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IN THE CIRCUIT COURT, IN AND FOR OSCEOLA COUNTY, FLORIDA COUNTY CIVIL DIVISION Case No.2020 CC 1996 EV Division 60-GNILDA MORILLO,LANDLORD, PLAINTIFF/DefendantVS. na monBEULAH FARGUHARSON, 2 Am af 3B coat mmTENANT, ya man o oo DEFENDANT/Plaintiff Se =t ent & act as ro So a fia mee = AMENDED ie COUNTER CLAIM RESPONSE a2 PLAINTIFF-TENANT RESPONSE WITH ATTACHED EVIDENCE DISPROVING 7 LANDLORD DEFENDANT ACCUSATIONS/ALLEGATIONS COMES NOW, Beulah Farquharson, Plaintiff-Tenant, with this timely filed AmendedResponse pleading with attached indisputable evidence, for her Counter Claim againstDefendant Landlord Nilda Murillo, to refute, repudiate, disprove, that the written Reply to theCounter Claim filed by Defendant-Landlord Nilda Murillo filed on November 18, 2020 with nosignature of Defendant, and then exact same Reply, refiled again on 2021, with the signature ofDefendant-Landlord Nilda Murillo, is full of untruths and blatant lies to this Honorable Court,;plus, this pleading Response shows the Court that Defendant Landlord Nilda Murillo committedperjury on the Court in her written reply to the Counter Claim, and in support of Piaintiff-Tenant Beulah Farquharson being awarded all Relief requested, she states herein under oathand under penalty of perjury the following: 1. This Counter Claim was originally filed by Defendant-Tenant, now Plaintiff-Tenant, BeulahFarquharson in this Counter Claim, on November 10, 2020, against Plaintiff-Landiord nowDefendant Landlord in this Counter Claim. 2. Plaintiff Tenant Counter Claim is herein reincorporated, restated, and placed herein as iffiled a second time with the same full force and effect as originally filed. 3. This Reply was timely filed on Monday August 9, 2021, due to the tenth day prior to theHearing falling on Sunday August 8, 2021. Plaintiff Tenant was going to electronically filethrough the Court E-Portal but her account had been recently closed without her knowledge,and therefore the rush to reach the court house prior to 5:00pm on August 9, 2021 was real,and the rush caused the Response to be filed inadvertently without being fully printed and theevidentiary exhibits attached, due to a friend of Farquharson’s having to print the document forher since she was traveling to reach the Courthouse prior to closing, and the friend met her atthe Court house with the printed documents. Therefore, this timely filed AMENDED RESPONSE,on August 11, 2021, replaces the prior timely filed RESPONSE on August 9, 2021. L THIS RESPONSE CONFIRMS THE FOLLOWING: 4. Defendant Landlord admits she was renting an illegal garage apartment to PlaintiffTenant and collected rent from Tenant for said illegal apartment, in violation of Fla. Stat.83.51and 83.64 and in stark and complete-violations of Osceola County Land Development Cade, Chapter 3,-Performance & SitintStandards, Article3.1-General Provisions, Section 3.1.2-Retrictions Upon Land Use, Building, ancStructures, Sub Section A-Use, Paragraph 1, 5. Defendant Landlord lied to the Court in her Reply to Counter Claim and committedPerjury to attempt to whitewash away Plaintiff Tenant Demand for monetary relief, in violationof Fla. Stat. 92.525 Perjury by false written declaration. 6. Excerpted below from Counter Claim as #24. 24. Tenant-Piaintiff alleges that the Defendant-Landlord Is in violation of 83.64 RetaliatoryConduct, 1) It Is unlawful for a landlord to discriminatorily increase a tenant's rent or decreaseservices to a tenant, or to bring or threaten to bring an action for possession or other civilaction, primarily because the landford Is retallating against the tenant. 7. Plaintiff-Tenant is entitled to the Relief requested-demanded in Counter Claim. I LANDLORD REPLY PAGE 2 8. Defendant Nilda Murillo written statements in her reply to Plaintiff-Tenants CounterClaim, are herein proven to be intentionally false statements by said Landlord. The Landlord iswrong, confused, or outright just lying to the Court in her Reply about Tenants move in date.9. Outright lying seems appropriate since Landlord alleges in her Reply to the Counter ClaimBy harping on a typo error of the years 2018 and 2019, that Tenant owes her rent for the year2018 from the month of March, and Tenant did not move into the illegal garage apartment untilMarch 8, 2019. See below #10, #11, and #12. A. Pg, 2 #41. Landlord and Tenant Verbal Rental Agreement was for $500.00 a month with 1 month rent and 1 month security paid up front totaling $1000. Landlord Defendant admits she received $1000. from Plaintiff-Tenant, as 1t months rent and security deposit. See in Landlords Reply to Counter Claim, Pg.2 #5a1. The date Tenant paid the $1000 to Landlord was March 8, 2019 not 2018 as alleged by Landlord. Tenant moved into Landlord’s garage apartment on March 8, 2019, (at the time Tenant did not know it was an illegal garage apartment). Tenants’ son found the renta! garage apartment on craigslist, he called and made the rrangements with the Landlord and then took Tenant {his mother} to the garage apartment and she rented it. This happened on March 8, 2019 the day after Tenants sons birthday, for he came to Florida from New York for his Birthday and saw that his mother Tenant was living in her car, and he found this place the very next day, to get his mother out of living in her car. Landlord previously admitted in October eviction Hearing that she made arrangements with Plaintiff Tenants son. (FYI) Tenant