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Ruling
FCS059299 - SHARMA, R V GOMEZ, LUIS R, ET AL (DMS)
Sep 04, 2024 |FCS059299
FCS059299SHARMA’s Demurrer to GOMEZ’s First Amended Cross-ComplaintTENTATIVE RULINGPlaintiff and Cross-Defendant RAJ SHARMA (“SHARMA”) demurs to Defendant andCross-Complainant LUIS R. GOMEZ’s (“GOMEZ”) first amended cross-complaint(“GOMEZ 1ACC”) asserting causes of action for indemnity under Labor Code section2802, failure to provide itemized wage statements under Labor Code section 226, andcommon law indemnity. Summarized, SHARMA’s first amended complaint in this casealleges that GOMEZ refuses to remove his construction equipment and debris presenton and damaging SHARMA’s agricultural land; the GOMEZ 1ACC alleges that GOMEZwas SHARMA’s employee by oral agreement and SHARMA committed labor lawviolations.Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency ofthe complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather thanevidentiary facts, but the plaintiff must set forth the essential facts of his or her case“with reasonable precision and with particularity sufficient to acquaint [the] defendantwith the nature, source and extent” of the plaintiff’s claim. (Doheny Park TerraceHomeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007)42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The court “assume[s] the truth ofthe allegations in the complaint, but do[es] not assume the truth of contentions,deductions, or conclusions of law.” (California Logistics, Inc. v. State of California(2008) 161 Cal.App.4th 242, 247.)Labor Code Section 2802 Indemnification. The GOMEZ 1ACC’s first cause of actionis for indemnification pursuant to Labor Code section 2802. The elements of such acause of action are (1) the employee made expenditures or suffered losses, (2) theexpenditures or losses were incurred in direct consequence of the employee’sdischarge of his duties or obedience to the directions of his employer, and (3) theexpenditures or losses were necessary. (Lab. Code, § 2802, subd. (a); Cassady v.Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 231.)GOMEZ does not sufficiently allege this cause of action. The GOMEZ 1ACC containsonly a conclusory allegation that he was SHARMA’s employee, without sufficient factualdetail to demonstrate in what way SHARMA functioned as an employer. (Martinez v.Combs (2010) 49 Cal.4th 35 [to employ for wage & hour purposes is to control work,permit to work, or engage for work].) Further, to maintain this cause of action anemployee must show that expenditures were incurred in consequence of work dutiesand/or directions and were necessary. Without information as to what GOMEZ’s workduties and/or directions were these elements are not sufficiently alleged. Nor doesGOMEZ clearly state expenditures or losses. He states only that he “suffered and/orwill suffer damages.” (GOMEZ 1ACC at ¶ 9.)Itemized Wage Statements. Labor Code section 226, subdivision (a) requiresemployers to furnish their employees with itemized wage statements showing details ofwages such as hours worked and pay rates for those hours. (Furry v. East BayPublishing, LLC (2018) 30 Cal.App.5th 1072, 1083.) As stated, GOMEZ’s allegations ofemployment under SHARMA are insufficient.Common Law Indemnification. The GOMEZ 1ACC states neither a loss to beindemnified against nor an agreement under which SHARMA must contractuallyindemnify GOMEZ or a situation wherein the two are joint tortfeasors entitled toequitable indemnity as regards each other. (Great Western Drywall, Inc. v. InterstateFire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1041 [requirements for indemnity].)Leave to Amend. Leave to amend is proper where identified defects are amenable tocure. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) It is the pleading party’sburden to show the trial court that a reasonable possibility exists that amendment cancure identified defects in that party’s pleading. (Murphy v. Twitter, Inc. (2018) 60Cal.App.5th 12, 42.) GOMEZ’s filings demonstrate a reasonable possibility thatamendment can cure the identified defects in the GOMEZ 1ACC.Conclusion. SHARMA’s demurrer is sustained with leave to amend. GOMEZ is to fileany amended pleading within thirty days of the date of this order.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)
Ruling
AMIDI PARTNERS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS HUB CITIES CONSORTIUM, A JOINT POWERS AGENCY FORMED UNDER CALIFORNIA GOV. CODE SECTION 6500 ET. SEQ.
Sep 03, 2024 |24STCV03266
Case Number: 24STCV03266 Hearing Date: September 3, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT AMIDI PARTNERS, LLC, Plaintiff, vs. HUB CITIES CONSORTIUM, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 24STCV03266 [TENTATIVE] ORDER SUSTAINING IN PART AND OVERRULING IN PART DEMURRER Dept. 48 8:30 a.m. September 3, 2024 On February 7, 2024, Plaintiff Amidi Partners LLC filed this action against Defendant Hub Cities Consortium, A Joint Powers Agency formed under California Gov. Code Section 6500 et. seq. The Complaint alleges (1) breach of contract; (2) common count open book account; (3) breach of implied covenant of good faith and fair dealing; (4) fraud; (5) negligence; and (6) declaratory relief. On April 8, 2024, Defendant filed a demurrer. Defendants request for judicial notice is granted. A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. A. Plaintiffs Claims Are Not Facially Untimely. Defendant argues that Plaintiffs November 2, 2022, and December 7, 2022 letters were not valid claims and do not comply with the California Tort Claims Act requirements, making Plaintiffs claims untimely. Defendant is a joint powers authority established in 1988 pursuant to a Joint Exercise of Powers Agreement . . . . In essence, HCCs legal entity status is that of a public agency. (Demurrer at p. 5; RJN, Ex. A.) Before bringing an action for damages against a public entity, a plaintiff must present the public entity with a written claim. (Gov. Code, § 945.4.) Claims other than those relating to injury to person or to personal property must be presented to the public entity within one year of accrual. (Gov. Code, § 911.2, subd. (a).) In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) On November 2, 2022, Plaintiff delivered a letter demanding that Defendant pay $98,653.99 per month for the holdover period, plus updated invoices for August, September, and October of 2022, reflecting an owed amount totaling $ 150,095.50. (Complaint ¶ 33.) On December 7, 2022, Plaintiff delivered another letter with a demand for holdover rent of $269,199.60. (Complaint ¶ 35.) According to Defendant, these letters cannot be valid claims because they improperly include a dollar amount, in violation of Government Code section 910. (Demurrer at p. 5.) [A] claim is a notice which complies with sections 910 and 910.2, and a claim may be defective when it fails to substantially comply with section 910. