Complaint January 26, 2023 (2024)

Case

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Jul 30, 2024 |Civil - Real Property - Mortgage Foreclosure: Residential |CV-2024-006684

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Jul 30, 2024 |Civil - Real Property - Mortgage Foreclosure: Residential |CV-2024-006686

Case

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Jul 25, 2024 |Civil - Real Property - Mortgage Foreclosure: Residential |CV-2024-006578

Case

CrossCountry Mortgage, LLC v. CARMICHAEL

Jul 29, 2024 |Civil - Real Property - Mortgage Foreclosure: Residential |CV-2024-006624

Case

U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 v. Mondesir et al

Jul 31, 2024 |Civil - Real Property - Mortgage Foreclosure: Residential |CV-2024-006690

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Coneys v. McCann

Jul 31, 2024 |Civil - Real Property - Real Property: Other |CV-2024-006636

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Rose Lee LLC v. Rodriquez

Aug 01, 2024 |Civil - Real Property - Landlord/Tenant Dispute |CV-2024-006660

Ruling

MATTHEW MERRITT VS RUSHMORE LOAN MANAGEMENT SERVICES, LLC, ET AL.

Jul 30, 2024 |24LBCV00330

Case Number: 24LBCV00330 Hearing Date: July 30, 2024 Dept: S25 Background This is an alleged wrongful foreclosure action involving the residential property located at 496 East 53rd Street, Long Beach, California (subject property). On February 15, 2014, Plaintiff filed a complaint against Defendants Rushmore Loan Management Services, Li C; Rushmore Servicing; Meb Loan Trust VI; Specialized Loan Servicing, LLC; Affinia Default Services, LLC; ARKAS, LLC; Recontrust Company, N.A.; Mortgage Electronic Registration Systems, INC.;, and all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiffs title, or any cloud on plaintiffs title thereto; and Does 1 to 50. Plaintiff alleges the following causes of action: 1. Wrongful Foreclosure 2. Intentional Misrepresentation 3. Negligent Misrepresentation 4. Cancellation of Trustee's Deed Upon Sale 5. Rescission of Trustee's Sale 6. Intentional Infliction of Emotional Distress 7. Negligent Infliction of Emotional Distress 8. Unfair Business Practices (B&P Code § 17200, et seq.) 9. Quiet Title 10. Declaratory Relief 11. Breach Of Contract On May 24, 2024, Defendants Meb Loan Trust VI and Specialized Loan Servicing, LLC filed the instant demurrer without a motion to strike. As of July 29, 2024, no opposition has been filed. Legal Standard A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no speaking demurrers). A demurrer is brought under Code Civ. Proc., § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50, subd. (a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per Code Civ. Proc., § 430.10, subd. (e) if insufficient facts are stated to support the cause of action asserted. Per Code Civ. Proc., § 430.10, subd. (a), a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).) However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Finally, Code Civ. Proc., § 430.41, requires that [b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).) Judicial Notice Defendants Request for Judicial Notice of Exhibits 1-8 is granted pursuant to Evid. Code, § 452. Meet and Confer Defendants counsel states that on May 6, 2024, he met and conferred with Plaintiffs counsel concerning the issues presented in the instant demurrer, to which Plaintiffs counsel refused to dismiss or amend the complaint. (Schneider Decl., ¶¶ 3-4.) The demurrer is therefore ripe for determination on its merits. Discussion Plaintiff alleges the following: on or around October 14, 2006, Plaintiff re-financed the Subject Property with: (1) a first position mortgage loan in the amount of $328,000.00 secured by a Deed of Trust that was recorded on or around October 30, 2006. (Compl., ¶ 16; Request for Judicial Notice (RJN) Exh. 1); and (2) a second position mortgage loan in the amount of $23,000.00 secured by a Deed of Trust that was recorded on or around October 30, 2006 (the DOT). (Compl., ¶ 17; RJN Exh. 2.) Unbeknownst to Plaintiff, on or about June 20, 2023, Affinia Default Services, LLC was substituted in as trustee of the DOT pursuant to a Substitution of Trustee recorded in the Los Angeles County Recorders Office on July 5, 2023. (Compl., ¶ 27; RJN Exh. 6.) Unbeknownst to Plaintiff, Plaintiff fell further and further behind on the monthly mortgage payments, resulting in a Notice of Default and Election to Sell Under Deed of Trust being recorded on or around July 5, 2023 (the NOD). (Compl., ¶ 28; RJN Exh. 7.) Unbeknownst to Plaintiff, the NOD identifies that the Loan was currently in default is $39,478.56. (Ibid.) Unbeknownst to Plaintiff, on or around November 16, 2023, a Notice of Trustees Sale was recorded (the NOTS). (Compl., ¶ 29; RJN Exh. 8.) The NOTS represented the total estimated fees and charges due on the DOT was $40,588.77. (Ibid.) The foreclosure sale was completed and a Trustees Deed Upon Sale was recorded on January 17, 2024 