was living in her car due to BANA, CITI and Nationstar with the help of politically corrupt Judges, took Farquharson’s home in an unlawful foreclosure after 25 yrs. of paying mortgage payments duringa current and timely loan modification, after the 2008 Housing collapse, all in violation of several of Farquharson’s constitutional rights, due to her 25 yrs. of legendary political activism, that thorns their sides. Db. Attached is a Sworn Affidavit from Debra Romaine, See Evidence Exhibit-(Capg), that Affirms the additional truth of where Tenant lived during 2018. Plaintiff Tenant took care of her friend Debra Romaine during her illness and lived with her for nearly 9 months in 2018. Prior to moving in with Debra Romaine, Tenant was living with her daughter in Atlanta from November 2017 to May of 2018, and Tenant left Georgia to come and take care of Debra Romaine. Ms. Romaine lost her home due to her illness 3and the death of her husband and went back into the hospital in January 2019 and Tenant went back to living in her vehicle, until Tenant son came to Florida in March 2019 and found the Landlords Rental on craigslist. 10. In Plaintiff-Tenants Counter Claim pg.1 Sec. | Facts and Background, #1 Plaintiff writesthe correct date of March 8, 2019, as her first payment of $1000. Which is 1% month rent andsecurity paid to Landlord-Defendant. But in this same section #2 Plaintiff Tenant mistakenly putthe year 2018 instead of 2019. And again in #3 the same mistaken 2018 was written in 1°sentence but 2019 was written in final sentence. 2019 is the correct year. 11, In spite of this typo error made by Plaintiff-Tenant, Defendant Landlord went with the2018 year in her Reply and decided to tell the Court that Tenant moved in her apartment inMarch 2018 and after paying the initial 1 month and security deposit that “Tenant did not payanymore rent for the remaining 9 months of year 2018, and then told this Court Plaintiff Tenantowed Landlord Defendant back rent money for nine months of 2018 in Landlord Reply toCounter Claim. 12. Instead of Landlord recognizing and realizing the 2018 year typo error, DefendantLandlord made up a lie using the 2018 error as the move in date. Defendant Landlord knewwhat she was doing for she also added up the time in months and told the Court 33 monthsTenant lived in the apartment when it was really 21 months for the 2018 year was a typo andproven throughout the rest of the entire Counter Claim, typed correctly as 2019. 13. Furthermore, the Landlord wants this Court to believe that she allowed Tenant to livein her Rental for over a year without paying her any rent money and did not attempt to evictthe tenant, and yet when Landlord filed this eviction case in September 2020, Landlord told theCourt under penalty of perjury that Tenant did not “owe Landlord any back rent money”, whichis a true statement. See Original Eviction by Landlord, and resubmitted as evidence EXH- CinTenants Counter Claim. D. Pg. 2 #5a2, Landlord is wrong as proven above, Tenant lived in premises from March 8, 2019- November 20, 2020. Pg.2 # 5a3, This is a total of 21 months give or take a few days, that Tenant lived in Landlords illegal garage apartment, not 33 months, proving another nontruth told by 4Landlord; And, Pg.2# 5a4, Landlord is committing perjury on the Court, for now alleging that Plaintiff- Tenant owes Landlord $16,500 in back rent money, when she admitted in her initiated Eviction Case filing on September 17, 2020. (See original eviction filing submitted as Evidence-Exh-C in Plaintiff-Tenants Counter Claim Exhibits filed on Nov. 10, 2020), that Tenant did not owe Landlord any back money. Yet in Landlords’ Reply she not only lies to the Court, Landlord fraudulently added on 1 additional year to the time frame as money owed to Defendant Landlord when 2018 yr. was a typo for 2019 yr. as evidenced throughout the remaining Counter Claim where 2019 is correctly typed. 14. For Landlord to increase the monetary amount to appear as a huge number, based onatypo error, to mislead the Court to condemn Tenant, when Landlord is clearly lying to the Courtwith intent to defraud the Court, with no proof, legitimate or otherwise to back up Landlordsallegations made in the Counter Claim, in Court, where written statements are made underoath and penaity of perjury. E. Pg.2 #6, Landlord even does math, and includes 9 months from the yr. 2018, into her calculations, where Landlord does admit to only part of Plaintiffs’ demanded monetary claims in the amount of $3,785.00 and then subtracts that amount from the made up amount of perjurious alleged back rent of $16,500 and tells the Court Tenant owes her a balance of $12,714. 15. This alleged back rent, was not owed to Landlord Defendant when Landlord filed theEviction against Tenant-Plaintiff on September 17, 2020, and swore under oath and penalty ofperjury that her statements in the Eviction paperwork was true and accurate. 16. And what Landlord would not sue their tenant for $16,500 in outstanding back rentmoney, if that were true, and provable, when paying Court Costs to evict the tenant? 17, *****Plaintiff Tenant avers that Defendant Landlord should be glad that Tenant did notpay Landlord the falsely alleged $16,500. For if so, Tenant would be suing in this Counter Claimfor that exact amount of rent to be returned to her based on the facts of this case andDefendant Tenants Clear violations of law as asserted and alleged and proven with evidence inthis counter claim, and self-admitted too by Defendant Landlord all throughout her Reply. 