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 707.) The Complaint does not attach the letters, so the Court cannot determine on demurrer whether Plaintiffs letters substantially comply with the claim requirements. Defendant also argues that it sent a February 17, 2023 Rejection of Claim, so Plaintiff was required to file its lawsuit no later than August 17, 2023. (Demurrer at pp. 6-7; see Complaint ¶ 39.) With certain exceptions, an action against a public entity on a cause of action for which a claim must be presented must be commenced not later than six months after written notice rejecting the claim is delivered to the claimant personally or deposited in the mail. (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267-1268; see Gov. Code, § 945.6, subd. (a).) However, Plaintiff also delivered a November 2,2023 notice after Defendants rejection. (Complaint ¶ 40.) The Court cannot determine on demurrer, without evidence, whether the later claim relates back and is barred. (See Demurrer at pp. 6-7.) The demurrer is overruled on this ground. B. Plaintiff Does Not Properly Allege Fraud (Fourth Cause of Action). Defendant argues that Plaintiff cannot allege a fraud claim against it. (Demurrer at pp. 7-8.) A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional. (Gov. Code, § 818.8.) The Complaint alleges that during its holdover tenancy, Defendant made representations about being willing to enter into amendments to the lease and when its tenancy would end. (See Complaint ¶¶ 14, 16-28.) Defendant repeatedly made false promises and misleading statements about the possibility and/or feasibility of their continued tenancy at the Subject property and about the duration of their desired tenancy. (Complaint ¶ 43.) Defendant made misrepresentations with the intent and purpose of cheating and defrauding [Plaintiff] and with the intent to wrongfully interfere with, hinder, delay, obstruct, and prevent [Plaintiff] from leasing the Subject Property to other tenants. (Complaint ¶ 71; see Complaint ¶ 69 [Defendant falsely and fraudulently, and with the intent to wrongfully interfere with and prevent [Plaintiffs] ability to lease the Subject Property to other tenants.].) As a result, Plaintiff was induced to, and did, incur additional expense, loss, and damage in attempting to lease the Subject Property to other tenants. (Complaint ¶ 74.) Plaintiff suffered lost profits, the loss of the use and benefit in the Subject Property, incurred out of-pocket costs and expenses, and reputational harm. (Complaint ¶ 75.) Plaintiff argues that it clearly indicated that [its] Fraud claim is a Contractual Fraud claim. (Opposition at p. 8.) Because Defendant misrepresented facts relating to a term and/or modification of a term within a valid, existing contractual agreement . . . Plaintiffs Fraud claim should be interpreted as contractual rather than tortious in nature. (Ibid.) In Plaintiffs cited case, the complaint alleged an action based on a contract because it sought recission and restitution due to a unilateral and concealed mistake that induced the plaintiff to enter into the contract. (Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 322.) The alleged fraud here arises from Defendants subsequent misrepresentations after and outside of the contract. As pleaded, this cause of action is based in fraud, not contract, and is barred by Government Code section 818.8. The demurrer to the fourth cause of action is sustained. C. Plaintiff Does Not Properly Allege Negligence (Fifth Cause of Action). Defendant argues that the cause of action for negligence is an attempt to smuggle in a cause of action for negligent interference with economic relations, which cannot be asserted against a public agency, and it is another attempt to allege fraud. (Demurrer at pp. 8-9.) Plaintiff alleges that Defendant breached their duty of reasonable care by, including but not limited to, making false promises and misrepresentations that [Defendant] reasonably knew or should have known were false, and for numerous acts, omissions, defaults and breaches as alleged throughout this Complaint. (Complaint ¶ 79.) Plaintiff was damaged because it has not received monies due to it under the Lease. (Complaint ¶ 80.) The alleged negligence is in fact fraud: making false promises and misrepresentations. The other alleged negligence (defaults and breaches) appears to be an allegation of breach of contract. The demurrer to the fifth cause of action is sustained. D. Conclusion The demurrer to the fourth and fifth causes of action is SUSTAINED with 30 days leave to amend. The demurrer is otherwise overruled. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 3rd day of September 2024 Hon. Thomas D. Long Judge of the Superior Court
Ruling
ARMAN YEGIYANTS VS HAGOP BARDAKJIAN ET AL
Sep 06, 2024 |BC550144
Case Number: BC550144 Hearing Date: September 6, 2024 Dept: E Hearing Date: 09/06/2024 Case No: BC550144 Trial Date: 12/09/2024 Case Name: Arman Yegiyants v. Hagop Bardakjian et al. Motion to Compel Compliance with Deposition Subpoena Moving Party: 703 E. Angeleno, LLC, a Wyoming limited liability company Responding Party: none Proof of service timely filed (CRC 3.1300(c)): ok Correct Address (CCP §§ 1013, 1013(a)): ok 16/+5 day lapse (CCP §1005): ok RELIEF REQUESTED: Defendants 703 E. Angeleno, LLC, 707 E. Angeleno, LLC, Commercial Funding LLC, and Jamal Dawood (defendants) move for a court order compelling non-party Antwerp Law Firm, P.C. (Antwerp) to Comply with defendants Deposition Subpoena for Production of Business Records. BACKGROUND: On May 13, 2024, defendants served a subpoena upon Antwerps custodian of records. (Ludwig Decl., ¶3, Ex. 1.) The subpoena records requested were: 1. All DOCUMENTS REFLECTING, RELATING TO or CONCERNING communications (e.g., letters, emails, text messages etc) with anyone other than Fares Abbasi with respect to the attached agreement. 2. YOUR fee agreement with respect to the work YOU performed with respect to the attached agreement. 3. ALL DOCUMENTS DOCUMENTS REFLECTING, RELATING TO or CONCERNING payment for YOUR services with respect to the attached agreement. 4. All DOCUMENTS DOCUMENTS REFLECTING, RELATING TO or CONCERNING 703 Angeleno LLC, a Wyoming, limited liability company and/or 707 Angeleno, LLC, a Wyoming limited liability company, other than DOCUMENTS which reflect privileged communications with Fares Abbasi. Defendants also served a notice to consumer or employee upon Fares Abbasi regarding the requested records. (Ludwig Decl., ¶3, Ex. 1.) Defendants now move to compel compliance with the deposition subpoena. RECOMMENDED RULING: The Motion to Compel move for a court order compelling non-party Antwerp Law Firm, P.C. to Comply with defendants Deposition Subpoena for Production of Business Records is GRANTED in part. The request for attorneys fees and/or sanctions against Antwerp is DENIED. In all other respects the motion is GRANTED. Antwerp Law Firm, P.C. is ordered to comply with the Deposition Subpoena for Production of Business Records served by 703 E. Angeleno, LLC, 707 E. Angeleno, LLC, Commercial Funding LLC, and Jamal Dawood on May 13, 2024. ANALYSIS: Legal Standard The Code of Civil Procedure section 1987.1 states that if a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. The deposition subpoena duce tecum for the personal records of a consumer must also comply with Code of Civil Procedure section 1985.3, which requires service of notice upon the consumer. Discussion The issue is whether there are grounds to compel compliance with a deposition subpoena for records. There are. Here, defendants have properly served a deposition subpoena on May 13, 2024. The subpoena required production of the records on June 12, 2024. Defendants also timely served a notice to the consumer Fares Abbasi regarding the request for records. The time for responding to the subpoena has passed. Defendants attest that they have not received a response. Accordingly, the motion is granted in part. The request for attorneys fees and/or sanctions against Antwerp is denied. Attorneys fees under Code of Civil Procedure section 1987.2 is discretionary and the court does not find there has been a misuse of the discovery process at this time. In all other respects the motion is granted.
