Notice of CMC December 15, 2021 (2024)

Case

WELLS FARGO BANK, N.A. vs MARRERO, AN INDIVIDUAL

Jul 17, 2024 |Richard K. Sueyoshi |(Breach of Contract/Warranty) |Limited Civil |24CV014313

Case

CHAUHAN vs UMANA

Jul 15, 2024 |Christopher E. Krueger |(Breach of Contract/Warranty) |Unlimited Civil |24CV014063

Case

DELGADILLOPELCASTRE vs GENERAL MOTORS LLC, A DELAWARE LIMITED...

Case

NOLAN vs FUTURE CHEVROLET, et al.

Jul 15, 2024 |Richard K. Sueyoshi |(Fraud (no contract)) |Unlimited Civil |24CV014259

Case

AGUILAR vs LIMON GUZMAN

Jul 15, 2024 |Richard K. Sueyoshi |(Breach of Contract/Warranty) |Unlimited Civil |24CV013986

Case

BMO BANK N.A. vs DRIVEN TRUCK LINES INC., A CALIFORNIA CORPOR...

Jul 15, 2024 |Thadd A. Blizzard |(Breach of Contract/Warranty) |Unlimited Civil |24CV013963

Case

GONZALEZ, et al. vs GENERAL MOTORS LLC, A DELAWARE LIMITED LI...

Case

CROSSROADS EQUIPMENT LEASE AND FINANCE, LLC vs MASUTA NATIONA...

Case

OHIO SECURITY INSURANCE COMPANY vs OTT, et al.

Jul 17, 2024 |Richard K. Sueyoshi |(Breach of Contract/Warranty) |Unlimited Civil |24CV014221

Ruling

WALEED SABRAH vs. CHHUONG CHOW

Jul 10, 2024 |C23-03175

C23-03175CASE NAME: WALEED SABRAH VS. CHHUONG CHOW*FURTHER CASE MANAGEMENT CONFERENCEFILED BY:*TENTATIVE RULING:*See Line 8.

Ruling

Jones, et al. vs. Taylor

Jul 15, 2024 |22CV-0201290

JONES, ET AL. VS. TAYLORCase Number: 22CV-0201290This matter is on calendar trial setting. The Court designates this matter as a Plan III case and intends to set thematter for trial no later than December 16, 2024. Plaintiffs have posted jury fees but Defendant has not.Defendant is granted 10 days leave to post jury fees. A failure to post jury fees in that time will be deemed awaiver of the right to a jury. The parties are ordered to meet and confer prior to the hearing regarding proposeddates for trial. An appearance is necessary on today’s calendar.

Ruling

OREN BEN ELISHA, ET AL. VS CHRISTINA YING DONG, ET AL.