518. Therefore Defendant-Landlord Nilda Murillo in her April 12, 2021, Reply to Plaintiffs’Counter Claim is lying about monies owed her, and Landlord have committed perjury on theCourt in violation of Fla. Stat. 92.525 “Verification of Documents-Perjury by False WrittenDeclaration”, punishable by up to 5 years in Prison. 19. Plaintiff-Tenant requests the Court set a Hearing Date on Defendant Landlords violationof Fla. Stat. 95.525. It is the Courts responsibility to punish and prevent litigants from lying tothe Court, when caught and requested by the other party in the case. If the Court will require aseparate document on this action from Plaintiff Tenant, then Plaintiff Tenant is hereinrequesting the necessary time to file said separate action pleading. Ill. LANDLORD REPLY PAGE 3 20. Defendant Landlords’ Reply pg. 3 #7 use of date 2018 as move in date is already provenincorrect, but Landlord is doubling down on her lie to the Court. The rest of the paragraph iscorrect. This is also a clear admission from Defendant Landlord that she was Renting her garageapartment in violation of Fla. Stat. 83.51, and Fla. Stat. 83.64 and Osceola County LandDevelopment Codes as listed in #4 above. See Evidence EXH-A attached and filed withCounter Claim on Nov. 10, 2020, Osceola County Code Violation Notice to DefendantLandlord. 21. Defendant Landlords’ statements made on the following pages and paragraphs Pg. 3 #8,#9, Pg.4, #11 Pg.S #12, Pg. 6 #17 and #19, from Landlords Reply to Counter Claim are lumpedtogether and responded to herein by Plaintiff Tenant. 22. As the Court is acutely aware, that there are two sides to every story and the story toldin #20 above by Defendant Landlord should reveal to the Court as meaningless and ridiculous tothis case, for Plaintiff Tenant is the prominent well known Political Force in this Case andappeared on the 2020 election ballot of allegedly all Osceola County voters, not DefendantLandlord who is running a hustle to make money off renting illegal apartments, to unsuspectingtenants needing a place to live F. Defendant Landlord rented a room to a new Tenant and her 12 yr. old son in July 2020, which is when all the harassment on Plaintiff Tenant started. Defendant Landiordwanted Tenant to move her Truck from the driveway in front of the garage door, so that the new tenant could park directly in front of Tenant entry way into garage apartment. Tenant refused, because Tenants truck blocked all the public drivers from looking directly into the garage apartment from the street.G. So Landlord called Osceola County because Tenant tag on the truck had expired, in order to force Tenant to move her truck. The County came and put a orange sticker on Tenants truck and then asked Tenant did she live in the garage. Tenant said yes. Tenant within a few days paid and updated the trucks licensing status.H. A few days later Osceola County came back and banged into the ground a stick with a Paper on it stating that the garage apartment was illegal and in violation of Osceola County Codes and Florida Law. Plaintiff Tenant thinks that once County employee went back to their office after learning Plaintiff was Tenant in garage and they did not see any permits in the garage, that they looked up the address, realized no permits had ever been pulled and the garage apartment was illegal, so they came back doing there job. Landlord blames Tenant for being caught and found out she was renting not only illegal garage apartment to Tenant, but the entire inside of hause was and still is being rented illegally, for Plaintiff Tenant is the only tenant who moved out. The remaining tenants still live there and pay Landlord rent illegally, plus the studio rental addition built onto the back of the house, all with no permits pulled and no codes met. Landlord caused her own demise by calling the Cade Enforcement in her attempt to force Tenant to remove her truck from in front of the garage apartment. Once this female tenant and her son moved into the room inside the house portion where each room is individually rented, the female tenant began harassing Plaintiff Tenant everyday on behalf of Defendant Landlord. It turned out that Female tenant and her husband are longtime friends of Defendant Landlord and her Husband. Female Defendant constantly demanded Plaintiff Tenant move her truck, which was refused for the reason stated above, security of Plaintiff Tenants safety. Female tenant started arguments with Plaintiff Tenant daily, repeating information to Tenant that Landlord is telling this female Tenant to say to Plaintiff Tenant. {t escalated to verbal 7confrontations and Female Tenant called Osceola Sheriff falsely on Plaintiff Tenant four times and Female Tenant was warned by Osceola Sheriffs “that one more false call on Plaintiff Tenant, that the female tenant would be arrested. This all took place between August and November 2020. Female Tenant continued to harass Plaintiff Tenant on behalf of Landlord, but female tenant never called the Sheriff again. The harassment of Plaintiff Tenant ended on the day of the 2020 election of which Plaintiff Tenant was on the ballot. The female tenant would also harass everyone who came to Plaintiff Tenant garage apartment during the campaign cycle of August-November. 