Ruling
Curtis Jackson et al. vs Teresa Griffin et al.
Sep 05, 2024 |STK-CV-LRP-2021-0007168
2021-7168 Jackson Motion to Compel Deposition 9/6/2024 Defendant brings a Motion to Compel Deposition Testimony of Party Deponent and for Monetary Sanctions. Having read the moving papers and noting no opposition file has been filed, the court issues the following tentative ruling: Defendant noticed Plaintiff Curtis Jackson’s deposition for July 5, 2024, 9:00 am. Mr. Jackson failed to appear at the deposition. Mr. Jackson failed to inform defendant of his intent not to appear. Oral depositions are an authorized method of discovery. (See CCP §2025.010 et seq.) Serving a deposition notice on a party is the method to obtain the party’s attendance at the oral deposition. (CCP §§2025.210-2025.240 / 2025.280.) If a party fails to attend the deposition as noticed the noticing party may bring a motion to compel attendance. If the party fails to attend or proceed with the noticed deposition the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (CCP §2025.430.) In addition, failure to submit to authorized method of discovery is a misuse of the discovery process for which monetary sanctions shall be imposed. (CCP §2023.2023.010(d) /§ 2023.030.) The Motion is GRANTED. Defendant is ordered to sit for an oral deposition within 30 days of service of the order on Plaintiff. Plaintiff is to produce responsive documents at the deposition if such documents are requested. The parties are to meet and confer to find an agreeable date, time and location for the deposition within the 30 day window. The request for monetary sanctions is granted. The court finds sanctions against the self-represented plaintiff as follows: $944.80 (cost of court reporter for non-appearance); $60 (filing fee); and $250 (attorney fees to prepare the unopposed motion) for a total sanction award of $1,254.80. Sanctions payable within 30 days of service of the order. The court notes to the self-represented plaintiff that failure to comply with court order might result in the escalation of the sanctions awarded, if such request is made. The court will modify and sign the order submitted with the moving papers. If hearing is requested, parties may attend the hearing remotely via the Dept. 11B Bridge Line. To attend the hearing remotely dial (209) 992-5590 and follow the prompts entering Bridge # 9641 and Passcode 5564. WATERS 9/5/2024 Directions for Contesting or Arguing the Tentative Ruling: Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To conduct a remote appearance, follow the instructions below. There is a dedicated conference bridge lines for Dept. 11B. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept. 11B: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6941 and Pin # 5564. The courtroom clerk will make announcements and the Judge will call the calendar. Please mute your phones when you are not speaking, and remember to unmute your phone when you are speaking. At this time, we are not able to provide information over the phone. To communicate with the Courtroom Clerk of Dept. 11B, please email questions to civilcourtclerks@sjcourts.org, indicating in the title of the email the Department, Case number, Case Name, and party’s name. A Courtroom Clerk will return your email. To ensure the Court has your most recent contact information, if you have not already done so, please register your email address and mobile number on the Court’s website under Online Services, Attorney Registration. (You do not have to be an attorney to register.) We thank you for your cooperation, assistance, patience and flexibility.
Ruling
OATES PENA vs. OATES LUCAS, et al.
Sep 05, 2024 |CVCV21-0197372
OATES PENA VS. OATES LUCAS, ET AL.Case Number: CVCV21-0197372Tentative Ruling on Motion & Request for Expungement of Lis Pendens and Award of Attorneys’ Feesand Costs: Defendant/Cross-Complainant Rachel Oates Lucas moves for an Order expunging the Lis Pendensfiled by Plaintiff/Cross-Defendant Sharon Oates Pena on May 21, 2021, for the real property located at 1703Ridge Drive, Redding, CA 96001. Despite being properly served, Sharon Oates Pena did not file an Opposition.Procedural Defect. On August 23, 2024, Defendant/Cross-Complainant filed a “Notice ofSupplemental/Amended Motion & Supplemental/Amended Motion for Order….” The new document was notfiled in compliance with CCP § 1005(b) which requires service on a motion at least 16 court days before thehearing date. Consideration of the late filed document would violate CCP § 1005 and Plaintiff/Cross-Defendant’sdue process rights. Accordingly, the Court did not review nor did it consider the late filing in ruling on merits ofthis motion.Merits of Motion. “At any time after notice of pendency of action has been recorded, any party, or any nonpartywith an interest in the real property affected thereby, may apply to the court in which the action is pending toexpunge the notice.” CCP § 405.30. “[T]he court shall order that the notice be expunged if the court finds thatthe claimant has not established by a preponderance of the evidence the probable validity of the real propertyclaim. The court shall not order an undertaking to be given as a condition of expunging the notice if the courtfinds the claimant has not established the probable validity of the real property claim.” CCP § 405.32. “Theclaimant shall have the burden of proof under Sections 405.31 and 405.32.” CCP § 405.30.In this matter, the Complaint filed by Sharon Oates Pena on May 21, 2021, has been dismissed in its entirety. Ajury trial was held on the Cross-Complaint filed by Rachel Oates Lucas and the portion tried to the Court iscurrently under submission. As the party who filed the lis pendens, Sharon Oates Pena bears the burden ofestablishing the validity of her real property claim. There are currently no real property claims filed by SharonOates Pena. Additionally, Sharon Oates Pena did not file an Opposition to the motion and did not provide anyevidence. Accordingly, the Court GRANTS the motion for expungement of the lis pendens. No undertaking isrequired. No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, until the time within which a petition for writ of mandate may be filed pursuant to Section 405.39 has expired. No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, after a petition for writ of mandate has been timely filed pursuant to Section 405.39, until the proceeding commenced by the petition is finally adjudicated. This section imposes no duty on the county recorder to determine whether the requirements of this section or of any order expunging a notice of pendency of action have been met.CCP § 405.35 No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party. The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days. A copy of the petition for writ of mandate shall be delivered to the clerk of the court which issued the order with a request that it be placed in the court file.CCP § 405.39.Therefore, while the Court intends to issue the Order forthwith, Rachel Oates Lucas is not permitted to record theOrder until twenty days after service of the written order. The Court notes that the prayer for relief requests theCourt provide notice to the Shasta County Recorder’s Office. That is not ordered. Rachel Oates Lucas can recordthe Order after properly serving the Order and after the waiting time has passed, assuming that no petition forwrit of mandate is filed as noted above.“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonableattorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted withsubstantial justification or that other circ*mstances make the imposition of attorney’s fees and costs unjust.” CCP§ 405.38. Rachel Oates Lucas is the prevailing party on this motion and has provided evidence of attorney’s feesincurred in bringing the motion in the amount of $2,625. This is evidenced by the Declaration of Mark C. Lucasin which he attaches a billing sheet reflecting 12.5 hours either spent or anticipated to be spent at the rate of $200per hour. The Court finds both the hours spent and the $200 hourly fee to be reasonable. The Court does not findthat Sharon Oates Pena acted with substantial justification or that the circ*mstances make the imposition ofattorney’s fees unjust. The Court awards attorney’s fees to Rachel Oates Lucas in the amount of $2,625.In summary, the motion is GRANTED. The lis pendens is ordered expunged. No undertaking is required. RachelOates Lucas is the prevailing party on the motion and is awarded attorney’s fees in the amount of $2,625. Aproposed Order was provided, however, it will need to be modified to reflect the Court’s ruling.Tentative Ruling on Motion to Deem Plaintiff/Cross-Defendant a Vexatious Litigant Per CCP § 391, et seq.and Probate Code § 1970, et seq.: Defendant/Cross-Complainant Rachel Oates Lucas moves for an orderdeeming Plaintiff/Cross-Defendant Sharon Oates Pena a vexatious litigant along with several other prayers forrelief. Despite being properly served, Plaintiff/Cross-Defendant Sharon Oates Lucas did not file an Opposition.The Court notes that the hearing was originally supposed to occur on August 26, 2024. However, the hearingwas continued to today’s date, September 3, 2024, due to the court calendar. The Court provided notice of thecontinued hearing date to both parties in its Order dated July 31, 2024.A vexatious litigant is a person who does any of the following: (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence. (5) After being restrained pursuant to a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 of the Family Code, and while the restraining order is still in place, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be meritless and caused the person protected by the order to be harassed or intimidated.CCP § 391(b).A Defendant can move for an order requiring the Plaintiff who is a vexatious litigant to furnish security or for anorder dismissing the litigation. CCP § 391.1. A hearing is required and evidence must be provided for the Courtto impose the requirement that surety be posted. CCP § 391.3(a). Per CCP § 391.7, a party may request thatthe Court issue prefiling order, but again, evidence would need to be presented.Rachel Oates Lucas did not provide any evidence to support the motion. There is no declaration providingevidentiary support for the assertions made in the moving papers. There is no request for judicial notice.As no evidence has been presented upon which the Court can make the requested findings, the motion is DENIEDwithout prejudice. A proposed Order was not provided as required per Local Rule 5.17(D). Rachel Oates Lucasis to prepare the Order.
