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Superior Court of
California
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Tentative Rulings: | Placerville 1 || Placerville 2 | SLT 3 | SLT 4 | Placerville 6 | Cameron Park 9 | |
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Tentative
Rulings for OSCs Re: Dismissal/Sanctions
(1)
IF A DISMISSAL IS FILED IN THE FOLLOWING CASES
BY 3:00 P.M. WEDNESDAY, MAY 7, 2008 NO APPEARANCES WILL BE NECESSARY.
IF NO DISMISSAL IS FILED BY 3:00 P.M. WEDNESDAY, MAY 7, 2008, THE PERSONAL
APPEARANCE OF PLAINTIFF’S COUNSEL WILL BE REQUIRED AT 9:00 A.M. ON THURSDAY,
MAY 8, 2008 IN DEPARTMENT NINE. NO TELEPHONIC APPEARANCE WILL BE PERMITTED. 1. CHASSEY v. 2. MATTER OF DUNN PC-20080142 OSC Re:
Name Change. The co-guardians
of the minor petition to change her name. Proofs of service declare
that both parents of the minor were personally served with the petition
and notice of this hearing more than 30 days prior to the hearing date. TENTATIVE RULING # 2: ABSENT OBJECTIONS, THE PETITION IS GRANTED.3. MATTER OF DYES PC-20080146 OSC Re:
Name Change. There is no CLETS report in the court’s file. (Code of Civil Procedure, § 1279.5(e).) TENTATIVE
RULING # 3: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 4. MATTER OF POLLARD PC-20080165 OSC Re:
Name Change. Petitioner
has failed to fill out and execute the declaration at paragraph 6.f.
of the petition. In addition,
there is no proof of publication in the court’s file. “* * *A copy
of the order to show cause shall be published pursuant to Section 6064
of the Government Code in a newspaper of general circulation to be
designated in the order published in the county. If no newspaper of
general circulation is published in the county, a copy of the order
to show cause shall be posted by the clerk of the court in three of
the most public places in the county in which the court is located,
for a like period. Proof shall be made to the satisfaction of the court
of this publication or posting, at the time of the hearing of the application. ¶ Four
weekly publications shall be sufficient publication of the order to
show cause. If the order is published in a daily newspaper, publication
once a week for four successive weeks shall be sufficient. * * *” (Code
of Civil Procedure, § 1277(a).) TENTATIVE
RULING # 4: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE.
5.
MATTER OF GOEMAN PC-20080174 OSC Re:
Name Change. While the petitioner has executed the declaration at paragraph 6.f. of the petition, petitioner has not executed the second declaration at the conclusion of the petition. TENTATIVE
RULING # 5: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 6. LDG FINANCIAL SERVICES v. CAGLE PCL-20050310 Judgment
Debtor Examination. The
proof of service shows that the application and order for appearance
of third person Randy Cagle was personally served on February 24, 2008.
The declaration of Thomas Willford in support of order directing Randy
Cable to answer concerning the property of judgment debtor Patti Cagle
states that the underlying debt of $9,627.03 was entered as a judgment
on October 17, 2005 at which time Patti Cagle, judgment debtor, and Randy
Cable were married. Randy Cable owns the real property at This matter
was continued from April 24, 2008 upon request of the judgment creditor
in order to allow the parties to settle the matter. There is no proof
of service in the court’s file indicating that the judgment debtor
was served with notice of the continued date. TENTATIVE
RULING # 6: THE PERSONAL APPEARANCE OF THE DEBTOR IS REQUIRED AT
9:00 A.M., THURSDAY, MAY 8, 2008 IN DEPARTMENT NINE, PROVIDED PROOF
OF SERVICE OF NOTICE OF THE CONTINUED HEARING DATE IS FILED. 7. Application for Prejudgment Writ of Possession. On March
20, 2008 plaintiff filed a verified complaint for claim and delivery,
breach of contract, breach of written guaranty, and conversion of personal
property related to the defendants’ alleged lease of two 102” CT Oilfield
Frac Tanks. It is alleged that at the end of the lease term plaintiff
exercised it’s option to continue defendant AES Enterprises, Inc.’s
(AES) obligations on a month-to-month basis and that defendant AES
failed to pay renewal rents from September 16, 2007. On April
10, 2008 plaintiff filed an application for prejudgment writ of possession,
which seeks possession of the two 102” CT Oilfield Frac Tanks. The
application states the property is valued at $30,000. The verified
application further states that the property is located at a specific
address in Diamond Springs. The plaintiff
must serve upon the defendant a copy of the summons and complaint,
a notice of the application and hearing date, and a copy of the application
for writ of possession and the affidavits in support of the application.
(Code of Civil Procedure, § 512.030.) The proof of substituted
service states that defendant AES was served by substitute service
on March 31, 2008. The proof of service declares that documents described
in an attached list were served on the defendant’s secretary, however,
there is no list attached to the proof of service. Proof of follow-up
service by mail declares that the summons, verified complaint, civil
case cover sheet, declarations in support of application for writ of
possession, notice of application for writ of possession, application
for writ of possession and points and authorities in support of application
for writ of possession were served by mail on defendant AES on April
2, 2008. The proofs of service are defective in that there is no proof
of what documents were served on the secretary at defendant AES’ office
on March 31, 2008. There
is no opposition to the application in the court’s file and the court
cannot rule on the merits of the application until adequate proof of
service is submitted. A
writ of possession shall issue if both of the following are found: (1)
the plaintiff has established the probable validity of the claim to possession
of the property; and (2) the plaintiff has provided an undertaking as
required by Section 515.010. (Code of Civil Procedure, § 512.060(a).) “ ‘A
claim has “probable validity” where it is more likely than not that the
plaintiff will obtain a judgment against the defendant on that claim.’ (C.C.P.
511.090.) The definition of ‘probable validity’ calls for the establishment
of a prima facie case by the plaintiff, who has the burden of proof on
this issue; and the plaintiff will not be entitled to the writ if the
defendant shows that there is a reasonable probability of a successful
defense to the action. (Legislative Com. Comment to C.C.P. 512.060.)