23. Defendant Landlord Nilda Murillo Pg.7 #19 adds up 2 years plus 3 or 4 months, whichdoes not equal 33 months, and Plaintiff Tenant only lived there for 21 months total, give or takea few days. Continuing to double down with different made up numbers of tenants residency.in addition the person breaking the law Defendant Landlord by renting an illegal apartmentshould not be crying wolf when they have Unclean Hands in the transaction as alleged onDefendant Landlord and proven in this counter claim. 24. Defendant Nilda Murillo under oath written statements in her reply to Plaintiff-TenantsCounter Claim, has been refuted, disproven, repudiated false by Plaintiff-Tenant, andDefendant Landlord should be made to fully provide the Relief requested by Plaintiff-Tenant. 25. Defendant Nilda Murillo Reply pg. # talks about respect and decency. Plaintiff Tenantavers both are earned, and that upon learning that Tenant was living in a garage apartmentDefendant Landlord got nastier, meaner and with the hetp of her female tenant friend went toCourt and filed the eviction on Plaintiff Tenant. IV. ATTACHED EVIDENTIARY EXHIBITS 26. EXH A pgs. 1-9 Amscot Financial Subpoena- proof Murillo cashed Money Orders 27. EXH B pgs. 1-2 Proof Murillo Cashed Check 28. EXHC pgs.1 Proof Tenant moved in March 8, 2019 29. EXH D pgs. 1 see EXH-E Terminix (Counter Claim) 30. EXH E pgs. 1 see EXH-F Spectrum (Counter Claim} V. DISCREPANCY OVER RENTS PAID NO RENT RECEIPTS31. Due to Piaintiff-Tenant living around various places, and storage units, she could notfind anymore physical rent receipts for the months Sept. Oct. Nov. 2019 and Jan. and Feb. 2020,which totals $1,950.00. See below under Demand Relief Request # 4b. 32 Defendant Landlord states she never received these monies from Piaintiff Tenant. SeeLandlord Reply Pg.5 #15. 33. Tenant did pay those monies to Landlord. Tenant would not lie especially in a Court ofLaw to get something she did give out. But Landlord on the other hand, has lied throughout herReply to the Counter Claim, appeared to have committed clear perjury, and therefore Tenantbelieves the Landlord has shown the Court no credibility in her written statements. 34. What Plaintiff Tenant considers fairness, Plaintiff Tenant ask the Court for the following:Split the $1,950.00 in half and award Plaintiff-Tenant $975.00, half of the $1,950.00. Therebyreducing the monetary demand by the same amount $5, 150.00 total demand, minus $975.00leaves a demand of $4,175.00, Plaintiff Tenant believes would be a fair way to settle thedisputed amount for said months. Below is the remaining demanded relief requested. vi DEMAND RELIEF REQUEST 1. Defendant Landlord to pay Plaintiff Tenants Court Costs of $402.00 directly to the Osceola County Clerk of Court for Plaintiff Tenants’ filing fee and subpoena. 2. Defendant Landlord to reimburse Plaintiff Tenant for cost of serving Summons $40.00. 3. Court to set Hearing Date for Defendant Landlord violation of Fla. Stat. 92.525 perjury on the Court, in Counter Claim Defense, allowing time for pleadings to be filed. 4. Excerpted directly from Original filed Counter Claim Relief Demand4a. Paid cash, 1“ month rent & security deposit. $1000. With receipts: See Exh- D May 2019 $400. See Exh- D1 June 2019 $400. See Exh- D2 July 2019 $300. See Exh- D3 August 2019 $300. See Exh- Da May 2020 $700. See Exh- Ds July 2020 $100, Subtotal: $3,200. 4b. Without Receipts: September 2019 $500 October 2019 $500, November 2019 $300. January 2020 $400. February 2020 $250. 5. Rent refund owed Tenant-Plaintiff from Landlord-Defendant: Totat $5,150.00 Ga. See Exh-E,- Terminix initial Order and payment $228.00 See Ei Terminix statement two monthly payments $188.00 See E2, Plaintiff-Tenant terminates Terminix 10/2019 Pest Control refund owed Tenant-Plaintiff from Landlord-Defendant: Total $416.00 7 37a. See Exhibit F-F1 SPECTRUM BILL SHOWING $69.00 paid on 10/13/20.Plaintiff-Tenant also paid $100.00 for Spectrum would not reconnect the service without theentire $169.38, but the $100 does not show on the attached bill F-F1, but Tenant-Plaintiff willbe able to get the proof from her account and/or Spectrum prior to hearing on ‘this counterclaim. Plaintiff-Tenant seeks reimbursem*nt of Total $169.38 for Spectrum services. CONCLUSION Plaintiff-Tenant Beulah Farquharson, seeks a total of $5,736.00 in her original CounterClaim from Defendant-Landlord Nilda Murillo, as evidenced above. The Court can clearlypresume that the monies from with proof in this Response pleading is 100% in Plaintiff-Tenant 10Farquharson’s favor; Farquharson also seeks Court Costs of $402.00 to be paid directly to theOsceola Clerk of Court to recover filing fees and subpoena costs, and $40.00 paid toFarquharson for cost of Process Server Summons on Defendant Nilda Murillo for Counter Claim,as well as penalties sought against Defendant Landlord for perjury used to cause injury in thisCounter Claim. WHEREFORE, Plaintiff-Tenant Beulah Farquharson, Counter Claim, prayerfully requestthat the Court award her all the monetary relief originally requested in her Counter Claim whichhas been restated above under RELIEF, the Court has previously Ordered the Eviction portion ofthis Case dismissed with prejudice and removed from the Clerk of Courts docket, at the Hearingback in April 2021; Plaintiff-Tenant prayerfully request the Eviction dismissal with prejudice becompletely removed from the Record in a written Order from the Court, at the outcome of thisCounter Claim; Plaintiff-Tenant prayerfully request that Defendant-Landlord Nilda Murillo alsopay all