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FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 SUPREMECOURTOFTHESTATEOFNEWYORK COUNTYOFORANGE ________________________________________________________________Ç MIDFIRST BANK SUMMONS Plaintiff, vs MORTGAGED PREMISES: TEMELGREENE,MERCEDESGREENE, 3 Highrose Ridge Way UNITEDSTATESOFAMERICAON Middletown, NY 10940 BEHALFOFTHESECRETARYOF HOUSINGANDURBAN DEVELOPMENT, HIGHROSERIDGEHOMEOWNERS ASSOCIATION, INC., ORANGE COUNTY CLERK, PREFERRED CREDIT, INC. JOHNDOE(Those unknown tenants, occupants, persons or corporations or their heirs, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.) Defendant(s). ________________________________________________________________Ç TOTHEABOVENAMED DEFENDANTS: YOUAREHEREBYSUMMONED to answer the Complaint in the above captioned action and to serve a copy of your Answer on the Plaintiffs attorney within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after completion of service where service is made in any other manner 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 hereof. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. NOTICE YOUAREIN DANGEROFLOSINGYOURHOME If von 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 the answer with the court, a default judgment may be entered and vou can lose vour home.Filed in Orange County 07/09/2024 04:24:32 PM$0.00 Bk: 15158 of 21 Pg: 1274 Index: # EF005475-2024 Clerk: LCFILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 Speak to an attorney or go to the court where vour case is pending for further information on how to answer the summons and protect your oronerty. Sending a payment to your mortgage company will not stop this foreclosure action. YOUMUSTRESPONDBY SERVINGA COPYOF THEANSWER ON THEATTORNEYFORTHE PLAINTIFF (MORTGAGECOMPANY) ANDFILINGTHE ANSWERWITHTHECOURT. Orange County is designated as the place of trial. The basis of venue is the location of the mortgaged premises foreclosed herein. DATED:June 26, 2024 Jonathan W Jacobs, Esq. Gross Polowy LLC Attorneys for Plaintiff 1775 Wehrle Drive, Suite 100 Williamsville, NY 14221 Tel.: (716) 204-1700 2 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 SUPREMECOURTOFTHESTATEOFNEWYORK COUNTYOF ORANGE ----------------------------------------------------------------X MIDFIRST BANK COMPLAINT Plaintiff, vs MORTGAGED PREMISES: TEMELGREENE,MERCEDESGREENE, 3 Highrose Ridge Way UNITEDSTATESOFAMERICAON Middletown, NY 10940 BEHALFOFTHESECRETARYOF HOUSINGANDURBANDEVELOPMENT, HIGHROSERIDGEHOMEOWNERS ASSOCIATION, INC., ORANGE COUNTY CLERK, PREFERRED CREDIT, INC. JOHNDOE(Those unknown tenants, occupants, persons or corporations or their heirs, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.) Defendant(s). ----------------------------------------------------------------X The Plaintiff by its attorneys, Gross Polowy LLC, for its complaint against the Defendant(s) alleges upon information and belief as follows: AS ANDFORA FIRST CAUSEOFACTION: 1. Plaintiff, MIDFIRST BANKis a Federally Savings Association organized Chartered and existing under the laws of the United States of America and the owner and holder of the subject note and mortgage or has been delegated authority to institute this mortgage foreclosure action by the owner and holder of the subject note and mortgage and has the right to foreclose. Attached here as Schedule A is a copy of the original note. 2. On or 2020, Temel Greene and Mercedes Greene executed and about April 15, delivered a note whereby Temel Greene and Mercedes Greene promised to pay the sum of $265,109.00 plus interest on the unpaid amount due. 3. As security for the payment of the note Temel Greene and Mercedes Greene duly executed and delivered a mortgage, in the amount of $265,109.00 which was recorded as follows. Recording Date: May 7, 2020 Book 14743/Page 1456 Office of the Orange County Clerk 3 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 The mortgage was subsequently assigned to MidFirst Bank. 4. The mortgaged property Highrose Ridge Way, Middletown, NY is known as 3 10940. The tax map designation is Section 50 Block 29 Lot 4. Plaintiff is foreclosing the land, buildings, and other improvements located on the property. The property is more fully described in Schedule B attached to this complaint. 5. Temel Greene and Mercedes Greene failed to comply with the conditions of the note and mortgage by not making the payment that was due on October 1, 2023 and subsequent payments. 6. There is now due and owing on the note and mortgage the following amounts: Principal Balance: $250,073.16 Interest Rate: 4.5% Date Interest Accrues from: September 1, 2023 Together with accrued late charges, monies advanced for taxes, assessments, insurance, securing, inspections, posting of notices, maintenance and preservation of the property. 7. In order to protect of the property the value and its rights in the property, the Plaintiff may have to pay additional taxes, assessments, water charges, insurance premiums and other charges and the costs, allowances, expenses of sale, and reasonable attorney's fees for the foreclosure. Plaintiff requests that any amount it pays, together with interest, be included in the total amount due. 8. The defendant(s) may have an interest encumbering the property, which is either subordinate to Plaintiffs mortgage, or paid in full, equitably subordinated, or adverse to Plaintiffs mortgage. The interest of each defendant is set forth in "Schedule C" of this complaint. 9. The interest or lien of the United States of America, the State, City or local government entity is set forth in "Schedule D" of this complaint. 10. has complied with sections 1304 and 1306 of the Real Property Actions and Plaintiff Proceedings Law and with all provisions of section 595-a of the Banking Law and any rules or regulations promulgated there under, and, if applicable, sections 6-1 or 6-m of the Banking law. 11. No prior action was brought to recover any part of the mortgage debt. AS ANDFORA SECONDCAUSEOFACTION, PLAINTIFF HEREINALLEGES 12. Repeats and realleges the allegations contained in Paragraphs "1" through "11" as though fully set forth herein. 