COMPLAINT FILED September 11, 2024 (2024)

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Sep 03, 2024 |DONNA M GOERNER |14H - HOMESTEAD/RESIDENTIAL FORECLOSURE |2024CA001715

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Sep 03, 2024 |WAYNE CULVER |21 - EVICTIONS |2024CC004825

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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

Ruling

Pearlie Townes formerly known as Pearlie Bledsoe-Townes and Pearlie Bledsoe et al. vs Donnell Bledsoe, Sr. et al.

Sep 04, 2024 |STK-CV-URP-2021-0009710

The court having read and considered Defendant's Demurrer filed December 18, 2023, Plaintiff's Opposition and Defendant's Reply (Objection)) rules as follows. The court notes that the case time line set forth in Plaintiff's Opposition filed January 29, 2024 is an accurate summary of the actions taken herein by the parties and the court. On December 18, 2023 Defendant filed a demurrer to Plaintiff's Complaint filed October 18, 2021. In the interim period, the court granted Plaintiff's Motion for Summary Judgment and entered an Interlocutory Judgment in this action for partition of real property on October 13, 2022. Therefore, pursuant to Calif. Civil Code of Procedure 430.40, Defendant's demurrer was not timely filed. The record indicates Defendant was served with Plaintiff's Complaint on November 17, 2021. Pursuant to CCP 430.40 Defendant was required to file his demurrer on or before December 17, 2021. Defendant failed to do so and filed his demurrer after judgment had been entered against him. Therefore, Defendant's demurrer must be and is OVERULED. Parties may appear remotely, if oral argument is requested. Hon. George J. Abdallah, Jr. Judge of the Superior Court

Ruling

OATES PENA vs. OATES LUCAS, et al.

Sep 03, 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 circumstances 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 circumstances 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

