Maple Glen Road, Sacramento, California 95864 in the subdivision known asArden Oaks. At the time of the sale, 2031 Maple Glen was owned by the Williamses.Additionally, the Williamses also owned the adjacent property located at 2041 Maple Glen.Plaintiffs allege that the Williamses developed Arden Oaks. The two properties are divided by asplit rail fence that was installed when the properties were developed in 1950. The configurationof the fence creates an enclosed wedge-shaped area (“the Wedge”) measuring approximately1,571.11 square feet. With the current configuration, Plaintiffs have exclusive access to theWedge and have installed and maintained various improvements in the Wedge.Defendants are the current owners of 2041 Maple Glen. In 2020, Defendants notified Plaintiffsthat they had commissioned a survey that revealed that the fence was not the actual boundaryline. Defendants thus informed Plaintiffs that they intended to demolish the fence and erect anew fence along the boundary line that is consistent with their survey. The new fence woulddeprive Plaintiffs access to the Wedge.Defendants filed the instant motion for summary judgment on June 20, 2023. Plaintiffs opposedand moved for leave to file an amended complaint. The Court granted Plaintiffs’ motion, and onMarch 15, 2024, Plaintiffs filed a first amended complaint. On July 10, 2024, Defendants filed asecond amended notice of motion for summary judgment/adjudication. According toDefendants’ amended notice of motion, “Defendants are entitled to summary judgment as toPlaintiffs’ complaint because Plaintiffs are not entitled to a prescriptive easem*nt as a matter oflaw. Defendants are also entitled to summary judgment as [to] their cross-complaint becauseDefendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.”(Second Amended Notice 2:4-7.)Alternatively, Defendants argue they are entitled to summary adjudication as to the followingissues: Page 1 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54 Issue No. One - Plaintiffs’ first cause of action in their Complaint for declaratory relief fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Two - Plaintiffs’ second cause of action in their Complaint for an injunction fails because Plaintiffs are not entitled to a prescriptive easem*nt as a matter of law. Issue No. Three – Defendants are entitled to summary adjudication as to their first cause of action to quiet title in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt. Issue No. Four – Defendants are entitled to summary adjudication as to their second cause of action for declaratory relief in their cross-complaint because Defendants own a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.(Id. 2:9-18.)Since Defendants filed the instant motion on June 20, 2023, Plaintiffs have filed an amendedpleading. Accordingly, Plaintiff’s original complaint, at which the motion is directed, is nolonger operative. On this basis the motion for summary judgment as to Plaintiffs’ complaint isDENIED. The motion for summary adjudication as to issue nos. 1 and 2, also directed at claimsin Plaintiffs’ complaint, is likewise DENIED.The Court now addresses whether Defendants are entitled to summary judgment as to their cross-complaint, or in the alternative, summary adjudication as to issue nos. 3 or 4.Undisputed Material Facts [“UMF”]Defendants assert UMF nos. 1-6 in support of their motion as to issue nos. 3 and 4.Plaintiffs own the residential home at 2031 Maple Glen Road. (UMF 1.) Defendants own theresidential home at 2041 Maple Glen Road. (UMF 2.) The properties are adjacent to each otherand share a fence-line composed of “a split rail fence, a taller solid fence, brick column, and achain-link fence.” (UMF 3.) Defendants claim the fence-line is not on the legal boundary lineand encroaches on Defendants’ property. (UMF 4.) Plaintiffs dispute, arguing the fence reflectsthe legal boundary, and aerial photographs as far back as 1953 reflect the current fencing is in thesame location as the original fencing placed by the developers.Plaintiffs submit Additional Material Facts [“AMF”] nos. 1-22 in opposition.To the extent the parties’ responses to UMFs purport to assert objections to evidence, suchobjections are overruled because CRC Rule 3.1354(b) states that objections to evidence shall beset forth in a separate document and must inter alia quote or set forth the objectionable statement Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54or material.Legal StandardIn evaluating a motion for summary judgment and/or summary adjudication, the Court engagesin a three-step process.First, the Court identifies the issues framed by the pleadings. The pleadings define the scope ofthe issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issuesraised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidencesubmitted in support of or in opposition to the motion must be addressed to the claims anddefenses raised in the pleadings. The court cannot consider an unpleaded issue in ruling on amotion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papersfiled in response to a defendant’s motion for summary judgment or summary adjudication maynot create issues outside the pleadings and are not a substitute for an amendment to thepleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334,1342.)Next, the Court must determine whether the moving party has met its burden. A defendantmoving for summary judgment bears the burden of persuasion that one or more elements of theplaintiff’s cause of action cannot be established, or that there is a complete defense to the causeof action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [quoting Code Civ. Proc.,§ 437c, subd. (p)(2)].)Once the moving party has met its initial burden, the burden shifts to the opposing party to showthat a material factual issue exists as to the cause of action alleged or affirmative defenseclaimed. (Code Civ. Proc., § 437c, subd. (p); see, generally, Bush v. Parents without Partners(1993) 17 Cal.App.4th 322, 326-327.)Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonablydrawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at 843.)Summary judgment is properly granted only if the moving party’s evidence establishes that thereis no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)DiscussionIssues No. 3 and 4Defendants contend they are entitled to summary adjudication as to their first cause ofaction to quiet title in their cross-complaint because they own the Wedge and Plaintiffsdo not have a prescriptive easem*nt. Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54The first cause of action in the Cross-Complaint is premised on the following allegations: The area between the legal boundary and portions of a fence separating the properties forms a wedge. Fencing encloses the wedge area of the Property as though it is part of Cross-Defendants' property, thereby preventing Cross- Complainants access to that portion of their Property. On or around June 30, 2021, Cross-Complainants informed Cross-Defendants of their intent to tear down the fencing that separates their properties and erect a new fence along the legal boundary line between the properties. Cross-Defendants now contend that they have a prescriptive easem*nt over the wedge area.(Cross-Complaint ¶¶ 10-12.)A motion for summary judgment or adjudication is framed by the pleadings. Thepleadings define the scope of the issues on a motion for summary judgment or summaryadjudication. (FPI Dev. Inc., supra, at 381-382.) Because a motion for summaryjudgment or summary adjudication is limited to the issues raised by the pleadings (seeLewis, supra, at 694), all evidence submitted in support of or in opposition to the motionmust be addressed to the claims and defenses raised in the pleadings. Since Defendantsfiled the instant motion, Plaintiffs have filed an amended complaint, no longer asserting aprescriptive easem*nt theory. Because the motion for adjudication is directed at a claimthat is no longer being asserted, it must be DENIED.Similarly, Defendants contend they are entitled to summary adjudication as to theirsecond cause of action for declaratory relief in their cross-complaint because Defendantsown a fee interest in their property unencumbered by Plaintiffs’ alleged easem*nt.The second cause of action in the Cross-Complaint is premised on the followingallegations: An actual controversy has arisen and now exists between Cross-Complainants and Cross-Defendants concerning their respective rights to the wedge area of the Property. Cross-Complainants assert that Cross-Defendants have no right to the wedge area of the Property. Cross-Defendants assert that they have a prescriptive easem*nt over the wedge area of the Property.(Cross-Complaint ¶ 17.)Again, the Cross-Complaint is premised on allegations Plaintiff is no longer asserting.Accordingly, the summary adjudication is DENIED.DispositionThe motion for summary judgment/adjudication is DENIED in its entirety, without prejudice, for Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54the foregoing reasons.The Court need not rule on Defendants’ objections to evidence as they were not material to theCourt’s disposition of the motion. (Code Civ. Proc. §437c(q).)The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 orfurther notice is required.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf. Page 5 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00305326-CU-OR-GDS: Michele Solomon vs. James Brian Putler 08/21/2024 Hearing on Motion of Summary Judgment/Adjudication in Department 54A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 6 of 6
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