Jul 18, 2024 |24STCV08602

Case Number: 24STCV08602 Hearing Date: July 18, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING OREN BEN ELISHA, et al., Plaintiffs, v. CHRISTINA YING DONG, et al., Defendants. Case No: 24STCV08602 Hearing Date: July 18, 2024 Calendar Number: 5 Defendants Christina Ying Dong (Dong) and Sylmar Calvert LLC (Sylmar) (collectively, Defendants) move to expunge the notice of lis pendens currently recorded on the property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property). Defendants additionally move for an award of attorneys fees. The Court GRANTS Defendants motion and ORDERS the expungement of Plaintiffs lis pendens on the Property. Background This case relates to failed negotiations between Plaintiffs Oren Ben Elisha and Yosef Ben Elisha (Plaintiffs) and Defendant Dong to purchase real property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property) through Defendant Sylmar. On July 27, 2023, Dong entered into a purchase agreement to purchase the Property and opened escrow. (Dong Decl. ¶ 5.) In August of 2023, Dong offered Plaintiffs an opportunity to invest in an entity that would take title to the Property. (Dong Decl. 6.) On August 9, 2023, Dong filed the Articles of Organization for Sylmar for this purpose. (Dong Decl. ¶ 7, Ex. A.) The parties were scheduled to close escrow by February 28, 2024. (Dong Decl. ¶ 8.) Plaintiffs filed this action on April 5, 2024, raising claims for (1) resulting trust; (2) constructive trust; (3) specific performance; (4) quiet title; (5) accounting; (6) breach of contract; (7) breach of fiduciary duty; and (8) dissolution of partnership. Request for Judicial Notice The Court takes judicial notice of Exhibits 1 and 3 to Plaintiffs opposition as public records. The Court does not take notice of the truth of their contents. Evidentiary Objections The Court overrules Plaintiffs evidentiary objections. Legal Standard A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action. (Code Civ. Proc., § 405.20.) Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. &. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action. (Code Civ. Proc., § 405.22.) At any time after a notice of pendency of action has been recorded, any party. . . with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. (Code Civ. Proc., §405.30.) A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.) The party asserting the lis pendens has the burden of proof under Section 405.31 and Section 405.32.¿(Code Civ. Proc., § 405.30) The burden is to demonstrate that their pleadings contain a real property claim and that the probable validity of their real property claim can be established by a preponderance of the evidence. (Code Civ. Proc., §405.31; see also McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 298 [the burden is upon the recording party to demonstrate by a preponderance of the evidence that the action was commenced and prosecuted for a proper purpose and in good faith] .) Probable validity exists when it is more likely than not that the claimant will obtain a judgment on the claim. (Code Civ. Proc., § 405.3.)¿ Any time after a notice of pendency of action has been recorded the court may also upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintain the notice in the record title. (Code Civ. Proc., § 405.34) Discussion Procedural Defects Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action. (Code Civ. Proc., § 405.23.) Defendants contend that the lis pendens is subject to expungement under Code of Civil Procedure, section 405.23 because Plaintiffs did not immediately serve the notice on Defendants or file it with the Court. (Dong Decl., ¶¶ 20-21.) On July 9, following Defendants filing of this motion, Plaintiffs filed a notice of lis pendens with this Court and served the notice on Plaintiffs counsel. The notice requirement is intended to assure that property owners receive prompt notice of the recording of a lis pendens. (Biddle v. Superior Court (1985) 170 Cal.App.3d 135, 137.) However, where a plaintiff substantially complies with the notice statute and promptly conveys actual notice to the affected party, the purpose of the statute is satisfied. (Ibid.) In Biddle, the plaintiff filed a notice of lis pendens and mailed a copy to the defendant simultaneously, sent it to the wrong location and did not request a return receipt as required. (Id. at pp. 136-137.) The court found that the plaintiff had substantially complied with the notice statute. (Id. at p. 137.) Here, the delay was longer. Plaintiffs served the notice roughly three months after filing it. However, Defendants had actual notice, and the method of Plaintiffs eventual service was otherwise proper. The Court therefore finds that Plaintiffs substantially complied with the notice statute. Substantive Defects A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.) Defendants contend that Plaintiffs claims for breach of contract, breach of fiduciary duty, accounting, and dissolution of partnership are not real property claims. Plaintiffs do not contest this. Plaintiffs rather contend that their claims for resulting trust, constructive trust, specific performance, and quiet title are real property claims that satisfy the test of probable validity. The Court first notes that Plaintiffs Complaint is exceedingly short, with the factual allegations comprising slightly over one page. The factual allegations themselves only contain general statements that the parties had worked together on real estate opportunities as partners in the past, and that Dong owed Plaintiffs fiduciary duties as a result; that Dong and Plaintiffs agreed to form a partnership to purchase the Property; that Plaintiffs were involved in the negotiation and diligence process; and that Dong then purchased the Property herself under Sylmars name. The Complaint alleges that this purchase breached the parties agreement, as well as Dongs alleged fiduciary duties to Plaintiffs. The Complaint does not expand on the terms of the parties agreement, what performance was obligated of each party, or whether it was oral or in writing. Further, the Complaint does not contain any allegations specific to each of the eight causes of action. Nor have Plaintiffs amended the Complaint in the three months since it was filed to fill out these allegations. Plaintiffs attempt to expand on the allegations of the Complaint in their opposition brief, stating that the reason the Complaint is so threadbare is because Plaintiffs were in a rush to file the lis pendens and thereby prevent Defendants from selling the Property. (Opposition at p. 12:10-12.) While that may be so, Plaintiffs are certainly not still in a rush three months later. Specific Performance To state a cause of action for breach of contract, a plaintiff must be able to establish (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.) If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circ*mstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) To obtain