4 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 13. That the recorded mortgage, that is the subject of this action, accurately references the address of the property encumbered by the mortgage as: 3 Highrose Ridge Way, Middletown, NY 10940. 14. That the legal description Mortgage recorded on May 7, 2020 in in Book 14743, Page 1456 in the Office of the Orange County Clerk contained an error to wit: In the first sentence of the 2nd paragraph, the word "corner" is incorrectly spelled "coner". 15. Plaintiff hereby requests reformation of the Mortgage recorded on May 7, 2020 in Book 14743, Page 1456 in the Office of the Orange County Clerk by Order of this Court as contained in a clause in the Order of Reference stating the following: ORDERED,that the legal description in the Mortgage recorded on May 7, 2020 in Book 14743, Page 1456 in the Office of the Orange County Clerk is hereby reformed so that the property reads as follows: ALL that certain piece or parcel of land situated in the City of Middletown, Orange County, New York, being designated as Lot 29-4 of a map entitled "Overall Final Subdivision Plat, Realty Subdivision Drawing 1 of 13 Sheets of the Amchir Point Community Section A, City of - 1" Middletown, Orange County, NewYork, Tax MapSection 50, Block 1, Lot dated August 24, 2011 and last revised on June 28, 2012 as prepared by T. M. DePuy Engineering & Land Surveying, P.C. and filed in the Orange County Clerk's Office on July 13, 2012 as MapNo. 220- 12 and being more particularly described as follows: BEGINNINGat a point being the northerly corner of Lot 29-5 of said subdivision and being in the bounds of lands of HBRHomesLLC (tax mapparcel Section 50, Block 30, Lot 1), Liber 33' 33" 13377 of Deed page 388; thence along the westerly bounds of said Lot 29-5 South 36° West 85.00 feet to a point corner of said Lot 29-5 and being in the bounds of being the westerly said lands of HBRHomesLLC; thence along the said bounds of said lands of HBRHomesLLC 26' 27" North 53° West 18.00 feet to a point being the southerly corner of Lot 29-3 of said 33' 33" subdivision; thence along the easterly bounds of said Lot 29-3 North 36° East 85.00 feet to a point being the easterly corner of said Lot 29-3 and being in the said bounds of said lands of HBRHomesLLC; thence along said bounds of said lands of HBRHomesLLC South 53° 26' 27" East 18.00 feet to the point or place of BEGINNING. AS ANDFORA THIRDCAUSEOFACTION, PLAINTIFF HEREINALLEGES: "1" 16. Plaintiff repeats and re-alleges the allegations contained in Paragraphs through "15", as though fully set forth herein. 17. Upon information and belief, all the defendants herein have or claim to have some interest in or lien upon said mortgaged premises or some part thereof which interest or lien, if any, has accrued subsequent of Plaintiffs mortgage, or has been paid or equitably to the lien subrogated to Plaintiffs mortgage, or has been duly subordinated thereto, or is adverse to that of Plaintiff. The reason for naming said defendants is set forth in Schedule "C and/or D" that is attached to this complaint. 5 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 18. It appears from the public records that United States of America on Behalf of the Secretary of Housing and Urban Development holds a lien which is adverse to the Plaintiffs interest and which remains open of record as follows: Orange County Clerk has lien(s) on its records held by United States of America on Behalf of the Secretary of Housing and Urban Development given by Xiomara Mangual which appear(s) to be prior and adverse to the mortgage being foreclosed: Recording date: March 12, 2020 Recording information: Book 14717 and Page 26 County: Orange Amount: $216.53 The above mentioned lien is against prior owner of the mortgaged premises, 19. Xiomara Mangual. Attached hereto as Exhibit E are copies of the deed showing the transfer of ownership from Xiomara Mangual. 20. The interest of Plaintiff in the property is set forth in paragraph "1", above. 21. Upon information and belief, all of the defendants are known, and none of them are infants, mentally retarded, mentally ill or alcohol abusers. 22. Upon information and belief, there are no persons not in being or ascertained at the commencement of this action who by any contingency contained in a devise or otherwise, could afterward become entitled to a beneficial estate or interest in the property involved in this action, and any judgment rendered herein will not and may not affect any such person not in being or not ascertained at the time of the commencement of this action. 23. The lien(s) of Defendant(s) United States of America on Behalf of the Secretary of Housing and Urban Development appear(s) to be prior and adverse to the mortgage being foreclosed and is/are subject to being extinguished as they pertain to the subject property pursuant to Article 15 of the Real Property Actions and Proceedings Law. 24. Plaintiff hereby requests that the Order of Reference state the following: ANDDECREED,that ORDERED,ADJUDGED the lien(s) which appear(s) to be prior and adverse to the mortgage being foreclosed, namely the lien against Defendant Xiomara Mangual, given by the Defendant United States of America on Behalf of the Secretary of Housing and Urban Development, recorded on March 12, 2020 at Book 14717 and Page 26 in the amount of $216.53 is/are hereby extinguished as they pertain to the subject property pursuant to RPAPLArticle 15; and it is further ANDDECREED,that ORDERED,ADJUDGED all Defendant(s) and all persons or entitiesclaiming by, through or under them, be and are hereby forever barred and foreclosed of and from all right, claim, lien, interest or equity of redemption in and to said mortgaged premises; and it is further 6 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 ANDDECREED,that ORDERED,ADJUDGED be reformed to reflect that the record the lien(s) of Defendant(s) United States of America on Behalf of the Secretary of Housing and Urban Development is/are extinguished as they pertain to the subject property; and it is further ANDDECREED,that ORDERED,ADJUDGED the Orange County Clerk upon the payment of its requisite fees, shall record and index a certified copy