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This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 01:09:30 (UTC).

CODY JACOBUS VAN AS VS FREE TO BE PROGRAMS INC ET AL

Case Summary

On 10/27/2016 CODY JACOBUS VAN AS filed a Personal Injury - Other Personal Injury lawsuit against FREE TO BE PROGRAMS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MELVIN D. SANDVIG, STEPHEN I. GOORVITCH and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8906

  • Filing Date:

    10/27/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MELVIN D. SANDVIG

STEPHEN I. GOORVITCH

ELAINE LU

 

Party Details

Plaintiffs and Petitioners

AS CODY JACOBUS VAN

VAN AS CODY

Defendants and Respondents

DOES 1-10

FREE TO BE PROGRAMS INC

MACAPAGAL ERWIN

MACAPAGAL CRESENNIA

FREE TO BE PROGRAMS INC. A NON-PROFIT..

MACAPAGAL CRESCENSIA

Other

GONZALEZ JOSEPH D. ESQ.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

THE BLOOM FIRM

GONZALEZ JOSEPH D. ESQ.

JOSEPH D. GONZALEZ ESQ

MCCLINTOCK AMANDA LEA

GONZALEZ JOSEPH DARIO

BLOOM FIRM THE

Defendant and Respondent Attorneys

LYNCH GREGORY GORDON

HOFFMAN BRIAN L. ESQ.

HOFFMAN BRIAN LEE

WOOD SMITH HENNING & BERMAN LLP

 

Court Documents

Civil Case Cover Sheet

10/27/2016: Civil Case Cover Sheet

Complaint

10/27/2016: Complaint

NOTICE OF LODGING EVIDENCE IN SUPPORT OF DEFENDANT FREE TO BE PROGRAM, INC.'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

2/9/2018: NOTICE OF LODGING EVIDENCE IN SUPPORT OF DEFENDANT FREE TO BE PROGRAM, INC.'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

OPPOSITION TO PLAINTIFF'S EX PARTE TO CONTINUE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

4/20/2018: OPPOSITION TO PLAINTIFF'S EX PARTE TO CONTINUE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Other -

4/25/2018: Other -

Unknown

4/25/2018: Unknown

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDANT CALENDAR IC COURT

4/25/2018: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDANT CALENDAR IC COURT

DECLARATION OF RUSSELL VAN AS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

4/30/2018: DECLARATION OF RUSSELL VAN AS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

4/30/2018: PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

PROOF OF SERVICE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

4/30/2018: PROOF OF SERVICE OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

FTBPS ADDITIONAL UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

5/4/2018: FTBPS ADDITIONAL UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Notice of Case Management Conference

5/14/2018: Notice of Case Management Conference

Unknown

5/21/2018: Unknown

Minute Order

8/16/2018: Minute Order

Supplemental Declaration

12/27/2018: Supplemental Declaration

Brief

1/14/2019: Brief

Unknown

12/1/2016: Unknown

SUBSTITUTION OF ATTORNEY

4/3/2017: SUBSTITUTION OF ATTORNEY

50 More Documents Available

 

Docket Entries

  • 04/22/2019
  • at 08:35 AM in Department F47, Melvin D. Sandvig, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/12/2019
  • at 08:30 AM in Department F47, Melvin D. Sandvig, Presiding; Final Status Conference - Not Held - Rescheduled by Court

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  • 04/11/2019
  • at 08:30 AM in Department F47, Melvin D. Sandvig, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 02/20/2019
  • at 08:30 AM in Department F47, Melvin D. Sandvig, Presiding; Mandatory Settlement Conference (MSC) - Not Held - Continued - Stipulation

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  • 02/15/2019
  • Stipulation and Order (to Continue Trial and Related Dates); Filed by Cody Jacobus Van As (Plaintiff)

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  • 02/05/2019
  • Notice (of Continuance of Final Status Conference); Filed by Cody Jacobus Van As (Plaintiff)

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  • 01/22/2019
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 01/15/2019
  • at 08:32 AM in Department F47, Melvin D. Sandvig, Presiding; Hearing on Motion for Summary Judgment (OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION) - Held