specific performance after a breach of contract, a plaintiff must generally show: (1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472 [citation and quotation marks omitted].) Defendants argue that Plaintiffs cannot satisfy the statute of frauds with respect to the alleged contract. A contract coming within the statute of frauds is invalid unless it is memorialized by a writing subscribed by the party to be charged or by the party's agent. (Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552, citing Civ. Code, § 1624.) An agreement for the sale of real property or an interest in real property comes within the statute of frauds. (Ibid, citing Civ. Code, § 1624, subd. (a)(3).) Although the parties dispute whether the alleged agreement was for the purchase of land, the Court assumes for the sake of the statute of frauds analysis that it is because the alternative would render Plaintiffs contract claims inappropriate for a lis pendens in any event. Here, Plaintiffs have not provided evidence of a writing memorializing the contract. Plaintiffs contend that a series of text messages sent between Dong and Yosef Ben Elisha memorialize the contract. Yosef Ben Elisha declares that the text messages state as follows: Dong: Hi Yossi, hope all is well. I made an appointment with Armin today to go to his office at 2pm. Thank you for introducing him and his firm. If you are still interested in the project. You are welcome to join me. Plaintiff Yosef Ben Elisha: Good morning Christina, I can follow up with you around 12pm to try to show up. I do have meeting that I will need to schedule to make it happen. I will let you know around 12pm. Dong: Thanks so much Yossi. Sorry for the late notice. Just decided to meet with him for final DD before closing :) Plaintiff Yosef Ben Elisha: Yes I will be there 2pm (Decl. Yosef Ben Elish ¶ 29 [emphasis in original].) There are two problems with Plaintiffs argument. First, these text messages hardly set forth the key terms of an agreement to purchase the Property. Second, [a]n electronic message of an ephemeral nature that is not designed to be retained or to create a permanent record, including, but not limited to, a text message or instant message format communication, is insufficient under this title to constitute a contract to convey real property, in the absence of a written confirmation& (Civ. Code, § 1624, subd. (d) [emphasis added].) The Court therefore concludes that the text messages that Plaintiff provides do not satisfy the statute of frauds. [F]ull performance takes a contract out of the statute of frauds has been limited to the situation where performance consisted of conveying property, rendering personal services, or doing something other than payment of money. (Secrest, supra, 167 Cal.App.4th at p. 556.) Plaintiffs argue that the contract does not fall under the statute of frauds because they substantially performed. (Opposition at p. 14:5-10.) Plaintiffs contend that this substantial performance consisted of completing due diligence, meeting and communicating with the prior agent of the Property, communicating with the Propertys prior owner, communicating with the contamination specialist, communicating with prospective investors, retaining an architect, putting together cost estimates, and putting together a timeline of development. The problem with Plaintiffs argument is that full performance, not substantial performance, is required. Plaintiffs do not provide any allegations in the Complaint or arguments in their brief indicating what performance was actually required of them. The Court is not prepared to jump to the conclusion that the list of actions Plaintiffs provide constituted the full performance of Plaintiffs obligations under the alleged contract. The Court therefore finds that the statute of frauds is not satisfied. As a result, there Plaintiffs have not shown the probable validity of their claims for specific performance or breach of contract. Resulting Trust There are two problems with Plaintiffs resulting trust claim. First, [a] resulting trust does not arise from any oral agreement between the parties, but only as a result of the advancement of at least part of the consideration by the one claiming to be the beneficiary. (Laing v. Laubach (1965) 233 Cal.App.2d 511, 517.) Plaintiffs have failed to allege or provide a written agreement. Second, [a] resulting trust cannot be enforced in favor of a person who has paid part of the consideration for the transfer of property unless it is possible to clearly establish the amount of money contributed by him [or her] or the proportion of his [or her] contribution to the whole purchase price &. One who claims a resulting trust in land must establish clearly, convincingly and unambiguously, the precise amount or proportion of the consideration furnished by him [or her] &. If the claimant does not, then the presumption of ownership arising from the legal title is not overcome and a resulting trust will not be declared. (Lloyds Bank California v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 10441045 [citations and quotation marks omitted].) Here, Plaintiffs do not allege that they paid any of the consideration for the Property, let alone part of it. For both of these reasons, Plaintiffs have not shown the probable validity of their claim for resulting trust. Constructive Trust [A] constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) As discussed above, Plaintiffs have not provided evidence of a contract giving them a right to the Property. Plaintiffs have not pled or argued a different basis for such a right, either. As a result, Plaintiffs have not shown that they can satisfy the second element, and therefore have not shown the probable validity of this claim. Quiet Title Code of Civil Procedure, section 761.020 sets forth the requirements for an action for quiet title: The complaint shall be verified and shall include all of the following: (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. (c) The adverse claims to the title of the plaintiff against which a determination is sought. (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. (e) A prayer for the determination of the title of the plaintiff against the adverse claims. (Code Civ. Proc., § 761.020.) There are several problems. First, the Complaint is not verified. Second, at its most generous reading, the Complaint alleges that the parties formed a contract to purchase the Property together but as discussed above, Plaintiffs have not satisfied the statute of frauds with respect to this contract, and therefore cannot show the basis for their title to the Property. For both of these reasons, the Court finds that Plaintiffs have not established the probable validity of their quiet title claim. Conclusion Plaintiffs have failed to show the probable validity of any of their claims sounding in real property. The Court therefore grants Defendants motion and orders the expungement of Plaintiffs lis pendens on the Property.