Plaintiff-Tenant’ Court Costs and Fees, and, any other Relief the Honorable Court deemsjust, and proper, to support this relief. Respectfully submitted by Beulah Farquharson, Plaintiff-Tenant, Pro Se, Counter Claim,under oath and penalty of perjury, on this 11°" day of August 2021. /S/ BEULAH FARQUHARSON, Plaintiff-Tenant, Pro Se, Counter Claim P.O. Box 451823, Kissimmee, Fla. 34745 Email: beulahrosita@gmail.com CERTIFICATE OF SERVICE 1, Beulah Farquharson, Plaintiff-Tenant-Pro Se, Counter Claim, pursuant toFla.R.Civ.P.1.080 and Fla. Judicial Admin R. 2.516, hereby certify that on August 11%, 2021 thisAMENDED PLAINTIFF-TENANT RESPONSE WITH ATTACHED EVIDENCE DISPROVING LANDLORDDEFENDANT ACCUSATIONS/ALLEGATIONS, has been filed at the Osceola Clerk of Courts, andthat a true and correct copy of the foregoing has been sent electronic email provided throughemail to parties by Judge JA email, to Landlord Defendant-NILDA MURILLO, to: ursula murillo and by U.S. Postal Service, on or immediately thereafter to:Landlord-Defendant-NILDA MURILLO -143 CONCH DR, Kissimmee, FL 34759, with a courtesy 11copy provided to the JA for the Judge to email: Olga ctjiaom1@ocnjcc.org, and "LizethHernandez (Clerk)" lizeth.hernandez@osceolaclerk.org. /S/ BEULAH FARQUHARSON, Plaintiff-Tenant, Pro Se, Counter Claim P.O. Box 451823, Kissimmee, Fla. 34745 Email:beulahrosita@gmail.com , 12
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Plaintiff seeks to acquire various property interests belonging to Defendants according to its power of eminent domain under the Public Utilities Code, section 130050 et seq., for the Rosencrans/Marquardt Grade Separation Project and for public transportation purposes and all uses necessary, incidental or convenient thereto. (Compl., ¶ 3 and Exh. 1 [description of property interests].) Three defendants did not answer, and five have been dismissed. The remaining two, RRM Properties, Ltd. and Robertsons Ready Mix, Ltd. (together Defendants) answered on March 11, 2020. Jury trial is set for August 19, 2024. On May 23, 2024, Defendants filed the instant motion for an order granting leave to supplement its list of expert witnesses. They seek to designate Michael Orozco, P.E., a civil engineer employed by RRM, as an expert witness for examination at trial. On June 24, 2024, Plaintiff opposed. On July 1, 2024, Defendants replied. LEGAL STANDARD Code of Civil Procedure section 1258.290 governs the amendment of an expert witness list post-exchange in an eminent domain proceeding. The section permits the court to grant leave for such an amendment if the court finds that such party has made a good faith effort to comply with Sections 1258.210 to 1258.260, inclusive, that he has complied with Section 1258.270, and that by the date of exchange he: (1) Would not in the exercise of reasonable diligence have determined to call such witness or discovered or listed such opinion or data; or (2) Failed to determine to call such witness or to discover or list such opinion or data through mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 1258.290(a).) In making a determination under [section 1258.290], the court shall take into account the extent to which the opposing party has relied on the list of expert witnesses and statements of valuation data and will be prejudiced if the witness is called or the testimony concerning such opinion or data is given. (Id., subd. (b).) DISCUSSION 1. Compliance with Sections 1258.210 through 1258.260 Defendants argue they made good-faith efforts to comply with Code of Civil Procedure sections 1258.210 through 1258.260 and have complied with section 1258.270. Plaintiff does not directly contest their actual compliance prior to the date of the hearing, and it is not necessary for the Court to examine their compliance to dispose of this motion. Plaintiff prevails on other grounds in particular, Defendants failure to exercise diligence, discussed below. 2. Reasonable Diligence or Mistake The Code requires the Court to find that Defendants could not have uncovered the need for their proposed expert with due diligence, or that they failed to initially designate their expert due to mistake, inadvertence, etc. (Code Civ. Proc., § 1258.290(a)(1)-(2).) Defendants have not shown either. Defendants repeatedly argue they would have produced Orozco as their person most knowledgeable for deposition, but Plaintiff did not proceed with that deposition, which Defendants contend shows Defendants complied in good faith with the expert exchange statutes. (Mot., 2:25; Madueno Decl., ¶ 24.) But Defendants willingness to produce Orozco as a PMK (a fact witness) is not the same as designating him as an expert. Defendants do not explain why Plaintiff had to take Orozcos deposition in order for Defendants to identify him as an expert. Defendants counsels declaration establishes that numerous depositions took place and, in particular, depositions of other expert witnesses from at least January 4, 2023. (Madueno Decl., ¶ 10 [I took the deposition of Metros designated fixtures and equipment appraisal expert].) Defendants do not explain why, if as they anticipate Orozco will be testifying as a fact witness, and they had considered which experts will testify, they did not further designate Orozco as an expert witness, or did not move to supplement earlier. In short, Defendants could have uncovered the need for Orozcos designation earlier by exercising due diligence. Defendants have also not shown mistake, inadvertence, surprise, or excusable neglect. Counsel testifies [n]either [she] nor [her] office intentionally or knowingly failed to designate Orozco as an expert. (Madueno Decl., ¶ 23.) This is not the standard. Lack of intent is not the same as excusable neglect. The Court must make one of the findings described in section 1258.290, subdivisions (a)(1) and (2), in order to grant Defendants motion. The Court cannot do so. Defendants motion must be denied. 