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This case was last updated from Los Angeles County Superior Courts on 07/02/2019 at 01:28:39 (UTC).

CARLOS AND MERCEDES GEORGE TRUST VS. AURELIO PEDONE

Case Summary

On 07/06/2015 CARLOS AND MERCEDES GEORGE TRUST filed a Property - Other Real Property lawsuit against AURELIO PEDONE. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is WILLIAM D. STEWART. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4182

  • Filing Date:

    07/06/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

WILLIAM D. STEWART

 

Party Details

Plaintiffs and Cross Defendants

CARLOS AND MERCEDES GEORGE TRUST

THE DANIEL V. ANAYA TRUST

Defendants and Cross Plaintiffs

PEDONE AURELIO

THE DANIEL V. ANAYA TRUST

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

CRUSE JR. JOSEPH R. LAW OFFICES OF

CRUSE JOSEPH RICHARD JR

Defendant and Cross Plaintiff Attorneys

YACOUBIAN & POWELL LLP

PEDONE GABRIELLE ALEXANDRA

Other Attorneys

TERRELL FIRM

 

Court Documents

Answer

10/1/2015: Answer

Minute Order

11/20/2015: Minute Order

Minute Order

5/25/2016: Minute Order

Notice of Ruling

9/16/2016: Notice of Ruling

Legacy Document

11/18/2016: Legacy Document

Legacy Document

11/18/2016: Legacy Document

Legacy Document

11/21/2016: Legacy Document

Exhibit List

11/30/2016: Exhibit List

Minute Order

1/9/2017: Minute Order

Legacy Document

9/8/2017: Legacy Document

Notice

8/1/2018: Notice

Minute Order

11/2/2018: Minute Order

Minute Order

12/3/2018: Minute Order

Minute Order

3/15/2019: Minute Order

Minute Order

4/15/2019: Minute Order

Minute Order

5/20/2019: Minute Order

Order Granting Attorney"s Motion to Be Relieved as Counsel-Civil

5/24/2019: Order Granting Attorney"s Motion to Be Relieved as Counsel-Civil

Trial Brief

6/7/2019: Trial Brief

87 More Documents Available

 

Docket Entries

  • 06/21/2019
  • at 10:30 AM in Department A, William D. Stewart, Presiding; Order to Show Cause Re: (Entry of Judgment) - Held - Continued

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  • 06/21/2019
  • Judgment ([Proposed]); Filed by Carlos and Mercedes George Trust (Plaintiff)

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  • 06/21/2019
  • Minute Order ( (Order to Show Cause Re: Entry of Judgment)); Filed by Clerk

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  • 06/21/2019
  • Order (Proposed Order/Judgement); Filed by Aurelio Pedone (Cross-Complainant)

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  • 06/10/2019
  • Trial Brief; Filed by Aurelio Pedone (Cross-Complainant)

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  • 06/07/2019
  • Trial Brief; Filed by Carlos and Mercedes George Trust (Plaintiff)

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  • 05/24/2019
  • at 08:30 AM in Department A, William D. Stewart, Presiding; Hearing on Motion to be Relieved as Counsel - Held - Motion Granted

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  • 05/24/2019
  • Minute Order ( (Hearing on Motion to be Relieved as Counsel)); Filed by Clerk

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  • 05/24/2019
  • Order Granting Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Jesse Dameron Terrell (Attorney)

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  • 05/20/2019
  • at 08:30 AM in Department A, William D. Stewart, Presiding; Non-Jury Trial - Held - Continued

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134 More Docket Entries
  • 09/14/2015
  • Proof of Service (not Summons and Complaint); Filed by Aurelio Pedone (Defendant)

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  • 08/25/2015
  • Answer; Filed by Aurelio Pedone (Defendant)

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  • 08/25/2015
  • Summons; Filed by Aurelio Pedone (Defendant)

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  • 08/25/2015
  • Cross-Compl fld - Summons Issued; Filed by Aurelio Pedone (Defendant)