Ruling

SAMEER BHADOURIA ET AL VS. MSASA PROPERITES, LLC, ET AL

Jul 19, 2024 |CGC23606082

Matter on the Discovery Calendar for Friday, July 19, 2024, line 3, DEFENDANT MSASA PROPERTIES, LLC'S MOTION FOR PROTECTIVE ORDER REGARDING PROPERTIES OWNED PROPERTIES BOUGHT AND SOLD AND PROPERTIES OWNED AND RENOVATED REQUEST FOR SANCTIONS (TENTATIVE RULING PART 3 OF 4) In support of the three special interrogatories, plaintiffs allege that defendant is and has acted as a "developer" of properties which it then renovates/remodels for purposes of (hopefully profitable) resale, a business model colloquially referred to as "property flipping" - a real estate investing tactic that involves buying a home, fixing it up and reselling it quickly. Although defendant has denied this allegation, for purposes of pretrial discovery plaintiffs have no obligation to prove it up or support it with a good cause showing. Williams v. Superior Court, 3 Cal.5th 531, 550 (2017). The evident purpose of the three interrogatories at issue is to determine just how often over time defendant has purchased properties in need of renovation, arranged/contracted for such renovations and then resold the properties to willing third parties such as Ms. Ongpin, the purchaser from whom plaintiffs bought the Alvarado Street home. The sought-after information would purportedly be used to establish customs and practices employed by defendant in so conducting its business, including for example how often (and close) defendant has worked with defendant AMC Builders, Inc., the contractor hired by defendant to perform the allegedly bungled and defective renovations and to which defendant not so subtly points in its summary judgment motion. The requested information could well show whether and how often defendant has been accused of below-standard renovations in the past and the relationships (if any) defendant and AMC Builders have developed with the San Francisco Department of Building Inspection, the municipal agency issuing the permits and conducting the inspections upon which defendant relies heavily in its summary judgment motion (see, e.g., Mohammed Nuru, Inspector Bernard Curren). All of this information would potentially lead to admissible evidence as to the standard of care defendant should be subject to as an allegedly experienced and knowledgeable residential developer/renovator. In sum, the Court finds that the three special interrogatories are indeed relevant to the subject matter of this action and reasonably calculated to lead to the discovery of evidence admissible at trial. Nor are they vague and overbroad. As for defendant's financial privacy interests, both sides cite to the dispositive holding in SCC Acquisitions, Inc. v. Superior Court, 243 Cal.App.4th 741, 755-756 (2015) for the principle that companies have limited privacy interests that need to be balanced against whether the sought-after information is reasonably calculated to lead to the discovery of admissible evidence. Here, as outlined above, there are certainly reasonable and relevant purposes for which the identification of properties called for in the three interrogatories (by address, when purchased and when sold) would be useful. As such, this information could well lead to admissible evidence at trial. (end part 3, see part 4 tentative ruling) = (302/JPT)

