Superior Court, State of California



DATE: December 20, 2022 TIME: 9:00 A.M.

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TROUBLESHOOTING TENTATIVE RULINGS

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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |21CV390947 |Clayton E. Bussey et al vs Katy Lee |Click Line 1 for Tentative Ruling. |

|LINE 2 |21CV390947 | Clayton E. Bussey et al vs Katy Lee |Click Line 1 for Tentative Ruling. |

|LINE 3 |21CV390947 | Clayton E. Bussey et al vs Katy Lee |Click Line 1 for Tentative Ruling. |

|LINE 4 |21CV390947 | Clayton E. Bussey et al vs Katy Lee |Click Line 1 for Tentative Ruling. |

|LINE 5 |20CV364697 |RECYCLING SPECIALISTS, LLC, a Delaware limited liability |Defendant Johanson & Yau Accountancy Corporation’s |

| | |company et al vs AUSTIN KYLES et al |motion to compel further responses to requests for |

| | | |production and production of documents is continued to |

| | | |January 10, 2023 at 9:00 a.m. No further briefing is |

| | | |permitted. |

| | | | |

| | | |The moving party is instructed to prepare the order. |

|LINE 6 |17CV310864 |QTV Enterprise, LLC vs Hieu Nguyen |Third party Alex C. Park’s motion to quash subpoena, or,|

| | | |alternatively, motion for protective order is continued |

| | | |to February 9, 2023 at 9:00 a.m. in Department 16. |

| | | | |

| | | |The moving third party witness is instructed to prepare |

| | | |the order. |

|LINE 7 |17CV312241 |Oanh Nguyen vs Long Nguyen |Plaintiff Oanh Kim Nguyen’s motion to enforce settlement|

| | | |is unopposed. Exhibits 1 through 4 were not attached to |

| | | |the declaration of Brian Nichols. Plaintiff shall file a|

| | | |declaration that attaches the referenced exhibits no |

| | | |later than December 27, 2022. The motion is continued to|

| | | |January 19, 2023 at 9:00 a.m. in Department 16 for final|

| | | |determination. |

| | | | |

| | | |The moving party is instructed to prepare the order. |

|LINE 8 |22CV400034 |Jesus Gonzalez Garcia vs Felipe Cervantes-Torres |Motion of Attorney Sasha Farahi and BD & J, PC to be |

| | | |relieved as counsel for Plaintiff Jesus Gonzalez Garcia.|

| | | |Notice of hearing was given to Plaintiff Jesus Gonzalez |

| | | |Garcia. No opposition was filed. A failure to oppose a |

| | | |motion may be deemed a consent to the granting of the |

| | | |motion. CRC Rule 8.54c. Failure to oppose a motion |

| | | |leads to the presumption that Plaintiff has no |

| | | |meritorious arguments. (See Laguna Auto Body v. Farmers|

| | | |Ins. Exchange (1991) 231 Cal. App. 3d 481, 489.) Moving|

| | | |parties meet their burden of proof. Good Cause |

| | | |Appearing, the Motion is GRANTED. The Order will take |

| | | |effect upon the filing and service of the executed order|

| | | |of this Court. |

| | | | |

| | | |Moving party to prepare the formal order after hearing |

| | | |to include the date, time and place of the upcoming |

| | | |Order to Show Cause hearing for failure to serve, set |

| | | |for February 23, 2023 at 10:00 a.m. in Department 16. |

|LINE 9 |2012-1-CV-231321 |A. Arista J78694 vs L. Gonzales |Notice of Plaintiff Alfred Arista’s Motion to place lien|

| | | |was served on the judgment debtor, Lucy Gonzales, on |

| | | |September 26, 2022. No opposition was filed. A failure |

| | | |to oppose a motion may be deemed a consent to the |

| | | |granting of the motion. CRC Rule 8.54c. Failure to |

| | | |oppose a motion leads to the presumption that Defendant |

| | | |judgment debtor has no meritorious arguments. (See |

| | | |Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 |

| | | |Cal. App. 3d 481, 489.) Moving party has met his burden|

| | | |of proof. Good cause appearing, the Motion to place |

| | | |lien is GRANTED in the amount of the Judgment of $7,500,|

| | | |less any payments made by the judgment debtor, Lucy |

| | | |Gonzalez, plus allowable interest on the judgment |

| | | |amount. |

| | | | |

| | | |Moving party to prepare the formal order after hearing. |

|LINE 10 |19CH008777 |Elena Kozlova vs Natasha Doubson |Respondent Natasha Doubson’s motion to hold Petitioners |

