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This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 21:27:55 (UTC).

ROSA HERRERA VS FRANCISCO VIELMA

Case Summary

On 03/02/2016 ROSA HERRERA filed a Property - Other Real Property lawsuit against FRANCISCO VIELMA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YVETTE M. PALAZUELOS and ROBERT B. BROADBELT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2422

  • Filing Date:

    03/02/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

YVETTE M. PALAZUELOS

ROBERT B. BROADBELT

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

HERRERA ROSA

ONTIVEROS CYNTHIA

Defendants and Respondents

VIELMA FRANCISCO

DOES 1 TO 10

WELLS FARGO BANK NATIONAL ASSOCIATION

COULSON INVESTMENTS LLC

ONTIVEROS JOSE

ONTIVEROS JOSE JR

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC.

COULSON TAMARA

OLD REPUBLIC TITLE COMPANY

AFFILIATED FUNDING CORPORATION DBA INHOUSELENDER.COM

HERRERA AN INDIVIDUAL ROSA

COULSON MARTIN

TICOR TITLE COMPANY OF CALIFORNIA

Defendants and Cross Plaintiffs

COULSON INVESTMENTS LLC

COULSON TAMARA

COULSON MARTIN

Plaintiff and Intervenor

ONTIVEROS CYNTHIA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MOJARRO LAW P.C.

TREADWELL JAMES H.

MOJARRO JACOB I.

Defendant Attorneys

CUNNINGHAM FRANCIS J. III

MARKS RICHARD D.

HERRON CURTIS W.

ORLOFF PAUL

MARKS RICHARD

Intervenor Attorney

KINSEY EUGENE E. LAW OFFICES OF

 

Court Documents

NOTICE OF CONTINUANCE OF DEMURRER

7/10/2018: NOTICE OF CONTINUANCE OF DEMURRER

Answer

3/4/2019: Answer

Opposition

5/22/2019: Opposition

SUMMONS

3/2/2016: SUMMONS

Unknown

6/22/2016: Unknown

Minute Order

8/19/2016: Minute Order

Unknown

10/5/2016: Unknown

RESPONSE OF DEFENDANT JOSE ONTIVEROS TO OSC RE PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF JOSE ONTIVEROS, ALICIA ONTIVEROS

10/7/2016: RESPONSE OF DEFENDANT JOSE ONTIVEROS TO OSC RE PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF JOSE ONTIVEROS, ALICIA ONTIVEROS

PLAINTIFF'S REPLY TO RESPONSE OF DEFENDANT JOSE ONTIVEROSE TO OSC RE PRELIMINARY INJUNCTION

10/13/2016: PLAINTIFF'S REPLY TO RESPONSE OF DEFENDANT JOSE ONTIVEROSE TO OSC RE PRELIMINARY INJUNCTION

Minute Order

10/18/2016: Minute Order

PLAINTIFF'S OPPOSITION TO DEFENDANT FRANCISCO VIELMA'S DEMURRER TO FIRST AMENDED COMPLAINT; ETC.

11/21/2016: PLAINTIFF'S OPPOSITION TO DEFENDANT FRANCISCO VIELMA'S DEMURRER TO FIRST AMENDED COMPLAINT; ETC.

Minute Order

11/30/2016: Minute Order

Unknown

1/13/2017: Unknown

NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF THE COURT'S ORDER TO EXPUNGE THE NOTICE OF PENDENCY OF ACTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JACOB I. MOJARRO IN SUPPORT THERE

4/20/2017: NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF THE COURT'S ORDER TO EXPUNGE THE NOTICE OF PENDENCY OF ACTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JACOB I. MOJARRO IN SUPPORT THERE

NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, AND FOR MONETARY SANCTIONS IN THE AMOUNT OF $2,801,; ETC.

7/19/2017: NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, AND FOR MONETARY SANCTIONS IN THE AMOUNT OF $2,801,; ETC.

NOTICE OF MOTION AND MOTION FOR LEAVE TO AFFIRM THE FILING OF THIRD AMENDED COMPLAINT; ETC.

10/5/2017: NOTICE OF MOTION AND MOTION FOR LEAVE TO AFFIRM THE FILING OF THIRD AMENDED COMPLAINT; ETC.

MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT, CYNTHIA ONTIVEROS, IN OPPOSITION TO PLAINTIFF'S AMENDED MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

11/17/2017: MEMORANDUM OF POINTS AND AUTHORITIES OF DEFENDANT, CYNTHIA ONTIVEROS, IN OPPOSITION TO PLAINTIFF'S AMENDED MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

OPPOSITION OF JOSE ONTIVEROS TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

11/17/2017: OPPOSITION OF JOSE ONTIVEROS TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

303 More Documents Available

 

Docket Entries

  • 06/04/2019
  • First Amended Cross-Complaint; Filed by Cynthia Ontiveros (Plaintiff)

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  • 06/03/2019
  • Cross-Complaint; Filed by Coulson Investments, LLC (Cross-Complainant); Martin Coulson (Cross-Complainant); Tamara Coulson (Cross-Complainant)

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  • 06/03/2019
  • Opposition (of Defendant Jose Ontiveros to Motion for Reconsideration); Filed by Jose Ontiveros (Defendant)

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  • 06/03/2019
  • Answer; Filed by Francisco Vielma (Defendant)

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  • 06/03/2019
  • Answer; Filed by Coulson Investments, LLC (Defendant); Martin Coulson (Defendant); Tamara Coulson (Defendant)

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  • 06/03/2019
  • Answer; Filed by Cynthia Ontiveros (Plaintiff)

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  • 06/03/2019
  • Opposition (of Defs Coulson to Plaintiff's Mtn for Reconsideration of Order Req. $160,000 bond); Filed by Coulson Investments, LLC (Defendant); Martin Coulson (Defendant); Tamara Coulson (Defendant)

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  • 06/03/2019
  • Opposition (Memorandum of Points and Authorities of Defendant, Cynthia Ontiveros, in Opposition to Plaintiff's Motion for Reconsideration); Filed by Cynthia Ontiveros (Plaintiff)

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  • 05/28/2019
  • Notice ( of Denial of Ex Partes, and of Advancement of Hearing date on Motion for Reconsideration); Filed by Cynthia Ontiveros (Plaintiff)

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  • 05/24/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Compliance Hearing ((regarding status of Herrera's compliance)) - Held

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602 More Docket Entries
  • 04/22/2016
  • DECLARATION RE EX PARTE NOTICE

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  • 04/22/2016
  • EX PARTE APPLICATION FOR LEAVE TO INTERVENE; DECLARATION OF CYNTHIA ONTIVEROS; POINTS AND AUTHORITIES

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  • 03/07/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/07/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 03/03/2016
  • Notice; Filed by Rosa Herrera (Plaintiff)

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  • 03/03/2016
  • NOTICE OF RECORDING OF NOTICE OF PENDENCY OF ACTION OF REAL PROPERTY CLAIM AFFECTNG: APN: 6046-018-019 (CCP 405.22)

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  • 03/02/2016
  • SUMMONS

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  • 03/02/2016
  • PLAINTIFF'S COMPLAINT: (1) CONSTRUCTIVE TRUST, ETC

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  • 03/02/2016
  • Complaint; Filed by Rosa Herrera (Plaintiff)

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  • 01/05/2013
  • Answer to Amended Complaint; Filed by Coulson Investments, LLC (Defendant); Martin Coulson (Defendant); Tamara Coulson (Defendant)

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Tentative Rulings

Case Number: BC612422    Hearing Date: February 22, 2021    Dept: 53

Superior Court of California

County of Los Angeles – CENTRAL District

Department 53

rosa herrera ,

Plaintiff,

vs.

francisco vielma , et al.;

Defendants.

Case No.:

BC612422

Hearing Date:

February 22, 2021

Time:

10:00 a.m.

[Tentative] Order RE:

motion for an order to exonerate the undertaking and for the clerk to release the $160,000

AND RELATED CROSS-ACTION

MOVING PARTY: Plaintiff Rosa Herrera

RESPONDING PARTY: Defendant Francisco Vielma

Motion for an Order for Clerk to Exonerate the Undertaking and for the Clerk to Release the $160,000

The court considered the moving, opposition, and reply papers.