Ruling

JAMJOUM vs AFC CAL, LLC, et al.

Jul 16, 2024 |Civil Unlimited (Fraud (no contract)) |22CV006750

22CV006750: JAMJOUM vs AFC CAL, LLC, et al. 07/16/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Vahid Farahani (Defendant) in Department 20Tentative Ruling - 07/15/2024 Karin SchwartzThe Motion to Set Aside/Vacate Default filed by Vahid Farahani on 05/30/2024 is Granted. Defendant Farahani’s (Farahani) California Civil Code (CCP) § 473.5 Motion to SetAside Default and for Leave to Defend is GRANTED based on the evidence that he did notreceive actual notice in time to defend against the action. The Court does not reach thealternative grounds set forth in Farahani’s motion. FACTS On February 9, 2022, Plaintiff Numan Saleh Jamjoum (Jamjoum) filed the presentlawsuit. The Proof of Service in the Court’s file, of which the Court takes judicial notice,purports to reflect “substitute service” on a “Jane Doe” at Cherry Street address in Visalia on orabout March 17, 2022 by a registered process server. The Request for Entry of Default, filed onor about July 14, 2023, of which the Court takes judicial notice, reflects service by first classmail on Farahani at the Cherry Street address by Plaintiff himself. Farahani submitted a declaration asserting, inter alia, that he has never lived at the CherryStreet address, which is the address for his sister. (Farahani Decl., ¶¶ 4-5.) Farahani’s sisterforwarded the summons to Farahani, but he does not remember receiving the complaint, ornotice of the case management conference, among other documents. (Farahani Decl., ¶ 6.)Farahani thought the dispute concerned his previous employer. (Farahani Decl., ¶ 7.) Farahanimade some efforts, including going to the Hayward courthouse, to learn more about the case, butultimately concluded that he did not need to take action to avoid jeopardy. (Farahani Decl., ¶¶ 8-9.) He did not receive notice that default had been entered against him. (Farahani Decl., ¶ 11.)However, when he continued to receive notices about the case, he consulted an attorney, leadingto the present motion. (Farahani Decl., ¶ 12). ANALYSIS Default must be set aside where when service of summons has not resulted in actualnotice to a party in time to defend the action. (CCP § 473.5.) Actual notice requires the “genuineknowledge of the party litigant.” (Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 895.) Farhani’s declaration establishes an entitlement to relief under CCP § 473.5.Accordingly, the motion is GRANTED and the default shall be set aside. Farhani shall file his response to the complaint within 10 days of this order. The Courtis setting a Case Management Conference at the date and time below. The prove-up hearing isvacated. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV006750: JAMJOUM vs AFC CAL, LLC, et al. 07/16/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Vahid Farahani (Defendant) in Department 20The Default Prove Up Hearing scheduled for 07/23/2024 is vacated .Case Management Conference is scheduled for 09/12/2024 at 3:00 PM in Department 20 at ReneC. Davidson Courthouse.Updated Case Management Statements must be filed in compliance with Rule of Court 3.725 onJudicial Council Form CM-110. Unless ordered otherwise, remote appearances by Zoom(videoconference) are permitted for all law and motion, case management hearings, and pretrialhearings in Dept. 20. Trials are held in person unless all parties agree to be remote.

