CONSTRUCTION LOAN SERVICES II LLC vs HOGGAN, KENT A

Procedure section 1008 or Code of Civil Procedure section 473. The following are the tentative rulings for cases calendared before Judge Clifford Tong in Department 23:

CV-23-005739 - TALAVERA, ROSENDO CONTRERAS vs GENERAL MOTORS LLC - Defendant General Motors LLC's Motion to Tax Counsel's Memorandum of Costs - DENIED. Preliminarily, the Court notes that Civ. Code Sec. 1794(d) allows for a prevailing plaintiff to recover costs and expenses beyond those enumerated in Code Civ. Proc. Sec. 1033.5. (See, e.g. Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 137-38.) In any case, the Court notes that the majority of the items challenged herein are expressly recoverable under Code Civ.

Proc. Sec. 1033.5. The Court finds that Defendant has failed to meet the burden of demonstrating that the challenged costs are unrecoverable, excessive and/or unreasonably incurred under either Civ. Code Sec. 1794(d) or Code Civ. Proc. Sec.1033.5. (Nelson v. Anderson (1999) 72 Cal.App.4 th 111, 131; Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4 th 807, 816-817; Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) The clerk shall enter the cost award on the judgment in this matter. (Cal.

Rules of Ct., rule 3.1700(b)(4).)

CV-24-007336 - CKS PRIME INVESTMENTS LLC vs HERNANDEZ, HILDA - Plaintiff's Motion for Order that Matters in Request for Admissions be Deemed Admitted Pursuant to CCP 2033.280 - GRANTED, and unopposed. The Court finds that Defendant has failed to respond to the subject discovery entirely and objections have been waived. (Code Civ. Proc. Sec. 2033.280(a).) Accordingly, the Court has no discretion but to grant Plaintiff's request. (Code Civ. Proc. Sec. 2033.280(c); St. Mary's v. Superior Court (Schellenberg) (2014) 223 Cal.App.4 th 762, 777-778.). The matters contained in Request for Admissions, Set One, are deemed admitted. The Court will sign the proposed order submitted by Plaintiff.

CV-25-009269 - EVITT, KENNETH BRYAN vs CITY OF MODESTO - Defendant County of Stanislaus's Demurrer to Each Cause of Action of Plaintiff's First Amended Complaint - SUSTAINED, with leave to amend. Based upon review of the moving and supporting papers, as well as the lack of substantive argument in opposition thereto, the Court sustains the Demurrer in its entirety. Specifically, the Court notes that only the Third Cause of Action contains any factual allegations against the County, and the claims suggested therein appear to be barred by the applicable statutes of limitation on the face of the pleading.

Under the circumstances, it is Plaintiff's burden to plead facts showing a ground for suspension, delayed accrual, or application of another theory for avoidance of the statute. (See, e.g., County of Alameda v. Superior Court (1987) 195 Cal.App.3d 1283, 1286-1287.) Plaintiff shall submit his Second Amended Complaint within 20 days.

CV-26-000602 - NORFORD, LEON vs MOUNTAIN VIEW SECURITIES INC - Defendant Mountain View Securities Inc.'s Motion to Compel Individual Arbitration and to Stay the Non-Individual Private Attorney's General Act Claim Pending Completion of Arbitration - DENIED. Defendant has not met its burden to prove Plaintiff assented to the subject arbitration agreement. Defendant's submission of an unsigned agreement and an ADP acknowledgment record, even while supported by evidence purportedly authenticating attribution of the electronic acknowledgment to Plaintiff, is insufficient to establish Plaintiff's assent to the contract terms under California law. Because Defendant has not shown an agreement to arbitrate, the Court does not reach Plaintiff's alternative enforcement defenses.

The following are the tentative rulings for cases calendared before Judge David Hood in Department 24:

CV-24-002004 - CONSTRUCTION LOAN SERVICES II LLC vs HOGGAN, KENT A - Plaintiff's Motion for Summary Judgment or, in the Alternative, for Summary Adjudication of Plaintiff as Against Kent A. Hoggan - GRANTED. The court finds that Plaintiff has discharged its burden of demonstrating prima facie that it is entitled to summary judgment on its claims, and that Defendant has failed to adduce any admissible evidence to establish the existence of any triable issue of material fact herein. Code of Civil Procedure section 437c; Aguilar v Atlantic Richfield, (2001)25 Cal.4th 826; 640 Octavia, LLC v. Pieper, (2023) 93 Cal.App.5th 1181).

