Superior Court, State of California



DATE: Thursday, 27 January 2022

TIME: 9:00 A.M.

This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Court Call is also acceptable.

All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” If your client is with you, please inform the Court how your client would prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers.

You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.

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PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.

Please check this Tentative Rulings page before making any appearance.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply.

For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.

This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.

Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.

All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.

APPEARANCES.

While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.)

As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.

Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.

Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”

The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.

COURT REPORTERS.

This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.

This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the hearing.

PROTOCOLS DURING THE HEARINGS.

During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.

The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.

Troubleshooting Tentative Rulings.

To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.

Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.

This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.)

If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.

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

|LINE 1 |21CV383353 |Courtney Park et al. v. Jason Caramanlis, et al. |Demurrer of Defendant Jason Caramanis to Plaintiff’s Complaint. |

| | | |Defendant Caramanis’s demurrer to the Plaintiffs’ complaint on the |

| | | |ground that the pleading does not state facts sufficient to constitute|

| | | |a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for |

| | | |alter ego liability is OVERRULED. Defendant Caramanis shall file an |

| | | |answer to Plaintiffs’ complaint within 10 days. (See Cal. Rules of |

| | | |Court, Rule 3.1320, subd. (j).) |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 2 |21CV385341 |The Bank of New York Mellon v. Joseph L. Wilczak, |Order on Demurrer of Cross-Defendant The Bank of New York Mellon to |

| | |Judith A.Wilczak |Defendants’ Cross-Complaint. |

| | | | |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 3 |19CV348624 |Long Gao et al. v. Bethany Liou et al. |Motion of Plaintiff To Compel Defendants Bethany Liou and Golden |

| | | |California Regional Center To Provide Further Responses to Requests |

| | | |For Production of Documents (numbers 4-7, 9-20), Special |

| | | |Interrogatories (numbers 3, 9 and 12), Request For Admissions (numbers|

| | | |2, 3) and form interrogatory 17.1. |

| | | |The motion is not opposed. |

| | | |This Court will begin by asking counsel whether there is any |

| | | |prohibition against prosecuting this motion due to any bankruptcy |

| | | |stay. |

| | | |The motion is otherwise GRANTED in its entirety. Defendants are to |

| | | |provide code compliant responses within 20 days of the filing and |

| | | |service of this order. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 4 |19CV348624 |Long Gao et al. v. Bethany Liou et al. |Motion of Plaintiffs to Strike Costs. |

| | | |The motion is not opposed. The motion is GRANTED in its entirety and |

| | | |the Memorandum of Costs filed by defendants Liou and GCRC Cupertino |

| | | |Fund Limited Partnership is STRICKEN. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 5 |19CV349909 |Doug Ridley, Sherry Shen v. Rancho Palma Grande |Motion of Plaintiffs to Compel Defendant Rancho Palma Grande a HOA to |

| | |Homeowners Association; Steve Moritz |Compel Further Responses to Request for Production of Documents. |

| | | |NO TENTATIVE RULING. The parties are to use the Tentative Ruling |

| | | |Protocol if they wish to appear and contest the matter. |

|LINE 6 |16CV301571 |Paul Nguyen v. Thanh Van Thi Nguyen, Van Thao Phuong |Motion of Defendants to Expunge Lis Pendens |

| | |Nguyen Cao and Y Trieu Nguyen |The motion is not opposed. |

| | | |The motion is GRANTED. The lis pendens recorded by plaintiff is |

| | | |ordered expunged. Defendants are awarded costs and attorney fees in |

| | | |the amount of $1,500.00 against plaintiff and his attorney. |

| | | |The Court will execute the proposed order. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 7 |19CV352165 |SASCO v. Andrew Soffa |Order on Motion of Plaintiff to Vacate Dismissal |

| | | |The motion is DENIED. |

| | | |SASCO fails to show the dismissal was entered as a result its or its |

| | | |attorney’s “mistake, inadvertence, surprise, or excusable neglect.” |

| | | |(Code of Civil Procedure, § 473(b).) As noted in the opposition |

| | | |papers, SASCO either chose to not engage new counsel to represent it |

| | | |because of the expense and/or that that the case is meritless, or |

| | | |other reasons it won’t share, or its failure to do so is inexcusable —|

| | | |and still unexplained. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 8 |20CV366373 |Jane Doe v. East Side Union High School District |Motion of Plaintiff for Leave to Amend Plaintiff’s Complaint. |