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  • 01/15/2019
  • Minute Order ((HEARING ON MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE,...)); Filed by Clerk

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  • 01/14/2019
  • Brief (Brief in reply to opp); Filed by FREE TO BE PROGRAMS, INC., a non-profit.. (Defendant)

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118 More Docket Entries
  • 11/09/2016
  • Proof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 11/09/2016
  • PROOF OF SERVICE SUMMONS

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  • 11/09/2016
  • Proof-Service/Summons; Filed by Cody Jacobus Van As (Plaintiff)

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  • 11/09/2016
  • Proof-Service/Summons; Filed by Cody Jacobus Van As (Plaintiff)

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  • 10/27/2016
  • SUMMONS

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  • 10/27/2016
  • Complaint

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  • 10/27/2016
  • Complaint; Filed by Cody Jacobus Van As (Plaintiff); CODY VAN AS (Plaintiff)

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  • 10/27/2016
  • Complaint; Filed by Cody Jacobus Van As (Plaintiff); CODY VAN AS (Plaintiff)

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  • 10/27/2016
  • COMPLAINT FOR DAMAGES AND INJUNCTWE RELIEF FOR: 1. NEGLIGENCE; ETC

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  • 10/27/2016
  • Civil Case Cover Sheet; Filed by Cody Jacobus Van As (Plaintiff); CODY VAN AS (Plaintiff)

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Tentative Rulings

Case Number: BC638906    Hearing Date: April 9, 2021    Dept: F47

Dept. F-47

Date: 4/9/21

Case #BC638906

COMPROMISE OF CLAIM OF PERSON WITH DISABILITY

Petition filed on 2/19/21.

PERSON WITH DISABILITY: Plaintiff Cody Van As

GAL: Annette Van As (parent, guardian, conservator)

DEFENDANTS: Free to Be, Inc.; Erwin Macapagal and Cresencia Macapagal

SUMMARY OF ACTION: Cody is dependent on his mother and care givers due to developmental disability/profound autism. When Cody’s parents picked him up from Defendants’ care (where Cody resided) on 4/3/15, they found that he had marks on his back consistent with physical abuse. Cody’s parents believe the defendant care givers and program sponsoring them are liable/responsible. The physical marks were not permanent, but there were psychological impacts that needed to be treated and have been in a new home.

AMOUNT OF SETTLEMENT: $275,000.00 to be paid by Free to Be, Inc. on behalf of all defendants.

MEDICAL EXPENSES: $0

ATTORNEY FEES: $110,000.00 (40% per engagement agreement)

EXPENSES: $39,381.00

AMOUNT TO BE PAID TO PERSON WITH DISABILITY: $125,619.00 with $125,119 to be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the court and $500.00 to be paid or transferred to the trustee of a Special Needs Trust.

RULING:

Plaintiff Cody Van As is dependent upon his mother and care givers due to developmental disability/profound autism. When Plaintiff’s parents picked him up from defendants’ care (where Plaintiff resided) on 4/3/15, they found that he had marks on his back consistent with physical abuse. Plaintiff’s parents believe the defendant care givers (the Macapagal defendants) and the defendant program sponsoring them (Free to Be, Inc.) are liable/responsible. The physical marks were not permanent, but there were psychological impacts that needed to be treated, which have been, in a new home.

In August 2019, this matter settled with Free to Be, Inc. agreeing to pay $275,000.00 to Plaintiff on behalf of all defendants. After payment of attorneys’ fees and other expenses, Plaintiff will net $125,619.00, with $500.00 being used to fund a Special Needs Trust and $125,119.00 being used to purchase an annuity which would pay into the Special Needs Trust. The Court notes that number 18b(3) in the Petition incorrectly indicates that $125,619 will be invested in an annuity, when the correct amount is $125,119 as set forth in Attachment 18b(3).

The Court approves the settlement and payment of attorneys’ fees and other expenses. The Court finds that Plaintiff, as the beneficiary of the Special Needs Trust, has a disability which substantially impairs Plaintiff’s ability to provide for his own care or custody and constitutes a substantial handicap; Plaintiff is likely to have special needs that will not be met without the trust; and the money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet Plaintiff’s special needs. See Probate Code 3604(b).