of this Order/Judgment in the samemanner as the lien being extinguished; and it is further ANDDECREED,that ORDERED,ADJUDGED the Orange County Clerk is hereby directed to record copy of Order a certified this upon the payment of its requisite and lawful fees and index same against premises known as and by 3 Highrose Ridge Way, Middletown, NY 10940 and SBL: Section 50 Block 29 Lot 4. PLAINTIFF DEMANDS: WHEREFORE, a. Judgment accelerating the maturity of the debt and determining the amount due Plaintiff for principal, interest, late charges, taxes, assessments, insurance, maintenance and preservation of the property and other similar charges, together with costs, allowances, expenses of sale, reasonable attorney's fees, all with interest, pursuant to the terms of the Note and Mortgage. b. That the property be sold at auction to the highest bidder in accordance with the referee's terms of sale. c. That the interest of the defendant(s) and all persons claiming by or through them be foreclosed and their title, right, claim, lien, interest or equity of redemption to the property be forever extinguished. d. That out of the sale proceeds, the Plaintiff be paid the amounts due for principal, interest, late charges, taxes, assessments, insurance, securing, inspections, posting of notices, maintenance and preservation of the property, and other similar charges, together with court costs, allowances, expenses of sale, and reasonable attorney's fees, all with interest. e. That the property be sold in as is condition and subject to the facts an inspection or accurate survey of the property would disclose, covenants, restrictions, easem*nts and public utility agreements of record, building and zoning ordinances and violations, and the equity of redemption of the United States of America. f. That Plaintiff may purchase the property at the sale. g. That a receiver be appointed for the property, if requested by Plaintiff. h. That a deficiency judgment against Temel Greene and Mercedes Greene, to the extent allowable by law, for the amount that remains due after distribution of the sale proceeds, unless the debt was discharged in a bankruptcy or is otherwise uncollectable, be granted if requested by Plaintiff. i. That if the Plaintiff possesses other liens against the property, they not merge with the mortgage being foreclosed and that Plaintiff, as a subordinate lien holder, be allowed to share in any surplus proceeds resulting from the sale. j. That United States of America on Behalf of the Secretary of Housing and Urban Development interest in the mortgaged premises, and all persons or entities claiming by, through or under them, be extinguished as it pertains to the subject 7 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 property, and that United States of America on Behalf of the Secretary of Housing and Urban Development and all persons or entities claiming by, through or under them, be barred and foreclosed of and from all right, claim, lien, interest or equity or redemption in and to said mortgaged premises and that the Plaintiff be granted reformation of the record to reflect said lien being extinguished. k. Awarding the relief requested in the SECOND, ANDTHIRD cause of action stated in this complaint. 1. That the Court award Plaintiff additional relief that is just, equitable and proper. Dated: June 26, 2024 fJonathan a W oe/ Jacobs, Esq. Gross Polowy LLC Attorneys for Plaintiff 1775 Wehrle Drive, Suite 100 Williamsville, NY 14221 Tel.: (716) 204-1700 8 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 Schedule A Attached here as Schedule A is a copy of the original note. If applicable, certain non-public personal information has been redacted from the attached document. 9 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 NOTE OR APRIL 15, 2020 FOOTHILL RANCH, CALIFORNIA [Date] [City] [State] 3 HIGHROSERIDGE WAY, MIDDLETOWN,NY 10940 [Property Address] 1, PROMISETOPAY BORROWER'S In return have received, I promise to pay U.S. $2 6 , 109. 00 (this amount is called "Principal"), for a loan that I plus interest to the order of the Lender. The Lender is LOANDEPOT.COM, L LC. FWill make all payments under this Note in the form of cash, check or money order. 1 understand that the Lender maytransfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled Holder." to receive payments under this Note is called the "Note 2. INTEREST Interest will be charged on unpaid principal until the full amount fPrmcipal h en paid. 1 will pay interest at a yearly rate of 4. 500%. The interest rate required by this Section 2 is the atee 1Will pafboth before and afterany default described in Section 6(B) of this Note. 3. PAYMENTS (A) Time and Place of Payments 1 will pay principal by akin a aymen e and interest month I will make my monthly payment on the 15T day of eac month begmning on JUNE 1, 2020. I will make these payments and fifteEest and adothE/charges described below that 1 may owe under this Note. every month until I have paid all of thEp7incipal Each monthly payment will be ap6lf d as of its schedified due date a d will be applied to interest and other items in the order described in the Security instrumen• hefore Principal. If, oEM Y, 1, 6 0 I still owe amounts under this Note, I will pay those amounts in full on that date which isTalled the "Maturity Daf I will make monthl[payments at PO BOX 5710, CHICAGO, I my 60680-5681 or at a different place if required by the Note Ilolder (B) Amouñt of Monthly Payments My monthly payment will be in the amount of U.S. $1, 343 . 4. BORROWER'sRIGHTTO PREPAY I have the rig,t to make payments of Principal at any time fore they are due. A payment of Principal only is known as a "Prepayment." When1 the Ñ&te ‰oldeÎ in writing that I am doing so. I may not designate a payment as niÅk a Prepayment, I will tell a Prepayment if I have not°ñfde all the monthly payments due under the Note. I may make a full Prepayment or partial Prepaj/ments without paying a Prepayment charge. The Note Holder will use my Prepayments to reduce the amount of Principal that 1 owe under this Note. However, the Note Holder may apply my Prepayment to any accrued and unpaid interest o thEPiepaymeñHEount before applying my Prepayment to reduce the Principal amount of the Note. If 1 make a partial Prepayment, elWW ig6EEE changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. 