3. Reliance and Prejudice a. Reliance The statutory date for expert exchange was November 16, 2022, more than eighteen months ago. Plaintiff has spent a year and a half preparing for trial while relying on Defendants designation list. This reliance is substantial, particularly given that the case is set for trial only forty-one (41) days from the date of this ruling. b. Prejudice Defendants apparently intend to call Orozco at trial based on his percipient knowledge of relevant facts. But Defendants have already designated an expert James Roberts to testify to the opinions he formed based on Orozcos personal knowledge. If Orozco is also permitted to testify to the same, Defendants will be permitted to duplicate their expert testimony and bolster the credibility of a fact witness, to Plaintiffs detriment and on short notice. CONCLUSION Based on the foregoing, the court DENIES Defendants motion. Plaintiff is ordered to give notice of this ruling.
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
HOF REO 1 LLC, A DELAWARE LIMITED LIABILITY COMPANY VS ANTHONY MARCIANO, ET AL.
Jul 10, 2024 |11/28/2022 |24SMCV00625
Case Number: 24SMCV00625 Hearing Date: July 10, 2024 Dept: N TENTATIVE RULING Plaintiff HOF REO 1 LLCs Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED. Plaintiff HOF REO 1 LLC to give notice. REASONING Request for Judicial Notice Plaintiff HOF REO 1 LLC (Plaintiff) requests judicial notice of the Deed of Trust recorded November 6, 2019, in the Los Angeles County Recorders Office as Document No. 20191198681; the Assignment of Deed of Trust recorded February 12, 2021, in the Los Angeles County Recorders Office as Document No. 20210247143; and the Trustees Deed Upon Sale recorded March 3, 2021, in the Los Angeles County Recorders Office as Document No. 20210348502. Plaintiffs request is GRANTED pursuant to Evidence Code section 452, subdivision (c). Analysis Plaintiff moves the Court for an order granting summary judgment or adjudication in its favor on the grounds that Defendants Eliyahu Marciano and Anthony Marciano (Defendants) have not paid any rent to Plaintiff since the time Plaintiff acquired and perfected its title to the property; the Tenant Protection Act of 2019 does not apply to this action or the tenancy because the more restrictive local ordinance applies instead, and Plaintiff has complied with all provisions of the local ordinance; and any contention that service of the complaint was defective is inapposite where Defendants appeared in the action and filed an answer. The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) [T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment. (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).) In the complaint, Plaintiff alleges that it owns the premises at 1352 and 1354 Palms Boulevard in Venice, and Defendants entered into a written fixed-term lease with Palms Blvd. Venice Beach, LLC for the period of November 30, 2020 to May 31, 2022 with monthly rent at $4,500, payable on the seventh day of each calendar month. (Compl. ¶¶ 1-8.) Plaintiff acquired title and ownership of the property following a nonjudicial foreclosure sale, and title was perfected on March 3, 2021. (Compl. ¶¶ 10-11.) Defendants failed to pay any rent after Plaintiff acquired title to the property, and Defendants comply with the 3-Day Notice to Pay Rent or Quit, which expired on January 26, 2024, a 30-Day Notice to Pay Rent or Quit, a second 30-Day Notice to Pay Rent or Quit, or a 5-Day Notice to Pay Rent or Quit. Plaintiff seeks past-due rent of $162,000 under four notices, holdover damages, and forfeiture of the agreement. (Compl. ¶¶ 13-19.) The basic elements of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (2), are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed. (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.) Plaintiff provides evidence that it acquired title to the subject real property at 1352 and 1354 Palms Boulevard, Venice, California 90291 following a foreclosure sale that went forward on February 4, 2021, and Plaintiff perfected its title to the property by recording a Trustees Deed Upon Sale on March 21, 2021. (Mot., Holliday Decl. ¶¶ 4-5.) The property consists of a five-bedroom main residence with an additional guesthouse containing two additional bedrooms. (Mot., Holliday Decl. ¶ 3.) Shortly after acquiring the property, on April 7, 2021, Defendants presented Plaintiff with a copy of a residential lease purportedly entered into by Defendants and the prior owner, Palms Blvd Venice Beach, LLC (Palms, LLC). (Mot., Holliday Decl. ¶ 6.) Plaintiff states it was unaware, prior to April 7, 2021, that any lease existed for any tenants or occupants of the property. (Mot., Holliday Decl. ¶ 7.) The lease reflects that, on November 30, 2020, Defendants entered into a residential lease for the property with Palms, LLC, providing that Defendants were to pay $4,500.00 per month, beginning on November 30, 2020, payable on the seventh day of each month, for a term