The Court finds the proposed Special Needs Trust meets the legal requirements for such an instrument. See CRC 7.903(c); LASC Local Rule 4.116. The Court finds that a trustee bond is not required at this time; however, the trustee must file a petition for a bond when sufficient trust assets ($20,000.00) are received from the annuity payments. See CRC 7.903(d). Similarly, the accounting requirements set forth in CRC 7.903(c) may be delayed until after the annuity payments begin in 2026. The first accounting is required by 1/1/27. If the trust assets are not sufficient at that time, the trustee may seek a waiver of the accounting in the Probate court. See CRC 7.903(d).

Petitioner must submit a revised proposed Order which makes the following corrections and/or additions:

(1) Number 8.b.(2) must be corrected to indicate that $125,119 (rather than $125,619) will be used to fund a structured settlement annuity in favor of Cody Van As’ Irrevocable Special Needs Trust.

(2) Number 8.b.(3) must be completed or an explanation provided that there are no such liens. Additionally, Petitioner should explain that $500 of the settlement will be used to seed the Special Needs Trust.

(3) In addition to the “Additional Orders” already set forth in Number 13, the following language must also be included:

Petitioner must file a Notice of Commencement of Proceedings for a Court Supervised Trust on LASC Form PRO 044 within 60 days of the signing of this order. The Court will set an OSC within 60 days of the signing of this order to confirm the filing.

A trustee bond is not required at this time; however, the trustee must file a petition for a bond when sufficient trust assets ($20,000.00) are received from the annuity payments. See CRC 7.903(d). Similarly, the accounting requirements set forth in CRC 7.903(c) may be delayed until after the annuity payments begin in 2026. The first accounting is required by 1/1/27. If the trust assets are not sufficient at that time, the trustee may seek a waiver of the accounting in the Probate court. See CRC 7.903(d).

The revised proposed Order is due by 4/16/21. If the revised proposed Order is satisfactory, the Court will sign it and set an Order to Show Cause in approximately 60 days re the filing of the Notice of Commencement of Proceedings for a Court Supervised Trust in the Probate Court.

Case Number: BC638906    Hearing Date: February 10, 2021    Dept: F47


Case Number: PC057638    Hearing Date: February 10, 2021    Dept: F47

Dept. F-47

Date: 2/10/21 TRIAL DATE: 3/8/21

Case #PC057638

SUMMARY ADJUDICATION

Motion filed on 11/25/20.

MOVING PARTY: Plaintiff/Cross-Defendant Lakeview Loan Servicing, LLC and Cross-Defendant M&T Bank

RESPONDING PARTY: Defendant/Cross-Complainant Canyon View Limited dba Canyon View Estates, Inc.

NOTICE: ok

RELIEF REQUESTED: Plaintiff Lakeview Loan Servicing, LLC (Lakeview) seeks an order granting summary adjudication of Plaintiff’s 1st cause of action for Declaratory Relief, 2nd cause of action for Quiet Title and 5th cause of action for Cancellation of Instruments in Plaintiff’s Complaint.

Additionally, Cross-Defendants Lakeview Loan Servicing, LLC and M&T Bank seek summary adjudication of the 1st cause of action for Quiet Title, 2nd cause of action for Declaratory Relief and 3rd cause of action for Removal of Cloud on Title in Canyon View Limited dba Canyon View Estates, Inc.’s (Canyon View) Cross-Complaint.

RULING: The motion is denied.

This action arises out of the lease termination by Defendant/Cross-Complainant Canyon View Limited dba Canyon View Estates, Inc. (Canyon View) of a lease for Lot 272 in a manufactured home park owned and operated by Canyon View.