| | | |Elena Kozlova and Rosalie Toren in contempt of court for|

| | | |non-payment of court ordered fees is GRANTED; $202.19 |

| | | |still remains to be paid to Respondent Natasha Doubson |

| | | |and shall be paid by Petitioners within 5 calendar days |

| | | |of this Order. |

| | | | |

| | | |Petitioners do not presently have any motion pending |

| | | |before this Court as to any fees or costs that they may |

| | | |or may not be owed. |

| | | | |

| | | |Respondent’s motion for further attorney’s fees is |

| | | |GRANTED. Petitioners shall pay Respondent $1,854 in |

| | | |attorney's fees incurred by Respondent bringing this |

| | | |motion within 5 calendar days of this Order. |

| | | | |

| | | |Moving party to prepare the formal order after hearing. |

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Calendar Line Nos. 1-4

Case Name: Clayton E. Bussey, et al. v. Katy Lee, individually and dba KLEE Real Estate and Property Management

Case No.: 21-CV-390947

Demurrer and Motions to Strike by Plaintiffs and Cross-Defendants Clayton E. Bussey and Diane J. Bussey

Factual and Procedural Background

This is an action for declaratory relief.

According to the operative complaint, plaintiffs Clayton E. Bussey and Diane J. Bussey (“Plaintiffs” or “Plaintiffs/Cross-Defendants”) were owners of real property located at 11600 Magdalena Avenue in Los Altos Hills, California, consisting of a single family residence adjacent to a cottage (“Property”). (Complaint at ¶ 2.) Defendant Katy Lee dba KLEE Real Estate and Property Management (“Lee”) is a real estate broker licensed by the State of California. (Id. at ¶¶ 3-4.)

On May 8, 2021, defendant Lee provided Plaintiffs with a document entitled “Disclosure Regarding Real Estate Agency Relationship.” (Complaint at ¶ 7, Ex. A.) By law, this agreement required Lee to disclose, in writing to Plaintiffs, if the authority Lee was to be granted was in connection with a leasehold transaction which would exceed one year. (Id. at ¶ 8.) But, the disclosure agreement did not disclose that Lee would be provided with authority to enter into a leasehold transaction in connection with Plaintiffs’ Property which exceeded one year in duration. (Ibid.) Therefore, the document was materially misleading and Lee had no such authority granted to her by Plaintiffs. (Ibid.)

On May 8, 2021, defendant Lee also presented Plaintiffs with a written agreement entitled “Property Management Agreement” drafted by Lee. (Complaint at ¶ 9.) The agreement provided, among other things, that: (1) Lee had the authority to lease Plaintiffs’ Property for a two (2) year period which was contrary to the Agency Disclosure Agreement provided by Lee; (2) Lee would receive compensation for leasing of Plaintiffs’ Property in the amount of “7% of Monthly Rent Collected”; and (3) Prior approval by Plaintiffs was required for any expenditure in connection with Plaintiffs’ Property over $500.00. (Id. at ¶ 10, subds. (a), (b), (d).)

On July 5, 2021, Plaintiffs sent an email to defendant Lee requesting, in part, that she doesn’t sign a rental agreement on their behalf without review and approval by Plaintiffs. (Complaint at ¶ 11.) On the same day, Lee responded stating “Attached for your records is our mutually signed property management agreement…” (Id. at ¶ 12.) Thus, Lee ignored Plaintiffs’ specific instruction regarding their prior approval of any lease of Plaintiffs’ Property. (Id. at ¶ 14.)

Although Plaintiffs repeatedly instructed defendant Lee in writing that she was not authorized to sign a lease without prior approval in writing by Plaintiffs, Lee, in violation of those instructions, signed the lease without their approval. (Complaint at ¶ 27.)

On October 20, 2021, Plaintiffs filed a verified complaint against defendant Lee for declaratory relief in connection with the Disclosure Agreement Regarding Real Estate Agency Relationship.

On March 9, 2022, defendant Lee filed an answer to the complaint and a cross-complaint.

On March 23, 2022, defendant Lee filed a “revised” answer generally denying allegations of the complaint and asserting affirmative defenses.

On July 27, 2022, Lee filed a first amended cross-complaint (“FACC”), now the operative pleading, alleging causes of action for: (1) covenant of good faith and fair dealing; (2) violation of fair housing and housing discrimination; (3) civil harassment; (4) breach of contract – violation of Business and Professions Code section 7159.5; (5) slander and defamation; (7) fraudulent misrepresentation; (8) intentional interference with contract and prospective economic relations; and (9) intentional infliction of emotional distress.[1]

On August 5, 2022, defendant Lee filed an “amended revised” answer generally denying allegations of the complaint and asserting affirmative defenses.