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  • 07/15/2015
  • Proof of Service of Summons and Complaint; Filed by Carlos and Mercedes George Trust (Plaintiff)

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  • 07/06/2015
  • Civil Case Cover Sheet; Filed by Carlos and Mercedes George Trust (Plaintiff)

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  • 07/06/2015
  • Complaint filed-Summons Issued; Filed by null

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  • 07/06/2015
  • Summons; Filed by null

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  • 07/06/2015
  • Notice of Case Management Conference; Filed by Court

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  • 07/06/2015
  • OSC-Failure to File Proof of Serv; Filed by Court

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Tentative Rulings

Case Number: EC064182    Hearing Date: April 16, 2021    Dept: A

Motion to Vacate Judgment;

Motion for Attorney Fees

Calendar:

13

Case No.:

EC064182

Hearing Date:

April 16, 2021

Action Filed:

July 6, 2015

Trial Date:

Judgment Entered: February 05, 2021

MP:

Defendant Aurelio Pedone

RP:

Plaintiff Carlos and Mercedes George Trust

ALLEGATIONS:

Plaintiff Carlos and Mercedes George Trust ("Plaintiff") filed suit against Defendant Aurelio Pedone ("Defendant") regarding a dispute over an easement. Plaintiff filed a Complaint on July 6, 2015 alleging three causes of action sounding in: (1) Quiet Title for Easement; (2) Injunctive Relief; and (3) Trespass.

Defendant filed a Cross-Complaint on August 25, 2015 as to Plaintiff, alleging five causes of action sounding in: (1) Quiet Title for Easement; (2) Injunctive Relief; (3) Declaratory Relief; (4) Trespass; and (5) Extinguishment of Easement by Misuse.

PRESENTATION:

The Court issued a Tentative Statement of Decision on the Complaint on August 28, 2019. The Court issued and regularly mailed Additional Findings on October 9, 2019.

The Court set aside the judgment on its own motion on April 17, 2020 due to Defendant's admission that proof of service of the original proposed judgment was inadequate. The Court also set the instant matter for hearing on June 23, 2020 and mailed a copy of the minute order to counsel for appearing parties.

On February 05, 2021, the Court entered judgment for Plaintiffs against Defendant.

The Court received the motion to vacate judgment filed by Defendant on March 22, 2021; the opposition filed by Plaintiff on April 02, 2021; and the reply filed by Defendant on April 07, 2021.

The Court received the motion for attorney fees filed by Plaintiff on March 02, 2021; the opposition filed by Defendant on April 01, 2021; and the reply filed by Plaintiff on April 07, 2021.

RELIEF REQUESTED:

Defendant moves an order to vacate the judgment entered against Defendant on February 05, 2021.

DISCUSSION:

Standard of Review – Vacate Judgment (Discretionary Relief) – A trial court may, “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In order for the Court to grant discretionary relief, the moving party must (1) “be accompanied by a copy of the answer or other pleading proposed to be filed therein,” (2) “be made within a reasonable time, in no case exceeding six months,” but (3) “[n]o affidavit or declaration of merits shall be required of the moving party.” (Code Civ. Proc., § 473, subd. (b).) Whether the filing is made within a reasonable time is a matter left to the discretion of the trial court, and depends upon the specific circumstances of the delay, including the cause for the attorney’s mistake, inadvertence, surprise, or excusable neglect. (Minick v. City of Petaluma (2016) 3 Cal. App. 5th 15; Comunidad En Accion v. Los Angeles City Council (2013) 219 Cal. App. 4th 1116, 1133–34.)

Vacate Judgment (Mandatory Relief) – CCP § 473(b) also provides for mandatory relief: "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties."

Merits – Defendant argues that the Court did not have the discretion to enter judgment on February 05, 2021, as there exists a pending bankruptcy action involving the property referred to in the instant litigation. Defendant contends that both he and his counsel missed the February 05, 2021 hearing due to a mis-calendaring and argues that relief is warranted under both the discretionary and mandatory provisions of CCP § 473(b). Defendant argues that, due to this error, Defendant was unable to have a chance to be heard regarding evidentiary objections to Plaintiff's Proposed Judgment or explain the status of bankruptcy and foreclosure.