In January 2008, Canyon View entered into a fifty-year Homesite Lease Agreement (Lease) with Terrance and Christine DeAro, whereby the DeAros would lease Lot 272 in the park, commonly described as 20075 Shadow Island Drive, Santa Clarita, CA 91351 (Subject Property). (Separate Statement (SS) 1). Several years before the DeAros entered into the Lease, a manufactured home had been installed on Lot 272 and affixed to a permanent foundation. (Cross-Compl. ¶13). The DeAros obtained a $201,832.00 loan from Countrywide Bank on or about January 28, 2008 in order to purchase the manufactured home. (SS 2; M&T Bank Decl., Ex. B). The DeAros executed a Deed of Trust as security for the loan. (SS 2). The Deed of Trust encumbered the DeAros' fee simple title to the manufactured home, as well as their leasehold interest in Lot 272. (SS 2; M&T Decl. ¶10, Ex.A at pp. 10-15). Plaintiff Lakeview Loan Servicing, LLC (Lakeview) is the present beneficiary of the Deed of Trust, and M&T Bank services the loan on behalf of Lakeview. (M&T Decl. ¶¶8-9; SS 3).

The Lease required the DeAros to make monthly rent payments. (Coutts Decl., Ex.1 ¶3). The amount of rent at the time the lease was executed in January 2008 was $575 per month, but pursuant to the terms of the Lease, that amount was subject to annual rent adjustments that would take effect on January 1st of each year. (Coutts Decl., Ex.1 ¶¶3, 3.1). On September 25, 2015, Canyon View sent an "Annual Rent Increase" letter to the DeAros, advising the DeAros that beginning January 1, 2016, the monthly rent would increase to $1,056.23; however, Canyon view advised that rather than applying the full increase, it would reduce the monthly rent to $944.54, but indicated, among other things, that it reserved the right to discontinue the discount at any time for any reason. (SS 4). From January 1, 2016 through August 1, 2016, Canyon View charged the DeAros monthly rent of $944.54 per month. (SS 5). On August 3, 2016, Canyon View sent correspondence to the DeAros advising that beginning September 1, 2016, the rent discount would be rescinded and they would be required to pay monthly rent of $1,050.44 per month. (SS 6).

On August 10, 2016, Canyon View issued a "Combined 3 Day Notice to Pay Rent or Quit, To Perform Covenants or Quit and 60 Day Notice to Terminate Possession" (First Notice). (SS 7). The First Notice indicated that rent was due for July 2016 and August 2016, in the total amount of $2,603.48 for rent, utilities and other charges. (SS 7). The First Notice further stated that if the delinquent amounts were not paid, Canyon View would terminate the Lease and would require the manufactured home to be removed from the park within 60 days after termination. (Coutts Decl., Ex.2). On September 1, 2016, Lakeview, through its agent M&T Bank, sent payment to Canyon View in the amount of $2,603.48 to cure the DeAros' default on the Lease. (SS 8). Canyon View accepted the $2,603.48 payment and applied it to the DeAros' account on September 2, 2016. (SS 9).

On September 7, 2016, Canyon View sent a second "Combined 3 Day Notice to Pay Rent or Quit, To Perform Covenants or Quit and 60 Day Notice to Terminate Possession" (Second Notice). (SS 10). The Second Notice indicated the total amount of rent, utilities and charges demanded by Canyon View for the month of September 2016 was $1,301.79. (SS 10). On September 22, 2016, Lakeview, through its agent M&T Bank, sent to Canyon View a check in the amount of $1,301.79 to cure the default. (SS 13). Also in September 2016, Lakeview sent an additional rental payment to Canyon View in the amount of $944.52. (SS 11). Canyon View received, accepted, and applied both of the September 2016 payments to the DeAros' account. (SS 12, 14).

On October 7, 2016, Canyon View issued a third "Combined 3 Day Notice to Pay Rent or Quit, To Perform Covenants or Quit and 60 Day Notice to Terminate Possession" (Third Notice). (SS 15). The Third Notice indicated that rent was due for October 2016 in the amount of $955.48. (SS 15). The Third Notice did not specifically state that any amounts were outstanding for utilities or other charges under the Lease. (SS 17).