Plaintiff has produced evidence establishing (1) the guaranty; (2) Borrower default; (3) Defendant's default under the guaranty and (4) damages. (Plaintiff's UMFs 1-14, 22 and 23, Defendant's Exhibits 1-4; Defendant's Responses to Plaintiff's Form Interrogatories, Set One, Special Interrogatories, Set One, and Requests for Admissions, Set One, and RFPs Set One).

As to Defendant's sham guaranty defense, the evidentiary showing is weak. Defendant's opposition largely relies on Defendant's declaration and conclusory characterizations that the LLC was his alter ego. Much of Defendant's showing lacks corroborating documentary evidence. However, the record shows that Defendant signed the loan documents as Manager of the corporate entity and signed the guarantee personally. Plaintiff has also demonstrated that the corporate entity which D claims was his alter ego was formed 2 years prior to the loan and guarantee at issue and constitutes a separate corporate entity with an operating agreement demonstrating adequate legal separation between the Borrower and Defendant. CADC/RADC Venture 2011-1 LLC v. Bradley (2015) 235 Cal.App.4th 775).

Additionally, to the extent that Defendant does not provide any admissible evidence in support of his claims and only admissible evidence is considered in deciding whether there is a triable issue of material fact precluding summary judgment, Defendant has not discharged his burden in that regard. (640 Octavia, LLC v. Pieper, (2023) 93 Cal.App.5th 1181).

As to Defendant's Impairment of Security defense, Defendant offers allegations concerning vandalism, lender conduct, and funding decisions, but the current record contains little competent evidence showing (1) actual diminution in value attributable to Plaintiff, (2) causation, (3) resulting damage amounts, or (4) why express guaranty waivers would not apply. The Court notes broad guaranty waivers and the existence of a stipulated receiver as well as the court appointment of a Receiver to manage and sell the property. Plaintiff's Response to Defendant's AMFs 34-39, Defendant's Exh 4; (Guaranty) Sec.Sec. 3(d), and 20); Civil Code Sec. 2819; Bennett v. Leatherby (1992) 3 Cal.App.4th 449; Conner v. Conner (1999) 76 Cal.App.4th 646. Accordingly, Plaintiff's Motion for Summary Judgment or for Summary Adjudication is hereby granted.

Rulings on Plaintiff's Evidentiary Objections

Objection Nos. 1-6 (Paragraphs describing formation of Ceres 41 LLC, Hoggan's role, and communications with Plaintiff regarding creation of the entity.) OVERRULED IN PART / SUSTAINED IN PART Overruled as to facts based on Hoggan's personal knowledge, such as his formation of the LLC, ownership status, and communications he personally participated in. Sustained as to statements characterizing the LLC as a "strawman borrower," "alter ego," or other legal conclusions. Such statements are legal conclusions rather than admissible facts.

Objection No. 7 Paragraph 8: "I requested another loan, offering the equity in 22 of the completed lots, Plaintiff refused." OVERRULED Hoggan may testify concerning requests he personally made and responses he received. The statement appears based on personal knowledge. The best evidence objection is not persuasive because the testimony concerns an event, not the contents of a writing.

Objection No. 8 Paragraph 9: "This prevented me from completing 19 homes so they could be sold to repay the loan." SUSTAINED This is speculative causation testimony. Hoggan lacks foundation to opine that the requested financing would necessarily have resulted in completion of homes and repayment of the loan. It also borders on improper opinion testimony.

Objection No. 9 Paragraph 10: "Plaintiff refused to provide a payoff quote ... which prevented me from paying off the First Loan." SUSTAINED IN PART Overruled as to testimony that a refinance effort existed and payoff information was requested. Sustained as to the conclusion that Plaintiff's conduct "prevented" payoff because the statement is speculative and lacks foundation establishing that refinancing would have closed.