DISCUSSION

Plaintiff Rosa Herrera (“Plaintiff”) filed this action on March 2, 2016. Plaintiff filed the operative Fifth Amended Complaint (“5AC”) on April 30, 2019, against, among others, defendants Francisco Vielma (“Vielma”), Cynthia Ontiveros, and Jose Ontiveros. The 5AC asserts causes of action for (1) constructive trust, (2) promissory estoppel, (3) fraudulent concealment, (4) conspiracy, (5) conversion, (6) civil larceny, (7) unjust enrichment, (8) unfair business practices in violation of Business & Professions Code section 17200, (9) cancellation of grant deed, (10) quiet title, and (11) declaratory relief. This case arises out of the sale of the real property located at 9926 Anzac Avenue and 1961 E. Century Blvd., Los Angeles, California (collectively, the “Property”).

On April 17, 2019, the court issued an order pursuant to Code of Civil Procedure section 405.34 granting Cynthia Ontiveros’s motion for an order requiring Plaintiff to give Cynthia Ontiveros an undertaking as a condition of maintaining two notices of pendency of action that Plaintiff had recorded against the Property. The court ordered Plaintiff to post an undertaking in the amount of $160,000 as a condition of maintaining the two notices of pendency of action in the record title of the Property, and the court set a return date of May 24, 2019 for Plaintiff to show compliance. On May 24, 2019, at the compliance hearing, Plaintiff represented that she had not posted the undertaking. (Minute Order, filed May 24, 2019.) Accordingly, the court ordered the two notices of pendency of action in the record title of the Property expunged pursuant to Code of Civil Procedure section 405.34. (Minute Order, filed May 24, 2019.) Subsequently, Plaintiff moved for reconsideration of the order requiring an undertaking, which the court denied on June 25, 2019.

On August 13, 2019, the court issued an order granting Plaintiff’s motion for leave to record a new notice of pendency of action on the Property. The court ordered Plaintiff to post and give defendant and cross-complainant Cynthia Ontiveros an undertaking in the amount of $160,000 as a condition of recording and maintaining the new notice of pendency of action in the record title of the Property, pursuant to the court’s findings made in its April 17, 2019 order. (Order, filed August 13, 2019, p. 3:16-19.) In the order, the court noted that Plaintiff had filed a “Notice of Posting Cash Bond” on July 22, 2019, which attaches a receipt for a $160,000 cash bond Plaintiff deposited with the court clerk in this case on July 22, 2019. (Order, filed August 13, 2019, p. 3:19-21.) The court deemed and determined nunc pro tunc Plaintiff’s cash bond to be posted in compliance with the court’s August 13, 2019 order to post and give Cynthia Ontiveros an undertaking in the amount of $160,000 as a condition of recording and maintaining the new notice of pendency of action in the record title of the Property. (Order, filed August 13, 2019, p. 3:21-25.)

On January 6, 2020, Plaintiff filed a “Notice of Release of Lis Pendens,” which shows that Plaintiff recorded a release of the notice of pendency of action in the record title of the Property. On January 27, 2020, Plaintiff and Cynthia Ontiveros entered into a settlement agreement which provided, among other things, a mutual and complete release of all claims and liabilities and dismissals of their respective complaint and cross-complaint with prejudice. (Mojarro Decl., filed July 8, 2020, ¶ 9, Ex. 4.) On January 28, 2020, Plaintiff filed a request for dismissal with prejudice of the 5AC as to Cynthia Ontiveros, and the court entered that dismissal on January 29, 2020. On January 28, 2020, Cynthia Ontiveros filed a request for dismissal with prejudice of her first amended cross-complaint against Plaintiff, and the court entered that dismissal on the same date.

Plaintiff now moves, pursuant to Code of Civil Procedure section 405.37, for an order to exonerate the undertaking which Plaintiff was required to post pursuant to the court’s August 13, 2019 order, and for the clerk to release the $160,000 cash bond posted by Plaintiff as a condition of recording and maintaining the notice of pendency of action in the record title of the Property. Vielma opposes the motion.

REQUEST FOR JUDICIAL NOTICE

The court grants Plaintiff’s request for judicial notice, filed July 27, 2020, as to Exhibits 1 through 9.

DISCUSSION

Code of Civil Procedure section 405.37 provides, in relevant part: “After notice and hearing, for good cause and upon such terms as are just, the court may exonerate or modify any undertaking required by an order issued pursuant to Section 405.33 or 405.34 or pursuant to a stipulation made in lieu of such an order.”