On September 9, 2022, defendant and cross-complainant Lee, who had previously been self-represented, obtained counsel and filed a substitution of attorney with the court.

The following motions by Plaintiffs/Cross-Defendants are currently before the court: (1) motion to strike defendant Lee’s “amended revised” answer to the complaint; (2) motion to strike “Response to Motion to Strike and Demurrer and Request for Dismissal of Plaintiffs/Cross Defendants’ Complaint with Prejudice”; (3) demurrer to the FACC; and (4) motion to strike the FACC. Defendant and cross-complainant Lee filed written oppositions. Plaintiffs/Cross-Defendants filed reply papers.

Plaintiffs filed a motion for sanctions set for hearing on January 12, 2023.

A further case management conference is scheduled for February 7, 2023.

Motion to Strike Amended Revised Answer

Plaintiffs move to strike the “amended revised” answer of defendant Lee because: (1) the answer is not verified; (2) the “General Denial” allegation is insufficient; and (3) the fifth, sixth, seventh, and ninth affirmative defenses do not state facts with specificity.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Irrelevant matter includes “immaterial allegations.” (Code Civ. Proc., § 431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subd. (b).)

“As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.” (Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:168, p. 7(l)-76 citing Code Civ. Proc., § 437.) “Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.” (Id. at ¶ 7:169, p. 7(l)-76.)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)

Analysis

Code of Civil Procedure section 446, subdivision (a) provides in part that “[w]hen the complaint is verified, the answer shall be verified.”

In Johnson v. Dixon Farms Co. (1915) 29 Cal.App.52, an older decision but still good law, the appellate court stated:

“The complaint having been verified, it was necessary for the defendant, to have stated a defense to the cause of action set up in the complaint, to have filed a verified answer. [Citation.] This it failed to do, having, as seen, merely filed an unverified answer, and the ‘answer’ so filed constituted no defense to the cause of action pleaded by the plaintiff. The plaintiff was, therefore, entitled to have the answer stricken out on motion and a judgment by default thereupon entered, or, in the absence of an order striking the answer out, to a ‘judgment for want of an answer.’ [Citations.]” (Id. at p. 55.)

Similarly, in DeCamp v. First Kensington Corp. (1978) 83 Cal.App.3d 268, the Second Appellate District held the intent of the Legislature in enacting Code of Civil Procedure section 446 was to make the filing of a verified answer to a verified complaint mandatory.

On August 4, 2022, the court adopted its tentative ruling granting Plaintiffs’ motion to strike the “revised” answer of defendant Lee with leave to amend to allow her to file a verified answer. Thereafter, on August 5, 2022, Lee filed an unverified “amended revised” answer in violation of the court’s prior ruling.

In opposition, counsel for Lee concedes the point raised by Plaintiffs and argues the error was due to Lee’s self-representation status and ignorance of the law. Now represented by counsel, Lee is willing to file a verified answer and continue to litigate this matter. While ignorance of the law is not an excuse, the court will afford Lee another opportunity to file a verified amended answer to Plaintiffs’ verified complaint. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [“[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings.”].)

Therefore, the motion to strike the “amended revised” answer is GRANTED WITH 20 DAYS’ LEAVE TO AMEND to allow defendant Lee to file and serve a verified answer. Having granted the motion on this ground, the court declines to consider the remaining arguments raised by Plaintiffs.[2]

Motion to Strike “Response to Motion to Strike and Demurrer and Request for Dismissal of Plaintiffs/Cross Defendants’ Complaint with Prejudice”

On March 25, 2022, Plaintiffs/Cross-Defendants filed a demurrer and motion to strike to Lee’s cross-complaint. The hearing on the motions were set for July 14, 2022 and later continued by ex parte order to August 4, 2022. Prior to the hearing, Lee filed the operative FACC on July 27, 2022. At the hearing, the demurrer was moot and ordered off-calendar and the motion to strike granted with leave to amend as stated above.

On August 5, 2022, a day after the hearing, defendant and cross-complainant Lee filed a document titled “Response to Motion to Strike and Demurrer and Request for Dismissal of Plaintiffs/Cross Defendants’ Complaint with Prejudice.” Plaintiffs/Cross-Defendants move to strike this response as it is unintelligible and incoherent. In opposition, Lee concedes the response was created in error because of her self-representation status and ignorance of the law. Lee now seeks to withdraw the response as she is represented by counsel.