| | | |The motion is GRANTED. Plaintiff is to submit the proposed amended |

| | | |complaint to the clerk via the e-filing queue and then serve a copy of|

| | | |the file endorsed pleading on defendants. Defendants will then have 20|

| | | |days leave from the date of service of the file endorsed complaint |

| | | |within which to RESPOND. |

| | | |This Court wishes to gently caution counsel about undue editorializing|

| | | |in their papers. This Court is aware that leave to amend can be denied|

| | | |where the proposed amendment does not state a cause of action. |

| | | |(Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) |

| | | |Additionally, leave to amend should not be granted if the amendment |

| | | |would likely be futile. (Vaillette v Fireman’s Fund Ins. Co. (1993) |

| | | |18 Cal.App.4th 680, 685.) |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 9 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 10 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 11 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |

---oooOooo---

Calendar Line 1

| | |

|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

| | |

|DEPARTMENT 20 | |

| | |

|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |21CV383353 |Courtney Park, et al. v. Genesis First Builders & Developers, Inc., et al. |

|DATE: 27 January 2022 |TIME: 9:00 am |LINE NUMBER: 1 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 26 January 2022. Please specify|

|the issue to be contested when calling the Court and Counsel. |

|---oooOooo--- |

|Order on Demurrer of Defendant Jason Caramanis |

|to Plaintiff’s Complaint. |

I. Statement of Facts.

Plaintiffs Courtney Park and Daniel Park (collectively, “Parks” or “Plaintiffs”) are owners of real property located at 1304 Sierra Avenue (“Property”) in San Jose. (Complaint, ¶¶1 – 2 and 16.)

Plaintiffs initially hired America Home Builders, Inc. dba Goodfellas Construction (“Goodfellas”) to perform construction work at the Property, but Goodfellas’ license became suspended and expired on 1 December 2019. (Complaint, ¶17.) Goodfellas referred Plaintiffs to defendant Genesis First Builders & Developers, Inc. (“Genesis”) to take over and complete the project. (Id.)

On or about 29 December 2019, Plaintiffs and defendant Genesis (through defendant Sean Azoulay (“Azoulay”)) entered into a written agreement (“Contract”) whereby defendant Genesis agreed to perform home improvement construction work at the Property. (Complaint, ¶18 and Exh. A.) The Contract was not in compliance with the law and defendant Genesis required Plaintiffs to pay an illegal initial deposit of $25,000 before it would commence work. (Id.) The original Contract amount was for $76,000 and work was to be completed within three months and no later than March 2020. (Complaint, ¶19.)

Defendant Genesis’ performance was extremely inadequate, negligent, careless, incomplete, and untimely. (Id.) Defendant Genesis fell significantly behind the project timeline and refused to continue work unless Plaintiffs paid an additional $15,000 which Plaintiffs did pay. (Id.)

Despite the $15,000 progress payment, the project continued to be severely delayed. (Complaint, ¶20.) Defendant Genesis failed to adequately perform the work. (Id.) Except to paint exterior walls, defendant Genesis did not complete the scope of work and breached the Contract. (Complaint, ¶21.)

On 6 July 2020, Plaintiffs (through counsel) sent defendant a Notice of Default & Project Abandonment providing defendant an opportunity to cure which it did not do. (Complaint, ¶22 and Exh. B.) As a result of defendant Genesis’ breach of Contract, Plaintiffs incurred various costs to correct and properly complete the work that defendant Genesis was unable or unwilling to properly perform or timely complete. (Complaint, ¶23.)

On 2 June 2021[1], Plaintiffs filed a complaint against defendants Genesis, Jason Caramanis (“Caramanis”), Yossi First (“First”), Azoulay, and Wesco Insurance Company (“Wesco”) asserting causes of action for:

1) Breach of Contract

2) Negligence

3) Violation of Business & Professions Code §7031 and for Disgorgement of Payments

4) Claim Upon License Bond

On 20 August 2021, Plaintiffs dismissed defendant Wesco from the complaint.