Ruling
JCS EL SEGUNDO, INC VS EL SEGUNDO PLAZA ASSOCIATE, L.P., ET AL.
Sep 06, 2024 |20STCV27855
Case Number: 20STCV27855 Hearing Date: September 6, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: September 6, 2024 TRIAL DATE: February 3, 2025 CASE: JCS El Segundo Inc. v. El Segundo Plaza Associate, L.P. CASE NO.: 20STCV27855 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION MOVING PARTY: Defendants El Segundo Plaza Associates, L.P. and El Segundo Plaza I, Inc. RESPONDING PARTY: Plaintiffs JCS El Segundo, Inc., Jay Shin, and Clara Shin I. BACKGROUND In 1998, El Segundo Plaza Associates, L.P (ESPA)[1] leased the property located at 5107 W. El Segundo Blvd., Hawthorne, California 90266 (the Premises) to Ping D. Foo (Foo). In 2010, Foo assigned his interest in the lease to JCS El Segundo, Inc. (JSC), Jay Shin, and Clara Shin (collectively Plaintiffs), with ESPAs written consent. Thereafter, Plaintiffs operated a Burger King franchise on the Premises. On July 23, 2020, Plaintiffs filed this action against Defendants ESPA and El Segundo Plaza I, Inc.[2] (collectively, Defendants). Plaintiffs allege causes of action for (1) Breach of Contract; (2) Accounting; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; (4) Misrepresentation; (5) Damages under Penal Code Section 496(c); and (6) Declaratory Relief. Plaintiffs allege that Defendants breached the lease agreement by collecting property tax and common area expense payments in excess of what Plaintiffs actually owed under the lease. On February 13, 2024, Defendants filed this Motion for Summary Judgment, or in the Alternative, Summary Adjudication. Plaintiff filed an opposition. Defendants replied. II. LEGAL STANDARD When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponents claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ A motion for summary judgment must be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) [T]he initial burden is always on the moving party to make a prima facia 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 seeking summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) 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).)¿ A moving defendant need not conclusively negate an element of plaintiffs cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ To meet this burden of showing a cause of action cannot be established, a defendant must show not only that the plaintiff does not possess needed evidence but also that the plaintiff cannot reasonably obtain needed evidence.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿ The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿ 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. (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿ The court must liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party, including all inferences reasonably drawn therefrom.¿ (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ Put another way, have defendants conclusively negated a necessary element of the [plaintiffs] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial? (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.) Further, the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the courts evaluation of credibility.¿ [Citation.] ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party].)¿¿ III. DISCUSSION The issue to be decided is whether Plaintiffs assigned their right to recover the alleged overpayment of taxes and common area expenses in this action to Defendants when they executed a quitclaim deed. A. Factual Background In 1998, ESPA leased the property located at 5107 W. El Segundo Blvd., Hawthorne, California 90266 (the Premises) to Ping D. Foo (Foo). (Defendants Undisputed Material Facts (UMF) 1.) In 2010, Foo assigned his interest in the lease to Plaintiffs, with ESPAs written consent. (UMF 2.) Plaintiffs operated a Burger King franchise on the Premises. On October 19, 2017, JSC and ESPA entered into a written First Lease Extension Agreement, modifying the 1998 Lease (the Lease). (UMF 3.) Paragraph 16.02 of the Lease provides that Upon expiration of the Lease term [], Tenant agrees to execute, acknowledge and deliver to Landlord a proper instrument in recordable form, releasing and quitclaiming to Landlord all right, title, and interest of Tenant in and to the Premises and all improvements constructed thereon. (Plaintiffs Additional Material Facts (PAMF) 38.) On December 3, 2023, Defendants principal Jerry Jamgotchian requested that Plaintiffs execute a Quitclaim and Lease Termination Agreement (the Termination Agreement). (PAMF 39.) Plaintiffs refused, as the Termination Agreement exceeded the scope called for under Paragraph 16.02 and contained mutual releases that would terminate the claims alleged in the instant action. (PAMF 40-41.) Thereafter, Defendants prepared a Quitclaim Deed (QD). Defendants delivered the QD to Plaintiffs. Defendants left the QD at the Premises with one of Plaintiffs employees. Defendants did not discuss the QD with Plaintiffs. (PAMF 42-43.) On December 26, 2023, Plaintiffs executed the QD with the intention of complying with Paragraph 16.02. (UMF 35, PAMF 45.) The QD states: On December 31, 2023 THE GRANTOR(S), JAY SHIN, CLARA SHIN AND JCS EL SEGUNDO INC. for all consideration of: One Dollar ($1.00) and/or other good and valuable consideration conveys, releases and quitclaims to the GRANTEE(S): EL SEGUNDO PLAZA ASSOCIATES L.P., for the property located at: 5107 W. El Segundo Blvd., Hawthorne, Los Angeles County, California lease. the following described real estate, situated in Hawthorne, in the county of Los Angeles, State of California Legal Description: Attached as Ex. A More commonly described as 5107 W. El Segundo Blvd., Hawthorne, California 90250. Grantor does hereby convey, release and quitclaim all of the Grantors rights, claims, title and interest in and to the above described property and premises to the Grantee(s), and to the Grantee(s) heirs and assigns forever, so that neither Grantor(s) nor Grantors heirs, legal representatives or assigns shall have, claim or demand any right or title to the property, premises, improvements, rights, claims or appurtenances, if any part thereof. Grantor herein confirms that existing Burger King lease dated July 31, 1998 will end on December 31, 2023 and Grantor agrees to vacate the premises and assign all rights, claims, and interests under the lease to Grantee. (Jamgotchian Decl., Exh. D.) Plaintiffs executed the QD as the Grantors, and ESPA executed the QD as the Grantee. (Id.; UMF 26-30.) Plaintiffs maintain that at the time they executed and delivered the QD to Defendants, Plaintiffs intended to surrender the premises at the expiration of the lease term and any future rights they had to rent or occupy the premises. (PAMF 46.) They did not intend to assign to Defendants (and thereby relinquish their right to pursue their legal claims in the instant action. Plaintiffs did not they believe the QD assigned such claims to ESPA. (PAMF 47.) The Lease terminated on December 31, 2023, and Plaintiffs timely vacated the Premises. (UMF 36.) B. Analysis This case presents the issue of whether Plaintiffs current claims were assigned to Defendants by executing the QD. Defendants argue the language of the QD unambiguously expresses Plaintiffs intent to assign the claims asserted in this action to Defendants. Plaintiffs argue their execution of the QD was the result of a mistake in fact and/or law. Plaintiffs argue they executed the QD to assign Plaintiffs interest in the title to the Premises only, not their rights and interests in this law suit. The court has two concerns: ambiguity and mistake. The parties do not adequately develop their respective arguments whether the terms of the QD are ambiguous; whether the court can consider parole evidence to interpret the QD; and whether Plaintiffs purported mistake (of fact or law) presents a sufficient defense to raise triable issues of material fact. The court will discuss the issues with the parties. The court anticipates ordering additional briefing on these or some of these issues. IV. CONCLUSION The court will hear from the parties. Dated: September 6, 2024 Kerry Bensinger Judge of the Superior Court [1] Erroneously sued as El Segundo Plaza Associate, L.P. aka El Segundo Plaza, L.P. [2] Erroneously sued as El Segundo Plaza, Inc.
Ruling
CHERYL L. RANER VS JOHN K. STUMPUS, ET AL.
