Cupp v. Preciado

For purposes of section 128.5, “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. (CCP section 128.5(b)(1). “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party. (CCP section 128.5(b)(2).) Whether a court makes an award under section 128.5 is a matter within its sound discretion. (Park Magnolia v. Fields (1987) 191 Cal.App.3d Supp. 1, 4.)

In Park Magnolia, the court described the following conduct as completely without merit: the requests to enter default filed by plaintiff; plaintiff's use of a void default judgment to obtain a writ of possession against defendant; plaintiff's opposition to defendant's motion to vacate the default and default judgment and to quash the writ; and plaintiff's insistence that defendant deposit $2,900 with the court as a condition of relief. (Park Magnolia v. Fields (1987) 191 Cal.App.3d Supp. 1, 4.)

As a result, the appellate court reversed the trial court’s denial of defendant’s request for sanctions pursuant to CCP section 128.5. (Id., at p. 7.) Here, Defendants’ counsel states Ms. Schornack refused a reasonable request for an extension to file answers; provided no warning of her intention to seek defaults; did not serve the Request for Entry of Default; and did not notify defense counsel that default had been entered. When defense counsel promptly requested cooperation to stipulate to set aside the default, Plaintiff’s counsel ignored multiple written requests.

Defense counsel argues Plaintiff’s counsel: 1) knew that several Defendants had not been served at all, and that substituted service on others was improper; 2) refused to re-serve or inquire whether defense counsel would accept service; 3) refused a reasonable request for a brief extension to respond; 4) sought defaults without providing the required professional courtesy notice; 5) did not serve any Request for Entry of Default; and 6) ignored multiple written requests to stipulate to set aside the defaults.

Defendants state Hall and Hulsey were personally served weeks after Plaintiff claimed substituted service had already been completed demonstrating that Plaintiff’s counsel knew the original service was inadequate, yet she proceeded to take their defaults anyway. (Lewis decl., ¶¶3-17; Veres decl., ¶¶2, 3.) Defendants argue that as a direct result of Ms. Schornack’s conduct, Defendants were forced to incur unnecessary attorneys’ fees and costs in bringing this motion. The only default that may have had some merit was that of defendant Crane who had been personally served, even though the summons failed to state she was being served in her individual capacity.

As Plaintiff’s actions in seeking Defendants’ defaults, without having properly served each of them, were without merit, sanctions are justified to compensate Defendants for having to bring this motion. Defendants’ counsel states she spent 16.4 hours researching and preparing the motion. (Veres decl., ¶5.) Her hourly rate is $325. (Ibid.) She has been a California licensed attorney for eight years. (Ibid.) The cost of filing the motion is $60 and a $5.40 electronic filing processing fee. (Ibid.)

As of the time the court reviewed this matter, no opposition has been filed. The requested amount of attorney fees for the time spent on this motion—over two full days—seems high. This court finds sanctions are reasonable in the amount of $3,205.40.

7. Conclusion and Order The motion is GRANTED. Defendants’ defaults are hereby vacated. Defendants may file a response to the complaint within 10 days of this order. Sanctions are granted against Plaintiff’s counsel of record, Suzanne Schornack, in the amount of $3,205.40. Defendants’ counsel is directed to submit a written order to the court consistent with this ruling.

5. 25CV06228, Cupp v. Preciado 5

(TENTATIVE ISSUED BY HON. OSCAR A. PARDO)

IF ORAL ARGUMENT IS REQUESTED, MATTER WILL BE HEARD IN DEPT.

19. PLEASE USE DEPT. 19’S ZOOM LOGIN INFORMATION (SEE BOTTOM OF PAGE).

IF THERE ARE ANY REQUESTS TO APPEAR, THEY WILL BE HEARD ON FRIDAY, JULY 24, AT 9:00 A.M. IN DEPT.

19.

I.

Introduction

Cross-Defendant Ronald Vernon Cupp (“Cupp”) demurs to the entire cross-complaint filed by Chicago Title Company and Jayson Yambao and to the first through fifth causes of action on the grounds of failure to state facts sufficient to constitute a cause of action and for uncertainty. The demurrer is SUSTAINED with leave to amend. II. Chicago Cross-Complaint On February 17, 2026, Chicago Title Company and Jayson Yambao (“Cross- Complainants”) filed a cross-complaint against Esteban Diaz (“Diaz”), Diaz Marble Tile & Stone, LLC (“Diaz LLC”), Tjomay Buditaslim aka Joe Lim (“Lim”), Cupp, and Alexandra Gurau (“Gurau”) (the “Chicago Cross-Complaint”).