Ruling

SHEREKA STALLWORTH VS CARL MCGINNIS, JR., ET AL.

Jul 16, 2024 |24STCV07546

Case Number: 24STCV07546 Hearing Date: July 16, 2024 Dept: 54 Superior Court of California County of Los Angeles Shereka Stallworth, individually and as successor in interest for Lajune McGinnis, Plaintiff, Case No.: 24STCV07546 vs. Tentative Ruling Carl McGinnis, Jr., administrator of the Estate of Carl M. McGinnis aka Carl Michael McGinnis, Sr., et al. Defendants. Hearing Date: July 16, 2024 Department 54, Judge Maurice Leiter Demurrer to Complaint Moving Party: Defendant Carl McGinnis, Jr., administrator of the Estate of Carl M. McGinnis Responding Party: Plaintiff Shereka Stallworth T/R: DEMURRER TO COMPLAINT IS OVERRULED IN ITS ENTIRETY. DEFENDANTS TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers, opposition and reply. BACKGROUND This is a breach of contract action. Plaintiff Shereka Stallworth, individually and as Successor in Interest for Lajune McGinnis filed a Complaint on March 26, 2024 alleging: (1) breach of contract; (2) breach of promise to make a will; (3) quasi-specific performance of contract to make a will; (4) constructive trust; and (5) equitable estoppel and unjust enrichment against Defendant Carl McGinnis, Jr., Administrator of the Estate of Carl M. McGinnis aka Carl Michael McGinnis, Sr. Stallworth alleges she filed objections to Defendants petition for appointment as Administrator of the Estate of Carl Michael McGinnis, Sr. because she believed there was a new will. (Compl., ¶¶3-6.) She says her mother, Decedent LaJune Beason McGinnis was joint owner of the home at 21311 S. Perry St., Carson, CA 90745 and had a claim against the Estate of Decedent McGinnis, because he promised to leave the assets to Stallworth. She learned after Decedent McGinnis death that he did not comply with the terms of the agreement and had not executed an estate plan in her favor. (Id. at ¶41.) ANALYSIS A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.) 1. Statute of Limitations Defendant demurs to all causes of actions alleged in the Complaint on the ground that Stallworths individual claims against Decedent Beason and on behalf of Decedent Beason are time-barred under Code of Civil Procedure §§ 339 and 366.3. Under Code of Civil Procedure § 339, An action upon a contract, obligation or liability not founded upon an instrument of writing, except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code, must be filed within two years. (Code Civ. Proc., § 339.) Generally, a cause of action for breach of contract accrues at the time of breach, which then starts the limitations period running. (Martini E Ricci Iamino S.P.A.--Consortile Societa Agricola v. Trinity Fruit Sales Co., Inc. (E.D. Cal. 2014) 30 F.Supp.3d 954, 974.) Under Code of Civil Procedure § 366.3, subdivision (a), If a person has a claim that arises from a promise or agreement with a decedent to distribution from an estate or trust or under another instrument, whether the promise or agreement was made orally or in writing, an action to enforce the claim to distribution may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. (Code Civ. Proc., § 366.3(a).) The limitations period provided in this section for commencement of an action shall not be tolled or extended for any reason except as provided in Sections 12, 12a, and 12b of this code, and former Part 3 (commencing with Section 21300) of Division 11 of the Probate Code, as that part read prior to its repeal by Chapter 174 of the Statutes of 2008. (Id.) The Complaint alleges that Decedent McGinnis and Decedent Beason entered into an agreement that their estates would be left to Stallworth. (Compl., ¶20.) In October 2014, Decedent McGinnis and Decedent Beason promised to make a will devising their home to Stallworth based on her commitment to them. (Id. at ¶¶23, 49.) Stallworth relied on these promises and in exchange continued to provide care and companionship to Decedent McGinnis and Decedent Beason. (Id. at ¶¶27, 31, 52.) The Complaint also alleges that Decedent McGinnis reaffirmed his promise by drafting a legal zoom will on October 28, 2020. (Id. at ¶¶31, 51.) After Decedent Beason died on October 9, 2020, Decedent McGinnis continued to reiterate his promise to Stallworth. (Id. at ¶34.) These allegations would support Defendants contention that any claims against Decedent Beason would be time-barred. But Stallworth does not name Decedent Beason or her Estate as defendants in this action. The Complaint also does not allege that Decedent Beason breached an oral agreement; it alleges that Stallworth learned after Decedent McGinnis death, on April 6, 2023, that McGinnis did not complete his will and trust. (Compl., ¶41.) Plaintiffs individual claims are not time-barred. Her claims on behalf of her mother are not time-barred because, as discussed below, she has standing to bring them. 2. Standing McGinnis demurs to all causes of actions alleged in the Complaint on the ground that Plaintiff fails to establish standing to assert these claims on behalf of Decedent Beason. Under Code of Civil Procedure § 377.30, A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest. (Code Civ. Proc., § 377.30.) Section 377.32, in turn, requires a person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest file a declaration stating, among other things, (1) [n]o proceeding is now pending in California for administration of the decedent's estate, (2) the declarant is the decedent's successor in interest, and (3) [n]o other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding. (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 614.) The Complaint alleges that Stallworth sues as successor in interest to Decedent Beason, who died on October 9, 2020. (Compl., ¶9.) Although there is no indication that Decedent Beason died leaving a will, the Complaint also alleges that Decedent McGinnis died on April 6, 2023. (Id. at ¶¶37, 41.) Even if Decedent Beason died intestate, as Defendant argues, Decedent McGinnis cannot be the successor in interest because he is also deceased. There is no indication that Decedent Beason had any other children or siblings, so a reasonable jury could infer that Stallworth is Decedent Beasons successor in interest. 