Sep 06, 2024 |24NNCV00708
Case Number: 24NNCV00708 Hearing Date: September 6, 2024 Dept: D TENTATIVE RULING Calendar: 11 Date: 9/6/2024 Case No: 24 NNCV00708 Trial Date: None Set Case Name: Raner v. Stumpus, et al. DEMURRER TO ANSWER Moving Party: Plaintiff Cheryl L. Raner Responding Party: Defendant John K. Stumpus RELIEF REQUESTED: Sustain demurrer to verified answer SUMMARY OF FACTS: Plaintiff Cheryl L. Raner brings this case for partition of real property, an apartment building in Pasadena, alleging that plaintiff is the owner of an undivided one-fourth (25%) tenant-in-common interests in the property, and that defendant John K. Stumpus is an owner of an undivided three-fourths (75%) tenant-in-common interest in the property. Plaintiff alleges that plaintiff and defendant are cousins who acquired their interests in the property through common relatives, and that after defendant acquired interest in the property, plaintiff entrusted him with management of the property. The verified complaint alleges that defendant has failed to properly manage the property, failing to collect rents at fair market value for several units and neglecting to accurately record the propertys income and expenses, and not providing information on accounting related to the property to plaintiff. Plaintiff alleges that the parties do not communicate well and have been unable to reach an agreement to divide the property, leaving plaintiff with no option other than to undertake this action for the parties common benefit. The complaint alleges one cause of action for partition, and seeks allowance, accounting, contribution or any compensatory adjustments among the parties according to equity, an interlocutory judgment, appointment of a partition referee and receiver, an order of disbursem*nt, a writ of possession, and attorneys fees and experts and referees expenses. Defendant Stumpus, individually and as successor trustee of the Achilles Stumpus and Geraldine Miller Stumpus Family Trust, has filed a verified answer to the complaint, responding to each paragraph of the complaint, and alleging thirteen affirmative defenses. ANALYSIS: Under CCP section 430.30, an objection may be taken by demurrer to a pleading, [w]hen any ground for objection to an answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice& CCP section 430.20 provides: A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral. Plaintiff Raner initially argues that in a partition action, the law requires that the defendant specifically allege the status of defendants interest in the property, but defendant has failed to do so. Plaintiff relies on CCP section 872.410, which provides, in pertinent part, with respect for civil actions for partition of real and personal property: The answer shall set forth: (a) Any interest the defendant has or claims in the property. Plaintiff argues that defendant is required to set up in his own pleading the nature and extent of his interest in the property, and that an allegation that plaintiff and defendant are owners of the property fails to state the proportionate interest being claimed by defendant. Defendant in opposition argues that the answer sufficiently alleges defendants position that plaintiff no longer holds any interest in the property, as in paragraph 4 of the answer, defendant alleges that title is vested in the trustee to the Achilles Stumpus and Geraldine Miller Stumpus Family Trust U/D/T Dated September 10, 2007 (see Exhibit E to the Verified Partition Complaint). [Answer, para. 4]. Defendant argues that a review of that document, Exhibit E to the Complaint, which supersedes any allegations of the complaint to which it is attached to the extent the allegations are inconsistent, shows that title is in fact held in that matter. The document is a Guarantee of Condition of Title issued by First American Title on March 8, 2024, and states: According to the Public Records as of the Date of Guarantee, a. Title to the estate or interest in the Land is vested in: Achilles Stumpus and Geraldine Miller Stumpus, as Trustees of The Achilles Stumpus and Geraldine Miller Stumpus Family Trust, U/D/T Dated September 10, 2007, Subject to Exception No. 5. [Complaint, Ex. E]. Exception 5 refers to The effect of a document entitled AFFIDAVIT-DEATH OF TRUSTEES, recorded July 7, 2021& [Id.] The answer accordingly is sufficient to allege that defendant is alleging that the trust is the 100% owner of the property, with plaintiff having no interest at all. The demurrer on this ground is overruled. Plaintiff also argues that since the legislature removed all defenses to a partition complaint other than waiver, the fourth through fifteenth affirmative defenses are invalid as a matter of law. Plaintiff relies on CCP section 872.710 (b), which provides: Except as provided in Section 872.730, partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver. CCP section 872.730 applies to proceedings involving partnerships, which is not at issue here. Plaintiff relies on LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, in which the court of appeal observed, A co-owner of property has an absolute right to partition unless barred by a valid waiver. LEG Investments, at 493. However, as noted above, defendant here is taking the position that plaintiff is not a co-owner of the property, so that the right to partition is in issue here. In addition, Miller and Starr recognize that: Partition is a matter of absolute right and in the absence of waiver or estoppel or other equitable defenses, each co-tenant in ownership has the right to petition for partition of the common property. Miller and Starr, California Real Estate (4th Ed.) § 40:126, emphasis added. There is also a discussion in Miller & Starr with respect to defenses to partition, in which it is observed: Equitable defenses. The element of unfairness that precludes an absolute right of partition under various circ*mstances often results from the fact that a court ordered sale of the property in a partition action is a sale of the entire interest in the property and not merely a sale of the individual interests of the co-owners. The sale becomes a forced sale in the same sense as