Plaintiff has voluntarily released and withdrawn the notice of pendency of action in the record title of the Property that she recorded pursuant to the court’s August 13, 2019 order granting Plaintiff leave to record the notice of pendency of action. Plaintiff points out that, “[p]rior to the settlement agreement with plaintiff, [Cynthia] Ontiveros is and was the only defendant appearing in this action with an interest in the Property or the only one who would have standing to recover on the cash bond . . . . Moreover, the August 13, 2019 lis pendens could not have had an affect [sic] on [Cynthia] Ontivero’s interest in the Property, which was transferred on August 12, 2019.” (Motion, p. 4:7-11.) Plaintiff also points out that Cynthia Ontiveros has now released all claims and waived any recovery of damages pursuant to the settlement agreement with Plaintiff. Plaintiff contends that none of the remaining defendants in this action has standing to recover on the undertaking pursuant to Code of Civil Procedure section 405.34, and that none of the remaining defendants may claim damages through Cynthia Ontiveros, since she released all of her claims relating to this action. Plaintiff argues that it is therefore just to exonerate the undertaking and to release the cash bond posted by Plaintiff.

In opposition, Vielma states that one of the objects or purposes of the lis pendens statues is to advance the interests of litigant claimants, and that the giving of an undertaking is to indemnify the claimant for all damages that may occur if the notice of pendency of action is expunged and the claimant prevails on the claim. Vielma contends that he has suffered damages in this action by lost rental and by losses related to litigating this action. Vielma contends that, if Plaintiff is not successful in this action, Vielma will be entitled to recover his costs incurred, and that Vielma should be permitted to recover his costs from the undertaking. The court disagrees.

Code of Civil Procedure section 405.34 provides, in relevant part: “Recovery of an undertaking required pursuant to this section may be had in an amount not to exceed the undertaking, pursuant to Section 996.440, upon a showing (a) that the claimant did not prevail on the real property claim and (b) that the person seeking recovery suffered damages as a result of the maintenance of the notice. In assessing these damages, the court shall not consider the claimant’s intent or the presence or absence of probable cause.”

As discussed above, the court, in its August 13, 2019 order, ordered Plaintiff to post and give Cynthia Ontiveros an undertaking in the amount of $160,000 as a condition of recording and maintaining the new notice of pendency of action in the record title of the Property, pursuant to the court’s findings made in its April 17, 2019 order. In its April 17, 2019 order, the court granted Cynthia Ontiveros’s motion for an order requiring Plaintiff to give Cynthia Ontiveros an undertaking pursuant to Code of Civil Procedure section 405.34. Therefore, in opposing this motion and in order to seek recovery from the undertaking, Vielma must make a showing “(a) that the claimant [Plaintiff] did not prevail on the real property claim and (b) that the person seeking recovery [Vielma] suffered damages as a result of the maintenance of the notice.” Vielma has not met his burden of showing how he could seek recovery of the undertaking because, while Vielma states that he has suffered damages consisting of the costs of litigating this action, Vielma has not shown that he suffered damages as a result of the maintenance of the August 13, 2019 notice of pendency of action. Vielma did not hold title to the Property at any time during which Plaintiff’s August 13, 2019 notice of pendency of action in the record title of the Property was in effect.

After considering the arguments presented, the court finds good cause to exonerate the undertaking required by the court’s August 13, 2019 order issued pursuant to Code of Civil Procedure sections 405.36 and 405.34.

ORDER

For the reasons set forth above, the court grants plaintiff Rosa Herrera’s motion for an order to exonerate the undertaking required by the court’s August 13, 2019 order, and for the clerk to release the $160,000 cash bond posted by plaintiff Rosa Herrera on July 22, 2019.

The court orders that the undertaking which plaintiff Rosa Herrera was required to post by the court’s August 13, 2019 order is exonerated. (Code Civ. Proc., § 405.37.)

The court directs the clerk to release the $160,000 posted by plaintiff Rosa Herrera with the clerk on July 22, 2019, to plaintiff Rosa Herrera.

The court orders plaintiff Rosa Herrera to give notice of this order.

IT IS SO ORDERED.

DATED: February 22, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

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