On or about October 20, 2016, M&T Bank sent an additional rental payment to Canyon View in the amount of $944.52. (M&T Decl. ¶16, Ex.H). M&T Bank then sent additional payments to Canyon View on or about November 4, 2016, and December 7, 2016, totaling $3,468.07. (M&T Decl. ¶17). Canyon View applied the October 20, 2016 payment to the DeAros' account, but returned the November and December 2016 payments, stating that the Lease had been terminated. (Coutts Decl., Ex.11; M&T Decl. ¶18, Ex.I). Canyon View asserted

that the lease termination was effective on October 16, 2016, based on non-payment of the amounts demanded in the Third Notice. (SS 18).

On December 19, 2016, Canyon View recorded a Memorandum for Termination of Lease. (SS 19). The Memorandum for Termination of Lease declared that the "Lease is herein terminated and of no further effect." (Coutts Decl., Ex.6). The same day, Canyon View issued a Notice of Sale Under Lien of Warehouse. (SS 20). Canyon View asserted a warehouse lien over the manufactured home under Civil Code 798.56a(e) in the amount of $4,637.76, consisting of alleged unpaid rent and other charges under the Lease, costs of sale, and attorneys' fees and costs. (SS 20). The Notice asserted that if payment of that sum was not made, Canyon View would sell the manufactured home on February 6, 2017, but that neither payment of the lien amount nor purchase of the manufactured home at the sale would reinstate the Lease. (Coutts Decl., Ex.6).

On February 6, 2017, Canyon View conducted a warehouse lien sale and sold the manufactured home to itself. (SS 21). Canyon View then executed a Grant Deed transferring title to the manufactured home to itself, and recorded the Grant Deed on February 15, 2017. (SS 22).

On March 20, 2017, Lakeview filed this action against Canyon and the DeAros (who have since been dismissed) for: (1) declaratory relief; (1) quiet title; (3) violation of Civil Code 798.55(c); (4) violation of Civil Code 798.56(e)(3); (5) cancellation of instrument; (6) fraud; (7) violation of Business and Professions Code 17200, et seq. and (8) accounting. On 5/9/17, Canyon View filed its Cross-Complaint against Lakeview for: (1) quiet title; (2) declaratory relief; (3) removal of cloud on title; (4) unfair business practices and (5) negligence.

Lakeview, as Plaintiff, now seeks summary adjudication of the following issues:

ISSUE #1: There is no triable issue of material fact and Plaintiff is entitled to judgment on its First Cause of Action for Declaratory Relief because the undisputable material facts demonstrate that Canyon View could not terminate the Lease in October 2016 because the Lease payments were not in default, and as a result, Plaintiffs Deed of Trust to the Subject Property was not extinguished.

ISSUE #2: There is no triable issue of material fact and Plaintiff is entitled to judgment on its Second Cause of Action for Quiet Title because the undisputable material facts demonstrate that Canyon View could not terminate the Lease in October 2016 because the Lease payments were not in default, and as a result, Plaintiffs Deed of Trust to the Subject Property was not extinguished.

ISSUE #3: There is no triable issue of material fact and Plaintiff is entitled to judgment on its Fifth Cause of Action for Cancellation of Instruments because the undisputable material facts demonstrate that Canyon View lacked authority to issue the Memorandum of Termination of Lease while the Lease payments were not in default, and if left outstanding, the Memorandum of Termination of Lease will continue to cause harm to Plaintiff.

Additionally, Lakeview and M&T Bank, as Cross-Defendants, seek summary adjudication of the following issues:

ISSUE #4: There is no triable issue of material fact and Cross-Defendants are entitled to judgment on Canyon View's First Cause of Action for Quiet Title because the undisputable material facts demonstrate that Canyon View's Warehouse Lien Sale was invalid because it arose out of Canyon View's wrongful termination of the Lease in October 2016, which was unauthorized by the Lease because the rental payments were not in default.

ISSUE #5: There is no triable issue of material fact and Cross-Defendants are entitled to judgment on Canyon View's Second Cause of Action for Declaratory Relief because the undisputable material facts demonstrate that Canyon View's Warehouse Lien Sale was invalid because it arose out of Canyon View's wrongful termination of the Lease in October 2016, which was unauthorized by the Lease because the rental payments were not in default.