The Chicago Cross-Complaint alleges causes of action for implied and equitable indemnity, partial implied and equitable indemnity, comparative fault, tort of another, and declaratory relief. Cross-Complainants allege that Diaz LLC sold real property commonly known as 1654 Guerneville Road, Santa Rosa, California (“Subject Property”) to Melissa Michelle Preciado (“Preciado”) in or around May 2020. They allege Diaz LLC is owned and operated by Diaz. Cross- Complainants state they acted as the escrow agent and Cross-Defendant Gurau acted as the notary public for the transaction.

Cross-Complainants recite that Cupp commenced this action by filing the complaint against Preciado, James Preciado, and Peter Churchill. In the Complaint, Cupp alleges that Diaz assigned him a Note and Deed of Trust signed by Preciado and encumbering the Subject Property. Cupp alleges that Preciado is in default on the Note and alleges causes of action for declaratory relief, judicial foreclosure, breach of contract, unjust enrichment, and quiet title. Cross-Complainants recite that Preciado subsequently filed a cross-complaint against Cupp, Diaz, Diaz LLC, Lim, and the Cross-Complainants (the “Preciado Cross-Complaint”).

Preciado alleges that during the close of escrow for the Subject Property, Diaz and Lim caused the Deed of Trust to be inserted in the escrow documents and caused Preciado to sign it without her realizing what she signed. Preciado also alleges that the Cross-Complainants failed to prevent Diaz and Lim from signing the Deed of Trust and or aided and abetted Diaz and Lim. Preciado alleges causes of action for fraud, constructive fraud, breach of fiduciary duty, rescission, action to remove cloud of title, tort of another, declaratory relief, and injunctive relief.

Cross-Complainants deny liability arising from the Preciado Cross-Complaint. They allege that if there is any liability resting with Preciado, then Cross-Complainants’ liability is only passive and secondary and is the result of the active and primary acts, omissions, or fault of Cross- Defendants. They allege that any damages sustained as a result of the Preciado Cross-Complaint will be due to the active and affirmative misconduct, breach of duty to disclose, negligence, negligent misrepresentation, breach of fiduciary duty, or other misconduct by Cross-Defendants, and each of them, and will not have been caused by any act or omission on the part of Cross- Complainants.

They allege they are entitled to be indemnified by Cross-Defendants, and each of them, in an amount equal to the percentage by which the aforesaid active negligence, breach of 6

fiduciary duty, or other affirmative misconduct on the part of the Cross-Defendants, and each of them, contributed to Preciado’s damages, including but not limited to Cross-Complainants’ costs and reasonable attorneys' fees incurred in defending against this action. III. Cupp’s Demurrer Cupp argues that Cross-Complainants filed the Chicago Cross-Complaint to shift liability onto Cupp for the 2020 escrow transaction in which Cupp had no involvement. Cupp argues that he first became involved in the circumstances resulting in this lawsuit five years after sale of the Subject Property when on July 1, 2025, he received a recorded assignment of the subject Deed of Trust.

Cupp argues the Chicago Cross-Complaint contains no facts showing any act, knowledge, agreement, or participation by Cupp. As such, he argues his liability is legally impossible. A. First and Second Causes of Action – Implied and Equitable Indemnity; Third Cause of Action – Comparative Fault Cupp argues that there are no facts alleged in the Chicago Cross-Complaint showing Cupp’s active or primary fault as a proximate cause of the loss. Equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis. (Fremont Reorganizing Corp. v.

Faigin (2011) 198 Cal.App.4th 1153, 1176–1177.) A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury. (Id., at p. 1177.) Comparative fault is another doctrine allocating loss about tortfeasors. (Baird v. Jones (1993) 21 Cal.App.4th 684, 690.) The Chicago Cross-Complaint is based upon allegations in the Preciado Cross-Complaint. In the latter, the Preciado cross-complainants allege that Cupp seeks to foreclose on the Subject Property to collect on the Note, which is secured by a junior Deed of Trust.