3. First Cause of Action for Breach of Contract and Second Cause of Action for Breach of Promise to Make a Will Defendant demurs to the first and second causes of action on the grounds that Plaintiffs individual claims fail to state sufficient facts regarding the definite and certain terms of the alleged oral contract. Establishing that claim requires a showing of (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (DArrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458459.) To be enforceable, a promise must be definite enough that a court can determine the scope of the duty and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770; see also Cal. Prob. Code, § 21700(a)(4) [a contract to make a will can be established by Clear and convincing evidence of an agreement between the decedent and the claimant or a promise by the decedent to the claimant that is enforceable in equity].) The statutes of this state provide that a person may make a valid agreement in writing binding himself legally to make a particular disposition of his property by will. (Goldstein v. Hoffman (1963) 213 Cal.App.2d 803, 811.) However, [a] contract to make a will is breached only if it has not been complied with at the time of the promisor's death. (Id. at 812.) The Complaint states sufficient facts to support the first and second causes of action. As discussed above, Stallworth alleges that in or about October 2014, Decedent McGinnis and Decedent Beason promised to make a will devising their home and estate to Stallworth based on her commitment to them. (Id. at ¶¶23, 49.) In exchange for this promise she continued to provide care and companionship to Decedent McGinnis and Decedent Beason, including assistance with the home and necessities. (Id. at ¶¶27, 31, 38, 52.) Decedent McGinnis reaffirmed his promise by drafting a legal zoom will on October 28, 2020. (Id. at ¶¶31, 51.) After Decedent Beason died on October 9, 2020, Decedent McGinnis continued to reiterate his promise to Stallworth. (Id. at ¶34.) A reasonable jury could infer these to be definite terms of an oral agreement. Stallworth alleges that Decedent McGinnis breached this agreement at the time of his death. (Id. at ¶¶41, 44-45.) 4. Third Cause of Action for Quasi-Specific Performance of Contract to Make a Will and Fifth Cause of Action for Equitable Estoppel and Unjust Enrichment Defendant demurs to the third and fifth causes of action on the grounds that Plaintiff fails to plead detrimental reliance. An action of the type involved here has been called one for quasi specific performance of the contract to make a will. (Ludwicki v. Guerin (1961) 57 Cal.2d 127, 130.) Since the making of a will cannot be compelled, there can be no specific performance of such a contract in the strict sense, but under certain circ*mstances equity will give relief equivalent to specific performance by impressing a constructie trust upon the property which decedent had promised to leave to plaintiff. (Id.) Even though Civil Code § 1624 requires that an agreement to make a provision by will be in writing, a party will be estopped from relying on the statute where fraud would result from refusal to enforce an oral contract. (Day v. Greene (1963) 59 Cal.2d 404, 409-410.) The doctrine of estoppel has been applied where an unconscionable injury would result from denying enforcement after one party has been induced to make a serious change of position in reliance on the contract or where unjust enrichment would result if a party who has received the benefits of the other's performance were allowed to invoke the statute. (Id.) The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. [Citation.] The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched. [Citation.] (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769.) Although Defendant contends that the third and fifth causes of action fail because Plaintiff does not allege detrimental reliance on Decedent McGinnis promises, detrimental reliance is not the only way to invoke equitable estoppel. Here, the Complaint states sufficient facts to support that Decedent McGinnis was unjustly enriched by Stallworths purported assistance, companionship, and financial support. (Compl., ¶¶27, 31, 38, 52.) 5. Fourth Cause of Action for Constructive Trust Defendant demurs to the fourth cause of action on the grounds that Plaintiff fails to state a valid claim on which the constructive trust remedy can be predicated. A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. (Id.) However, a constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. (Id.) As discussed above, the Complaint alleges sufficient facts to support causes of action for unjust enrichment, breach of contract, and breach of promise to make a will.