To the extent the motion is directed to the demurrer and motion to strike, the court has already addressed those matters. The demurrer was rendered moot by the filing of the amended pleading and the motion to strike granted with leave to amend. Therefore, to strike this response following the court’s ruling, serves no purpose. (Civ. Code, § 3532 [“The law neither does nor requires idle acts.”]; see also People v. Herrera (2010) 49 Cal.4th 613, 622 [“The law does not require the doing of a futile act”].)

Also, to the extent the motion addresses Lee’s request for dismissal of the complaint with prejudice, the application is procedurally improper. This is because motions to strike are directed against “pleadings” which are defined by statute as a “demurrer,” “answer,” “complaint,” or “cross-complaint.” (See Code Civ. Proc., § 435, subd. (a)(2).) The filed response does not constitute a “pleading” under the Code of Civil Procedure and thus the court lacks a legal basis for striking the document. Furthermore, the substance of the response resembles the unverified “amended revised” answer filed by Lee on the same day. Thus, as Lee has been given leave to file a verified answer, striking this response again serves no purpose here.

Accordingly, the motion to strike Lee’s “Response to Motion to Strike and Demurrer and Request for Dismissal of Plaintiffs/Cross Defendants’ Complaint with Prejudice” is DENIED.

Demurrer to the FACC

Plaintiffs/Cross-Defendants argue the FACC is subject to demurrer for failure to state a claim and uncertainty. (Code Civ. Proc., § 430.10, subds. (e), (f).)

Legal Standard

In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Analysis

“ ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer.  A ruling on a general demurrer is thus a method of deciding the merits of the cause of action on assumed facts without a trial.’  [Citation.]  ‘Conversely, a general demurrer will be overruled if the complaint contains allegations of every fact essential to the statement of a cause of action, regardless of mistaken theory or imperfections of form that make it subject to special demurrer.’  [Citation.]”  (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 291-292 (Morris).)  

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ [citation] and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’  [Citation.]  ‘[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’  [Citation.]”  (Morris, supra, 78 Cal.App.5th at p. 292.)  

Also, uncertainty is a disfavored ground for demurrer; it is typically sustained only where the pleading is so unintelligible and uncertain that the responding party cannot reasonably respond to or recognize the claims alleged against it.  (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Ibid.)    

 

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.”  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)      

Plaintiffs/Cross-Defendants contend the allegations of the FACC are unintelligible and, at times, nonsensical and fail to state facts in support of any valid cause of action. In opposition, defendant and cross-complainant Lee does not offer any substantive arguments and legal authority to challenge the points raised on demurrer. Instead, Lee asserts sufficient facts have been alleged to state monetary claims for damages. The court finds the arguments raised to be meritorious and thus will sustain the demurrer with leave to amend. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747) [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].) Furthermore, as Lee is now represented by counsel, leave to amend is appropriate to allow her to correct any deficiencies in the pleadings that may exist due to her previous self-representation status.

Consequently, the demurrer to the FACC is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND on the grounds of uncertainty and failure to state a claim.

Motion to Strike the FACC

Plaintiffs/Cross-Defendants also move to strike the FACC and each cause of action contained therein. As stated above, the court has sustained the demurrer to the FACC with leave to amend. Having done so, the motion to strike the FACC is MOOT.

Disposition

The motion to strike the “amended revised” answer is GRANTED WITH 20 DAYS’ LEAVE TO AMEND to allow defendant Lee to file and serve a verified answer.

The motion to strike Lee’s “Response to Motion to Strike and Demurrer and Request for Dismissal of Plaintiffs/Cross Defendants’ Complaint with Prejudice” is DENIED.

The demurrer to the FACC is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND on the grounds of uncertainty and failure to state a claim.

The motion to strike the FACC is MOOT.

The court will prepare the Order.

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[1] There is no sixth cause of action identified in the FACC. But, presumably the claim for defamation could be construed as the sixth cause of action.

[2] To the extent Plaintiffs challenge affirmative defenses for failure to allege sufficient facts, this is a ground for general demurrer, not motion to strike. (See Pierson v. Sharp Mem’l Hosp. (1989) 216 Cal.App.3d 340, 342 [“A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.”]; Allerton v. King (1929) 96 Cal.App. 230, 233-234 [“A motion to strike out is not the proper method of attacking a pleading which is merely insufficient to state a cause of action, or defense, or which is defective in form, where the objection may be reached upon demurrer.”]; see also CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146 [a motion to strike is traditionally used to reach pleading defects that are not subject to demurrer].)

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