conveying the Property to defendant ARKAS, LLC as the highest bidder. (Compl., ¶ 32; RJN Exh. 9.) Under CCP §§ 430.10 (e), (f) and 430.50(a), Defendants demur to the 1st, 2nd, 3rd, 6th, 7th, 8th, 9th, 10th and 11th causes of action. Defendants claims that on or about March 28, 2023, the beneficial interest in the DOT was assigned to Defendant MEB Loan Trust VI pursuant to a series of Corporate Assignments of Deed of Trust recorded in the Los Angeles County Recorders Office. (RJN Exh. 3-5). On or about June 20, 2023, Defendant Affinia Default Services was substituted in as trustee of the DOT pursuant to a Substitution of Trustee recording on July 5, 2023. Plaintiff defaulted on the payment obligations of the DOT by failing to make the monthly payments beginning with the January 1, 2012 installment, and each installment thereafter. (RJN Exh. 7). Ultimately, on or around July 5, 2023, a Notice of Default (NOD) and Election to Sell Under Deed of Trust was recorded. In November 2023, a Notice of Trustees Sale was recorded and the foreclosure sale was completed and a Trustees Deed Upon Sale was recorded on January 25, 2024. (RJN Exh. 8-9). First Cause of Action Wrongful Foreclosure [T]he elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually not but always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. (Lona v. Citibank, NA. (2011) 202 Cal.App.4th 89, 104.) Plaintiff has failed to plead facts sufficient to demonstrate that Defendants engaged in illegal, fraudulent, or willfully oppressive tactics when conducting the sale of the subject property. Plaintiff failed to reinstate or pay off the past due mortgage loan and Plaintiff has not identified any error in the sale process undertaken by Defendants. Also, Plaintiff also does not allege that he effectuated tender or was excused from tendering the amount of secured indebtedness. Defendants demurrer to the 1st cause of action is SUSTAINED with LEAVE TO AMEND. Second Cause of Action Intentional Misrepresentation Intentional misrepresentation or fraud claims must include specific allegations of what, how, where, by whom, to whom and by what means the alleged representations or concealments were made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Plaintiff fails to plead any false statement of past or existing material fact beyond conclusory statement. (See Compl., ¶¶ 34, 55.) For intentional misrepresentation, Plaintiff has not included specific allegations as to the context of the representations or concealments. Defendants demurrer to the 2nd cause of action is SUSTAINED WITH LEAVE TO AMEND. Third Cause of Action Negligent Misrepresentation The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 [citation omitted.]) Lenders do not have a common-law duty of care in negligence, to offer, consider, or approve a loan modification, to offer foreclosure alternatives, or to handle loans so as to prevent foreclosure. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68). For negligent misrepresentation, the element of duty of care cannot be established because Defendants are the mortgage loan service and owner of the mortgage loan. The demurrer as to the 3rd cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Sixth Cause of Action Intentional Infliction of Emotional Distress The essential elements for intentional infliction of emotional distress are: (1) outrageous conduct; (2) an intent to cause or a reckless disregard of the possibility of causing emotional distress; (3) severe or extreme emotional distress; and (4) actual and proximate cause of the emotional distress by the outrageous conduct. (Symonds v. Mercury Sav. & Loan Assn (1990) 225 Cal.App.3d 1458,1468.) Outrageous conduct is conduct that exceed[s] all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 166 fn. 5.) Plaintiff has not alleged conduct that meets the outrageous element of an IIED claim. A foreclosure sale is not outrageous conduct. Defendants demurrer to the 6th cause of action is SUSTAINED WITH LEAVE TO AMEND. Seventh Cause of Action- Negligent Infliction of Emotional Distress To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662, 142 Cal.Rptr.3d 24.) Lenders do not have a common-law duty of care in negligence, to offer, consider, or approve a loan modification, to offer foreclosure alternatives, or to handle loans so as to prevent foreclosure. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68). Thus, Plaintiff cannot establish that Defendant has a duty of care element. Defendants demurrer to the 7th cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Eighth Cause of Action Unfair Business Practices A cause of action for Violation of Business & Professions Code § 17200 et seq. requires the pleading of the following elements: (1) Defendant has engaged in any unlawful, unfair, or fraudulent business act or practice, including unfair, deceptive, untrue or misleading advertising; (2) Plaintiff's right to restitution, if any; (3) Plaintiff's right to injunctive relief, if any. (Bus. & Prof. Code § 17200 et seq.) Damages are not recoverable. (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 773-774.) To state a claim, there must be allegations showing unlawful, unfair, or fraudulent business acts or practices. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676-677.) Since the cause of action is based on statute, pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation, including the section of the statute violated and the particular facts showing that the statute was violated. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Plaintiff does not identify any unlawful, unfair or fraudulent business act conducted by Defendants nor does Plaintiff describe with any reasonable particularity any facts supporting such violations. The demurrer as to the 8th case of action is SUSTAINED WITH LEAVE TO AMEND. Ninth Cause of Action Quiet Title A cause of action for quiet title requires (1) a legal description and street address of the subject property; (2) the title of the plaintiff as to which a determination is sought and the basis of the title; (3) the adverse claims to the title of the plaintiff against which a determination is sought; (4) the date as of which the determination is sought and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. (Code Civ. Proc., § 761.020.) The complaint must also be verified. (Ibid.) Plaintiff alleges that he is the owner of the Property. (Complaint, ¶ 96.) However, Plaintiff did not fulfill the obligation under the DOT, the DOT was in default and foreclosure was completed pursuant to the DOT and California law, with the foreclosure sale and conveying the subject property to ARKAS, LLC, the highest bidder, on January 17, 2024. (Compl., ¶ 32; RJN Exh. 9.) Defendants demurrer as to the 8th case of action is SUSTAINED WITH LEAVE TO AMEND. Tenth Cause of Action Declaratory Relief The requirements for obtaining declaratory relief are set forth in CCP §§ 1060 to 1062. CCP §1060 authorizes declaratory relief for any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of rights or duties with respect to another, or in respect to, in, over, or upon property, or with respect to the location of the natural channel of a watercourse. In cases of actual controversy relating to the legal rights and duties of the respective parties, such a person may seek a judicial declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. A declaration of rights or duties may be sought either alone or with other relief, and the court may make a binding declaration of rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and may be had before there has been any breach of the obligation in respect to which the declaration is sought. Declaratory relief is appropriate only where there is an actual controversy, not simply an abstract or academic dispute. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746.) The controversy must be of a character which admits of specific and conclusive relief by judgment within the field of judicial determination, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. (Sanctity of Human Life Network v. California Highway Patrol (2003) 105 Cal.App.4th 858, 872.) The broad discretionary power of the trial court to deny declaratory relief may be invoked by general demurrer. (General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 471.) Plaintiffs claim for declaratory relief does not state with sufficient facts how Defendants committed an improper act and seeks to remedy a past wrong, the foreclosure sale. Defendants demurrer to the 10th cause of action is SUSTAINED WITH LEAVE TO AMEND. Eleventh Cause of Action Breach of Contract [T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) [I]t is elementary that one party to a contract cannot compel another to perform while he himself is in default. (Lewis Pub. Co. v. Henderson (1930) 103 Cal.App.425, 429.) Plaintiff alleges he made monthly payments on the first and second loans and that [d]espite having made the required payments on the loans, Mers, Meb, Rushmore Loan, Rushmore Servicing, Specialized Loan and Does 1-50 proceeded with foreclosure on the PROPERTY. (Compl., ¶¶ 107-108.) Plaintiff also alleges that he was ready, willing, able, and in fact complied with the terms of the loans. (Compl., ¶ 109.) Plaintiff does not support these statements with any facts; he does not identify when he attempted to make payments, which payments were rejected, when these payments were rejected, whether he attempted to make a full payment or partial payment, and/or whether the bank rejected the payment(s) for insufficient funds. Defendants demurrer to the 11th cause of action is SUSTAINED WITH LEAVE TO AMEND. Tentative Ruling Defendants demurrer to the 1st, 2nd, 6th, 8th, 9th, 10, and 11th causes of action are SUSTAINED WITH LEAVE TO AMEND. Defendants demurrer to the 3rd and 7th causes of action is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff to file an amended complaint within 15 days of this order.

