This case was last updated from Los Angeles County Superior Courts on 02/15/2021 at 15:06:46 (UTC).

FREDERICK TUCKER VS LONE OAK FUND, LLC, ET AL.

Case Summary

On 04/16/2020 FREDERICK TUCKER filed a Personal Injury - Elder/Dependant Adult Abuse lawsuit against LONE OAK FUND, LLC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3394

  • Filing Date:

    04/16/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Elder/Dependant Adult Abuse

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff and Petitioner

TUCKER FREDERICK

Defendants and Respondents

MANZER MARIAN KAY

LONE OAK FUND LLC

ROTHSTEIN JAMES ALLEN

Attorney/Law Firm Details

Defendant and Respondent Attorney

ARON SIMON

 

Court Documents

Opposition (name extension) - Opposition To Demurred by Defendants

1/4/2021: Opposition (name extension) - Opposition To Demurred by Defendants

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

1/14/2021: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Notice of Ruling - Notice of Ruling

1/14/2021: Notice of Ruling - Notice of Ruling

Proof of Personal Service - Proof of Personal Service

6/23/2020: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

6/23/2020: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

6/23/2020: Proof of Personal Service - Proof of Personal Service

Declaration (name extension) - Declaration of Simon Aron Re: Code of Civil Procedure Section 430.41(a)(2)

7/16/2020: Declaration (name extension) - Declaration of Simon Aron Re: Code of Civil Procedure Section 430.41(a)(2)

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

8/14/2020: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

Motion to Quash Service of Summons - Motion to Quash Service of Summons

8/14/2020: Motion to Quash Service of Summons - Motion to Quash Service of Summons

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

8/14/2020: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Complaint - Complaint

4/16/2020: Complaint - Complaint

Summons - Summons on Complaint

4/16/2020: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

4/16/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

First Amended Standing Order - First Amended Standing Order

4/16/2020: First Amended Standing Order - First Amended Standing Order

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

4/16/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3 More Documents Available

 

Docket Entries

  • 04/20/2023
  • Hearing04/20/2023 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

    Read MoreRead Less
  • 10/14/2021
  • Hearing10/14/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

    Read MoreRead Less
  • 02/22/2021
  • Hearing02/22/2021 at 10:00 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Quash (name extension)

    Read MoreRead Less
  • 01/14/2021
  • DocketNotice of Ruling; Filed by: Lone Oak Fund, LLC (Defendant)

    Read MoreRead Less
  • 01/14/2021
  • DocketUpdated -- Frederick Tucker (Plaintiff): First Name changed from Frederick to Frederick

    Read MoreRead Less
  • 01/14/2021
  • DocketUpdated -- James Allen Rothstein (Defendant): First Name changed from James to James

    Read MoreRead Less
  • 01/14/2021
  • DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

    Read MoreRead Less
  • 01/14/2021
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 01/14/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 01/14/2021; Result Type to Held

    Read MoreRead Less
  • 01/04/2021
  • DocketOpposition To Demurred by Defendants; Filed by: Frederick Tucker (Petitioner)

    Read MoreRead Less
  • 08/14/2020
  • DocketMotion to Strike (not initial pleading); Filed by: Lone Oak Fund, LLC (Respondent)

    Read MoreRead Less
6 More Docket Entries
  • 06/23/2020
  • DocketProof of Personal Service; Filed by: Frederick Tucker (Petitioner); As to: Marian Kay Manzer (Respondent); Service Date: 06/18/2020; Service Cost: 40.00; Service Cost Waived: No

    Read MoreRead Less
  • 06/23/2020
  • DocketProof of Personal Service; Filed by: Frederick Tucker (Petitioner); Service Date: 06/18/2020; Service Cost: 40.00; Service Cost Waived: No

    Read MoreRead Less
  • 04/16/2020
  • DocketNon-Jury Trial scheduled for 10/14/2021 at 08:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 04/16/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/20/2023 at 08:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 04/16/2020
  • DocketComplaint; Filed by: Frederick Tucker (Petitioner); As to: Lone Oak Fund, LLC (Respondent); James Allen Rothstein (Respondent); Marian Kay Manzer (Respondent)