Thus, if the defendant appears, the court must consider the relative
merits of the positions of both parties and determine the probable outcome
of the litigation. (Law Rev. Com. Comment to C.C.P. 511.090.)” (6 “Except as provided in subdivision (b), the court shall not issue a temporary restraining order or a writ of possession until the plaintiff has filed an undertaking with the court. The undertaking shall provide that the sureties are bound to the defendant for the return of the property to the defendant, if return of the property is ordered, and for the payment to the defendant of any sum recovered against the plaintiff. The undertaking shall be in an amount not less than twice the value of the defendant's interest in the property or in a greater amount. The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant's interest in the property.” (Code of Civil Procedure, § 515.010(a).) “If the court finds that the defendant has no interest in the property, the court shall waive the requirement of the plaintiff's undertaking and shall include in the order for issuance of the writ the amount of the defendant's undertaking sufficient to satisfy the requirements of subdivision (b) of Section 515.020.” (Code of Civil Procedure, § 515.010(b).) Plaintiff contends that no undertaking is required, because plaintiff’s litigation manager, David O’Hara, declares that the account history maintained by plaintiff indicates that defendant owes plaintiff $36,058.16 for 7 past due payments, late fees, collection fee, and residual interest and tax, while the property is only worth $30,000. No writ directing the levying officer to enter a private place to take possession shall issue unless the plaintiff has established that there is probable cause to believe that such property is located there. (Code of Civil Procedure, § 512.060(b).) “If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court.” (Code of Civil Procedure, § 512.070.) Plaintiff seeks a court order directing defendants to transfer the property to plaintiff. TENTATIVE
RULING # 7: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 8. CAVALRY SPV I, LLC v. JONES PCL-20020512 Hearing
Re: Claim of Exemption. Plaintiff
obtained a clerk’s default judgment for $3,431.43 against defendant Jones
on April 18, 2003. The sheriff
of Judgement
creditor opposes the claim of exemption on the grounds that the judgment
debtors expenses are excessive (¶ 4.c. utilities and telephone, 4e.
medical and dental payments and 4i. transportation & auto expenses)
and that the judgment creditor is paying non-priority non-judgment
creditors in preference to its claim. The
judgment creditor acknowledges receipt of $2,869.56 toward the judgment
by way of combined bank levy, wage garnishment and payments by the
judgment debtor. The judgment creditor claims a balance due
of $2,013.04, inclusive of post-judgment interest. The judgment
debtor refers to a settlement letter from Winn and Sims, attorneys
for the judgment creditor, dated February 8, 2007 attached to her claim
of exemption as “attachment “A”. The
letter notes a balance due of $2,768.65 and a 55% discount to $1,245.89
if paid before March 15, 2007 and a 50% discount to $1,384.33 if paid
before April 25, 2007. It is
unclear to the Court whether the judgment debtor accepted either offer
or attempted to pay the balance due in installments as indicated by
copies of money order receipts attached to her claim. The
judgment debtor claims that she has paid a total of $2,489 toward the
judgment by wage garnishment, bank levies and money orders. Judgment
debtor claims that she has unusual medical needs, including a herniated
disk, thyroid problems, a bi-polar diagnosis, a bleeding ulcer and
Hashimoto auto-immune condition. The exemption claimant has the burden of proof.
(Code of Civil Procedure, § 703.580(b).) “The claim
of exemption is deemed controverted by the notice of opposition to
the claim of exemption and both shall be received in evidence. If no
other evidence is offered, the court, if satisfied that sufficient
facts are shown by the claim of exemption (including the financial
statement if one is required) and the notice of opposition, may make
its determination thereon. If not satisfied, the court shall order
the hearing continued for the production of other evidence, oral or
documentary.” (Code of Civil Procedure, § 703.580(c).) The amount
of earnings subject to wage garnishment is 25% of the debtor’s disposable
earnings for that week, or the amount by which his disposable earnings
for that week exceed 30 times the Federal minimum hourly wage, whichever
is less. (15 U.S.C. § 1673; Code of Civil Procedure, § 706.050.)
Disposable income is defined as “… that part of the earnings of any
individual remaining after the deduction form those earnings of any
amount required by law to be withheld.” (15 U.S.C. § 1672(b).) In addition,
the portion of the judgment debtor’s earnings which the judgment debtor
proves is necessary for the support of the judgment debtor or necessary
for the support his or her family is exempt from levy. (Code of
Civil Procedure, § 706.051(b).) However, the exemption of section
706.051(b) does not apply to debts incurred for the common necessaries
of life furnished to the judgment debtor or the family of the judgment
debtor; debts incurred for personal services rendered by an employee
or former employee of the judgment debtor; where the order is a withholding
order for support under section 706.030; or where the order is a state
tax order. (Code of Civil Procedure, § 706.051(c).) Therefore,
in actions on debts incurred for the common necessaries of life, the
judgment debtor is subject to garnishment of 25% of his disposable
earnings or disposable earnings less 30 times the federal minimum hourly
wage, whichever is the lesser amount. (J.J. MacIntyre Co. v. Duren (1981)
118 Cal.App.3d Supp. 16, 19.) “If property
is claimed as exempt pursuant to a provision exempting property to
the extent necessary for the support of the judgment debtor and the
spouse and dependents of the judgment debtor, the claim of exemption
shall include a financial statement.” (Code of Civil Procedure, § 703.530(a).) The term “common
necessaries of life” means essentials commonly required by all persons
for the sustenance of life, whatever their employment status and includes
medical care. (J.J. MacIntyre Co. v. Duren (1981) 118 Cal.App.3d
Supp. 16, 19.) “The term
'necessaries' as applied to the requisites of life is a relative term.