a foreclosure sale or a sale under execution. The objecting co-owner is thereby required to part with his or her interest in the property contrary to his or her expectations. Because an action for partition is an equitable proceeding, this hardship on the defendant cotenant has induced the courts to modify the absolute right of partition by certain equitable defenses such as waiver of the right of partition, estoppel, or other conditions that make the equitable principle of fairness applicable. Unfairness as a defense to partition. [I]n addition to the limitation on the right of partition derived from the express or implied waiver by agreement, the courts have imposed an even wider and more general limitation. This limitation subjects the right of partition to the requirements of fairness. Miller and Starr, California Real Estate (4th Ed.) § 11:20, footnotes omitted, italics in the original, quoting American Medical International, Inc. v. Feller (1976) 59 Cal. App. 3d 1008, 1015. Defendant in opposition also points out that the cause of action for partition as alleged in the verified complaint seeks various equitable remedies, such as an accounting, which claims would fairly be subject to equitable defenses. [Complaint, prayer, paras. A-E]. The demurrer on this ground is overruled. Plaintiff argues that the first cause of action for failure to state a cause of action affirmative defense is inadequate as a matter of a law, as it is merely a general denial, which is prohibited in response to a verified complaint. It appears that under California statutory law, this is a valid objection to a pleading. As defendant points out in the opposition, under CCP Section 430.80, the defense is expressly designated a valid objection which cannot be waived even if a party fails to timely assert it: (b) If the party against whom an answer has been filed fails to demur thereto, that party is deemed to have waived the objection unless it is an objection that the answer does not state facts sufficient to constitute a defense. Since this defense cannot be waived even if not asserted, it evidently can be asserted in an answer, and need not be alleged with any particularity. In Stevens v. Torregano (1961) 192 Cal.App.2d 105, the court of appeal expressly observed: [T]he point that a complaint does not state a cause of action is never waived. The point may be raised by answer, and it is not improper to do so, even though a previous demurer on the same ground has been overruled. Stevens, at 112, citations omitted. The demurrer on this ground is overruled. Plaintiff argues that the first affirmative defense and the fourth through twelfth affirmative defenses, which are equitable defenses, are not sufficiently specifically pled. Plaintiff relies on FPI Development, Inc. v. Nakashima (1993) 231 Cal.App.3d 367, in which the court of appeal affirmed the granting of a motion for summary judgment, in part on the ground that the conclusory affirmative defenses stated in defendants answer were insufficient to place facts in issue. All of the allegations are proffered in the form of terse legal conclusions, rather than as facts "averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint." (See Pomeroy, Code Remedies, supra, at 563, at p. 917.) The only affirmative defenses that are mentioned in the summary judgment proceedings, fraud in the inducement and failure of consideration, are not well pled, consisting of legal conclusions, and would not have survived a demurrer. (See e.g., Metropolis etc. Sav. Bank v. Monnier (1915) 169 Cal. 592, 596 [147 P. 265] (Metropolis); Riegel v. Wollenshlager (1920) 49 Cal.App. 300, 301 302 [193 P. 160].) FPI, at 384. The argument here is that each affirmative defense must be alleged with particularity of facts and specifically allege each element in the answer. A review of the answer here shows that this situation is not the usual case where the affirmative defenses consist primarily of a recitation of the defense, without providing details. Each affirmative defense is supported by detailed factual allegations. [Answer, pp. 6-14]. While the reply again argues that these defenses must be alleged with particularity, it would appear that this is not a situation where a review of the answer itself shows a lack of detail. These defenses, particularly when considered in connection with the allegations and exhibits to the complaint, are sufficient to provide plaintiff notice of what is being alleged. In addition, this court does not find this specificity argument under FPI Development persuasive, because the case stands for the generic proposition that mere allegations in a pleading are insufficient to withstand summary judgment. It does not stand for the proposition of a heightened pleading standard for affirmative defenses in an answer. The case does not make any reference to CCP sections 430.20 or 430.30. In fact, it is recognized that plaintiffs rarely demur to answers, even though they have such a right pursuant to CCP § 430.30(a). See Weil & Brown, California Practice Guide: Civil Proc. Before Trial (The Rutter Group, 2024 rev.) para. 6:476. The practice is disfavored due to the notice-based aspects of pleadings. South Shore Land Co. v. Peterson (1964) 226 Cal.App.2d 725, 733. Sufficient notice with respect to each affirmative defense has been provided here. The demurrer on this ground is overruled. The demurrer accordingly is overruled in its entirety. RULING: Plaintiffs Demurrer to Defendants Answer is OVERRULED. Objection to Late Reply to Opposition to Demurrer to Answer is OVERRULED in light of the continuance of the hearing date, which has permitted defendant sufficient time to review the untimely reply and prepare for oral argument in response to it. The Court in its discretion has considered the late filed reply, filed and served only three court days before the date originally set for hearing, rather than the five court days required under CCP section 1005(b). See CRC Rule Rule 3.1300(d) DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE AUDIO OR VIDEO APPEARANCES Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED. If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.
