PATRICIA A. MCALLISTER VS SHADI MORISSET, ET AL.

Tentative Rulings

Case Number: 18STLC12680    Hearing Date: September 21, 2020    Dept: 25

HEARING DATE: Mon., September 21, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: McAllister v. Morisset, et al. COMPL. FILED: 10-10-18

CASE NUMBER: 18STLC12680 DISC. C/O: NONE

PROCEEDINGS: MOTION TO DISMISS APPEAL

MOVING PARTY: Defendant Phase II Systems dba Public Agency Retirement Services

RESP. PARTY: None

MOTION TO DISMISS

(CCP § 1008; CRC 8.808)

TENTATIVE RULING:

Defendant Phase II Systems dba Public Agency Retirement Services’ Motion to Dismiss is PLACED OFF CALENDAR.

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

OPPOSITION: None filed as of September 17, 2020 [ ] Late [X] None

REPLY: None filed as of September 17, 2020 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On October 10, 2018, Plaintiff Patricia McAllister (“Plaintiff”) filed an action against Shadi Morisset (“Morisset”) and Phase II Systems dba Public Agency Retirement Services (“Public Agency”).

On April 26, 2019, the Court sustained Defendant Public Agency’s demurrer to Plaintiff’s second amended complaint without leave to amend. (4/26/19 Minute Order.) Plaintiff filed a motion for reconsideration of that order on May 6, 2019, which the Court denied on November 20, 2019. (11/20/19 Minute Order.) On December 16, 2019, Plaintiff filed a Notice of Appeal of that order. Defendant Public Agency filed a Motion to Dismiss the Appeal on May 13, 2020.

On September 14, 2020, Defendant Public Agency filed a Notice to Take Motion to Dismiss Off Calendar. Accordingly, this Motion is PLACED OFF CALENDAR.

1. Conclusion & Order

For the foregoing reasons, Defendant Phase II Systems dba Public Agency Retirement Services’ Motion to Dismiss is PLACED OFF CALENDAR.

Moving party is ordered to give notice.

Case Number: 18STLC12680    Hearing Date: November 20, 2019    Dept: 94

McAllister v. Morisset, et al.

MOTION FOR RECONSIDERATION

(CCP § 1008)

TENTATIVE RULING:

Plaintiff Patricia McAllister’s motion for reconsideration is DENIED.

I. Background

Plaintiff Patricia McAllister (“Plaintiff”) filed the instant action for breach of contract and fraud against Defendants Shadi Morisset and Phase II Systems, dba Public Agency Retirement Services (“Defendant”) on October 10, 2018. Following the filing of Defendant’s demurrer, Plaintiff filed a First Amended Complaint on December 24, 2018. The First Amended Complaint was later struck as untimely. (Minute Order, dated 01/23/19.) On December 31, 2018, Plaintiff dismissed Morisset from the action with prejudice. On the same date, the Court sustained Defendant’s demurrer to the Complaint without leave as to the first cause of action for breach of contract, and with leave to amend as to the second cause of action for fraud. Plaintiff filed the Second Amended Complaint on January 29, 2019, alleging causes of action for (1) Constructive Fraud - Concealment by Fiduciary; (2) Breach of Fiduciary Duty; (3) Professional Negligence; (4) Negligent Misrepresentation (5) Emotional Distress Resulting from Financial Injury; (6) Reliance; and (7) Negligence.

Defendant filed its demurrer to the Second Amended Complaint on March 8, 2019. Instead of filing an opposition, Plaintiff filed a Third Amended Complaint on March 28, 2019.

On April 11, 2019, the Court heard from the parties regarding the demurrer. The Court took the matter under submission.

On April 26, 2018, the Court issued an order striking the Third Amended Complaint because it was improperly filed without leave of court, and sustaining the demurrer without leave to amend as to all causes of action. Specifically, the Court sustained the demurrer to the first cause of action for fraud without leave to amend because Plaintiff did not allege any facts demonstrating that her fraud cause of action is not barred by the three-year statute of limitations. Notably, the Court did not grant leave to amend because Plaintiff did not meet her burden to show how she could amend her complaint to cure the defect. The Court sustained the demurrer to the second through seventh causes of action because the Court did not grant leave to amend for these causes of action when it sustained the demurrer to the initial Complaint, instead only giving leave to amend for the fraud claim.

On May 6, 2019, Plaintiff filed a motion for reconsideration of the Court’s ruling sustaining the demurrer to the second amended complaint.

On November 6, 2019, Defendant opposed.

A timely reply was due on November 13, 2019 and Plaintiff did not file a reply by that date.

II. Legal Standard

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

III. Discussion

The Court notes there is no Proof of Service showing service of the moving papers on Defendant. Nevertheless, Defendant opposed on the merits and therefore decides the motion on the merits.

Plaintiff argues that the Court should reconsider its ruling because Defendant violated Code of Civil Procedure, section 430.41, subdivision (b) because it demurred to an unamended portion of an amended pleading.

First, the Court denies Plaintiff’s motion because it fails to present “new or different facts, circumstances, or law.” Nor does Plaintiff attempt to do so by an affidavit “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Additionally, Plaintiff could have made these arguments if she opposed Defendant’s demurrer. However, she did not. Plaintiff does not otherwise explain why she failed to do so then.

Even if Plaintiff did make those arguments, the Court would not change its ruling. The Court based its ruling on Plaintiff’s failure to cure her statute of limitation defect. Plaintiff’s motion still does not show how she would overcome this issue.

IV. Conclusion

Based on the foregoing, Plaintiff’s Motion for Reconsideration is DENIED.

Clerk to give notice.