It is not, in short, confined to what is absolutely essential to support
life, but when used in the broad sense encompasses many of the conveniences
of a refined society (Bouvier's Law Dictionary, Vol. 2, 3d Ed). However,
in excepting debts incurred for the requisites of life from the exemption
accorded to a debtor's earnings, section 690.11 does not refer to 'necessaries'
in the broad sense. On the contrary, the phrase 'necessaries of life'
is preceded by the word 'common' and this in turn connotates such things
as are ordinarily required for the sustenance of All men.” (Ratzlaff
v. Portillo (1971) 14 Cal.App.3d 1013, 1015.) “Because of the availability
of public transportation, home delivery service and neighborhood shopping
centers, to the great majority of Americans the automobile, albeit
a great convenience, is not necessary to sustain life and cannot be
viewed as a 'common necessary of life' within the contemplation of
section 690.11 of the Code of Civil Procedure.” (Ratzlaff v. Portillo,
supra at page 1016.) The court
notes that the judgment debtor lists three vehicles, a 2001 Suzuki,
a 1992 T Bird and a 1985 Prior
hearings on this matter occurred on February 28, March 27, and April
24, 2008. Defendant contends that she believes she has paid the debt,
but the court was given no evidence of that fact. Defendant also stated
that she just hired an attorney to help her. Attorney Moglen requested
a judgment be entered on the debt. The matter was continued from April
24, 2008 upon request of the parties in order to allow them to engage
in settlement discussions. The court has not received further word
on the matter. TENTATIVE
RULING # 8: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 9. MAHONEY v. JOHNSON PC-20070045 Hearing
Re: Failure to File Request to Enter Default Judgment. Plaintiffs filed an action for injuries allegedly sustained in a motor vehicle accident and for loss of consortium. Default was entered on June 27, 2007. The request for entry of default indicated that plaintiffs were seeking entry of a judgment in the amount of $7,555,470. At the hearing on October 11, 2007 plaintiff’s counsel advised the court that payments were made by Medi-Care and counsel requested an extension of time. At the
February 7, 2008 hearing the court granted counsel’s request for a
90 day continuance. There is no request to enter a default judgment
in the court’s file. TENTATIVE
RULING # 9: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 10. DISCOVER BANK v. MAYFIELD PCL-20070706 Hearing
Re: Failure to File Request to Enter Default Judgment. On January
14, 2008, the court entered the default of John R. Mayfield. Thereafter,
on March 14, 2008, the court served notice on plaintiff of hearing
on April 24, 2008 to show cause why sanctions should not be imposed
for failure to file default judgment. El
Dorado County Superior Court Local Rules, Rule 7.12.07 B. states
as follows: “…after a default
is entered, the party requesting the default must obtain a default
judgment against the defaulting party within 45 days after the entry
of default, unless the court has granted an extension of time.” Rule 7.12.07
D. states: “…The failure to take default or obtain a default judgment
within the time set forth in this rule may result in sanctions pursuant
to Local Rule 7.12.12.” Plaintiff failed to appear at the April 24, 2008 hearing, $250 in sanctions were imposed against plaintiff’s counsel, Angie Hong, and plaintiff’s counsel was ordered to appear at this continued hearing to explain the failure to appear and status of the default judgment. TENTATIVE
RULING # 10: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 11. LVNV FUNDING, LLC v.
GIOVANNINI PCL-20070816 Hearing
Re: Failure to File Request to Enter Default Judgment. On December
31, 2007, the court entered the default of Violeta Giovannini. Thereafter,
on March 13, 2008, the court served notice on plaintiff of hearing
on April 24, 2008 to show cause why sanctions should not be imposed
for failure to file default judgment. El
Dorado County Superior Court Local Rules, Rule 7.12.07 B. states
as follows: “…after a default is entered, the party requesting the
default must obtain a default judgment against the defaulting party
within 45 days after the entry of default, unless the court has granted
an extension of time.” Rule 7.12.07 D. states: “…The failure to take default or obtain a default judgment within the time set forth in this rule may result in sanctions pursuant to Local Rule 7.12.12.” Plaintiff failed to appear at the April 24, 2008 hearing, $250 in sanctions were imposed against plaintiff’s counsel, Mark D. Walsh, and plaintiff’s counsel was ordered to appear at this continued hearing to explain the failure to appear and status of the default judgment. TENTATIVE
RULING # 11: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 12. MAHLER v. WINCO FOODS PC-20060470 OSC Re:
Sanctions. The court has been informed that plaintiff’s counsel failed to appear at the April 15, 2008 MSC and failed to file a settlement conference statement. Plaintiff’s counsel was mailed the September 5, 2007 minute order setting the MSC date and time. The April 15, 2008 minute order setting this hearing was mailed to plaintiff’s counsel on April 17, 2008. It has been recommended that $250 in sanctions be imposed against plaintiff’s counsel, unless counsel appears and adequately explains his failures. TENTATIVE
RULING # 12: APPEARANCES ARE REQUIRED AT 9:00 A.M. ON THURSDAY, MAY
8, 2008 IN DEPARTMENT NINE. 13. SUMNER v. RODDA PC-20070207 Defendants
Land Home Financial Services, Inc.’s and Chester’s Demurrer to Complaint. On April 3, 2007 plaintiffs filed a complaint against various defendants for fraud, breach of duty to be honest and truthful, negligence and negligent misrepresentation. Defendants Chester and Land Home Financial Services, Inc. demurred to the complaint. On March 24, 2008 plaintiffs requested dismissal of defendants Chester and Land Home Financial Services, Inc. with prejudice with each side to bear their own attorney fees and costs. Dismissal was entered as requested on that same date. TENTATIVE
RULING # 13: DEFENDANTS CHESTER’S AND LAND HOME FINANCIAL SERVICES
INC.’S DEMURRER HAVING BECOME MOOT DUE TO THEIR DISMISSAL FROM THIS
LITIGATION, THIS MATTER IS DROPPED FROM THE CALENDAR. 14. GALLAD v. STANDARD PACIFIC
HOMES PC-20070255
(1)
Defendant Standard Pacific
Corp.’s Demurrer to 1st Amended Complaint.
(2)
Defendant Lucas and Mercier
Development, Inc.’s Demurrer to 1st Amended Complaint.
(3)
Defendant Lucas and Mercier
Development, Inc.’s Motion to Strike Punitive Damages. On April
7, 2008 a stipulation whereby the parties to this litigation agreed
to allow plaintiff leave to file a 2nd Amended Complaint
was filed. The stipulation was executed by the demurring defendants
and plaintiff and provided that upon service of the 2nd Amended
Complaint; the defendants will take all current demurrers and motions
to strike off calendar. The court issued an order consistent with the
stipulation on that same date. The 2nd Amended Complaint
was filed on April 7, 2008. TENTATIVE
RULING # 14: THE STIPULATION AND FILING OF A 2ND AMENDED
COMPLAINT HAVING RENDERED THE DEMURRERS AND MOTION TO STRIKE MOOT,
THESE MATTERS ARE DROPPED FROM THE CALENDAR. 15. FURLONG ENTERPRISE, INC.
v. VAN BEBBER PC-20070696 Cross-Defendants
Furlong Enterprises, Inc.’s and Siebert’s Demurrer to Van Bebber,
Inc. Cross-Complaint. TENTATIVE
RULING # 15: THESE MATTERS
ARE CONTINUED TO 9:00 A.M. ON THURSDAY, JUNE 19, 2008, IN DEPARTMENT
NINE. 16. AL HUBBARD v. CARL ROSS, et al. PC-20070757 Hearing re:
1.
Demurrer to 1st Amended
Complaint by Carl Ross, et al.
2.