expiring on May 31, 2022. (Mot., Holliday Decl. ¶ 8.) Plaintiff has not received any rent from Defendants since acquiring title to the property on or about February 4, 2021. (Mot., Holliday Decl. ¶ 9.) On April 30, 2021, Plaintiff proceeded with a civil lawsuit against Defendants, Los Angeles Superior Court Case No. 21STCV16332 (HOF REO 1 LLC v. Marciano) to ascertain the validity of the lease, but Plaintiff ultimately dismissed the civil suit and concedes here that the lease is a bona fide lease between Defendants and the prior owner, Palms, LLC. (Mot., Holliday Decl. ¶ 10.) However, Plaintiff contends there was never any agreement between Plaintiff and Defendants directly to occupy the property, whether in writing, oral, or otherwise. (Mot., Holliday Decl. ¶ 11.) Plaintiff served a total of four separate notices to pay rent to quit as follows: (1) On December 22, 2023, Plaintiff served a 30-Day Notice to Pay Rent or Quit for rent owing beginning March 7, 2021, through September 7, 2021, totaling $31,500.00. (Mot., Labarre Decl. ¶ 3, Ex. A.) (2) On December 22, 2023, Plaintiff served a 30-Day Notice to Pay Rent or Quit for rent owing beginning October 7, 2021, through January 7, 2023, totaling $76,500.00. (Mot., Labarre Decl. ¶ 4, Ex. B.) (3) On December 22, 2023, Plaintiff served a 5-Day Notice to Pay Rent or Quit for rent owing beginning February 7, 2023, through November 7, 2023, totaling $45,000.00. (Mot., Labarre Decl. ¶ 5, Ex. C.) (4) On January 23, 2024, Plaintiff served a 3-Day Notice to Pay Rent or Quit for rent owing beginning January 7, 2024, through February 7, 2024, totaling $9,000.00. (Mot., Labarre Decl. ¶ 6, Ex. D.) The time for Defendants to cure under each of the notices expired, and no payment was received, nor was there any attempt to make payment. (Mot., Holliday Decl. ¶ 12; Labarre Decl. ¶ 7.) Plaintiff also provides evidence that it has complied with Los Angeles Municipal Code section 151.09, which applies in place of Civil Code section 1946.2 because the local ordinance is more protective (see Civ. Code, § 1946.2, subd. (g)(1)(B; Mot., Labarre Decl. ¶¶ 3-8, Exs. A-E), and Defendants answered the complaint on March 8, 2024, thereby waiving any argument that service of the complaint was incomplete (see Code Civ. Proc., § 1014 [A defendant appears in an action when the defendant answers].) The lease agreement provided with the motion shows that Defendants entered into the lease with the prior owner, Palms, LLC, which Plaintiff does not dipsute. (Mot., Holliday Decl. ¶ 6; Ex. 5.) The lease agreement includes information on how to pay rent; specifically, lease payments must be made at the landlords address stated in the notices provision of the lease in paragraph 46. (Ibid.) Notably, Plaintiff provided no evidence with its initial motion that it informed Defendants of the name, telephone number, and address of the person or entity to whom rent payment must be made after Plaintiff became owner of the property, which is required under Civil Code section 1962, subdivision (c). The statute states that an owner shall not serve a notice to pay rent or quit or otherwise evict a tenant for nonpayment of rent that accrued during a period of noncompliance with Civil Code section 1962 (ibid.), and merely making contact with Defendants is insufficient to show compliance with the statute. The Court continued the hearing on the motion, despite Defendants nonappearance at the hearing, and required Plaintiff to show compliance with the statute. In its supplemental filing, Plaintiff provides evidence that on November 22, 2023, it served a Notice Regarding Residential Lease, which provided Defendants with Plaintiffs name, a copy of the Trustees Deed Upon Sale through which Plaintiff acquired title, provided contact information for Plaintiffs agents, included information for service of process, provided the name and address for payments to be made, and included a copy of the lease agreement. (Labarre Supplemental Decl. ¶ 2, Ex. F.) While compliance with Civil Code section 1962, subdivision (c), makes it such that Defendants may be liable for unpaid rent during the earlier noncompliance period, it is axiomatic that there is a one-year ceiling on a rent demand, i.e., a three-day notice can only demand rent accrued within one year prior to its service. (Code Civ. Proc., § 1161, subd. (2).) Plaintiff states that the first notice was served on December 22, 2023, seeking rent owing from March 7, 2021, through September 7, 2021, which clearly exceeds the one-year limit, and the second notice, served on the same day, sought rent owing from October 7, 2021, through January 7, 2023, also exceeding the one-year limit. While Code of Civil Procedure section 1179.05 tolled the one-year limitations period if the landlord was prohibited by COVID-19 related authority from demanding payment of rent, Plaintiff has not alleged any such tolling under this statute or any other statute. Thus, Plaintiff has not clearly established its claim for unlawful detainer as to the first two notices, and Plaintiff has moved only for summary judgment, not adjudication. Thus, the burden does not shift to Defendants to create a triable issue of material fact. For these reasons, Plaintiff HOF REO 1 LLCs Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED. Evidentiary Objections Defendants object to certain statements within the declarations of Kevin Holliday and Olivier J. Labarre. Defendants objections are OVERRULED.