Ruling

JONATHAN PEZZA, ET AL. VS FRANCISCO JORDAN, ET AL.

Jul 31, 2024 |24VECV02372

Case Number: 24VECV02372 Hearing Date: July 31, 2024 Dept: T 24VECV02372 PEZZA V JORDANMINORS COMPWHY ARE THE MINORS FUNDS NOT BEING DEPOSITED INTO A BLOCKED ACCOUNT?THE COURT NOTES THAT COUNSEL DID NOT FILL OUT THE MC-351 FORM.

Ruling

JAIME SCHER, ET AL. VS CARLA DALHIENNE STANG, AN INDIVIDUAL, ET AL.

Aug 02, 2024 |6/18/2022 |23SMCV01463

Case Number: 23SMCV01463 Hearing Date: August 2, 2024 Dept: I This is essentially the same as the prior motion. The courts thinking is the same. The responses that were provided are not code compliant. The objections are boilerplate and as such are in bad faith. Objections must be thought through and not cut and pasted out of the form book. The court incorporates its order of July 26, 2024. Sanctions of $4520 for the two motions combined are imposed on the opposing party but not counsel, payable within 30 days. (This is reduced because the replies are essentially the same for all of the motions and there are similarities in the moving papers as well.) Further verified responses without objection are due in 30 days. If the opposing parties believe that they have already fully complied with this order, they may stand on their supplemental responses, but if plaintiff brings a successful motion to compel further as to those responses it will be considered a violation of the instant order for purposes of the scope of sanctions.

Ruling

Matthews, Thomas J. et al vs. Brummer, Toby T. et al

Aug 12, 2024 |S-CV-0050890

S-CV-0050890 Matthews, Thomas J. et al vs. Brummer, Toby T. et al** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue - Need responsive pleading,default or dismissal as to Defendant(s): Dewitt, Elledge

Ruling

KARIYA KAYAMORI VS DAVID ROSS, ET AL.