On 23 August 2021, defendant Caramanis filed the motion now before the court, a demurrer to Plaintiffs’ complaint.

II. Demurrers in General.

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144[2]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (demurrers for uncertainty.)

Code of Civil Procedure, § 430.10(e) states “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:. . . . .The pleading does not state facts sufficient to constitute a cause of action.”

Code of Civil Procedure, § 430.20(a) states: “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: The answer does not state facts sufficient to constitute a defense.)

A demurrer tests the legal sufficiency of a complaint. It serves to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818.) While a demurrer admits all material facts that were properly plead, a demurrer does not assume the truth of the contentions, deductions or conclusions of facts or law. (Levya v. Nielson (2000) 83 Cal.App.4th 1061, 1063.[3])

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct.[4] A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) 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.)

Even though the complaint is in some respects uncertain, the courts often hold it good against demurrer on the theory that, athough not a model of pleading, “its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (See Krieger v. Feeny (1910) 14 Cal.App. 538, 544.) The objection that the complaint (or some part of it) is uncertain goes to a doubt as to what the plaintiff means by the facts he or she has alleged, and it is designed to require the pleader to clarify the doubtful part by more explicit averments.

A demurrer is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, § 430.10(e).) "Conclusionary allegations . . . without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)

“In reviewing the sufficiency of a complaint against a general demurrer, 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.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) 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; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)

“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.)

III. Analysis.

A. Defendant Caramanis’s demurrer to Plaintiffs’ complaint is OVERRULED.

Defendant Caramanis demurs to Plaintiffs’ complaint by pointing out that the complaint alleges wrongdoing by co-defendant Genesis and others but asserts liability against defendant Caramanis based only upon alter ego liability. Defendant Caramanis contends the complaint does not adequately allege liability based upon an alter ego theory.

“The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff’s interests.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300.) “[T]wo conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” (Tucker Land Co. v. State of California (2001) 94 Cal.App.4th 1191, 1202; Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538-540.) Defendant Caramanis acknowledges the allegations found at paragraphs 10 – 13 of the complaint but contends these allegations are still insufficient to support an alter ego theory.

The question here is whether Plaintiffs’ complaint alleges sufficient facts to impose liability under an alter ego theory. Looking to a few examples of the past, in Los Angeles Cemetery Assn v. Superior Court (1968) 268 Cal.App.2d 492, 493 (Los Angeles Cemetery Assn.), Los Angeles Cemetery Association (“LACA”) bought property being leased by Customers Finance Co., Inc. (“Customers.”) Customers stopped paying rent on the property and LACA brought suit against the seller of the property, Customers, and Thriftimart, Inc. (“Thriftimart”). Customers was a subsidiary of Thriftimart. LACA sued the parent company, Thriftimart, for the unpaid rent, “on the theory that Customers was a mere alter ego of Thriftimart.” (Los Angeles Cemetery Assn., supra, 268 Cal.App.2d at p. 493; emphasis added.) The court sustained Thriftimart’s demurrer granting leave to amend. Thereafter, LACA propounded interrogatories against Thriftimart in an effort to “obtain from Thriftimart information that might enable [LACA] to plead its alter ego theory with more particularity.” (Id.) Although this is a decision relating primarily to discovery, the court did state that, “while it is the better practice to allege the facts upon which a plaintiff seeks to hold a defendant on the alter ego theory, still it is the law of California that the issue may be raised by a simple allegation that the defendant sought to be charged had made the contract involved.”

The Los Angeles Cemetery Assn. case is of no particular assistance here. It merely tells us that a very simple allegation can be made to raise the possibility of an alter ego theory of liability.

In Sheard v. Superior Court (1974) 40 Cal.App.3d 207 (Sheard), a California resident brought suit against a Wisconsin corporation, Sheard Science Supplies, Inc. (“Sheard”), and its stockholders. In its first amended complaint, the plaintiff alleged only that “defendants Doe One through Doe Ten were doing business under the name of Sheard.” (Sheard, supra, 40 Cal.App.3d at p. 212.) The court held that this allegation alone does, “not suffice to allege an alter ego relationship.” (Id.) So it would be insufficient to simply allege that an individual is “doing business as” a corporation and expect that such an allegation would be sufficient to support an alter ego theory.

In Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749 (Vasey), plaintiff brought an unlawful detainer and breach of contract action against the defendant corporation (“CDC”) and the two individuals associated with that corporation. The defendants defaulted and the lower court entered judgment against the individual defendants. The appellate court overturned the judgment as to the two individual defendants finding that the plaintiff’s complaint, “asserted a bare conclusory allegation that the individual and separate character of the corporation had ceased and that CDC was the alter ego of the individual defendants.” (Vasey, supra, 70 Cal.App.3d at p. 749; emphasis added.) “In order to prevail in a cause of action against individual defendants based upon disregard of the corporate form, the plaintiff must plead and prove [1] such a unity of interest and ownership that the separate personalities of the corporation and the individuals do not exist, and [2] that an inequity will result if the corporate entity is treated as the sole actor.” (Id.)

Vasey again reiterates the two pleading requirements to sue upon an “alter ego” theory and, by way of example, shows us that pleading only one of those two requirements in general “bare conclusory” terms is insufficient to withstand even a default judgment. In Stodd v. Goldberger (1977) 73 Cal.App.3d 827 (Stodd), we get to see an example of a sufficiently pleaded complaint under the “alter ego” theory. In Stodd, a California corporation, M.I.I. Corporation (“M.I.I.”), entered into a joint venture agreement with Goldco, a limited partnership for the ownership and operation of a hotel. The same three general partners who made up Goldco also owned M.I.I. When the venture failed, M.I.I filed for bankruptcy. The trustee in bankruptcy then brought suit against Goldco and its three individual general partners. In its first cause of action, the trustee sought “to disregard M.I.I.’s corporate existence and, on the theory of alter ego, establish defendants’ personal liability for all of M.I.I.’s debts and recover from defendants damages in the approximate sum of $2,542,000.00.” (Stodd, supra, 73 Cal.App.3d at p. 832.)

“To support the alter ego doctrine it is alleged that there is a unity of ownership between defendants and M.I.I., that defendants dominated and controlled M.I.I., that M.I.I. was created and operated by defendants pursuant to a fraudulent scheme to defraud M.I.I.’s creditors and that adherence to the fiction of M.I.I.’s separate existence would sanction a fraud and promote injustice.” (Id.; emphasis added.)

The defendants made and the trial court granted its motion for judgment on the pleadings (functionally the same as a demurrer) as to the alter ego cause of action. The trial court granted plaintiff 15 days’ leave to amend, noting that amendment would permit plaintiff to prove that corporate assets were converted, transferred and deal with to the injury of the corporation and its creditors. However, “[p]laintiff declined to avail himself of the opportunity to amend.”

In granting plaintiff leave to amend, the court was not saying that “conversion or transfer of corporate assets to the injury of the corporation” is a necessary allegation to invoke the alter ego doctrine. The Stodd court held that the allegations of alter ego appeared to be sufficient as plead. However, a trustee in bankruptcy is not the real party in interest and does not have standing to sue unless it can plead and prove some direct injury to the corporation itself. “In the absence of any such allegation, the asserted cause of action belongs to each creditor individually, and plaintiff (trustee in bankruptcy) is not the real party in interest.” (Id. at p. 833.)

With respect to the pleading requirements for the alter ego doctrine, the Stodd court again reiterated the two basic allegation requirements for the alter ego doctrine noting however, that “the conditions under which a corporate entity may be disregarded vary according to the circumstances in each case.” (Id. at p. 832.)

More recently, in Hasso v. Hapke (2014) 227 Cal.App.4th 107, 155, the court wrote:

“In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone. [Citations.] ‘Among the factors to be considered in applying the doctrine are commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable ownership in the two entities, use of the same offices and employees, and use of one as a mere shell or conduit for the affairs of the other.’ [Citations.] Other factors which have been described in the case law include inadequate capitalization, disregard of corporate formalities, lack of segregation of corporate records, and identical directors and officers. [Citations.] No one characteristic governs, but the courts must look at all the circumstances to determine whether the doctrine should be applied. [Citation.] Alter ego is an extreme remedy, sparingly used. [Citation.]” [Citations.]