Ruling
VARELA vs GONZALEZ, et al.
Sep 03, 2024 |Unlimited Civil (Other Real Property (not emin...) |23CV009513
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009513: VARELA vs GONZALEZ, et al. 09/04/2024 Hearing on Demurrer to Cross-Complaint in Department 53Tentative RulingNOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure 367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.PdfA Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk Page 1 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009513: VARELA vs GONZALEZ, et al. 09/04/2024 Hearing on Demurrer to Cross-Complaint in Department 53will be forward the form to the Court Reporter’s Office and an official reporter will be provided.The demurrer of Plaintiff/Cross-Defendant Daniel Varela (“Varela”) to Defendant/Cross-Complainant Bianca M. Gonzalez’s (“Gonzalez”) first amended cross-complaint (“FACC”) isruled on as follows.This action arises from a dispute regarding real property located at 8728 Fobes Dr., Antelope,CA 95843 (the “Property”). Varela and Gonzalez both have an ownership interest in theProperty. On October 5, 2023, Varela commenced this action by filing a complaint to partitionthe Property by sale. In lieu of selling the Property, Gonzalez wishes to purchase Varela’sinterest. (See FACC, ¶¶ 23, 25.) On December 19, 2023, Gonzalez filed the FACC asserting fourcauses of action. Varela demurs to each cause of action, asserting that the FACC fails to statefacts sufficient to constitute a cause of action. Gonzalez opposes the demurrer.Legal StandardThe function of a demurrer is to test the sufficiency of the pleading it challenges by raisingquestions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlingerv. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not theevidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902,905.) “If the complaint states a cause of action under any theory, regardless of the title underwhich the factual basis for relief is stated, that aspect of the complaint is good against demurrer.”(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39; Bagatti v. Dept. ofRehabilitation (2002) 97 Cal.App.4th 344, 352.)For the purpose of determining the effect of a complaint, its allegations are liberally construed,with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202Cal.App.3d 137, 140-141; Quelimane Co., supra, 19 Cal.4th at 43, fn. 7.) In this respect, theCourt treats the demurrer as admitting all material facts properly pleaded, but not contentions,deductions or conclusions of fact or law, and considers matters which may be judiciallynoticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. WoodlandLane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) The Court treats as true not onlythe complaint’s material factual allegations, but also facts that may be implied or inferred fromthose expressly alleged. (Amarel, supra, 202 Cal.App.3d at 141.) “A court will not consider factswhich have not been alleged in the complaint unless they may be reasonably inferred from thematters which have been pled or are proper subjects of judicial notice.” (Hall v. Great WesternBank (1991) 231 Cal.App.3d 713, 722, fn. 7.) The Court is to give the complaint a reasonableinterpretation, reading it as a whole and its parts in their context. (Blank, supra, 39 Cal.3d at318.) A demurrer may be sustained only if the complaint lacks any sufficient allegations toentitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009513: VARELA vs GONZALEZ, et al. 09/04/2024 Hearing on Demurrer to Cross-Complaint in Department 53764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief ..., weare not concerned with plaintiff's possible inability or difficulty in proving the allegations of thecomplaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.)Nonetheless, “[t]he plaintiff has the burden of showing that the facts pleaded are sufficient toestablish every element of the cause of action.” (Martin v. Bridgeport Community Assn.,Inc. (2009) 173 Cal.App.4th 1024, 1031; see Sui v. Price (2011) 196 Cal.App.4th 933, 938.)“Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw v. CaliforniaPhysicians' Service (2000) 81 Cal.App.4th 39, 43–44, internal citations omitted.)AnalysisVarela’s request for judicial notice of the truth of matters stated in documents produced byGonzalez in discovery is DENIED. Verification of a response to a request for production doesnot establish the truth of information contained within text messages produced as responsive tothe request. Accordingly, the documents are extrinsic evidence that may not be considered ondemurrer.First Cause of Action – Quiet TitleVarela cites to Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2013) 217Cal.App.4th 62, 81 as authority that absent fraud, “the holder of equitable title cannot maintain aquiet title action against the holder of legal title.”Varela states, without citation to any allegation or judicially-noticeable evidence, that he holdslegal title and therefore, that Gonzalez cannot maintain an action to quiet title against him. TheFACC alleges Varela relinquished ownership of the Property and that Gonzalez holds legal title.(See FACC, ¶¶ 19-20.) Varela presents no valid basis for the Court to ignore the allegations inthe FACC at this stage.Second Cause of Action – Breach of ContractVarela argues the FACC is a sham pleading that is inconsistent with verified allegations in theoriginal cross-complaint.The original cross-complaint alleges there is “no agreement in a record binding the co-owners ofthe Property which governs the partition of the Property.” (Cross-Complaint, ¶ 21.) Based on thisallegation, Varela argues Gonzalez should be precluded from alleging the existence of anywritten agreement between the parties. However, the allegation in original cross-complaint islimited to written agreements involving the specific subject matter of partition of the Property.An allegation that the parties entered an agreement in which Varela relinquished title to theProperty is not inconsistent with that allegation. Indeed, the allegation that the parties entered an Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009513: VARELA vs GONZALEZ, et al. 09/04/2024 Hearing on Demurrer to Cross-Complaint in Department 53agreement giving Gonzalez full ownership tends to explain why Gonzalez would not agree topartition the Property.Varela next argues Gonzalez should be barred from asserting the existence of a contract becausein response to requests for production, Gonzalez “specifically admitted