FENIX ENTREPRENUER INC. VS SUN DO HONG

Sep 06, 2024 |24STCV17180

Case Number: 24STCV17180 Hearing Date: September 6, 2024 Dept: 73 09/06/2024 Dept. 73 Hon. Rolf Treu, Judge presiding FENIX ENTREPRENEUR, INC. v. SUN DO HONG (24STCV17180) Counsel for Plaintiff/opposing party: Justin Rodriguez (Justice Law Partners, Inc.) Counsel for Defendant/moving party: Jacob Iloulian (Law Office of Jacob Illoulian) DEMURRER TO COMPLAINT (filed 8/06/2024) TENTATIVE RULING Defendants demurrer is sustained without leave to amend. I. BACKGROUND On June 11, 2024, Plaintiff Fenix Entrepreneur, Inc. (Plaintiff) filed the instant interpleader action against Defendant Sun Do Hong (Defendant). The Complaint for Interpleader alleges the following. Martin Fierro, in his capacity as officer of Fenix Entrepreneur, Inc., entered into a Purchase Agreement on or about January 20, 2023 to purchase one-half (1/2) interest in the subject property located at 6836 Crenshaw Blvd. Los Angeles, CA 90043. The property prior to acceptance of Plaintiffs offer to purchase one-half (1/2) interest subject property was vested as Joint Tenants between brother of Sun Do Hong and sister Sun Be Hong. Plaintiff deposited into Escrow a check for $5,000.00. Approximately 6 months after the opening of the Escrow, Sun Do Hong filed a Complaint to Partition the subject property with a corresponding Motion to have a Court Appoint a Referee to oversee the sale. Plaintiff is requesting the court to determine that it has a valid stake in the property based on their purchase agreement dated January 20, 2023. On August 5, 2024, the Court found that the following cases, Hong v. Hong Case No. 23STCV12280 and Fenix Entrepreneur, Inc. v. Hong Case No. 24STCV17180, are related within the meaning of California Rules of Court, rule 3.300(a). 23STCV12280 is the lead case. On August 6, 2024, Defendant filed the Demurrer to the Complaint, arguing: · Plaintiff fails to state a cause of action for interpleader: o Insufficient allegation of conflicting claims o Lack of proper stakeholder status o Failure to deposit property or money · The Complaint is also uncertain Plaintiff filed an opposition, arguing: · Defense counsel failed to meet and confer · Plaintiff is a stakeholder · The Court should reconsider its May 1, 2024 ruling establishing a court supervised partition Defendant did not file a reply. II.DISCUSSION A. Legal Standard for Demurrer A demurrer tests the sufficiency of 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 contextany defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) B. Meet and Confer Requirement Before 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).) Here, counsel for Defendant submitted a declaration stating I have reached out to Plaintiff to meet and confer regarding this demurrer. At the time of the signing of this declaration, we have not been able to resolve the issues of the demurrer. (Iloulian Decl., ¶ 4.) Defendants counsel also filed a supplemental declaration attaching an email chain in which he and Plaintiffs counsel emailed regarding scheduling a time to meet and confer. (Iloulian Decl., ¶ 5, Ex. 1.) Plaintiff argues that Defendant failed to meet and confer. Since Defendants counsel failed to meet and confer in person or by telephone, the Court finds the moving party has not met its obligation to meet and confer. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (See Code Civ. Proc., § 430.41(a)(4).) Thus, the Court continues its discussion on the merits of the motion. C. Demurrer to Complaint Defendant demurs to the Complaint for uncertainty and failure to state a cause of action. As a general matter, [d]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Lickiss v. Fin. Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer for uncertainty does not address whether the pleading fails to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made. (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Rather, a demurrer is intended to address whether a pleading is so incomprehensible that a defendant cannot understand the allegations actually made. (Id. at p. 146.) Here, the Complaint is not incomprehensible because it generally alleges that Plaintiff has a stake in the subject property based on the purchase agreement dated January 20, 2023 between Plaintiff and Sun Be Hong. (Complaint, ¶¶ 1-8.) Defendants arguments largely pertain to failure to state sufficient facts. Thus, the demurrer for uncertainty is unsubstantiated and overruled. Next, Defendant asserts that Plaintiff fails to state a cause of action for interpleader. When a person may be subject to conflicting claims for money or property, the person may bring an interpleader action to compel the claimants to litigate their claims among themselves. (CCP § 386(b); City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) Once the person admits liability and deposits the money with the court, he or she is discharged from liability and freed from the obligation of participating in the litigation between the claimants. (City of Morgan Hill, supra, 71 Cal.App.4th 1114, 1122.) C.C.P. § 386(b) requires only that the stakeholder file a verified pleading disclaiming any interest in the money or property claimed; it is the stakeholder's avowed disinterest in the interpleaded proceeds that gives him the right to interplead. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 873.) CCP § 386 provides in relevant part: (b) Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several claims. When the person, firm, corporation, association or other entity against whom such claims are made, or may be made, is a defendant in an action brought upon one or more of such claims, it may either file a verified cross-complaint in interpleader, admitting that it has no interest in the money or property claimed, or in only a portion thereof, and alleging that all or such portion is demanded by parties to such action, and apply to the court upon notice to such parties for an order to deliver such money or property or such portion thereof to such person as the court shall direct; or may bring a separate action against the claimants to compel them to interplead and litigate their several claims. The action of interpleader may be maintained although the claims have not a common origin, are not identical but are adverse to and independent of one another, or the claims are unliquidated and no liability on the part of the party bringing the action or filing the cross-complaint has arisen. The applicant or interpleading party may deny liability in whole or in part to any or all of the claimants. The applicant or interpleading party may join as a defendant in such action any other party against whom claims are made by one or more of the claimants or such other party may interplead by cross-complaint; provided, however, that such claims arise out of the same transaction or occurrence. . . . (f) After any such complaint or cross-complaint in interpleader has been filed, the court in which it is filed may enter its order restraining all parties to the action from instituting or further prosecuting any other proceeding in any court in this state affecting the rights and obligations as between the parties to the interpleader until further order of the court The Court does not find that Plaintiff has properly set forth an interpleader claim. A claim for interpleader must be brought by a neutral party seeking to resolve multiple conflicting claims by other parties. C.C.P. § 386(b) requires that the stakeholder file a verified pleading disclaiming any interest in the money or property claimed. Here, Plaintiff has not filed a verified pleading disclaiming any interest in the property. Instead, Plaintiff alleges that it has a stake in the subject property pursuant to the purchase agreement dated January 20, 2023 between Plaintiff and Sun Be Hong. (Complaint, ¶¶ 7-8.) Thus, Plaintiff is not a neutral party and is not the proper party to bring an interpleader claim. Further, there is no indication in the Opposition that Plaintiff would be able to cure the defects of the Complaint. (Rakestraw v. California Physicians' Service (2000) 81 Cal. App. 4th 39, 43.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) There is no basis in law to grant leave to amend where, the facts are not in dispute and the nature of the claim is clear but no liability exists under substantive law. (Casterson v. Sup. Ct. (2002) 101 Cal.App.4th 177, 190.) Accordingly, Defendants demurrer is sustained without leave to amend. III. CONCLUSION Defendants demurrer is sustained without leave to amend.

Ruling

EDITH LIBERATORE VS THE 4455 FULTON HOMEOWNERS' ASSOCIATION, INC., ET AL.