    Read MoreRead Less
  • 04/16/2020
  • DocketSummons on Complaint; Issued and Filed by: Frederick Tucker (Petitioner); As to: Lone Oak Fund, LLC (Respondent); James Allen Rothstein (Respondent); Marian Kay Manzer (Respondent)

    Read MoreRead Less
  • 04/16/2020
  • DocketCivil Case Cover Sheet; Filed by: Frederick Tucker (Petitioner); As to: Lone Oak Fund, LLC (Respondent); James Allen Rothstein (Respondent); Marian Kay Manzer (Respondent)

    Read MoreRead Less
  • 04/16/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

    Read MoreRead Less
  • 04/16/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

    Read MoreRead Less
  • 04/16/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

    Read MoreRead Less

Tentative Rulings

Case Number: 20STLC03394    Hearing Date: January 14, 2021    Dept: 25

HEARING DATE: Thu., January 14, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Tucker v. Lone Oak Fund, LLC, et al. COMPL. FILED: 04-16-20

CASE NUMBER: 20STLC03394 DISC. C/O: 11-13-21

NOTICE: OK DISC. MOT. C/O: 10-29-21

TRIAL DATE: 10-14-21

PROCEEDINGS: (1) DEMURRER TO COMPLAINT

(2) MOTION TO STRIKE COMPLAINT

MOVING PARTY: Defendant Lone Oak Fund, LLC

RESP. PARTY: Plaintiff Frederick Tucker, in pro per

DEMURRER WITH MOTION TO STRIKE

(CCP § 430.10, et seq.; § 435)

TENTATIVE RULING:

Defendant Lone Oak Fund, LLC’s Demurrer to Plaintiff’s Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE FIRST, SECOND, AND THIRD CAUSES OF ACTION. However, Defendant Lone Oak’s Motion to Strike is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Demurrer

OPPOSITION: Filed on January 4, 2021 [ ] Late [ ] None

REPLY: None filed as of January 12, 2021 [ ] Late [X] None

Motion to Strike

OPPOSITION: None filed as of January 12, 2021 [ ] Late [X] None

REPLY: None filed as of January 12, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

Plaintiff Frederick Tucker (“Plaintiff”) filed an action, in pro per, for elderly financial abuse, breach of the implied covenant of good faith and fair dealing, and fraud against Defendant Lone Oak Fund, LLC (“Lone Oak”), James Allen Rothstein (“Rothstein”), and Marian Kay Manzer (“Manzer”) (collectively, “Defendants”).

On August 14, 2020, Defendants Rothstein and Manzer filed a Motion to Quash Service of Summons, which is set for hearing for February 22, 2020. That same day, Defendant Lone Oak filed the instant Demurrer and Motion to Strike. Plaintiff filed an Opposition to the Demurrer on January 4, 2021. To date, no opposition to the Motion to Strike and no reply brief to the Opposition to the Demurrer has been filed.

  1. Demurrer

A. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction over the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

B. Discussion

The Demurrer is accompanied by a meet and confer declaration demonstrating Defendants’ counsel attempted to meet and confer with Plaintiff regarding the Demurrer and Motion to Strike. (Dem., Aron Decl., ¶¶ 3-9.)

The Court also notes that, as stated above, special demurrers, such as those based on uncertainty, are not permitted in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Thus, the Court only considers the Demurrer on the basis that each cause of action fails to state sufficient facts.

1. First Cause of Action – Elder Financial Abuse

“Under the Elder Abuse and Dependent Adult Civil Protection Act…an elder is ‘any person residing in this state, 65 years or older.’ (Welf. & Inst. Code, § 15610.27.) Section 15610.30 broadly defines financial abuse of an elder as occurring when a person or entity ‘[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder’ for ‘a wrongful use or with intent to defraud or both’ as well as ‘by undue influence….’ [Citation.]” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 656.) “A person or entity shall be deemed to have taken, secreted, appropriated obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code., § 15610.30, subd. (b).) “[A] person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.” (Welf. & Inst. Code., § 15610.30, subd. (c).)