that she was unable toproduce any document related to the alleged contract because no documents exist.” (Memo, p.5:1-3 citing Sikavi Decl., ¶ 6, Exh. 4.) However, as noted in the opposition, Varela does notidentify which particular response makes this admission. Upon review, none of the requests forproduction Varela offers in support of this demurrer appear to include a request for documentsrelated to a written agreement between Varela and Gonzalez. (See Sikavi Decl., Exh. 2.) Varelahas therefore failed to demonstrate that Gonzalez has made any admission that contradicts theallegations of the FACC.In reply, Varela explains that his third request for production seeking documents related toGonzalez’ ownership of the Property was intended to obtain documents regarding a writtenagreement. As the pleadings allege Gonzalez initially obtained a 50% ownership in the Propertyand subsequently obtained sole ownership, the Court finds this request is too vague to supportsustaining a demurrer. Moreover, Gonzalez’ response to this request does not, as Varela argues,admit no documents exist. Rather, Gonzalez’ response identifies and agrees to produceresponsive documents. The response also leaves open the possibility that other responsivedocuments may exist in the control of other persons or entities, such as Varela. (See Sikavi Decl.,Exh. 3.) As noted above, Varela’s request for judicial notice of the truth of the documentsproduced is denied. A demurrer challenges the pleading. Here, the FACC sufficiently alleges theexistence of a contract.Finally, Varela argues the FACC fails to allege the existence of consideration. The FACC allegesGonzalez agreed to take sole responsibility for paying the mortgage in exchange for soleownership of the Property. Varela argues this promise does not include new considerationbecause as an owner of the Property, Gonzalez was already obligated to pay the mortgage.However, as Gonzalez argues in opposition, co-owners are generally jointly responsible for amortgage and property expenses. The FACC alleges that Gonzalez agreed to pay Varela’s shareof the mortgage in exchange for Varela’s share of the title. Varela fails to explain why a promiseto pay more than Gonzalez’ share of expenses does not constitute sufficient consideration for anew written agreement.Third Cause of Action – Declaratory ReliefTo state a cause of action for declaratory relief, a party must allege a proper subject ofdeclaratory relief and an actual controversy. (Jolley v. Chase Home Finance, LLC (2013) 213Cal.App.4th 872, 909, as modified on denieal of reh’g [Mar. 7, 2013].)Notably, Varela does not argue that Gonzalez failed to allege the existence of an appropriate Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009513: VARELA vs GONZALEZ, et al. 09/04/2024 Hearing on Demurrer to Cross-Complaint in Department 53subject for declaratory relief or an actual controversy. Instead, Varela argues that Gonzalezcannot seek declaratory relief because she has an available remedy at law. Specifically, Varelaindicates the right of partition is available to the extent Gonzalez is a co-owner and thatGonzalez’ claims for quiet title and breach of contract are sufficient remedies to the extentGonzalez holds sole title.However, the “remedy of declarative relief is cumulative and does not restrict any other remedy.(Code Civ. Proc., § 1062.) Accordingly, ‘it is difficult to see how a good complaint fordeclaratory relief can be deemed insufficient because some other remedy is available.’” (In reClaudia E. (2008) 163 Cal.App.4th 627, 633.)Further, “[s]uperfluity does not vitiate.” (Civ. Proc. Code § 3537.) Thus, even if Gonzalez’request for declaratory relief is duplicative of its other causes of action, the better practice is toresolve such issues at trial or on a dispositive motion such as summary judgment. (BlickmanTurkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890.)Fourth Cause of Action - PartitionAlthough entitled as a cause of action for “Partition Pursuant to Partition of Real Property Act,”Gonzalez’ fourth cause of action does not seek an order for partition and instead seeks to avoidpartition by allowing Gonzalez to purchase any interest Varela has in the Property.Varela argues Gonzalez fails to state a cause of action because the Partition of Real Property Act,Gov. Code § 874.311, et seq., (the “Act”) merely provides a remedy, not a cause of action.Varela argues the Real Property Act merely sets forth provisions and procedures that applyautomatically to eligible requests for partition. The Court agrees.The Act provides if an action to partition in real property is “filed on or after January 1, 2023,”the real property is held in a tenancy in common, and “there is no agreement binding all thecotenants which governs the partition of the property[,]” then “the property shall be partitionedunder this chapter unless all of the cotenants otherwise agree in a record.” (Code Civ. Proc. §§874.311, 874.313.) Further, the Act provides that it supplements and controls other provisions forpartition of eligible property. (Code Civ. Proc. § 874.313(b).)Nothing in the language of the Act indicates it was intended to create a new or different cause ofaction for partition. Rather, the Act merely sets forth procedures that the Court will necessarilyfollow in resolving eligible requests for partition. Further, even if the Act created a cause ofaction for partition, Gonzalez has not actually requested a partition. Rather, Gonzalez merelyrequests the Court apply the procedures of the Act to Varela’s cause of action for partitionasserted in the complaint and allow Gonzalez to purchase the property in lieu of a partition ofsale. Page 5 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009513: VARELA vs GONZALEZ, et al. 09/04/2024 Hearing on Demurrer to Cross-Complaint in Department 53The Court finds Gonzalez has failed to assert a cause of action for partition pursuant to the Act.The Court will nonetheless grant leave to amend.DispositionThe demurrer as to the first, second, and third causes of action is OVERRULED. The demurrerto the fourth cause of action is SUSTAINED, with leave to amend. Gonzalez may file a secondamended cross-complaint on or before September 19, 2024. If Gonzalez does not file and servean amended cross-complaint, Varela shall answer the remaining causes of action by September30, 2024.The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 orfurther notice is required. Page 6 of 6
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