Here, Plaintiffs have alleged that defendant Caramanis is an officer, secretary, manager, and or/agent of and has complete control of defendant Genesis; that a unity of interest exists between defendant Caramanis and Genesis; defendant Caramanis is listed as CEO in defendant Genesis’ California Secretary of State profile; defendant Caramanis is a shareholder of Genesis; defendant Genesis was inadequately capitalized to satisfy its reasonably anticipated expenses; defendant Caramanis knew Genesis did not have sufficient capital or assets to satisfy its contractual obligations; defendant Caramanis commingled personal funds with the corporation; lack of capitalization was intentionally withheld from Plaintiffs; defendant Caramanis used defendant Genesis as a shield to engage in tortious activities; defendant Caramanis and defendant Genesis employed the same employees and counsel; [defendant Genesis] failed to maintain adequate corporate records; defendant Caramanis received substantial profit and enrichment from Genesis equal to the Plaintiffs’ losses and damages such that he has been unjustly enriched at Plaintiffs’ expense; it would be inequitable for defendant Caramanis to benefit from the limited liability protections of defendant Genesis as a shell corporate entity or retain the unjust enrichment at the Plaintiffs’ expense; and [adherence] to the fiction of separateness would, under the circumstances, sanction fraud and promote injustice. (Complaint, ¶¶10 – 13.)

As noted above, there is a non-exclusive list of factors which the court must consider in reaching a determination on the application of the alter ego doctrine. No one factor will govern the determination. The trier of fact must look to all the circumstances. The court in Claremont Press Publishing Co. v. Barksdale (1960) 187 Cal.App.2d 813, 817 held, “Whether the facts are sufficient to warrant disregard of the corporate entity is largely a question for the trial court.” No one characteristic governs, but the courts must look at all the circumstances to determine whether the doctrine should be applied. (Talbot v. Fresno-Pacific Corp. (1960) 181 Cal.App.2d 425, 432.) “Alter ego is an extreme remedy, sparingly used. (citation omitted.)” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539 [99 Cal.Rptr.2d 824].)

For pleading purposes, the court finds Plaintiffs have adequately pleaded more than just conclusions and have alleged facts to establish a unity of interest and ownership that the separate personalities of the corporation and the individuals do not exist, and that an inequity will result if the corporate entity is treated as the sole actor. To the extent defendant Caramanis seeks further factual detail, he can do so through discovery.

Accordingly, defendant Caramanis’s demurrer to the Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for alter ego liability is OVERRULED.

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

This matter is currently set for an Order to Show Cause on 24 March 2022 at 10:00 AM in this Department, apparently for a failure to serve the matter. The Court notes that defendant Genesis First Builders & Developers, Inc. has not appeared in this matter and will inquire of counsel for plaintiff what the status of that defendant is.

VI. Order.

Defendant Caramanis’s demurrer to the Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for alter ego liability is OVERRULED. Defendant Caramanis shall file an answer to Plaintiffs’ complaint within 10 days. (See Cal. Rules of Court, Rule 3.1320, subd. (j).)

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|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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|CASE NO.: |21CV385341 |The Bank of New York Mellon, etc. v. Joseph Wilczak, et al. |

|DATE: 27 January 2022 |TIME: 9:00 am |LINE NUMBER: 2 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 26 January 2022. Please specify|

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|Order on Demurrer of Cross-Defendant |

|The Bank of New York Mellon |

|to Defendants’ Cross-Complaint. |

I. Statement of Facts.

The real property which is the subject of this action is commonly known as 26101 Duval Way in Los Altos Hills (“Subject Property”). (Complaint, ¶7.) On or about 7 May 2007, defendants Judith A. Wilczak and Joseph L. Wilczak (collectively, “Wilczaks”) obtained a mortgage loan in the original amount of $1,311,000 (“Loan”) from Countrywide Bank, FSB (“Countrywide”) and secured repayment of the Loan against the Subject Property through a Deed of Trust (“Deed of Trust”). (Complaint, ¶8.)