5. LOANCHARGES a law, which applies to this loan and which sets maximumloan charges, is finally If interpreted so that the interest or other loan charges collected or to.be collected in connection with this loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from me which exceeded permitted limits will be refundqd to me. The Note Holder may choose to make this refund by reducing the Principal 1 owe Note or a direct payment to me. If a refund reduces Principal, the reduction will be treated as a partial under this by making Prepayment. 6. FAILURETO PAYAS REQUIRED BORROWER'S [D0 36.83 FHAMultistate Fixed Rate Note -03/16 10 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 (A) Late Charge for Overdue Payments Ifthe Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is will be 4.000% of my overdue payment of principal and due, 1 will pay a late charge to the Note Holder. The amount of the charge interest. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C) Notice of Default the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by If I am in a default, me amount of Principal which has not been paid and all the date, the Note Holder may the certain require to pay immediately full is mailed to meor delivered interest that I owe on that amount. That date must be at least 30 days after the date on which the notice by other means. (D) No Waiver By Note Holder a time when 1 am in default, the Note Holder does not require Even if, at me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately irffill as described16ove, the Note IIolder will have the right to be law. Those expenses paid back by me for all of its costs and expenses in enforcing this No lie extent n,t rohibited by applicable attorneys' include, for example, reasonable fees. 7. GIVING OFNOTICES Unless applicable law requires a different metho , any notice that must be given to me imdcr this Note will be given by first class mail to meEt the Property Addrex[ above or at a differ nt address if I give the Note Holder a delivering it or by mailing it by . notice of my different address. that must be given to the Note Ilolder 1 r this Note will be given by delivermg 11or by mailing it by first class Any notice mail to the Note Holder at the address stated Tit Section 3(Afab ve or atQifferent address if 1 am/Ñen a notice of that different address. 8. UNDERTHIS NOTE OBLIGATIONSOFPERSONS If more than one person Note, each person 1s fully an personally obligated to keep all of the pomises made in this signs this Note, including the promise to pay th full amount owed. AEPperson h31s a guarantor, surety or endorser of this Note is also per Hvho takes over these dbli inÊÎt Èng the obligations of a guarantor, surety or endorser obligated to do these thingsJny ations, keep111 Ef the promises made id thrs blote. Tl õte Holder may enforce its rights under this Note of this Note, is also obi ated to againif Ell of us together. This n•E Hs that any oEEof us may be required to pay all of the amounts against each person iEdividtialif6r owed under this N 9. WAIVERS I and any ot er person who has oblig toniunder this N e ƒaive the rights of Presentment and Notice of Dishonor. Dishonor" "Presentment" meansthe right to require the Note H 1 to dema 1 siyment of amounts due. "Notice of means the right require the Note Hold give notice to other personftlEt inidGHts due have not been paid. to t9 10. UNIFORMSECUREDNOTE in some jurisdictions. In addition to the protections given to the This Note is a uniform mstrument with lim ted variations Note Holder under this Note, a 1éftgage, Deed of,Tr st, or Security Decd (the "Security Instrument"), dated the same date as this Note Holder froWpõssiblejosscHvhfch might result if I do not keep the promises which I make in this Note. That Note, protects the to make immediate payment in full of all amounts 1 Security Instrument describes how anEl û$d hi•coIditions I may be required owe under this Note. Someof those condiÜ ns a e Hescribed as follows: in the Property is sold or transferred (or if Borrower is not a If all or any part of the Property or any Interest natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide days from the the notice given in accordance with Section 14 within which a period of not less than 30 date is Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the without further expiration of this period, Lender may invoke any remedies permitted by this Security Instrument GT 36.83 FHAMuhistate Fixed Rate Note- 03/16 11 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 notice or demandon Borrower. WITNESSTHEHAND(S)ANDSEA&S) OFTHEUNDERSIGNED, - BORROWER - TEMEL GREENE - BORROWER - EDES GREENE [Sign Original Only] PAYTOTHEORDEROF: WITHOUTRECOURSE o loanDepot.com, LLC BY: gE 36.g3 FHAMultistate Fixed Rate Note - 03/16 12 of 21FILED: ORANGE COUNTY CLERK 07/09/2024 04:24 PM INDEX NO. EF005475-2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/09/2024 Schedule B- Legal Description ALL that certain piece or parcel of land situated in the City of Middletown, Orange County, New York, being designated as Lot 29-4 of a map entitled "Overall Final Subdivision Plat, Realty Subdivision Drawing 1 of 13 Sheets of the Amchir Point Community Section A, City of - 1" Middletown, Orange County, NewYork, Tax MapSection 50, Block 1, Lot dated August 24, 2011 and last revised on June 28, 2012 as prepared by T. M. DePuy Engineering & Land Surveying, P.C. and filed in the Orange County Clerk's Office on July 13, 2012 as MapNo. 220- 12 and being more particularly described as follows: BEGINNINGat a point being the northerly corner of Lot 29-5 of said subdivision and being in the bounds of lands of HBRHomesLLC (tax mapparcel Section 50, Block 30, Lot 1), Liber 33' 33" 13377 of Deed page 388; thence along the westerly bounds of said Lot 29-5 South 36° West 85.00 feet to a point being the westerly corner of said Lot 29-5 and being in the bounds of
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FRANCISCA RIVERA, ET AL. VS ALMA AGUILAR, ET AL.