Ruling
ALI A. AMINI ET AL VS. ANDREW LINTON ET AL
Jul 10, 2024 |CUD24674655
Real Property/Housing Court Law and Motion Calendar for July 10, 2024 line 7. DEFENDANT ANDREW LINTON , AN INDIVIDUAL DEMURRER TO COMPLAINT is OVERRULED in part. Demurrer is OVERRULED as to (1) the purported failure to comply with the California Debt Fair Debt Collection Act. Moving party failed to show based on the allegations of the complaint that Plaintiff's counsel is a "debt-collector" within the meaning of the act regularly engaged in regular collection of consumer debts per Heintz v. Jenkins (1995) 514 U.S. 291; and (2) failure to allege the specific exemption from TPA 2019; such allegation of exemption appears in the exhibit to the Complaint. The Court will treat the argument regarding prayer for costs as a motion to strike and grants it with leave to amend for plaintiff to reconcile this demand with the provision of the Lease stating that "In any unlawful detainer or eviction/ejectment proceeding, each side shall bear their own attorney's fees and court costs." Plaintiff shall have 5 days from notice of entry of order to file an amended complaint. If Plaintiff fails to file an amended complaint in five days, Defendant shall file an answer in 10 days from notice of entry of order. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
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.
Document
FLITCH ASSETS, LLC vs. HERNANDEZ, FRANK HERNANDEZ
Jul 05, 2023 |YOUNG, TOM |CIRCUIT CIVIL |NON-HOMESTEAD RESIDENTIAL FORECLOSURE $50,001-$250,000 |2023 CA 003745 MF
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STONEFIELD HOMEOWNERS ASSOCIATION INC vs. GAITERI, ALAN P
May 06, 2021 |YOUNG, TOM |CIRCUIT CIVIL |HOMESTEAD RESIDENTIAL FORECLOSURE 0-$50,000 |2021 CA 001293 MF
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ROCKET MORTGAGE LLC vs. BAEZ, FRANKLIN O
Jul 03, 2024 |YOUNG, TOM |CIRCUIT CIVIL |HOMESTEAD RESIDENTIAL FORECLOSURE $250,001 AND UP |2024 CA 001863 MF
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STONEFIELD HOMEOWNERS ASSOCIATION INC vs. GAITERI, ALAN P
May 06, 2021 |YOUNG, TOM |CIRCUIT CIVIL |HOMESTEAD RESIDENTIAL FORECLOSURE 0-$50,000 |2021 CA 001293 MF
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STEVENS PLANTATION COMMUNITY DEVELOPMENT DISTRICT vs. COS INVEST TRUST
Jul 10, 124 |EGAN, ROBERT |CIRCUIT CIVIL |NON-HOMESTEAD RESIDENTIAL FORECLSOURE 0-$50,000 |2018 CA 001281 MF
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FIFTH THRID BANK NATIONAL ASSOCIATION vs. WISCOVITCH, JEFFREY
Jan 13, 2023 |YOUNG, TOM |CIRCUIT CIVIL |HOMESTEAD RESIDENTIAL FORECLOSURE $250,001 AND UP |2023 CA 000119 MF
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FREEDOM MORTGAGE CORPORATION vs. HARDEN, JUARIUS SHAMAR
Jan 09, 2024 |YOUNG, TOM |CIRCUIT CIVIL |HOMESTEAD RESIDENTIAL FORECLOSURE $250,001 AND UP |2024 CA 000057 MF
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PNC BANK NATIONAL ASSOCIATION vs. LEGALL, RONALD
Jun 28, 2024 |ARENDAS, CHRISTINE E |CIRCUIT CIVIL |HOMESTEAD RESIDENTIAL FORECLOSURE $50,001-$250,000 |2024 CA 001840 MF