Jul 30, 2024 |24SMCV03010

Case Number: 24SMCV03010 Hearing Date: July 30, 2024 Dept: M CASE NAME: Kayamori v. Ross, et al. CASE NO.: 24SMCV03010 MOTION: Motion to Strike Damages HEARING DATE: 7/30/2024 LEGAL STANDARD Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded].) Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.) ANALYSIS Defendant David Ross and Defendant Leah Ross separately move to strike the Plaintiffs request for special damages and consequential damages. Defendants offers no authority suggesting that, under the pled facts of unlawful detainer, Plaintiff cannot recover consequential or special damages. Code of Civil Procedure section 1174(b) provides that, as a remedy for any unlawful detainer, the fact finder must assess the damages occasioned to the plaintiff . . . alleged in the complaint and proved on the trial, and find the amount of any rent due . . .. The section also provides for $600 in statutory damages in addition actual damages, including rent found due. Accordingly, a judgment of possession for the landlord may award the landlord all lawfully allowed back-due rent and damages pled and proved. (Code Civ. Proc., § 1174(a), (b).) Civil Code section 1951.2 likewise provides that, in case of a breach of lease, the lessor may recover (1) the worth at the time of award of the unpaid rent which had been earned at the time of termination; (2) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and (4) any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessees failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom. These statutes, read together, show an entitlement to special or consequential damages in case of a breach of lease or unlawful detainer. The complaint alleges that Defendants breached the subject lease agreement and committed unlawful detainer. Defendants have missed rent payments required by the Lease, totaling no less than $32,208.14. (Compl., ¶ 12.) Plaintiff alleges specific rental damages of $533.33 per day. (Compl., ¶¶ 16, 19.) Plaintiff alleges that it suffered damages beyond rent, including damages for utilities (water, gas and electric) in the amount of $53.14, internet equipment in the amount of $130.00, and check fees in amount of $25.00. (Compl., ¶ 12.) Thus, the complaint establishes sufficient facts to show entitlement to typical unlawful detainer remedies, necessarily including special and consequential damages. Accordingly, the motions are DENIED. Defendants are ordered to answer only within 10 days.

Ruling

DEVLIN PROPERTY MANAGEMENT LP, AN ONTARIO, CANADA LIMITED PARTNERSHIP VS DUSTIN GLODNEY, ET AL.

Jul 29, 2024 |6/18/2022 |20SMCV00859

Case Number: 20SMCV00859 Hearing Date: July 29, 2024 Dept: I The matter is here for a jury trial. However, the FSC, which was supposed to occur on July 22, 2024, did not take place because the court was closed on that day. The court will therefore hold the FSC today. The FSC order was given most recently on June 30, 2023over a year ago. On July 17, 2024, the court received the following materials: (1) Defendants Trial brief; (2) Joint Statement of Unusual Issues and Supplemental Statement, which suggests that plaintiffs counsel is not an active member of the bar and the defense entities (other than the human Glodney) are unrepresented, and suggesting bifurcation to determine if there is alter ego liability; (3) Joint Exhibit List showing 74 exhibits from plaintiff and 7 from defendant, but no stipulations as to authenticity or objections; (4) Joint Witness List showing 21.5 hours of expected direct testimony and 19.5 hours of cross, with six of eleven witnesses being subject to objection as being previously undisclosed; (5) Joint Short Statement of the Case; (6) Joint Jury Instructions (actually Plaintiffs proposed Joint Jury Instructions) but without any index; (7) Joint Deposition Chart with no objections (suggesting that no one objects to these excerpts); (8) Notice of Remote Appearances of two witnesses by plaintiff to which defendant objects. The court has not received any contested jury instructions, which is fine if there are none; verdict form, which must be provided forthwith; jury questionnaire, which is not required if no one wants one; or plaintiffs trial brief, which is optional. The court is not convinced that the case is ready for trial, but will discuss the matter with counsel. There may be another case ready for trial on 8/5/24. If so, this case might trail that one.

Ruling

Montezuma Lodge No. 172, I.O.O.F., of California, a California Public Benefit Corporation vs. Connie Jean Lewis, Trustee, Lewis Family Trust