The Loan and Deed of Trust were assigned to plaintiff The Bank of New York Mellon fka The Bank of New York, as trustee for the certificate holders of the CWALT, Inc., alternative loan trust 2007-OA10 mortgage pass-through certificates, series 2007-OA10 (“Plaintiff”) as evidenced by an Assignment of Deed of Trust recorded on 12 May 2011. (Complaint, ¶¶1 and 9.) A second assignment to Plaintiff was recorded on 5 October 2011. (Complaint, ¶9.)

The Wilczaks defaulted on the payments due under the Loan and, thereafter, on 27 January 2015, Plaintiff’s foreclosure trustee recorded a Notice of Default which was rescinded by document recorded 14 May 2021. (Complaint, ¶10.) On or about 15 May 2015, Plaintiff’s foreclosure trustee recorded a Notice of Trustee’s Sale. (Complaint, ¶11.) On or about 19 June 2015, defendant Joseph Wilczak recorded a Notice of Pendency of Action under Santa Clara County Superior Court, case number 115CV281910, Wilczak v. Bank of America, et al (“Prior Action”). (Complaint, ¶12.) On or about 6 July 2015, defendant Joseph Wilczak recorded a Temporary Restraining Order in the Prior Action which restrained foreclosure efforts against the Subject Property. (Complaint, ¶13.) Defendant Joseph Wilczak dismissed the Prior action on 13 August 2015. (Complaint, ¶14.)

On or about 6 July 2015, defendant Wilczaks prepared and executed a document entitled, “Substitution of Trustee and Full Reconveyance,” that they then caused to be recorded (“Fraudulent Reconveyance”). (Complaint, ¶15.) The Fraudulent Reconveyance was signed by defendant Wilczaks and purports to reconvey and otherwise release the Deed of Trust. (Complaint, ¶16.) The Fraudulent Reconveyance bears on signature from either Plaintiff or the trustee under the Deed of Trust. (Id.)

Contrary to representations made in the Fraudulent Reconveyance, the Loan has never been paid off, the current balance exceeds $1 million, and there was never any agreement between Plaintiff and defendant Wilczaks to reconvey or otherwise release the Deed of Trust as an encumbrance against the Subject Property. (Complaint, ¶17.) Although the Fraudulent Reconveyance was recorded in 2015, Plaintiff did not discover the Fraudulent Reconveyance had been recorded until 13 May 2021. (Complaint, ¶18.) To date, defendant Wilczaks have failed and refused and continue to fail and refuse to pay the indebtedness on the Loan or, in the alternative, deliver the Subject Property to Plaintiff. (Complaint, ¶19.) The total amount owing and unpaid under the Loan is not less than $1,378,282.28 plus any interest thereon, trustee’s fees and costs, and attorneys’ fees and costs. (Complaint, ¶20.)

On 8 July 2021[5], Plaintiff filed a complaint against defendant Wilczaks asserting causes of action for:

1) Cancellation of Instruments

2) Quiet Title to Real Property

3) Slander of Title

4) Declaratory Relief

On 8 November 2021, defendant Wilczaks filed an answer to Plaintiff’s complaint and also filed a cross-complaint. The cross-complaint alleges the Wilczaks at one time obtained a loan of funds. (Cross-Complaint, ¶5.) The Wilczaks assert that contrary to the allegations of Plaintiff’s complaint that Wilczaks obtained a loan in 2007, the copy of the loan document attached to Plaintiff’s complaint is from 2005. (Id.)

Despite repeated requests for loan documents and an accounting of all income and expenses, Plaintiff has failed and refused to provide such documentation. (Id.) Instead, Plaintiff has repeatedly tried to initiate foreclosure proceedings without properly crediting the Wilczaks for money paid to date and added foreclosure fees, late fees, and other claimed delay expenses without cause of justification. (Cross-Complaint, ¶¶5 and 7.)

The Wilczaks allege Plaintiff breached their contract by failing to provide the required financial information that is due and owing to the Wilczaks as borrowers and failing to preserve and secure each party with their respective rights and interests in the Subject Property. (Cross-Complaint, ¶8.) The Wilczaks’ cross-complaint asserts causes of action for:

1) Breach of Contract

2) Declaratory Relief

3) Accounting

On 13 October 2021[6], Plaintiff/cross-defendant filed the motion now before the court, a demurrer to defendants/ cross-complainants Wilczaks’ cross-complaint.