Ruling

HOLY SHIRTS AND PANTS, LLC ET AL., VS O'GARA COACH COMPANY

Jul 15, 2024 |6/18/2022 |SC125609

Case Number: SC125609 Hearing Date: July 15, 2024 Dept: I The matter is here for an FSC. The case has been set for trial and continued many times. The court, frankly, is not positive as to what FSC papers are current and what FSC papers need to be filed. No recent FSC papers were filed other than in limine motions, but that may not be a problem if the prior FSC materials were filed and were adequate. The court on Thursday, July 11, 2024, confirmed the referees jurisdiction to hear a discovery motion on an expedited basis. The court will see if there is progress on that matter, which may or may not affect the trial in this case. The court also notes that the trial was continued to July 29, 2024. The court will CONTINUE the FSC to July 22, 2024, at 8:30 am. The parties are, by noon tomorrow, to file a joint statement identifying by filing date the FSC materials that are operative. This ought to be in the form of a list; the court does not anticipate actual briefing. If there are any missing materials, they are to be filed no later than Wednesday, July 25, 2024, at noon. If the case is deemed ready for trial on June 22, the court will consider ruling on the in limine motions at that time. Whether the court does so might depend on the referees recommendation on the current discovery motion.

Ruling

ODK Capital, LLC vs Daniel Lowe, et al.

Jul 19, 2024 |23CV-04692

23CV-04692 ODK Capital LLC v. Daniel Lowe, et al.Order to Show Cause re: SanctionsAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance. Appearto address Plaintiff’s failure to appear at the June 10, 2024 Case Management Conferenceand whether Plaintiff should be ordered to pay monetary sanctions of $100. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Ex Parte Matters Judge Pro Tem Monika Saini Donabed Courtroom 8 627 W. 21st Street, Merced Friday, July 19, 2024 1:15 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / DescriptionThere are no Ex Parte matters scheduled. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Ex Parte Matters Hon. Mason Brawley Courtroom 9 627 W. 21st Street, Merced Friday, July 19, 2024 1:15 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / DescriptionThere are no Ex Parte matters scheduled. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Ex Parte Matters Hon. Jennifer O. Trimble Courtroom 12 1159 G Street, Los Banos Friday, July 19, 2024 1:15 p.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / DescriptionThere are no Ex Parte matters scheduled.____________________________________________________________________________

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