Aug 03, 2024 |CU23-05966

CU23-05966Demurrer by Defendant CONNIE LEWIS, Trustee of the Lewis Family Trust, toComplaintTENTATIVE RULINGThe papers filed in support of this demurrer include a declaration by counsel as to meetand confer efforts preceding the filing. That declaration purported to attach as anexhibit a copy of the meet and confer letter counsel claimed to have mailed to opposingcounsel. But no letter was attached.More importantly, the request for judicial notice also claimed to be attaching copies ofthe two documents for which judicial notice was being requested. These documentswere to be a copy of a page of the Assessors Map Book, “showing the propertiesalleged to be at issue in this matter”; and a copy of a Google Map page showing certainaddresses. But again, no documents were attached.The request for judicial notice was intended to support the uncertainty basis for thisdemurrer to the entirety of the complaint, and thus the court cannot find the complaint isuncertain.The demurrer to the trespass, nuisance and negligence causes of action is alsooverruled. Page 2 of 4One of the elements of trespass is satisfied by a negligent act of the defendant causingentry onto the plaintiff’s property.The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2)the defendant's intentional, reckless, or negligent entry onto the property; (3) lack ofpermission for the entry or acts in excess of permission; (4) harm; and (5) thedefendant's conduct was a substantial factor in causing the harm. (See CACI No. 2000.)Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.Likewise, an element of nuisance is met by negligent conduct causing interference withanother’s real property. Lussier v. San Lorenzo Valley Water Dist. (1988) 206Cal.App.3d 92, 102 [“a nuisance requires some sort of conduct, i.e. intentional andunreasonable, reckless, negligent, or ultrahazardous, that unreasonably interferes withanother's use and enjoyment of his property”].The complaint alleged that the Demurring Party “without approval by or permits from theCity of Dixon, personally directed an individual to pave the entire Parking Area byadding a layer of tar and gravel, (commonly called “blacktop”) [Complaint, ¶24]; that“The added layer did not maintain the previously existing grading but instead directssurface waters towards and onto the Oddfellow Property where it gathers and pools . . .[Complaint, ¶25], and causes damage [Complaint, ¶¶26-29].The court finds that the complaint gives the defendant “fair notice” of the nature, scopeand extent of the claims, by implying that the decision to pave the parking lot causedrainwater to be diverted from its historical path, to therefore pool in greater quantitiesnear the Oddfellow property. Edmon & Karnow (Weil & Brown), Civil Procedure BeforeTrial, §§6:128 and 6:129, p. 6-44.The court therefore overrules in its entirety the demurrer to complaint, and directs theDemurring Party to file and serve an answer within 30 days, to avoid the possibility ofdefault thereafter being entered.The parties are reminded to appear for the case management conference concurrentlyset for July 31 at 8:30 a.m., and the court will also conduct the OSC as to sanctions atthat time.PETITION OF ARTEFFECT XD, LLCCU24-04410Petition for Approval of Transfer of Structured Settlement Payment RightsTENTATIVE RULINGThe payee and counsel for the petitioning proposed transferee are to appear for hearingas scheduled. Zoom appearance is approved. Page 3 of 4

Ruling

YUZHENG CHEN VS LONGJI GUAN, ET AL.