Objection No. 10 Paragraph 11: "I was forced to take a Second Loan..." SUSTAINED IN PART Overruled as to the fact that he entered into another loan transaction. Sustained as to the characterization that he was "forced" to do so, which is argumentative and speculative.

Objection No. 11 Paragraph 12: Plaintiff knew Ceres 41 LLC was not an actual business and was insolvent. SUSTAINED This paragraph contains multiple legal conclusions and speculative assertions concerning Plaintiff's state of mind, knowledge, and the legal status of the LLC. Hoggan lays no foundation for personal knowledge of Plaintiff's internal beliefs.

Objection No. 12 Paragraph 13 (Assertions that Plaintiff knew Hoggan was the "actual principal obligor" and required the guaranty anyway.) SUSTAINED Statements regarding Plaintiff's knowledge and intent are speculative. Statements that Hoggan was the "actual principal obligor" are legal conclusions central to the sham-guaranty defense

Objections Nos. 13-14 (Vandalism, deterioration, and damage to the project.) OVERRULED IN PART / SUSTAINED IN PART Overruled as to observations of vandalism or physical damage personally observed by Hoggan. Sustained as to opinions regarding the amount of damage, value reduction, or causation absent proper foundation.

Objection No. 15 Paragraph 16: "Plaintiff advised that he would rather foreclose than let me complete it." OVERRULED This is an admission of a party opponent if the statement was made by Plaintiff's authorized representative. Hoggan may testify to statements he personally heard. Any dispute goes to weight rather than admissibility.

Objection No. 16 Paragraph 17: Plaintiff's neglect caused millions of dollars in damage and Plaintiff sold at a reduced price. SUSTAINED The paragraph contains: improper expert valuation opinions, speculative causation, unsupported damage estimates, legal conclusions regarding negligence. No valuation expert or foundation appears to support those opinions.

Objection No. 17 Paragraph 18: Plaintiff failed to secure the property despite warnings. Recommended Ruling: OVERRULED IN PART / SUSTAINED IN PART Overruled regarding statements that Hoggan communicated concerns about security. Sustained regarding conclusions that Plaintiff's actions caused subsequent damage absent expert or foundation testimony.

Remaining Objections (Paragraphs alleging further deterioration, refusal to complete the project, rejection of a $7 million buyer, and resulting loss of value.) SUSTAINED IN PART Overruled as to facts showing discussions with potential buyers and communications personally observed. Sustained as to: market value opinions, assertions the offer was superior, claims of resulting deficiency, assertions that Plaintiff's conduct caused a particular decrease in value. Those matters require valuation evidence and expert foundation not supplied by the declaration.

CV-24-005387 - WELLS FARGO BANK NA vs ACEBES, CELESTE - Plaintiff's Motion to Vacate Dismissal Under C.C.P. 664.6 & Enter Judgment Pursuant to Stipulation - GRANTED, unopposed. Pursuant to the Stipulation and Settlement Agreement between the parties of October 2024, and Defendant's failure to pay the sums due under said Agreement, the Court finds that Defendant is currently in default of said agreement entitling Plaintiff to all outstanding sums under said agreement Plaintiff's motion is accordingly granted. The Court's dismissal order of December 3, 2024 is hereby set aside and vacated. Pursuant to said agreement and including costs and fees of $300, judgment is hereby entered for Plaintiff against Defendant for $1,608.00. (Code of Civil Procedure Sec. 664.6; Harris v. Rudin, Richman & Appel, (1999) 74 Cal. App. 4th 299).

CV-24-010156 - SYNCHRONY BANK vs MONET, LARYAH - Plaintiff's Motion for Entering Judgment Pursuant to Defendant's Default Under Settlement and Release Agreement - GRANTED, unopposed. Pursuant to the Settlement Agreement between the parties of January 7, 2025, and Defendant's failure to timely pay the sums due under said agreement, the Court finds that Defendant is currently in default of said agreement entitling Plaintiff to all outstanding sums under said agreement as well as costs as agreed upon in said Settlement Agreement. Plaintiff's motion is accordingly granted.