In opposition, Plaintiff also contends that the bankruptcy filing in question relates to Defendant's wife, and the petition does not list Defendant as a creditor.

The Court entered judgment for Plaintiff on February 05, 2021. Defendant may not seek seek relief pursuant to the discretionary provision of CCP § 473(b), as this provision requires Defendant to attach "a copy of the answer or other pleading proposed to be filed therein", and Defendant has not done so. As to mandatory relief, Defendant properly attaches an affidavit attesting to mistake (Decl. Hui, ¶ 7) within 6 months of the judgment date. The Court will thus grant the instant motion.

Although Defendant argues that his wife, Lidia Pedone, is a joint property owner to the property at issue in the instant action, Defendant presents no evidence to support this assertion. The Court needs additional information on the bankruptcy issue before proceeding with the instant action.

Sanctions – The Court must award reasonable fees to the non-moving party when granting mandatory relief pursuant to CCP § 473(b). The Court will thus award sanctions in the amount of $600 to Plaintiff against Defendant.

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Motion for Attorney Fees – As the Court will grant the motion to vacate the judgment, the motion for attorney fees is moot.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Aurelio Pedone's Motion to Vacate Judgment and Plaintiff Carlos and Mercedes George Trust's Motion for Attorney Fees came on regularly for hearing on April 16, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO VACATE JUDGMENT IS GRANTED.

THE MOTION FOR ATTORNEY FEES IS OFF CALENDAR AS MOOT.

DATE: _______________ _______________________________

JUDGE

Case Number: EC064182    Hearing Date: August 19, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use LACourtConnect, the court’s remote appearance technology (audio or video)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

  3. State your name at the beginning of all statements.

  4. Do not speak directly to other counsel without permission of court.

  5. Do not interrupt or attempt to speak over another speaker.

  6. Do not announce your presence until called by your name or case name.

  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

George Trust v Pedone

Objection to the Court's Additional Findings

Calendar: 18

Case No.: EC064182

Hearing Date: August 19, 2020 at 1:30 PM

Action Filed: July 6, 2015

Trial Date: Already Held: May 13, 2019

MP: Defendant Aurelio Pedone

RP: Plaintiff Carlos and Mercedes George Trust

ALLEGATIONS:

Plaintiff Carlos and Mercedes George Trust ("Plaintiff") filed suit against Defendant Aurelio Pedone ("Defendant") regarding a dispute over an easement. Plaintiff filed a Complaint on July 6, 2015 alleging three causes of action sounding in: (1) Quiet Title for Easement; (2) Injunctive Relief; and (3) Trespass.

Defendant filed a Cross-Complaint on August 25, 2015 as to Plaintiff, alleging five causes of action sounding in: (1) Quiet Title for Easement; (2) Injunctive Relief; (3) Declaratory Relief; (4) Trespass; and (5) Extinguishment of Easement by Misuse.

PRESENTATION:

The Court issued a Tentative Statement of Decision on the Complaint on August 28, 2019. The Court issued and regularly mailed Additional Findings on October 9, 2019.

Defendant filed the instant motion on October 23, 2019. Plaintiff filed an opposition on November 25, 2019. The original hearing date was on November 27, 2019.

The Court set aside the judgment on its own motion on April 17, 2020 due to Defendant's admission that proof of service of the original proposed judgment was inadequate. The Court also set the instant matter for hearing on June 23, 2020 and mailed a copy of the minute order to counsel for appearing parties.

On June 23, 2020, the Court continued the instant matter to August 19, 2020. A copy of the minute order was mailed to counsel.

RELIEF REQUESTED:

Defendant requests the Court clarify its judgment order in a manner that allows Defendant's concrete posts to remain on his property.

DISCUSSION:

Standard of Review

"Within 10 days after announcement or service of the tentative decision, whichever is later, any party that appeared at trial may request a statement of decision to address the principal controverted issues. The principal controverted issues must be specified in the request. . . . Any party may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment." (Cal. Rules of Court, Rule 3.1590, subd. (d) & (g).)