The Preciado Cross- Complaint alleges that this purported Note and junior Deed of Trust are shams. They allege the Note, which Cupp alleges has gone missing, never existed and the signed junior Deed of Trust was procured by fraud at the time Preciado signed the purchased documents on May 15, 2020. The causes of action alleged in the Preciado Cross-Complaint against Cupp are for Rescission of the Note and/or junior Deed of Trust, to remove a cloud on title, and for declaratory relief. There are no allegations that Cupp participated in the alleged fraud creating the Note or having Preciado sign the junior Deed of Trust.

Cupp is named as a cross-defendant only as he claims an interest in the Subject Property via the Note and junior Deed of Trust. Cupp is not alleged to be a tortfeasor. Therefore, there are no allegations to support a claim for equitable indemnity or comparative fault against him. B. Fourth Cause of Action – Tort of Another A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred. (Prentice v.

North Am. Title Guaranty Corp., Alameda Division (1963) 59 Cal.2d 618, 620.) Again, as there are no allegations that Cupp is a tortfeasor, there are no allegations to support a cause of action for tort of another against Cupp. C. Fifth Cause of Action - Declaratory Relief The Chicago Cross-Complaint alleges an actual and present controversy has arisen between Cross-Complainants on the one hand and Cross-Defendants, and each and all of them, on the other hand, regarding the obligations to defend and indemnify Cross-Complainants.

Cross-Complainants desire a judicial determination and declaration of the parties' respective rights and duties to one another, and specifically that Cross-Defendants are required to indemnify and hold harmless Cross- Complainants from any and all liability, damages, costs and attorneys' fees incurred by Cross-

Complainants in the defense against Preciado’s Cross-Complaint, and/or of Cross-Complainants’ Chicago Cross-Complaint. As between the Chicago Cross-Complainants and Cupp, there are no facts establishing the existence of a controversy based upon the Preciado Cross-Complaint. IV.

Conclusion

Cupp’s demurrer to the Chicago Cross-Complaint is SUSTAINED. The Chicago Cross- Complainants’ request leave to amend is GRANTED. Cupp is directed to submit a written order to the court consistent with this ruling and in compliance with Cal. Rules of Court, Rule 3.1312.

6. 25CV08769, Cupp v. Adams

(TENTATIVE ISSUED BY HON. OSCAR A. PARDO)

IF ORAL ARGUMENT IS REQUESTED, MATTER WILL BE HEARD IN DEPT.

19. PLEASE USE DEPT. 19’S ZOOM LOGIN INFORMATION (SEE BOTTOM OF PAGE).

IF THERE ARE ANY REQUESTS TO APPEAR, THEY WILL BE HEARD ON FRIDAY, JULY 24, AT 9:00 A.M. IN DEPT.

19.

I.

Introduction

Defendant Mark Adams (“Adams”) demurs to the Amended Petition of Ronald Cupp (“Cupp”) on the grounds of failure to state facts sufficient to constitute a cause of action, for lack of jurisdiction, that the Amended Petition seeks to confirm a void arbitration award, that Adams is not bound by any valid arbitration agreement, and that Petitioner Cupp lacks legal capacity to sue pursuant to Code of Civil Procedure section 430.10(b). The demurrer is SUSTAINED without leave to amend. II. Cupp’s Amended Petition Petitioner Cupp filed his Amended Petition on December 29, 2025.

The Amended Petition seeks to confirm an arbitration award entered on May 29, 2025, by three arbitrators in the matter of Nature’s Way 12778 Dupont Road, LLC v. Mark Adam (“Award”). Cupp alleges he is the assignee of the Award. A. The Arbitration Award The Award is attached to the Amended Petition and states that Nature’s Way 12779 Dupont Road, LLC (“LLC”) is the holder of the dominant estate and as of May 25, 2022, Adams is the court-appointed title-holder-in-fact of the servient estate. Further possessory rights were granted to Adams on February 29, 2024.

The dispute involved an express grant easement and a lease agreement. The LLC alleged Adams interfered with the use and enjoyment of the easement, caused a nuisance, and breached the terms of a lease contract related to the easement. The LLC sought liquidated damages and damages. The arbitrators found that the LLC holds an express easement over property located at 12778 Dupont Road in Sebastopol. The contract between tenant Michael Louis Castagnola (“Castagnola”), grantor, and landlord LLC, grantee, was entered into on February 12, 2022, recorded on February 22, 2024, and updated on August 6, 2024.

The explicit easement is for the purpose of enjoying the rights, benefits, and uses of the property in the same manner as any leaseholding tenant would have while also conserving several endangered local species.

8