Jul 10, 2024 |23STCV02147
Case Number: 23STCV02147 Hearing Date: July 10, 2024 Dept: 55 NATURE OF PROCEEDINGS: Demurrer of DOE 1 Defendant Petite Chateau, Inc. to First Amended Complaint. BACKGROUND FRANCISA RIVERA and DONALD PAZ (Plaintiffs) filed a First Amended Complaint (FAC) against ALMA AGUILAR, an individual and trustee and DOEs (Defendants), alleging that, as owner and lessor, and unknown DOEs, Defendants failed to remediate uninhabitable conditions involving roof leaks, mold, and co*ckroach infestation. Plaintiffs causes of action are (1) Breach of Implied Warranty of Habitability, (2) Negligence, (3) Breach of Implied Covenant of Quiet Use and Enjoyment, (4) Nuisance, (5) Intentional Infliction of Emotional Distress, and (6) Violation of Business & Professions Code, Section 17200. On 1/26/24, Plaintiffs filed an amendment substituting PETITE CHATEAU, INC. for Doe 1 (Defendant). Defendant has filed a demurrer to the FAC. Plaintiffs oppose the demurrer. LEGAL STANDARD Demurrers are to be sustained where a pleading fails to plead adequately any essential element of the cause of action. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880. Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice. Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556. Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92. JUDICIAL NOTICE The Court grants Defendants Request for Judicial Notice of its Articles of Incorporation and recorded Covenants, Conditions and Restrictions (CC&Rs). ANALYSIS Defendant, a homeowner association, contends that the FAC fails to state facts to constitute a cause of action against it because it is not a landlord or lessor of Plaintiffs unit. The Court agrees. Homeowner associations activities only relate to matters of damage to common areas or to separate interests that arise out of damage to the common area. E.g., Glen Oaks Ests. Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012) 203 Cal.App.4th 913, 919920. Further, there must be privity of contract with the lessor in order for a tenant to sue a defendant for breach of the implied covenant of quiet enjoyment. Marchese v. Standard Realty & Dev. Co. (1977) 74 Cal. App. 3d 142, 147148. Here, the FAC contains no allegation that Defendant maintained any common area, but instead it repeatedly references the Rental Unit (e.g., FAC, ¶ 10). Also, Plaintiffs unsupportively allege that the nature of DOE 1s responsibility is unknown (FAC, ¶ 5). These allegations are not sufficient to attach liability against Defendant for any of the causes of action in the FAC. Plaintiffs opposition indicates a desire to assert allegations that Defendant maintained common areas causing damages. The Court therefore will allow leave to amend. CONCLUSION The Court sustains the demurrer with 20 days leave to amend.
Ruling
HAISH CONTRUCTION CO, INC. V. NATIONAL BUILDERS, INC ET AL
Jul 10, 2024 |23CV01783
23CV01783 HAISH CONTRUCTION CO, INC. V. NATIONAL BUILDERS, INC ET ALEVENT: Default Prove-Up HearingThe Court will execute the proposed Court Judgment by Default, submitted on June 7,2024. No appearances are required.
Ruling
GLADSTONE, et al. vs. MEISSNER, et al.
Jul 14, 2024 |CVCV21-0197823
GLADSTONE, ET AL. VS. MEISSNER, ET AL.Case Number: CVCV21-0197823This matter is on calendar for review regarding trial setting. The previous trial date was vacatedby the Court’s order dated April 18, 2024. The Court previously designated this matter exemptfrom case disposition time standards. It appears that neither side has posted jury fees, which aspreviously noted in the Court’s October 23, 2023 Order, is deemed a waiver of the right to a jury.The parties are ordered to appear to provide the Court with available trial dates.J.D. VS. THE GENERAL COUNCIL OF THE ASSEMBLIES OF
Ruling
Jensen vs. Wells Fargo Realty Services Inc
Jul 10, 2024 |22CV-0200623
JENSEN VS. WELLS FARGO REALTY SERVICES INCCase Number: 22CV-0200623This matter is on calendar for review regarding status of the case. Defendant has been defaultedin this case. A default prove-up hearing has not occurred. At the prior hearing on April 8, 2024,Plaintiff’s Counsel appeared to inform the Court she was speaking with a bond company and torequest a continuance. The matter was continued to today but no status report has been filed. Anappearance is necessary on today’s calendar to discuss the status of the case and, ifappropriate, to re-set this mater for a default prove-up hearing.
Ruling
NEIL ANENBERG VS ANTONETTE ISHAM, ET AL.