II. Demurrers In General.

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144[7]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (demurrers for uncertainty.)

Code of Civil Procedure, § 430.10(e) states “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:. . . . .The pleading does not state facts sufficient to constitute a cause of action.”

Code of Civil Procedure, § 430.20(a) states: “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: The answer does not state facts sufficient to constitute a defense.)

A demurrer tests the legal sufficiency of a complaint. It serves to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818.) While a demurrer admits all material facts that were properly plead, a demurrer does not assume the truth of the contentions, deductions or conclusions of facts or law. (Levya v. Nielson (2000) 83 Cal.App.4th 1061, 1063.[8])

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct.[9] A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) 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.)

Even though the complaint is in some respects uncertain, the courts often hold it good against demurrer on the theory that, athough not a model of pleading, “its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (See Krieger v. Feeny (1910) 14 Cal.App. 538, 544.) The objection that the complaint (or some part of it) is uncertain goes to a doubt as to what the plaintiff means by the facts he or she has alleged, and it is designed to require the pleader to clarify the doubtful part by more explicit averments.

A demurrer is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, § 430.10(e).) "Conclusionary allegations . . . without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)

“In reviewing the sufficiency of a complaint against a general demurrer, 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.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) 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; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)

“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.)

III. Analysis.

B. Plaintiff/cross-defendant’s demurrer to the first cause of action [breach of contract] in defendants/cross-complainant Wilczaks’ cross-complaint is SUSTAINED.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI, No. 303.) If the contract is written, “the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459.)

The Wilczaks do not specifically address this point in their opposition. The Wilczaks instead seem to focus on their allegation that there is confusion between the dates of origination/funding of the loan (2007) and their signature of the loan document (2005). As such, the Wilczaks contend there is some error that cannot be rectified without an accounting. The alleged discrepancy in dates is, in this court’s opinion, irrelevant. If the Wilczaks assert that a written contract obligates Plaintiff/cross-defendant to provide them with financial documentation or an accounting, then the Wilczaks should set forth that contract and the precise language from that contract where such language is found. The Wilczaks’ reliance on Siegel v. American Savings & Loan Assn. (1989) 210 Cal.App.3d 953 (Siegel) is entirely misplaced as that case concerned preemption and exhaustion of administrative remedies, not whether the plaintiff had adequately identified the contractual terms which give rise to a claim for breach. “[C]ases do not stand for propositions not addressed therein.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 664.)

Accordingly, Plaintiff/cross-defendant’s demurrer to the first cause of action in defendant/cross-complainant Wilczaks’ cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for breach of contract is SUSTAINED with 10 days’ leave to amend.

C. Plaintiff/cross-defendant’s demurrer to the second cause of action [declaratory relief] in defendants/cross-complainant Wilczaks’ cross-complaint is SUSTAINED.

“A complaint for declaratory relief should show the following: (a) A proper subject of declaratory relief within the scope of C.C.P. 1060; (b) An actual controversy involving justiciable questions relating to the rights or obligations of a party.” (5 Witkin, California Procedure (4th ed. 1997) §809, pp. 264 – 265; emphasis omitted.) Code of Civil Procedure, § 1060 specifically provides for a declaration of rights and duties between two persons. “Any person claiming rights under a contract (oral or written) … may bring an action for a declaration of his or her rights or duties with respect to another. [Citations.] The action may be brought before any breach of the obligation regarding which the declaration is sought.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2016) ¶6:186, p. 6-65 citing Code Civ. Proc., §1060; Market Lofts Community Ass’n v. 9th St. Market Lofts, LLC (2014) 222 Cal.App.4th 924, 931.)

Plaintiff/cross-defendant contends the second cause of action for declaratory relief fails because it is derivative of the first and third causes of action and since those cause of action fail, so too does the declaratory relief cause of action. (See Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 607—“[Plaintiff’s] action for declaratory relief depends upon the other causes of action. Since we conclude that [plaintiff] failed to state a claim sufficient to recover on any of its causes of action …, [plaintiff’s] claim for declaratory relief action must also fail as a matter of law.”)