Demurrer to 1st Amended
Complaint by Safari Vineyard Estates. Plaintiff filed the complaint on December 31, 2007
for specific performance of contract, breach of contract, among other
causes of action. Plaintiff
filed the first amended complaint on February 7, 2008. The
1st cause of action is for specific performance of contract against
defendants Carl Ross, individually, and in his capacities as (1) trustee
for Carl Ross Family Trust, (2) Trustee for Carl E. Ross Living Trust,
(3) Trustee for Safari Natalie Ross, and (4) Trustee for Remington
Carl Ross; Angie Ross; Safari Vineyard Estates, LLC and Does 1 through
25., the 2nd cause of action is for specific performance against defendants
Carl Ross, individually, and in his capacities as (1) Trustee for Carl
Ross Family Trust, (2) Trustee for Carl E. Ross Living Trust, (3) Trustee
for Safari Natalie Ross, and (4) Trustee for Remington Carl Ross; Angie
Ross, Safari Vineyard Estates, LLC, and Does 1 through 25., the 3rd cause
of action is for specific performance against Carl Ross, individually,
and in his capacities as (1) Trustee for Carl Ross Family Trust, (2)
Trustee for Carl E. Ross Living Trust, (3) Trustee for Safari Natalie
Ross, and (4) Trustee for Remington Carl Ross; Angie Ross, Safari Vineyard
Estates, LLC, and Does 1 through 50., the 4th cause of action
is for specific performance against Carl Ross, individually, and in
his capacities as (1) Trustee for Carl Ross Family Trust, (2) trustee
for Carl E. Ross Living Trust, (3) trustee for Safari Natalie Ross,
and (4) Trustee for Remington Carl Ross; Angie Ross, Safari Vineyard
Estates, LLC, the 5th cause of action is for specific performance against Carl Ross, individually,
and in his capacities as (1) Trustee for Carl Ross Family Trust, (2)
Trustee for Carl E. Ross Living Trust; Remington Wine Company, LLC,
and Does 1 through 50., the 6th cause of action is for fraud
against all defendants; the 7th cause of action is for breach
of fiduciary duty against defendants Carl Ross, individually, and in
his capacities as (1) Trustee for Carl Ross Family Trust, (2) trustee
for Carl E. Ross Living Trust, (3) Trustee for Safari Natalie Ross,
and (4) Trustee for Remington Carl Ross; Angie Ross; Safari Vineyard
Estates, LLC; Zebra Properties, and Does 1 through 25., the 8th cause
of action is for violation of federal RICO statutes against all defendants
except Safari Vineyard Estates, LLC. Defendant
Safari Vineyard Estates, LLC filed a demurrer and special demurrer
to the 1st amended complaint on March 20, 2008 on the grounds
of uncertainty and failure to state facts sufficient to constitute
a cause of action. Defendants
Carl Ross, individually, and in his capacity as (1)Trustee for Carl
Ross Family Trust, (2) Trustee for Carl E. Ross Living Trust, (3) Trustee
for Safari Natalie Ross Living Trust erroneously sued as trustee for
Safari Natalie Ross, and (4) Trustee for Remington Carl Ross Living
Trust erroneously sued as Trustee for Remington Carl Ross; Oxford Partners,
LLC; Remington Wine Company, LLC; Angie Ross, filed a demurrer and
special demurrer to the 1st amended complaint on March 20,
2008 on the grounds of uncertainty and failure to state facts sufficient
to constitute a cause of action. 1. Demurrer
to 1st Amended Complaint by Carl Ross, et al. First Cause of Action Defendants
Carl Ross, et al. argue that the 1st cause of action is
uncertain under Code of Civil Procedure,§ 430.10(f). “…The
party against whom a complaint…has been filed may object, by demurrer…to
the pleading on any on or more of the following grounds: The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes
ambiguous and unintelligible.” (Code of Civil Procedure, § 430.10(f),). If a defendant
seeks to have facts pled with particularity, that point should be raised
by special demurrer. (Good v. State (1962) 57 Cal.2d 512, 514.)
“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. (5 Witkin, Cal.Procedure (3d ed. 1985)
Pleading, § 927, p. 364; 1 Weil & Brown, Civil Procedure Before
Trial (1990) § 7:85, p. 7-23.)” (Khoury v. Maly's of California,
Inc. (1993) 14 Cal.App.4th 612, 616.)
The 1st cause
of action through the 4th cause of action are alleged against
defendant Carl Ross, individually, and in his capacities as (1) Trustee
for Carl Ross family trust, (2) Trustee for Carl E. Ross living trust,
(3) Trustee for Safari Natalie Ross, and (4) Trustee for Remington
Carl Ross; Angie Ross; Safari Vineyard Estates, LLC, and Does 1 through
25.
The 1st cause of action
alleges specific performance of contract against defendants (First
Amended Complaint, “FAC”, page
1, line 24 through page 2, line 1). Thereafter,
paragraphs 1. through 7., describe the capacities of the parties. Paragraphs 8 and 9 allege, respectively, that the real property that is the subject
of the litigation is located in El Dorado County and the contracts
alleged were to be performed in El Dorado County. Paragraph
10. appears to allege that defendant Carl Ross was the alter ego of
the defendant trusts and defendant limited liability companies as follows: “Defendant Carl Ross dominates or controls
Safari Vineyard Estates, LLC; Oxford Partners, LLC; Zebra Properties,
Remington Wine Company, LLC, Carl Ross Family Trust, Carl E. Ross Living
Trust, and trusts for his children so there is such a unity of interest
and ownership that the individuality, or separateness, of the entities
and Defendant Carl Ross has ceased…Carl Ross is abusing the limited
liability companies and trusts, so that justice and equity can best
be accomplished and fraud and unfairness defeated by disregarding the
distinct entities of the limited liability company and trust forms.”(FAC, ¶ 10.,
line 1 through line 5, and line 11 through 13.) Paragraph 11. alleges that plaintiff entered
into a written Operating Agreement with Safari Vineyard Estates, LLC,
on or about March 30 1996, a copy of which is attached to the FAC as
Exhibit “A”. Exhibit “A” states that it is an Operating
Agreement for Safari Estates, LLC, A California Limited Liability Company
and, under Article I, Definitions, “Real Property” refers to those
certain 71 Lots of the Pilot Hill Crossing subdivision, located in
El Dorado County, California and more particularly described in Exhibit “B” attached.