Jul 15, 2024 |23STCV23457
Case Number: 23STCV23457 Hearing Date: July 15, 2024 Dept: 61 NEIL ANENBERG vs ANTONETTE ISHAM, et al. (Commercial) TENTATIVEPlaintiff Neil Anenbergs Motion to Compel Responses to Interrogatories and Requests for Production from Defendants Scott Spicer and Antonette Isham are GRANTED. Defendant is ordered to provide responses, without objections, within 20 days of this Order. Sanctions are awarded against Defendant in the amount of $1,902.50. Plaintiff to give notice.DISCUSSION A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.) A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.) Plaintiff Neil Anenberg (Plaintiff) served Form Interrogatories General, Form Interrogatories Unlawful Detainer, Special Interrogatories, and Requests for Production on Antonette Isham and Scott Spicer on March 31, 2024. (Nussbaum Decl. Exh. A.) Because this is an unlawful detainer action, responses were due within five days. (Code Civ. Proc. § 2030.260, subd. (b); 2031.260, subd. (b).) No responses were served, however, by April 29, 2024. (Nussbaum Decl. ¶¶ 23.) No opposition to the motions has been filed. Plaintiff has shown hat requests and interrogatories were served on March 31, 2024, and no responses have been timely received. The motions are GRANTED. The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).) Plaintiff seeks $2,197.50 for each motion, representing 3.5 hours of attorney work at $475 per hour, plus a $60 filing fee (Nussbaum Decl. ¶ 4.) This appears to be a miscalculation, however, as the hours indicated multiplied by the hourly fee yield a per-motion total of $1,722.50 (3.5 hours x $475 plus a $60 filing fee). Due to the simplicity of the motions and their duplicative nature, the Court finds $1902.50 to be reasonable (3.5 hours x $475 plus $60 x4 filing fees). Sanctions are awarded against Defendants in the amount of $1,902.50.
Ruling
CITY AND COUNTY OF SAN FRANCISCO VS. CASTAGNOLA, INC. OF SAN FRANCISCO, A CAL. CORP ET AL
Jul 09, 2024 |CUD24674725
Matter on the Disocvery Calendar for Tuesday, July 9, 2024, line 5, PLAINTIFF CITY AND COUNTY OF SAN FRANCISCO BY AND THROUGH THE SAN FRANCISCO PORT COMMISSION'S Motion To Have Requests For Admission Deemed Admitted; To Compel Responses To Discovery; And Request For Monetary Sanctions Against Defendants Kathrine Higdon, Lolman Enterprises, Inc. And Cynthia Foxworth Off calendar. Motion to be set in department 501 per SF Local Rule 8.10. = (302/JPT)
Ruling
SMBD INVESENTS, LP, A LIMITED PARTNERSHIP VS COCO'S RESTAURANTS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 10, 2024 |23TRCV01708
Case Number: 23TRCV01708 Hearing Date: July 10, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B SMBD INVESTMENTS, LP, Plaintiff, Case No.: 23TRCV01708 vs. [Tentative] RULING COCOS RESTAURANTS, LLC, et al., Defendants. Hearing Date: July 10, 2024 Moving Parties: Attorney Phillip Allan Trajan Perez and Benjamin P. Tarczy at Miller Nash LP, attorney for defendants Responding Party: None Motions to Be Relieved as Counsel The Court considered the moving papers. RULING The motions are GRANTED. The Court orders that the attorney is relieved as counsel of record for defendants, effective upon the filing of the proof of service of the signed Order Granting Attorneys Motion to Be Relieved as Counsel Civil (Judicial Council form MC-053) upon the clients. BACKGROUND On May 30, 2023, plaintiff SMBD Investments, LP filed a complaint against Cocos Restaurants, LLC, Sharis Management Corporation, and Fri-M, LLC for breach of lease and account stated. On August 7, 2023, defendants filed an answer. LEGAL STANDARD The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. See Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915; People v. Prince (1968) 268 Cal. App. 2d 398. CRC Rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as CounselCivil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as CounselCivil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as CounselCivil form (MC-053)). DISCUSSION Defendants attorneys, Phillip Allan Trajan Perez and Benjamin P. Tarczy at Miller Nash LP seek to be relieved as counsel. Counsel Tarczy states in his declaration that defendants have not complied with their engagement agreement with Miller Nash LP by failing to pay outstanding attorneys fees and costs it has incurred. Starting in August 2023, counsel has made several requests that defendants become current on their outstanding fees and costs. Counsel also states that defendants have consented to Miller Nash LPs withdrawal as counsel but have not found new counsel. The Court finds that the attorney submitted a declaration establishing that the service requirements of California Rules of Court, Rule 3.1362, have been satisfied. The Court also finds that the attorney has shown sufficient reason why the motion to be relieved as counsel should be granted. The motion is GRANTED. ORDER The motion is GRANTED. The Court orders that the attorney is relieved as counsel of record for defendants, effective upon the filing of the proof of service of the signed Order Granting Attorneys Motion to Be Relieved as Counsel Civil (Judicial Council form MC-053) upon the clients. Moving counsel is ordered to give notice of this ruling.