Sep 06, 2024 |22VECV00768

Case Number: 22VECV00768 Hearing Date: September 6, 2024 Dept: T 22VECV00768 Liberatore v The 4455 Fulton Tentative ruling: The court denies the ex parte application to compel discovery. The discovery was served by a suspended corporation. Until it is revived, it does not have the ability to serve discovery. Therefore, Farmers cannot enforce the served discovery. Now that Farmers has come into the case to defend the action, the court would be inclined to continue the trial date as Ms. Liberatore did not ask the court to stay the proceedings until the defendant resolved its tax suspension as is usually done. The court would grant a 3-4 month continuance with extension of the discovery cutoff. Ms. Liberatore must recognize that she will be required to appear for a deposition, and she will be required to answer interrogatories and other discovery, which is standard. Failure to do so has serious consequences including the possibility of dismissal of the complaint. Finally, in reviewing this matter, one of the causes of action is for cancellation of the deeds reflecting the foreclosure and sale of plaintiffs home. The trial of that matter will be to the court as plaintiff is seeking equitable relief. However, it is the courts understanding from the defense that title to the home is not in the name of the plaintiff or defendant. If the home has been sold to a third party, the third party has a right to object to the cancellation of their deed, but they have not been added as a party to this case. The court cannot render a decision that affects the third parties rights if they are not in this case. Even if Ms. Liberatore takes the position that these transfers are void, the court cannot make that determination unless the current owners of the property are in this case. They have a right to be heard and to oppose the cancellation proceedings. The court will discuss this at the hearing on 9/6/2024.

Ruling

EAGLE CREEK RANCH VS. HOUSER, ET AL.

Sep 06, 2024 |CVCV21-0197760

EAGLE CREEK RANCH VS. HOUSER, ET AL.Case Number: CVCV21-0197760This matter is on calendar for review regarding status of dismissal. No Request for Dismissal has been filed. Noupdated information has been provided to the Court. An appearance is necessary on today’s calendar toprovide the Court with a status of the case and the status of the dismissal.

Ruling

FCS059299 - SHARMA, R V GOMEZ, LUIS R, ET AL (DMS)

Sep 03, 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

ART COLONY PROPERTY LLC, A DELAWARE LIMITED LIABILITY COMPANY VS CHRISTINA ROMERO, ET AL.

Sep 04, 2024 |24STCV13929

Case Number: 24STCV13929 Hearing Date: September 4, 2024 Dept: 55 Tentative for Art Colony Property, LLC vs. Christina Romero, et al. 24STCV13929 Defendants Motion for Judgment on the Pleadings Background Plaintiff Art Colony Property, LLC filed an unlawful detainer case against Christina Romero and Michael Callas, seeking to recover possession of the property located at 2349 S. Santa Fe Avenue, Unit E in Los Angeles (the Property). Plaintiff alleges that it had Defendants served, via posting and mailing, a Three-Day Notice to Pay Rent or Quit (Notice) demanding $43,800 in unpaid rent for the months of June 2023 through May 2024. Defendants move for judgment on the pleadings based on an allegedly defective notice. Plaintiff opposes the motion. Legal Standard A defendant may move for judgment on the pleadings where [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (CCP § 438(c)(1)(B)(ii).) A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.] (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).) The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Analysis Defendants only argument in the MJOP is that the Notice is defective because it precludes the tenant from paying by mail. CCP § 1161(2) provides that a tenant is guilty of unlawful detainer: When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, excluding Saturdays and Sundays and other judicial holidays, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure, or possession of the property, shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon the subtenant. The notice may be served at any time within one year after the rent becomes due& Due to the summary nature of such an action, a [notice to pay rent or quit] is valid only if the landlord strictly complies with the provisions of section 1161, subdivision 2. (Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038.) Here the Notice states the amount due, the name, phone number, and address for an in-person payment to be made: 2901 E. Olympic Boulevard; Los Angeles, CA 90023. The Notice states that in-person payments can be made during specified days and hours at the 2901 E. Olympic Boulevard address. The Notice also states that there is a 24-hour rent dropbox available at 2401 South Santa Fe Avenue in Los Angeles. Defendants argue that because the Notice lists the E. Olympic Boulevard address as a place for in-person payments, it is defective because it does not separately state that rental payments may be mailed to that address and the 24-hour dropbox lists yet another address. Under the clear language of the statute, the decision to allow personal payment of the rent, in addition to allowing payment by mail by the tenant, is up to the landlord. (Hsieh v. Pederson (2018) 23 Cal. App. 5th Supp. 1, 6.) The inclusion of the hours and days that in-person payments can be made at the E. Olympic Boulevard address does not preclude payment by mail to that address. The notice contains a street address and there is no language in the Notice requiring in-person payments rather than mail, and thus no basis to conclude that the Notice required in-person payments. The Notice therefore complies with Section 1161(2). Conclusion The MJOP is denied.

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