(Exhibit “A”, page 1). The initial members of the company list plaintiff
and defendant, Carl Ross, among others (Exhibit “A”, page 2, ¶ 3.01),
the capital contribution of plaintiff was $ 1,200 which was a 12% interest
in the enterprise (Exhibit “A”, page 4, ¶ 4.01), and no proceeds or
profits from the sale of the real property was to be distributed to
the members until all monies borrowed from the Carl Ross Family Trust
has been paid, among other conditions (Exhibit “A”, page 5, ¶ 5.03(a),). The initial manager of the company was defendant
Carl Ross (Exhibit “A”, page 5, ¶ 6.01), and plaintiff, along with two other persons, agreed
to assist the manager by providing on-site supervision and services,
including maintenance supervision, marketing, and liaison with the
Department of Real estate and El Dorado County, etc. (Exhibit “A”,
page 6, ¶ 6.01), neither the initial manager or plaintiff was to receive
any compensation for their services (Exhibit “A”, page 6, ¶ 6.02),
the initial manager was to prepare and file all necessary federal and
state income tax returns for the company and each member was to furnish
to the manager all pertinent information in its possession relating
to company operations needed to enable the company’s income tax returns
to be prepared and filed (Exhibit “A, page 9, ¶ 9.01). Absent
objections of members, all of the real property owned by the company
was to be put up for sale at a price equal to its then fair market
value on January 1, 2011 (Exhibit “A”, page 12, ¶ 12.03). There is a promissory note which states that it is secured by a deed of
trust appended to Exhibit “A” which is dated February 23, 1996 from
Safari Estates, LLC, signed by Carl Ross, Manager, for $1,700,000 at
10% interest per annum in favor of the Carl Ross Family Trust, payable
on January 8, 1998, or as extended for another two years as set out
in the operating agreement, ¶ 11.01(a). Exhibit “B” is
a legal description of three parcels of real property in El Dorado
County (Exhibit “A”, page 16). There
is an additional Exhibit “B” with unnumbered pages setting out legal
descriptions of numerous real property parcels in El Dorado County
which appears to be an attachment to the operating agreement. “Under a breach of contract theory, the plaintiff
must demonstrate a contract, the plaintiff's performance or excuse
for nonperformance, the defendant's breach, and damage to the plaintiff.
(4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 476, p. 570.)” (Amelco
Electric v. City of Thousand Oaks (2002) 27
Cal.4th 228, 243.) In the instant case,
plaintiff alleges the failure of defendant to hold meetings under the
operating contract (FAC, page 3, ¶ 12), the failure of defendant to
supply K-1 tax forms (FAC, page 3, ¶ 13), the failure of defendant
to supply financial statements (FAC, Page 4, ¶ 14), the fraudulent
transfers of defendant (FAC, page 4, ¶ 15), and defendant’s co-mingling
of funds (FAC, page 5, ¶ 16); however, plaintiff fails to allege how
these acts were breaches of the operational agreement and, if so, how
the alleged breaches caused damage to plaintiff. Thus,
plaintiff has failed to state a cause of action for breach of contract. Code
of Civil Procedure, § 3300 provides: “For the breach of an obligation
arising from contract, the measure of damages, except where otherwise
expressly provided by this code, is the amount which will compensate
the party aggrieved for all the detriment proximately caused thereby,
or which, in the ordinary course of things, would be likely to result
therefrom.” Plaintiff asks the Court to engage in discovery by requiring the defendant to produce financial information to plaintiff so that he might assess his damages as follows: “Plaintiff has no adequate remedy at law, because
in order to even be able to understand the financial status of Safari,
to calculate any damages from improper management of Safari, to determine
plaintiff’s actual capital account in Safari, to determine whether
funds of the company have been commingled, and to prepare proper tax
returns, plaintiff needs the tax records, books, and other records
and financial statements for which the agreement provides. Plaintiff
does not have those documents.” (FAC, page 6, ¶ 20). Here, plaintiff has an adequate remedy of money damages, if, indeed he has been damaged, which he has failed to allege and the Court will not invoke the equitable remedy of specific performance due to the uncertainty of the first cause of action for contract. “The complaint for specific performance must allege: ¶ (a) The making of a specifically enforceable type of contract, sufficiently certain in its terms (infra, §743.). ¶ (b) Adequate consideration, and a just and reasonable contract (infra, §747.). ¶ (c) Plaintiff's performance, tender, or excuse for nonperformance (infra, §756.). ¶ (d) Defendant's breach (supra, §495.). ¶ (e) Inadequacy of the remedy at law (infra, §759.). ¶In addition, the defense of the statute of frauds must be anticipated in the complaint (see infra, §743.).” (5 Witkin, California Procedure (4th ed. 1997) Pleading, § 741, page 199.) The Court will sustain the demurrer to the first cause of action. The next question is whether leave to amend should be granted. In ruling on a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) “Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” Virginia G., supra at page 1852. “Where a demurrer is sustained without leave to amend, the reviewing court must determine whether the trial court abused its discretion in doing so. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal.Rptr. 766, 451 P.2d 406.) It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737.) Regardless of whether a request therefore was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304, 225 Cal.Rptr. 394.) The burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not up to the judge to figure that out. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Plaintiff can make this showing in the first instance to the appellate court. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386, 272 Cal.Rptr. 387.)” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.) Based upon the foregoing authorities, the Court will exercise its discretion and grant leave to amend. Second Cause of Action Plaintiff
alleges that he entered into an oral agreement in November 1997 with
defendant Carl Ross in which plaintiff was to hire and oversee a contractor
to develop lot 31 and build a house. In
consideration for his supervision, it is alleged that defendant Ross
agreed to transfer to plaintiff certain lots in the Safari development.
(FAC, page 6, ¶ 23). As defendant
points out in his moving papers, the agreement is uncertain but, more
clearly, the agreement is void under the statute of frauds. “The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent: ¶ (1) An agreement that by its terms is not to be performed within a year from the making thereof. ¶ (2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794. ¶ (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged. ¶ (4) An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate, or to lease real estate for a longer period than one year, or to procure, introduce, or find a purchaser or seller of real estate or a lessee or lessor of real estate where the lease is for a longer period than one year, for compensation or a commission. ¶ (5) An agreement that by its terms is not to be performed during the lifetime of the promisor. ¶ (6) An agreement by a purchaser of real property to pay an indebtedness secured by a mortgage or deed of trust upon the property purchased, unless assumption of the indebtedness by the purchaser is specifically provided for in the conveyance of the property. ¶ (7) A contract, promise, undertaking, or commitment to loan money or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not primarily for personal, family, or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit. For purposes of this section, a contract, promise, undertaking or commitment to loan money secured solely by residential property consisting of one to four dwelling units shall be deemed to be for personal, family, or household puposes.” (Civil Code, § 1624(a).) Fraud as Exception to Statute of Frauds “Equitable estoppel may preclude the use of a statute
of frauds defense. In the leading case on the subject, Justice Traynor
wrote: "The doctrine of estoppel to assert the statute of frauds
has been consistently applied by the courts of this state to prevent
fraud that would result from refusal to enforce oral contracts in certain
circumstances. Such fraud may inhere in the unconscionable injury that
would result from denying enforcement of the contract after one party
has been induced by the other seriously to change his position in reliance
on the contract...." (Monarco v. Lo Greco (1950) 35 Cal.2d 621,
623, 220 P.2d 737.) [Footnote
omitted.] The equitable principles set forth in Monarco have
been echoed in many subsequent cases and are well- settled. (See, e.g., Redke v. Silvertrust, supra, 6 Cal.3d
at p. 101, 98 Cal.Rptr. 293, 490 P.2d 805; Day
v. Greene (1963) 59 Cal.2d 404, 410, 29 Cal.Rptr. 785, 380 P.2d
385; Allied Grape Growers v. Bronco Wine Co. (1988)
203 Cal.App.3d 432, 444, 249 Cal.Rptr. 872; Mintz v. Rowitz (1970) 13 Cal.App.3d 216, 224-225, 91 Cal.Rptr. 435;
see also In re Diego's Inc. (9th
Cir.1996) 88 F.3d 775, 778.) Whether the doctrine of equitable estoppel
should be applied in a given case is generally a question of fact.