Ruling
CARL BARNEY VS SIENNA CHARLES LLC, A FLORIDA LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |23SMCV05304
Case Number: 23SMCV05304 Hearing Date: July 9, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 CARL BARNEY, Plaintiff, v. SIENNA CHARLES, LLC, et al., Defendants. Case No.: 23SMCV05304 Hearing Date: July 9, 2024 [TENTATIVE] ORDER RE: DEFENDANTS DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT BACKGROUND This is a breach of contract and fraud case. Defendants Sienna Charles LLC and Jaclyn Sienna India-Reinert (Ms. India) provide bespoke travel services for high-wealth individuals. (First Amended Complaint (FAC) ¶8.) In mid-2021, Plaintiff Carl Barney desired to obtain the services of a high level, full service VIP travel agency to arrange all of the details for his three-week trip to Europe. (Id. ¶9.) He therefore spoke with Defendants about their services. (Id. ¶10.) Ms. India assured Plaintiff that she knew how to get her clients access to exclusive experiences that would otherwise be unavailable to them. She claimed, in writing and orally, to be able to provide extraordinary private travel and the ability for Plaintiff to access top experts for his vacations. (Id. ¶10.) Relying on these oral representations, Plaintiff paid $75,000 for the Europe trip and multiple additional trips he desired to have planned over a one year period (July 1st Agreement). He describes the July 1st Agreement as a partially oral and partially written agreement to provide full service planning and implementation of travel itineraries over the course of one year from July 1, 2021 through June 20, 2022. (Id. ¶ 22.) Under the July 1st Agreement, Defendants were to provide Plaintiff access to the most exclusive luxury travel and lifestyle services available in the world and to comb[] the globe consistently procuring only the best in ultra-luxury living. (Id. ¶20.) Plaintiff claims Defendants breached the July 1st Agreement by their poor planning and lack of communication, and Plaintiffs staff was forced to clean up their messes. (Id. ¶13.) Specifically, Plaintiffs staff was forced to book VIP suites, arrange last minute flights that could have been scheduled weeks in advance and book other appointments for things such as required Covid-19 testing. (Id.) Pursuant to the July 1st Agreement, Plaintiff then sought to use Defendants services for a three-week trip to the Middle East. (Id. ¶14.) Plaintiff asked Defendants to prepare a proposed itinerary by September 7, 2021. (Id. ¶ 16.) Defendants ignored the request, instead providing a proposed agenda on September 14, 2021 which failed to include any specific dates (or even number of days) for visiting any of the countries and no details of available activities that Defendants could curate. (Id.) This action ensued. The operative first amended complaint (FAC) alleges claims for (1) breach of contract, (2) fraud, (3) unjust enrichment and imposition of constructive trust and (4) unfair business practices. This hearing is on Defendants demurrer to and motion to strike the complaint. Defendants demurrer is based on the grounds that (1) the FAC does not allege any actual contract or contractual terms; (2) Defendants alleged breach of contract doesnt equal fraud, and Plaintiff has not plead fraud with specificity; (3) unjust enrichment is a mere remedy, not a valid cause of action; (4) the FAC doesnt identify any specific funds on which to impose a constructive trust, and (5) Plaintiff has no valid claim for unfair business practices. Defendants also move to strike (1) Plaintiffs punitive damages allegations because Plaintiffs fraud claim fails, and (2) any claim for money damages in connection with Plaintiffs claim for unfair business practices because under the unfair competition law, a plaintiff is entitled only to restitution and injunctive relief. LEGAL STANDARD [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) MEET AND CONFER Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) Defendants submit the Declaration of Kenneth Ruttenberg which attests the parties met and conferred by telephone on May 22, 2024, more than five days before the demurrer and motion to strike was filed (on May 28, 2024). This satisfies the meet and confer requirements of Code Civ. Proc. §§430.41 and 435.5. Plaintiff argues that Defendants have not complied with the meet and confer requirements. Plaintiff, however, fails to explain why that is so. In any event, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer. (Code Civ. Proc. §§430.41(a)(4) and 435.5(a)(4).) DISCUSSION Breach of Contract Defendants demur to the breach of contract claim on the ground that the contract terms are so vague that no one could judge whether Defendants supposedly breach those terms. The Court agrees. The Complaint alleges that in exchange for $75,000, Defendants were to provide full service planning and implementation of travel itineraries over the course of one year from July 1, 2021 through June 20, 2022. (FAC ¶ 22.) Defendants promised to provide access to the most exclusive luxury travel and lifestyle services available in the world and to comb the globe consistently, procuring only the best in ultra-luxury living for Plaintiff for one year. (Id. ¶ 22.) These terms are too vague to determine whether a breach has occurred. It is not clear what full service planning entails. And there is no basis to judge whether the luxury travel Defendants provided were the most exclusive or constituted the best in ultra luxury living. These promises are not definite enough to determine the scope of Defendants obligations or the limits of their performance. Accordingly, the Court sustains the demurrer to the breach of contract claim with leave to amend. Fraud Defendants demur to Plaintiffs fraud claim as duplicative of the contract claim, as insufficiently plead and as failing to allege an intent not to perform. The Court agrees on the last ground. To allege promissory fraud, Plaintiff must plead Defendants made promises that they had no intention of performing. (Lazar v. Super. Court (1996) 12 Cal.4th 631, 638.) The fact that a promise was made and not fulfilled is insufficient to establish fraud by false promise. (Tenzer v. Superscope (1985) 39 Cal.3d 18, 31.) Rather, something more than nonperformance is required to prove the defendants intent not to perform his promise. (Id.) Making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) Here, Plaintiff has not alleged facts to support a showing that Defendants did not intend to perform on their promises at the time they made them. In fact, the FAC alleges partial performance by Defendants. (FAC ¶¶ 16, 18.) The fact that Defendants partially performed undercuts any claim they did not intend to perform at the time they made their promises. (Castaic Village Ctr. LLC v. Gymcheer USA, Inc., 2021 Cal. Super. LEXIS 6377 at *5 (partial performance negates an intent not to perform).) Accordingly, the Court sustains the demurrer to Plaintiffs fraud claim withoug leave to amend. Unjust Enrichment Defendant demurs to the unjust enrichment claim on the ground it is a remedy and not a cause of action. Plaintiff argues it has not asserted an unjust enrichment claim. The caption to its complaint, however, characterizes its third cause of action as an unjust enrichment claim and imposition of constructive trust. This may have been a clerical error and a holdover from the prior complaint. As Plaintiff maintains he is not asserting an unjust enrichment claim, the demurrer to the unjust enrichment claim is moot. Constructive Trust Defendant demurs to the constructive trust claim on the ground Plaintiff does not allege a specific identifiable property interest because money is fungible. The Court agrees. A prerequisite to the imposition of a constructive trust is the identification of a specific property belonging to the claimant. (Korea Supply Co. V. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150.) A constructive trust requires money or property identified as belonging in good conscience to the plaintiff [which can] clearly be traced to particular funds or property in the defendants possession. (Id.) A constructive trust is available where the specific res or funds can be identified and attached, but not where the plaintiff seeks to impose general personal liability as a remedy for the defendants monetary obligations. (Honolulu Joint Apprenticeship and Training Committee of United Ass'n Local Union No. 675 v. Foster (9th Cir. 2003) 332 F.3d 1234, 1238.) In other words, a constructive trust is not an appropriate remedy for a claim that is essentially one for money damages, as is the case here. Further, constructive trust is not a cause of action per se, but an equitable remedy. (Batt v. City and County of San Francisco (2007) 155 Cal. App. 4th 65, 82; see also Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332 (constructive trust is an equitable remedy); PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 398 (constructive trust is a remedy); Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023 (constructive trust is a remedy). Accordingly, the Court sustains the demurrer to the constructive trust claim without leave to amend. Unfair Business Practices Defendants argue that Plaintiffs claim under Cal. Bus. & Prof. Code §17200 (UCL) fails because Plaintiff has not alleged the violation of any law. The Court agrees. UCL prohibits unfair competition, which is defined as any unlawful, unfair or fraudulent business act or practice. Here, the FAC alleges that Defendants violated the UCL prohibition against engaging in an unlawful act or practice by the conduct described above. (FAC ¶ 41.) To state a cause of action based on an unlawful business act or practice under the UCL, a plaintiff must allege facts sufficient to show a violation of some underlying law. (People v. McKale (1979) 25 Cal.3d 626, 635; Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.) Plaintiff has not identified any underlying law that was violated. In opposition, Plaintiff argues that Defendants conduct also constituted unfair and fraudulent business practices. While Plaintiff did not allege this theory in his Complaint, the Court is not¿limited to plaintiffs theory of recovery in testing the sufficiency of their¿complaint against a¿demurrer, but instead must determine if the¿factual¿allegations of the complaint are¿adequate to state a cause of action under any legal theory. (¿Barquis¿v.¿Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.)¿ Mistaken labels and confusion of legal theory are not fatal; if appellants complaint states a cause of action on any theory, he is entitled to introduce evidence thereon. (Porten¿v.¿University of San Francisco¿(1976) 64 Cal.App.3d 825, 833.) California courts have not uniformly settled on a single approach to defining 'unfair' business practices in a consumer action under the UCL. Prior to 1999, California courts applied what is known as the balancing test. Courts defined unfair business practices as those offend[ing] an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers, or where the utility of the defendants conduct does not outweigh the gravity of the harm to the victim. (Cel-Tech Commcns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 184.) Under the balancing test, a determination of unfairness involves an examination of [the practices] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. (McKell v. Washington Mut., Inc. (2006) 142 Cal. App. 4th 1457, 1473¿(internal citations omitted).) In 1999, the California Supreme Court rejected that test and held that a finding of unfairness must instead be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition. ¿(Cel-Tech, 20 Cal. 4th at 186-87.) The¿Cel-Tech¿court, however, expressly declined to extend this¿standard to consumer actions.¿ (Id.¿at 187 n.12.) Here, Plaintiff has not alleged a threatened impact on competition and has not alleged facts that would meet the balancing test. For example, Plaintiff does not allege that Defendants conduct was not motivated by legitimate business or economic need or that the harm and adverse impact of Defendants conduct outweighed these needs. Accordingly, Plaintiff has not stated a UCL claim based on either test for unfairness. To state a claim under the fraudulent prong of the¿UCL, a plaintiff must show that members of the public are likely to be¿deceived.¿(Bank of the W. v. Superior Ct. (1992) 2 Cal. 4th 1254, 1267.) The determination as to whether a business practice is deceptive is based on the likely effect such [a] practice would have on a reasonable¿consumer. (McKell, 142 Cal.App.4th at 1471.) Here, Plaintiff has not alleged that members of the public were likely to be deceived by Defendants conduct. Accordingly, Plaintiff has not met the fraudulent prong of the UCL. Accordingly, the Court sustains the demurrer to Plaintiffs UCL claim with leave to amend. Punitive Damages Defendant argues that Plaintiff has not alleged fraud and therefore cannot seek punitive damages. As the Court concludes Plaintiff has not sufficiently alleged a fraud claim, punitive damages are unavailable. Money Damages for UCL Claim Defendant argues Plaintiff cannot recover damages for his UCL claim. The Court agrees. Under the UCL, a plaintiff is entitled only to restitution and injunctive relief; he may not recover damages. (Korea Supply Co., 29 Cal.4th at 1144.) Plaintiff seeks money damages for his UCL claim. (FAC at p.10 lines 16-19.) Accordingly, the Court will strike the prayer for money damages as to the UCL claim. CONCLUSION Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendants demurrer with 20 days leave to amend and DENIES IN PART and GRANTS IN PART their motion to strike without leave to amend. IT IS SO ORDERED. DATED: July 9, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
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