ISSUE #6: There is no triable issue of material fact and Cross-Defendants are entitled to judgment on Canyon View's Third Cause of Action for Removal of Cloud on Title because the undisputable material facts demonstrate that Canyon View lacked authority to issue the Memorandum of Termination of Lease while the Lease payments were not in default, and accordingly, Plaintiffs Deed of Trust to the Subject Property was not extinguished.

In ruling on a motion for summary judgment/adjudication, the court must strictly construe the moving party’s evidence and liberally construe the responding party’s evidence, with any doubt as to the granting of the motion being resolved in favor of the responding party. Renna (2000) 78 CA4th 1, 5.

Lakeview has failed to establish that it is entitled to summary adjudication in its favor on its First Cause of Action for Declaratory Relief, Second Cause of Action for Quiet Title and Fifth Cause of Action for Cancellation of Instruments in its Complaint. Lakeview and M&T Bank have also failed to establish that they are entitled to seek summary adjudication in their favor on the First Cause of Action for Quiet Title, Second Cause of Action for Declaratory Relief and Third Cause of Action for Removal of Cloud on Title in Canyon View’s Cross-Complaint.

Moving Parties have not established that Canyon View increased the monthly rent in violation of the Mobile Home Residency Law (MRL). Civil Code 798.30 provides that “[t]he management shall give a homeowner written notice of any increase in his or her rent at least 90 days before the date of the increase.” Here, on September 25, 2015, Canyon View provided notice that stated effective January 1, 2016, rent would increase to $1,056.23, but also indicated that the rent would be reduced to $944.54 while reserving its right to discontinue the discount/reduction at any time for any reason. (SS 4 and Canyon View’s Response thereto). Moving Parties have failed to establish that Canyon View was required to provide another 90 day notice before exercising its reserved right to discontinue the rent reduction in August of 2016 or that such a discontinuation could only take effect on the first of the year. (SS 6 and Canyon View’s Response thereto). As such, a triable issue of material fact exists as to whether the Second 3/60 Notice and/or the Third 3/60 Notice overstated the amount of rent owed.

Similarly, Moving Parties have not established that the Third 3/60 Notice falsely characterized the amount demanded as rent. The Notice includes language set forth in CC 798.56(e)(1) indicating that charges are for “rent, utility charge, and other reasonable incidental services.” Additionally, the Notice indicates that a “GRAND TOTAL OF RENT, UTILITIES AND CHARGES DEMANDED BY THIS NOTICE:” totals $955.48. (Coutts Decl., Ex.4). As such, a triable issue of material fact exists as to whether the Notice is void.

Further, under the MRL, Lakeview was only permitted to cure the tenants’ default twice (i.e., under the First and Second Notices). See CC 798.56(e)(4); CC 798.9. As such, Lakeview has failed to establish that it has the right to challenge the amount claimed to be due in the Third Notice.

Moving Parties have also failed to establish that the strict notice requirements for summary unlawful detainer proceedings apply in this case where multiple notices were required to have been provided to the tenant under the MRL. See Palmer (1978) 87 CA3d 377, 386.

Since a triable issue exists as to the validity of the Notices and resulting Termination of Tenancy, a triable issue exists as to whether Lakeview was required to protect its lien rights under CC 798.56a and is, therefore, barred from disputing the Termination of Tenancy because it did not. See CC 798.56a(a), (e)(1).

Finally, a triable issue of material fact exists as to whether Lakeview’s directing the tenants to vacate in violation of the lease caused or contributed to the non-payment of rent by the tenants which resulted in the termination of the lease. As such, whether the doctrine of unclean hand can be applied against Lakeview presents a triable question of fact. Kendall-Jackson Winery, Ltd. (1999) 76 CA4th 970, 978; Mattco Forge, Inc. (1992) 5 CA4th 392, 407-408.

Case Number: BC638906    Hearing Date: December 03, 2020    Dept: F47

Dept. F-47

Date: 12/3/20

Case #BC638906

COMPROMISE OF CLAIM OF PERSON WITH DISABILITY

Petition filed on 2/14/20.