(Phillippe v. Shapell Industries (1987)
43 Cal.3d 1247, 1272, 241 Cal.Rptr. 22, 743 P.2d 1279 (dis. opn. of
Kaufman, J.); Carlson v. Richardson (1968)
267 Cal.App.2d 204, 208-209, 72 Cal.Rptr. 769.)” (Byrne v. Laura (1997)
52 Cal.App.4th 1054, 1068.) The plaintiff has failed to allege facts showing fraud on the part of defendant Carl Ross and the plaintiff’s detrimental reliance on the contract. Thus, the Court cannot invoke the doctrine of equitable estoppel in this case. Therefore, the Court will sustain the demurrer to the second cause of action on the grounds that the oral agreement affecting real property, in violation of the statute of frauds, appears on the face of the second cause of action (Code of Civil Procedure, § 430.30(a),). It does not appear to the Court that there is any reasonable basis to believe that plaintiff can cure this defect and, accordingly, the Court will sustain the demurrer to the second cause of action without leave to amend. Third Cause of Action Plaintiff
alleges that he entered into an oral agreement in May 1997 with defendant
Carl Ross in which plaintiff was to develop vineyards on lots in the
subdivision and then manage the production of the grapes, including selling
the bulk of the grapes in consideration of transfer to plaintiff of certain
lots in the Safari development. Plaintiff was to be paid $25 per hour
for his work on the project, plaintiff could select the lots of his choice,
valued between $20,000 and $35,000(FAC, page, 10 through 11, ¶ 37) Due
to pending litigation and administrative difficulties with the Department
of Real Estate, it is alleged that the parties agreed to extend time
for plaintiff to designate his lots of choice and the transfer of the
lots (FAC, page 11, ¶¶ 39
and 40). Plaintiff alleges that
defendant repudiated the agreement and stated he would not perform it
on October 2, 2007 (FAC, page 12, ¶ 42). Plaintiff
further alleges that he was a partner in Placer Financial Services, but
because of his work incident to the contract with defendant Carl Ross,
he lost $3,000,000 in income from his position with Placer Financial
Services (FAC, page. 10, ¶ 36). Also, plaintiff alleges that, under the parties’ contract,
he was entitled to select 13 lots without grapes as follows: Lots
25, 26, 27, 45, 46, 55, 57, 59, 60, 61, 63, and 64 in the Safari Estates
subdivision, Pilot Hill, California. Plaintiff seeks specific performance of the contract against
all named defendants. As noted above, the
oral agreement of May 1997, which involves the transfer of real property, violates the Statute of Frauds and is unenforceable,
except in equity. If a cause
of action lies for breach of contract, it lies only against defendant
Carl Ross. As noted in defendants’ moving
papers, it is uncertain and unclear under Code of Civil Procedure, § 430.10(f)
why plaintiff names all defendants and fails to allege the grounds
for their liability. Plaintiff is apparently claiming damages of $25/hour for his
labor under the contract but he fails to plead his alleged total
wages due. Plaintiff is apparently
attempting to plead detrimental reliance on the contract by his loss
of income from Placer Financial Services but he fails to allege fraud
in the inducement of the contract such that his loss of income from
Placer Financial Services was certain and unconscionable. The
facts, as pleaded, do not support the remedy of specific performance
of the contract by compelling transfer of the enumerated lots to
plaintiff. The demurrer will be sustained with leave to
amend. Fourth Cause of Action. Plaintiff alleges
that defendant Carl Ross was in a fiduciary relationship with plaintiff
at the time the two parties entered into an oral agreement in December
1999 in which plaintiff was to develop a boutique winery to be owned
by plaintiff, (according to a stated formula) and defendant Carl
Ross, or, absent a winery, by transfer to plaintiff of lots in Safari
Estates. (FAC, page 13, ¶ 50) Plaintiff alleges that he selected lots 28,
20 and 32 in the Safari Estates Subdivision, Pilot Hill, California
(FAC, page 15, ¶ 57). Plaintiff
alleges that defendant Carl Ross repudiated the oral
agreement on October 2, 2007 (FAC, page 14, ¶ 54). Plaintiff, as a minority
member of Safari Estates LLC, and defendant, as a majority member
of Safari Estates LLC, were in a fiduciary relationship as alleged. However, plaintiff has failed to allege how,
and in what way, defendant breached that relationship and what the
individual damages to plaintiff were as required by the holding in
the Jara case as follows: “ In the absence of policy considerations favoring a derivative action, we have no reason to look beyond the strict application of precedent in determining whether a derivative action must be brought to assert a shareholder grievance. We see nothing in Jones that bars Jara, Sr., from bringing an individual action claiming damages for the breach of fiduciary duty of majority shareholders as alleged in the second cause of action. ¶ Defendants object that "any award of damages to [Jara, Sr.] would have rested entirely on the entirely speculative assumption that Suprema would have distributed that amount to [Jara, Sr.] as dividends or otherwise, had it not paid [Jara, Jr.] and [Rodriguez] excessive compensation." As oblique support of this argument, they point to the trial court's finding that "there is no basis for the Court to find with reasonable certainty that additional allocations ... would have been paid" if the company was an S corporation or C corporation. But following De Martini, we interpret the complaint as seeking a share of disguised dividends paid to Jara, Jr., and Rodriguez in the [*1260] form of excessive compensation. [Footnote omitted.] It is possible to calculate the amount of such disguised dividends and to award Jara, Sr., his fair share after taking into account the $129,000 dividend that he did receive. ¶ We conclude that the trial court erred in failing to rule on the second cause of action for breach of fiduciary duty.” (Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1257-1260.) The demurrer to the fourth cause of action is sustained with leave to amend. Fifth Cause of Action Plaintiff’s fifth cause of action is alleged against Carl Ross, individually and in his capacity as (1) Trustee for Carl Ross Family Trust, and (2) Trustee of Carl E. Ross Living Trust; Remington