Merits

Order No. 3: Concrete Posts – Defendant objects to the Court's Additional Findings, Order No. 3, made on October 09, 2020 which states: "3) the concrete posts are ordered to be removed by Mr. Pedone from the easement within 180 days of the notice of entry of judgment and not to be replaced within boundaries of the easement." Defendant contends there has been no evidentiary basis at trial to support such a finding, citing the Court's tentative decision in support, which states in part: "Whether concrete posts, bollards or guard rails are going to be used ,they may be tangent with the easement, but not extend into it, i.e., the devices must be entirely on the Pedone property, and simply touch the easement edge as it currently exists." (Minute Order (Ruling), August 28, 2020, 6:27-7:1.) Defendant argues the evidence at trial showed the concrete posts were placed on his property ("Pedone Property") and not the easement, and so Defendant should not need to remove the posts as they currently stand. Defendant further argues the Court found he was entitled to take preventative safety measures to ensure the safety of his family. Defendant thus requests a clarifying order stating that Defendant shall not remove concrete posts as they currently exist, and further findings on the issue of concrete posts aligning with the Court's decision.

Plaintiff argues that the trial determined the concrete posts are not set deep enough to be established as a safety measure. Plaintiff further contends Defendant has been permitted by the Court to install safety posts on his own property, but that the concrete posts are set in the easement.

The issue here is whether the factual findings at trial indicate Defendant's concrete posts are set in the easement, or on his own property. The Court ruled in its tentative decision that Defendant is allowed to maintain "concrete posts, bollards or gurard rails [sic]" on his own property, up to the point where they may "simply touch the easement edge as it currently exists." (Minute Order (Ruling), August 28, 2020, 7:1.) On review of the tentative decision, the Court finds the ruling includes a factual finding that the concrete posts are in fact currently within the easement:

" Mr. Pedone has also placed a number of concrete posts adjacent to the paved portion of the easement (i.e., the roadway) and it is not entirely clear why these are objected to except for not permitting one vehicle to pass another in the vicinity of the post, which is more or less of a theoretical concern, not actual, as a passing area exists. Nevertheless, placing these posts within the easement is not permitted, even though there are entirely valid concerns that an errant vehicle may leave the roadway, and roll over the embankment and crash into some portion of the Pedone residence." (Minute Order (Ruling), August 28, 2020, 6:15-20) (emphasis added.)

The Court's wording indicates the concrete posts are only adjacent to the paved portion of the easement, and not the easement itself. The next line clarifies that placing the posts within the easement is not allowed, clearly referencing the earlier finding that the posts (or one or more of them) are currently within the easement. Thus, Defendant fails to show the Court's tentative decision or findings indicate that the concrete posts are not placed within the easement itself. Additionally, the court recalls that marks placed by a surveyor had been removed, contrary to provisions of the Penal Code., making precise determination even more difficult.

The discrepancy arises because the court recalls that the actual center of the easement and the paved roadway portion thereof are not exactly in conformity with the original grant description. This may be caused by some shifting or movement or accretion of the earth over the many decades involved here. In the court’s view, the center line of the paved roadway as it exists should be regarded as the center line of the easement also. As such, a survey may be pointless if its purpose was to establish the precise or “true” centers of the original grant. Therefore, in determining the line between the easement edge and the Pedone property line, measurement should be from that center of the paved roadway as it actually exists now. On the other hand, if defendant is able to establish the true boundaries of his property by a current survey, then the cement posts, bollards or rails may be placed in accordance with the court’s orders and in conformity with that survey, because the movement of the roadway was not caused by any act or omission of defendant or his predecessors, but rather by sloughing of uphill earth, accretion, or earth movement.

Accordingly, the Court will deny the instant motion.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Aurelio Pedone's Motion Objecting to Form of Judgment came on regularly for hearing on August 19, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION/OBJECTION IS DENIED/OVERRULED.

DATE: _______________ _______________________________

JUDGE