Aug 05, 2024 |23PSCV03064

Case Number: 23PSCV03064 Hearing Date: August 5, 2024 Dept: 6 CASE NAME: Yuzheng Chen v. Longji Guan, et al. 1. Demurrer of Defendants Longji Guan and Xiuhua Liang to Plaintiffs First Amended Complaint; and 2. Defendants Longji Guan and Xiuhua Liang's Motion to Strike TENTATIVE RULING The Court SUSTAINS the demurrer of Defendants Longji Guan and Xiuhua Liang to the First Amended Complaint without leave to amend. The Court DENIES the motion to strike as moot. Defendants Longji Guan and Xiuhua Liang are ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a breach of contract case. On October 6, 2023, plaintiff Yuzheng Chen (Plaintiff) filed this action against defendants Longji Guan (Longji), Xiuhua Liang (Xiuhua), Bingwei Guan, Yudan Li (collectively, Defendants), and Does 1 through 4, alleging one cause of action for breach of contract. On March 11, 2024, following the Courts sustaining of Defendants Guan and Lis demurrer to the complaint, Plaintiff filed the operative First Amended Complaint (FAC) against Defendants, alleging one cause of action for breach of contract. On May 7, 2024, the Court sustained the demurrer of Defendants Bingwei Guan and Yudan Li to the FAC without leave to amend and dismissed them from this action with prejudice.[See Nunc Pro Tunc Order 7/31/24; Minute Order 5/7/24.] On June 21, 2024, Defendants Longji and Xiuhua (collectively, Moving Parties) demurred to and moved to strike the FAC. On July 9, 2024, Plaintiff opposed the demurrer and motion to strike.[1] On July 31, 2024, Moving Parties replied. LEGAL STANDARD - Demurrer A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id., at pp. 993-994.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Firemans Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) A demurrer can be utilized where the face of the complaint itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The face of the complaint includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Firemans Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleaders allegations as to the legal effect of the exhibits.]) A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.) PRELIMINARY ISSUES Demurrer The Court notes that Moving Parties demurrer does not state each ground for the demurrer in a separate paragraph, as required by Rule 3.1320, subdivision (a), of the California Rules of Court. (Cal. Rules of Court, rule 3.1320, subd. (a); see Notice of Demurrer, 2:3-7.)[2] The Court previously admonished Bingwei Guan and Yudan Li, who are represented by the same attorneys as Moving Parties, regarding this same issue. (Order re Tentative Ruling (5/7/24).) The Court admonishes Moving Parties to comply with the requirements of the California Rules of Court going forward. The Court also notes that Moving Parties filed their reply on July 31, 2024, which is two days late. (Code Civ. Proc., § 1005, subd. (b).) The Court exercises its discretion to still consider the reply, but admonishes Moving Parties to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) DISCUSSION Demurrer Meet and Confer Per Code of Civil Procedure section 430.41, subdivision (a), Moving Parties were required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Moving Parties efforts to meet and confer sufficient. (Hwang Meet & Confer Decl., ¶¶ 3-7.) Summary of Arguments Moving Parties demur to the FAC on the grounds that it is barred by res judicata and fails to state a cause of action. Moving Parties contend that Plaintiff previously sued them based upon the same alleged breach of contract regarding the same property which Plaintiff later dismissed with prejudice. Moving Parties also contend the FAC fails to plead any facts supporting the existence of a valid contract between the parties, and that the exhibits attached to the FAC do nothing to support Plaintiffs claim. In opposition, it is not entirely clear what Plaintiff argues, but Plaintiff appears to argue that he has the right to refile a lawsuit if it was withdrawn. Plaintiffs opposition also appears to argue that Moving Parties filed their demurrer too late, based on a service date on April 7, 2024, which would create a responsive pleading deadline of May 7, 2024. Timeliness A demurrer generally must be filed within 30 days of service of the summons and complaint. (Code Civ. Proc., § 430.40, subd. (a).) However, the Court has the discretion to still consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) To the extent Plaintiff is arguing the demurrer was not timely filed, Plaintiff has not presented any evidence of Plaintiffs rights being substantially affected by the late-filed demurrer, as Plaintiff did not attempt to obtain a default judgment or in any other way demonstrate how the delay prejudiced Plaintiff. (See Id.) Moreover, the FAC does not contain a proof of service and the Proofs of Service filed April 22, 2024 indicate that the summons and complaint were served, not the FAC. To the extent Moving Parties filed and served their demurrer more than 30 days after service of the FAC, the Court exercises its discretion to still consider the demurrer. Nevertheless, the Court admonishes Moving Parties to comply with the requirements of the Code of Civil Procedure going forward. First Cause of Action Breach of Contract A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its termsset out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by referenceor by its legal effect. [Citation.] (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) As with the demurrer of Bingwei Guan and Yudan Li, the Court finds the allegations of the FAC are not sufficiently clear for it to determine whether these claims have been previously adjudicated between the parties. While it appears Plaintiff has sued the Defendants multiple times over the past few years for issues involving rent, it is not clear to the Court that Plaintiff is suing over the same matter here. (See FAC, pp. 3-4, Exs. A, B; Fed'n of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202 [Res judicata or claim preclusion precludes the re-litigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them.]) More specifically, it is unclear to the Court if Plaintiff is suing Moving Parties based on three months of rent previously addressed in a small claims court action or if Plaintiff is merely providing context for the present action. (See FAC, p. 3, Ex. A.)