Wine Company, LLC and Does 1 through 50. Plaintiff alleges that he entered into an oral co-ownership agreement with defendant Carl Ross to acquire certain property described in Exhibit B attached to the complaint for the purpose of commercial development and a winery site to be owned 20% by plaintiff and 80% by defendant. Defendant agreed to provide the financing and plaintiff agreed to acquire the property, get it zoned commercially and to perform development services (FAC, page 16, ¶ 61). In June 2007, plaintiff was unable to obtain commercial zoning due to defendant’s refusal to agree to reasonable requests from El Dorado County, it is alleged (FAC, page 16, ¶ 63). Defendant, in his moving papers, objects to the fifth cause of action as uncertain under Code of Civil Procedure, § 430.10(f). The Court concurs and adds that the fifth cause of action is also ambiguous and unintelligible under Section 430.10(f). The demurrer is sustained with leave to amend. Sixth Cause of Action The 6th cause of action alleges fraud against defendants. Plaintiff alleges that defendant Carl Ross was in a fiduciary relationship with plaintiff as the majority member of Safari and plaintiff was a minority member at the time defendant made alleged representations (FAC, page 17, ¶ 67). The alleged representations arose from the oral agreements of November 1997 (FAC, page 17, ¶ 68), of May 1997 (FAC, page 18, ¶ 69), of December 1999 (FAC, page 18, ¶ 70), and June 2002 (FAC, page 18, ¶ 71). Plaintiff alleges that defendant Carl Ross made promises incident to each agreement without the intention to perform and that defendant Carl Ross made the promises with the intent to deceive plaintiff. Plaintiff alleges that he believed the promises to be true and in justifiable reliance on them, he performed the services described in paragraphs 68,69, and 71. In paragraph 76, plaintiff alleges that defendant knew plaintiff was a partner in Placer Financial Services and was the broker of record and defendant knew that providing services to Safari would prevent plaintiff from working at Placer Financial Services. Finally, plaintiff alleges that defendant, in making said representations and promises, is guilty of oppression, fraud and malice, and that plaintiff is entitled to recover exemplary damages, in addition to compensatory damages of $8,800,000 (FAC, page 20, ¶¶ 77 and 78). “Constructive fraud consists: ¶1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, ¶ 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (Civil Code, § 1573.) “As the court said in Estate of Arbuckle (1950) 98 C.A.2d 562, 220 P.2d 950, a lost will case: 'Fraud assumes so many shapes that courts and authors have ever been cautious in attempting to define it. . . . In its generic sense, constructive fraud comprises all acts, omissions and concealments involving a breach of legal or equitable duty, trust, or confidence, and resulting in damage to another. . . . Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be so treated--that is, in which such conduct is a constructive or quasi fraud, having all the actual consequences and all the legal effects of actual fraud. ' (98 C.A.2d 568.) (See also Santa Cruz v. McLeod(1961) 189 C.A.2d 222, 234, 11 C.R. 249, citing the text; 37 Am.Jur.2d, Fraud and Deceit §4.) ¶ The first type usually involves the overreaching of a beneficiary by a trustee or other fiduciary. (See infra, §401; Trusts; 5 Cal. Proc., 3d, Pleading, §666.) The second is illustrated by the statutes protecting creditors against bulk sales, transfers without change of possession, and transfers made fraudulent by the Uniform Fraudulent Transfer Act. (See Sales, §§208 et seq., 212 et seq.; 8 Cal. Proc., 3d, Enforcement of Judgment, §443 et seq.)” (1 Witkin Summary of California Law (9th ed. 1990) Contracts, § 400, pages 360-361.) “Where a confidential or fiduciary relationship exists between the parties, the failure of the person in whom confidence is placed to disclose material facts within his knowledge may constitute constructive fraud within the meaning of C.C. 1573(1). (See McFate v. Bank of America (1932) 125 C.A. 683, 686, 14 P.2d 146; Main v. Merrill Lynch (1977) 67 C.A.3d 19, 32, 136 C.R. 378; Ford v. Shearson Lehman American Express (1986) 180 C.A.3d 1011, 1020, 225 C.R. 895; Rest.2d, Contracts §161(d); 12 Williston 3d §1499; 37 Am.Jur.2d, Fraud and Deceit §149; Torts; 5 Cal. Proc., 3d, Pleading, §§ 666, 792.) ¶ Restatement of Contracts §161, Comment f points out that the rule in §161(d), dealing with persons in a relation of trust and confidence (e.g., family members), supplements the rule in §173 dealing withfiduciaries such as trustees, agents, guardians, and executors and administrators. ¶ The distinction between mere intimate friendship, and confidential relationship upon which a claim of constructive fraud may be based, was invoked in Wilson v. Zorb (1936) 15 C.A.2d 526, 59 P.2d 593. Defendant accidentally shot plaintiff. The parties, both physicians and close friends, made a settlement agreement and release of claims after defendant gave plaintiff medical attention and paid certain sums. Later plaintiff sued for damages, asserting that defendant took advantage of their relationship. Held, no fiduciary or confidential relationship existed. 'Warm friendship, confidence and an affectionate regard for each other were mutual with the parties, and yet each was self-sufficient. . . . It takes something more than friendship or confidence in the professional skill and in the integrity and truthfulness of another to establish a fiduciary relationship.' (15 C.A.2d 532.) (See also Odorizzi v. Bloomfield School Dist. (1966) 246 C.A.2d 123, 128, 54 C.R. 533, infra, §428.)” (1Witkin Summary of California Law (9th ed. 1990) Contracts, § 401, pages 361-362.) Based upon the existing fiduciary relationship between plaintiff and defendant Carl Ross and upon the foregoing authorities, it appears that plaintiff has alleged sufficient facts in his 6th cause of action to constitute a cause of action for constructive fraud. The demurrer will be overruled. Seventh Cause of Action Plaintiff alleges breach of fiduciary duty against defendants Carl Ross, individually and in his capacities as (1) Trustee for Carl Ross Family trust, (2) Trustee for Carl E. Ross Living Trust, (3) Trustee for Safari Natalie Ross, and 94) Trustee for Remington Carl Ross; Angie Ross; Safari Vineyard Estates, LLC; Zebra properties, and Does 1 through 25. Plaintiff alleges that all named defendants have a fiduciary duty to him under Corporations Code, § 17153. However, Section 17153 applies only to the duty of a manager to the limited liability company and, hence, only applies to defendant Carl Ross as follows: “The fiduciary duties a manager owes to the limited liability company and to its members are those of a partner to a partnership and to the partners of the partnership.”