PERSON WITH DISABILITY: Plaintiff Cody Van As

GAL: Annette Van As (parent, guardian, conservator)

DEFENDANTS: Free to Be, Inc.; Erwin Macapagal and Crensencia Macapagal

RULING:

Prior to the 6/29/20 hearing, Plaintiff’s counsel was provided with the court’s tentative ruling on the petition which noted defects regarding the proposed Special Needs Trust which needed to be cured before the petition would be approved.

With regard to the 6/29/20 hearing, counsel for plaintiff telephonically notified the clerk the matter was to be continued to 7/28/20 and that he would give notice. (See 6/29/20 Minute Order). As such, the matter was continued to 7/28/20 and counsel for Plaintiff was ordered to give notice. Id. Nothing was filed before the 7/28/20 hearing. Therefore, the Court indicated that the matter would either be continued, again, or placed off calendar.

The matter was continued to 9/10/20. In relation to the 7/28/20 hearing, Plaintiff’s counsel indicated that he was in the hospital and would give notice. On 9/8/20, Plaintiff’s counsel rescheduled the 9/10/20 hearing to 10/15/20.

Nothing additional was filed in relation to the 10/15/20 hearing and there was no appearance for Plaintiff on 10/15/20. The hearing was continued to 12/3/20. (See 10/15/20 Minute Order). On 10/22/20, a Notice of Disassociation of Counsel was filed indicating that Girardi and Keese was disassociating as attorneys of record for Plaintiff and that Joseph D. Gonzalez Law Group, A.P.C. remained as attorney of record for Plaintiff. Nothing else has been filed. Therefore, once again, the hearing will either be continued or placed off calendar.

Case Number: BC638906    Hearing Date: October 15, 2020    Dept: F47

Dept. F-47

Date: 10/15/20

Case #BC638906

COMPROMISE OF CLAIM OF PERSON WITH DISABILITY

Petition filed on 2/14/20.

PERSON WITH DISABILITY: Plaintiff Cody Van As

GAL: Annette Van As (parent, guardian, conservator)

DEFENDANTS: Free to Be, Inc.; Erwin Macapagal and Crensencia Macapagal

RULING:

Prior to the 6/29/20 hearing, Plaintiff’s counsel was provided with the court’s tentative ruling on the petition which noted defects regarding the proposed Special Needs Trust which needed to be cured before the petition would be approved.

With regard to the 6/29/20 hearing, counsel for plaintiff telephonically notified the clerk the matter was to be continued to 7/28/20 and that he would give notice. (See 6/29/20 Minute Order). As such, the matter was continued to 7/28/20 and counsel for Plaintiff was ordered to give notice. Id. Nothing was filed before the 7/28/20 hearing. Therefore, the Court indicated that the matter would either be continued, again, or placed off calendar.

The matter was continued to 9/10/20. In relation to the 7/28/20 hearing, Plaintiff’s counsel indicated that he was in the hospital and would give notice. On 9/8/20, Plaintiff’s counsel rescheduled the 9/10/20 hearing to 10/15/20.

Nothing additional has been filed. Therefore, once again, the hearing will either be continued or placed off calendar.

Case Number: BC638906    Hearing Date: July 28, 2020    Dept: F47

Dept. F-47

Date: 7/28/20

Case #BC638906

COMPROMISE OF CLAIM OF PERSON WITH DISABILITY

Petition filed on 2/14/20.

PERSON WITH DISABILITY: Plaintiff Cody Van As

GAL: Annette Van As (parent, guardian, conservator)

DEFENDANTS: Free to Be, Inc.; Erwin Macapagal and Crensencia Macapagal

RULING:

Prior to the 6/29/20 hearing, Plaintiff’s counsel was provided with the court’s tentative ruling on the petition which noted defects regarding the proposed Special Needs Trust which needed to be cured before the petition would be approved.

With regard to the 6/29/20 hearing, counsel for plaintiff telephonically notified the clerk the matter was to be continued to 7/28/20 and that he would give notice. (See 6/29/20 Minute Order). As such, the matter was continued to 7/28/20 and counsel for Plaintiff was ordered to give notice. Id. Nothing has been filed since the 6/29/20 hearing. Therefore, the matter will either be continued, again, or placed off calendar.

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