[3] Nevertheless, the Court does agree with Moving Parties that the FAC fails to allege facts sufficient to state a cause of action for breach of contract. The Court finds the FAC confusing and unclear as to what Plaintiffs claims are here, and finds that it fails to clearly set forth the terms of any purported contract between the parties. (See FAC, pp. 3-4.) To the extent Plaintiff is alleging breach of contract, the terms of any purported contract here are too indefinite for the Court to determine whether the allegations support a claim for breach of contract. (See Moncada v. W. Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 777 [The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.]) For example, there are no allegations of what the consideration was, i.e., what was to be paid in exchange for what services. (San Luis Obispo Loc. Agency Formation Comm'n v. City of Pismo Beach (2021) 61 Cal.App.5th 595, 600 [A contract requires consideration. [Citation.]) The FAC certainly does not allege facts showing Plaintiff is entitled to the $15,000,000 in damages sought. (FAC, ¶ 10, subd. (a).) The FAC also does not clearly allege what the duration of the purported agreement was, who the parties were, or the terms of the agreement. (See FAC, pp. 3-4.) If Plaintiff is alleging breach of a lease agreement, it is unclear which property that claim is based on, considering the FAC mentions two properties. (FAC, pp. 3-4.) Moreover, none of the attachments to the FAC provide any clarity either. (See FAC, Exs. A-D.) A number of the attachments are in mandarin, which the Court cannot read without a proper translation. (See FAC, Exs. C-D.) The other attachments appear to be documents from previous lawsuits involving Plaintiff and the Defendants in one form or another, but it is unclear how those form the basis of a claim for breach of contract. (See FAC, Exs. A-D.) Furthermore, the Residential Lease Agreement attached to the FAC appears to be an agreement between Heng Le and Longji Guan for the rental of a room at 19503 Newgarden St., Rowland Heights, CA 91748. (FAC, Ex. D.) Plaintiff is not Heng Le, and therefore lacks standing to sue under this agreement. (Gause v. Pacific Gas & Elec. Co. (1923) 60 Cal.App. 360, 365-366 [generally one must be a party to the contract to have standing to sue based on that contract].) Additionally, Defendant Xiuhua is not a party to that agreement either, and therefore cannot be liable for its breach. (See FAC, Ex. D; Kendis v. Cohn (1928) 90 Cal.App. 41, 66 [a party cannot be charged upon a contract to which he is not a party.]) Thus, the FAC fails to allege facts sufficient to state a cause of action for breach of contract against Moving Parties. Finally, Plaintiff has not proffered any new allegations showing how the defects identified herein can be addressed. Based on the foregoing, the Court SUSTAINS the demurrer without leave to amend. LEGAL STANDARD Motion to Strike Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e). (Code Civ. Proc., § 435, subd. (b)(2).) The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) DISCUSSION Motion to Strike Meet and Confer Per Code of Civil Procedure section 435.5, subdivision (a), Moving Parties were required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Moving Parties efforts to meet and confer to be sufficient. (Hwang Meet & Confer Decl., ¶¶ 3-7.) Analysis In light of the Courts ruling on the demurrer as discussed above, the Court DENIES the motion to strike as moot. CONCLUSION The Court SUSTAINS the demurrer of Defendants Longji Guan and Xiuhua Liang to the First Amended Complaint without leave to amend. The Court DENIES the motion to strike as moot. Defendants Longji Guan and Xiuhua Liang are ordered to give notice of the Courts ruling within five calendar days of this order. [1] Plaintiff did not file a proof of service for the opposition. The Court will verify with Moving Parties at the hearing on these motions whether they received a copy of Plaintiffs opposition. [2] The Court also notes that the grounds for the demurrer should be stated in the demurrer separately from the notice. (See A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A, ¶ 7:98 [The demurring party must file with the court, and serve on the other party, the following: " Demurrer; " Notice of Hearing (see ¶ 7:110 ff.); " Memorandum of Points and Authorities; [CRC 3.1112(a)] " Proof of service. [CCP § 1005(b); CRC 3.1300(c)].) [3] While the Court previously mentioned the re-litigation of the same claims against Moving Parties would constitute res judicata, that issue was not raised in Plaintiffs opposition this time. (Order re Tentative Ruling (5/7/24).) Either way, it is still unclear from the allegations of the FAC whether Plaintiff is alleging the same claims as those previously litigated, and the allegations are what matter on a demurrer. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Donabedian, supra, 116 Cal.App.4th at p. 994.)

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