(Corporations Code, § 17153). Accordingly, the Court will sustain the demurrer to the 7th cause of action for failure to state a cause of action for breach of fiduciary duty of all defendants except for defendant Carl Ross with leave to amend. Eighth Cause of Action Plaintiff alleges violation of federal RICO statues against all defendants except Safari Vineyard Estates, LLC. Plaintiff alleges that defendant Carl Ross has been engaged in a pattern of racketeering activity as defined in USC Title 18, section 1961(1) by acts constituting mail fraud and wire fraud. The pleading requirements for RICO claims are strict as set out in 5 Federal Practice & Procedure. Civ.3d § 1251.1 as follows: “Fraud claims brought under the RICO Act – such as wire fraud and mail fraud – are subject to the particularity and specificity pleading requirement of Rule 9(b)…Because of the RICO requirement that the predicate acts be criminal in character, some courts have required that facts be pleaded showing that indictable offenses have occurred even when these acts are not fraud…” Plaintiff has failed to allege any facts sufficient to support a cause of action against any defendant except for Carl Ross. The demurrer will be sustained with leave to amend. 2. Demurrer to First Amended Complaint by Defendant Safari Vineyard Estates, LLC. The Court’s rulings on the demurrers of defendants Carl Ross, et al. as set out below renders defendant Safari’s demurrers moot and, accordingly, they will be dropped from the calendar. There
is no opposition in the file. TENTATIVE
RULING # 16: THE DEMURRER
OF DEFENDANTS CARL ROSS, et al. TO THE FIRST CAUSE OF ACTION IS SUSTAINED
WITH 10 DAYS LEAVE TO AMEND. THE
DEMURRER TO THE SECOND CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE
TO AMEND. THE DEMURRER TO THE THIRD CAUSE OF ACTION IS
SUSTAINED WITH 10 DAYS LEAVE TO AMEND. THE
DEMURRER TO THE FOURTH CAUSE OF ACTION IS SUSTAINED WITH 10 DAYS
LEAVE TO AMEND. THE DEMURRER
TO THE FIFTH CAUSE OF ACTION IS SUSTAINED WITH 10 DAYS LEAVE TO AMEND. THE DEMURRER TO THE SIXTH CAUSE OF ACTION IS
OVERRULED. THE DEMURRER TO
THE SEVENTH CAUSE OF ACTION IS SUSTAINED WITH 10 DAYS LEAVE TO AMEND. THE DEMURRER TO THE EIGHTH CAUSE OF ACTION
IS SUSTAINED WITH 10 DAYS LEAVE TO AMEND. THE DEMURRER OF DEFENDANT SAFARI VINEYARD ESTATES, LLC TO THE FIRST AMENDED COMPLAINT IS NOW MOOT AND IT SHALL BE DROPPED FROM THE CALENDAR. NO HEARING ON THIS MATTER WILL BE HELD (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4TH 1232, 1247.), UNLESS ORAL ARGUMENT IS REQUESTED BY COURT CALL OR PERSONAL APPEARANCE IN DEPARTMENT NINE AT 9:00 A.M. ON THURSDAY, MAY 8, 2008. IF THE COURT GRANTS THE REQUEST FOR A HEARING, A HEARING DATE AND TIME WILL BE SET DURING THAT PERSONAL OR TELEPHONIC APPEARANCE. 17. RUDGE v. LORANG BROTHERS
CONSTRUCTION PC-20070196
(1)
Plaintiffs’ Motion to Continue
Trial and MSC Dates.
(2)
Plaintiffs’ Motion to Compel
Answers to Interrogatories and Requests for Production. The parties filed their notice of motion and joint motion to
continue trial date and settlement conference date on March 7, 2008. On April 3, 2008, at the hearing on the motion,
the Court ordered that the May 5, 2008 trial date and the April 8,
2008 settlement conference dates be vacated and that the parties appear
at 9:00 a.m. on May 8, 2008 in Department 9 to select a new trial and
settlement conference dates. Thereafter,
on April 7, 2008, plaintiffs filed a notice of motion and motion to
compel answers to interrogatories and request for production of documents
and request for sanctions with a hearing date of May 8, 2008 at 9:00
a.m. in Department 9. TENTATIVE
RULING # 17: APPEARANCES ARE
REQUIRED AT 9:00 A.M. ON THURSDAY, MAY 8, 2008, IN DEPARTMENT NINE
FOR THE PURPOSE OF SELECTING A NEW TRIAL AND SETTLEMENT CONFERENCE
DATES. PLAINTIFFS’ MOTION TO COMPEL ANSWERS TO INTERROGATORIES
AND REQUEST FOR PRODUCTION OF DOCUMENTS IS CONTINUED TO 9:00 A.M.
ON THURSDAY, JUNE 19, 2008, IN DEPARTMENT NINE. 18. CREE v. CLARK PC-20070376 Defendant’s
Motion to Enforce Settlement Agreement. On April 3, 2008, at a prior hearing on this matter, counsel requested that the matter be continued to April 10, 2008. The Court noted that the matter was set for a Mandatory Settlement Conference on April 16, 2008 and, in anticipation of a resolution of the matter at Settlement Conference, the Court continued the matter to April 17, 2008. On April 16, 2008, the Honorable Judge Pro Tem Stephen Keller continued the settlement conference to April 29, 2008. On April 17, 2008, counsel appeared and advised that the case did not settle the day before at Settlement Conference on April 16, 2008 so that the Court, accordingly, continued the hearing to April 24, 2008. On April 24, 2008, the outcome of the Settlement Conference of April 29, 2008 was premature and unknown to the Court which continued the hearing to 9:00 a.m. on Thursday, May 8, 2008, in Department 9. The Court will require appearances of counsel to advise the Court regarding the outcome of the Settlement Conference of April 29, 2008. TENTATIVE
RULING # 18: APPEARANCES ARE
REQUIRED AT 9:00 A.M. ON THURSDAY, MAY 8, 2008, IN DEPARTMENT NINE. 19. WHITE v. PAQUIN PC-20070406 Plaintiffs’ Motion
to Compel Defendant’s Deposition. TENTATIVE
RULING # 19: THIS MATTER IS
CONTINUED TO 9:00 A.M. ON THURSDAY, JUNE 26, 2008, IN DEPARTMENT
NINE. 20. FRONTIER DENTAL LABORATORIES
v. ALDRICH PC-20080089 Defendant’s
Motion to Strike. TENTATIVE
RULING # 20: THIS MATTER IS
CONTINUED TO 9:00 A.M. ON THURSDAY, JUNE 26, 2008, IN DEPARTMENT
NINE. 21. ORUNDO v. M-3 CONSTRUCTION PC-20070316
(1)
Defendant M-3 Construction’s
Motion for Summary Judgment.
(2)
Defendant Sacramento Rebar,
Inc.’s Motion for Summary Judgment. On April 30, 2008, the Court received written notice from counsel for defendant Sacramento Rebar advising that the trial date set for May 12, 200 |