Mann v. Paley

Here, the Court finds that Plaintiff met all procedural requirements and provided all information in support of the proposed amendment pursuant to California Rules of Court, rule 3.1324(a) & (b).

Plaintiff shall file the proposed First Amended Complaint within 10 days of this order.

Plaintiff to give notice. 107 O’Kane v. Radovich, 2022-01276312 Motion to Continue Trial – MOOT 108 Premier Liberty Development LLC v. Nguyen, 2018- 01008782 Plaintiff’s Motion for Summary Judgment – DENIED

This case involves the priority of deeds of trust on a piece of commercial real property. Plaintiff Premier Liberty Development’s operative complaint contains a single cause of action for declaratory relief of three issues: (1) the reconveyance of Premier’s deed of trust was forged and the Premier deed of trust remains superior to Defendant Velocity Commercial Capital’s deed of trust (2) Premier had the right to foreclose on its lien created by the Premier deed of trust which remains as a lien on the Property superior to any claim by any defendant (including Velocity) to the Property after the recording of the Premier Deed of Trust; and (3) Velocity must disgorge and refund to Premier all sums which it received as restitution, specifically, the sum of $2,573,757, together will all accrued interest from and after November 7, 2024, at the legal rate of ten percent (10%).

To prevail on a motion for summary adjudication, a plaintiff must show that there is no defense to the cause of action, by proving each element of the cause of action itself. Once plaintiff makes such a showing, the burden shifts to the defendants to show a triable issue of material fact exists as to the cause of action or a defense thereto. (Code Civ. Proc., §437c(p)(1).)

“To qualify for declaratory relief under section 1060, plaintiffs were required to show their action presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy

involving justiciable questions relating to the rights or obligations of a party.”’ (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.)

Plaintiff Premier fails to establish its initial burden under CCP 437c.

Rather than plainly addressing elements 1 and 2 for each of the 3 issues for “determination”, Plaintiff merely suggests there can be no triable issue of any material fact because the signature of the beneficiary and substituted trustee was forged. Plaintiff then goes on to argue why the Court can award monetary relief. Notably, these arguments are not raised until page 18 of the motion. Finally, to wrap everything up, Plaintiff concludes, “The practical effect of a judgment for Premier is straightforward: The court would declare that Premier’s trust deed is senior to Velocity’s trust deed, Velocity would repay what it owes from the May 2022 foreclosure sale, and the current owner would retain title free and clear of Premier’s then extinguished lien.” [Motion page 21: 10-13] However, the Court does not find the arguments to be nearly as straightforward as Plaintiff suggests.

Initially, this motion is difficult to analyze. Despite being a motion for summary judgment, Plaintiff seeks determination of three issues. But Plaintiff has lumped all the facts and issues together in both the memorandum of points and authorities and the separate statement. Making the analysis more difficult, there is no reference to any undisputed material facts or evidence in either party’s briefing. That is, neither party makes any effort to direct the Court to the facts or evidence it contends supports its claims.

Without such direction, the Court is left to rummage through the papers to construct the evidence in support of the arguments. When faced with a procedural default which makes it more difficult for the trial court to efficiently resolve a summary judgment motion, the court is not required to simply ignore the defect. It is a party’s “duty to direct the court to evidence that supports their claims. It is not the court’s duty to rummage through the papers