Plaintiff alleges (1) that he is a senior citizen over the age of 65; (2) that on January 13, 2014, he entered into a contract with Defendant Lone Oak to refinance his home located at 3430 W. 75th St., Los Angeles, CA 90045; (3) that on or about August 16, 2016, Plaintiff paid off the loan after being badgered to sell his property by Defendants; (4) that Plaintiff finally did sell the home under duress by Defendants; and (5) that on or about March 14, 2020, Plaintiff became aware that Defendants had “appropriate, obtain and/or retain money due [P]laintiff an elder person with the intent to defraud Plaintiff. (Compl., ¶¶ 15-18.)

The Court finds these allegations insufficient. Plaintiff did not allege enough specific facts regarding which Defendant or Defendants committed the alleged wrongdoing, or what those specific acts constituting wrongdoing against Plaintiff were.

Thus, the Demurrer as to the first cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

2. Second Cause of Action – Breach of the Implied Covenant of Good Faith and Fair Dealing

“ ‘The [implied] covenant of good faith and fair dealing [is] implied by law in every contract.’ [Citation.] The covenant is read into contracts and functions ‘as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.’ [Citation.] The covenant also requires each party to do everything the contract presupposes the party will do to accomplish the agreement’s purposes. [Citation.] A breach of the implied covenant of good faith is a breach of the contract [citation], and ‘breach of a specific provision of the contract is not…necessary’ to a claim for breach of the implied covenant of good faith and fair dealing [citation].” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) (Emphasis in original.) Plaintiff’s allegations must show “that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement. Just what conduct will meet this criteria will depend on the contractual purposes and reasonably justified expectations of the parties.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

Plaintiff’s only allegations are (1) that on January 13, 2014, he entered into a contract with Defendant Lone Oak to refinance his home located at 3430 W. 75th St., Los Angeles, CA 90045; and (2) that Defendants unfairly interfered with Plaintiff’s rights by “appropriating, obtaining and/or retaining money due plaintiff without good faith and fail [sic] dealing.” (Compl., ¶ 21.) Plaintiff has failed to allege any specific facts regarding which Defendant allegedly breached the covenant or any facts regarding what the specific wrongful acts committed were. Plaintiff has also failed to allege any facts regarding when the alleged breach occurred so the Court is unable to determine whether any statute of limitations issue exists.

Thus, the Demurrer as to the second cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

3. Third Cause of Action Fraud

“The elements fraud A cause of action for fraud must be alleged with specificity such that Plaintiff pleads facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Furthermore, when “asserting a fraud claim against a corporate employer…the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Citation].” (Id.)

Plaintiff alleges (1) that he relied on the representations of “defendant” and would not have completed the loan otherwise; (2) that Plaintiff is informed and believes and thereon alleges that “defendants’” purpose was to deceive and defraud Plaintiff by “appropriate, obtain and/or retain money due plaintiff, all with malice and oppressive toward plaintiff”; and (3) that “these acts were malicious, fraudulent, and oppressive, justifying an award of punitive damages.” (Compl., ¶¶ 22-25.)

Plaintiff’s allegations lack the required specificity to state a fraud cause of action. It is unclear what misrepresentations were made, which defendant or defendants made the misrepresentations, or where, when, and by what means the misrepresentations were tendered. It is also unclear what damages were sustained as a result of the alleged misrepresentation.

Thus, Defendant Lone Oak’s Demurrer as to the third cause of action is also SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

  1. Motion to Strike

A. Legal Standard

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc. § 436, subd. (b).) However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

B. Discussion

As noted above, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).) Defendant Lone Oak seeks to strike paragraphs 24 and 25 of the Complaint regarding Defendants’ alleged malicious, oppressive, fraudulent conduct justifying an award of punitive damages. (Mot. to Strike, p. 3:17-22.) However, the Court notes that Plaintiff’s prayer for relief does not include a request for punitive damages. Plaintiff’s form complaint only requests damages of $10,000, interest on the damages, and attorney’s fees. (Compl., ¶ 10.) Thus, Defendant Lone Oak’s Motion to Strike is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendant Lone Oak Fund, LLC’s Demurrer to Plaintiff’s Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE FIRST, SECOND, AND THIRD CAUSES OF ACTION. However, Defendant Lone Oak’s Motion to Strike is DENIED.

Moving party is ordered to give notice.