For the reasons stated above and herein, Plaintiff/cross-defendant’s demurrer to the second cause of action in defendant/cross-complainant Wilczaks’ cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for declaratory relief is SUSTAINED with 10 days’ leave to amend.

D. Plaintiff/cross-defendant’s demurrer to the third cause of action [accounting] in defendants/cross-complainant Wilczaks’ cross-complaint is SUSTAINED.

“The action for an accounting is equitable in nature. It may be brought to compel the defendant to account to the plaintiff for money or property, (1) where a fiduciary relationship exists between the parties, or (2) where, though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable.” (5 Witkin, California Procedure (5th ed. 2008) Pleading, §819, p. 236 citing Civic Western Corp. v. Zila Industries (1977) 66 Cal.App.3d 1, 14, et al.) “To state a cause of action, only the simplest pleading is required: (a) The fiduciary relationship or other circumstances appropriate to the remedy; (b) A balance due from the defendant to plaintiff that can only be ascertained by an accounting.” (Id. at §820, p. 236 and Supp. p. 8 citing Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179; emphasis added.)

Although the Wilczaks are correct that a fiduciary relationship is not absolutely required, the Wilczaks do not address Plaintiff/cross-defendant’s argument that there is no balance due from Plaintiff/cross-defendant to the Wilczaks. On the contrary, the Wilczaks themselves allege, “there remains an outstanding balance of money owed that is required to repay the entire loan financial obligation due and owing.” (Cross-Complaint, ¶6.) By their own allegation, a balance is due from the Wilczaks to Plaintiff/cross-defendant. It is not always the case that the best defense is a good offense.

Accordingly, Plaintiff/cross-defendant’s demurrer to the third cause of action in defendant/cross-complainant Wilczaks’ cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for accounting is SUSTAINED with 10 days’ leave to amend.

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

On 22 February 2022 at 9:00 AM in this Department, the Court will hear the motion of the plaintiff for leave to file its first amended complaint.

A further Case Management Conference is set for 14 June 2022 at 10:00 AM in this Department.

VI. Order.

Defendant Caramanis’s demurrer to the Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for alter ego liability is OVERRULED. Defendant Caramanis shall file an answer to Plaintiffs’ complaint within 10 days. (See Cal. Rules of Court, Rule 3.1320, subd. (j).)

|___________________________ |______________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)

[2] “It is black-letter law a demurrer tests the pleading alone. (5 Witkin, California Procedure (3d ed. 1985) Pleading, § 895, p. 334.) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (Code of Civil Procedure, § 430.30 (b).) Defendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423.) (Internal quotations modified, modest editing used.)

[3] While the allegations of the complaint must be accepted as generally true, this rules does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits t0 the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobile-home Estates (1995) 36 Cal.App.4th 698, 709.) Allegations of a complaint must be sufficiently clear to appraise the defendant of the issues which he (or she) is to meet and defend. (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)

[4] Compare with Coyme v. Krempels (1950) 36 Cal.2d 257, a summary judgment motion, and which stands for the proposition that allegations in the complaint alone cannot be used to defeat a summary judgment motion.

[5] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C)

[6] Defendant Wilczaks apparently attempted to file their answer and cross-complaint on 8 September 2021, but the court clerk rejected their filing indicating, in relevant part, “$435 due for each defendant.” Hence, the filing of the instant demurrer by Plaintiff precedes the filing of the pleading it seeks to attack, defendant Wilczaks’ cross-complaint.

[7] “It is black-letter law a demurrer tests the pleading alone. (5 Witkin, California Procedure (3d ed. 1985) Pleading, § 895, p. 334.) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (Code of Civil Procedure, § 430.30 (b).) Defendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423.) (Internal quotations modified, modest editing used.)

[8] While the allegations of the complaint must be accepted as generally true, this rules does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits t0 the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobile-home Estates (1995) 36 Cal.App.4th 698, 709.) Allegations of a complaint must be sufficiently clear to appraise the defendant of the issues which he (or she) is to meet and defend. (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)

[9] Compare with Coyme v. Krempels (1950) 36 Cal.2d 257, a summary judgment motion, and which stands for the proposition that allegations in the complaint alone cannot be used to defeat a summary judgment motion.

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