This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:43:46 (UTC).

JOHN THALER VS. TARZANA FALLS HOA, ET AL

Case Summary

On 06/13/2016 JOHN THALER filed an Other - Other Judicial Review lawsuit against TARZANA FALLS HOA. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is MICHAEL J. CONVEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4303

  • Filing Date:

    06/13/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Other Judicial Review

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL J. CONVEY

 

Party Details

Plaintiff

THALER JOHN H.

Defendants and Not Classified By Court

TARZANA FALLS HOMEOWNERS ASSOCIATION

ROSS MORGAN & COMPANY INC.

PROFESSIONAL LIEN SERVICES LLC

DOES 1-50

DONATO ANTHONY

WOLF RIFKIN SCHULMAN SHAPIRO & RABKIN

LEVY STACY

SPIES JOSHUA

TARZANA FALLS HOMEOWNERS ASSOCIATION INC.

DAVIDOFF BRIAN

VOGEL GARRY

LEVY BARRY

BUCHWALTER STEVEN A

ROSS MORGAN & COMPANY INC. AND BRIAN DAVIDOFF

Attorney/Law Firm Details

Defendant Attorneys

HOBSON ALEXANDRIA K.

WARE THOMAS M. II

HOLLINS ANDREW STEWART

LACOUNT DANIEL S.

ROGERS NICHOLAS ALEXANDER

Not Classified By Court Attorney

ROSENBAUM MARK J.

 

Court Documents

Notice of Lien

6/11/2019: Notice of Lien

Substitution of Attorney

6/21/2019: Substitution of Attorney

Motion to Strike (not initial pleading)

6/28/2019: Motion to Strike (not initial pleading)

Request for Judicial Notice

7/1/2019: Request for Judicial Notice

Demurrer - without Motion to Strike

7/1/2019: Demurrer - without Motion to Strike

Substitution of Attorney

7/5/2019: Substitution of Attorney

Notice of Ruling

7/8/2019: Notice of Ruling

Certificate of Mailing for

7/8/2019: Certificate of Mailing for

Proof of Personal Service

6/6/2019: Proof of Personal Service

Proof of Personal Service

6/6/2019: Proof of Personal Service

Proof of Personal Service

6/6/2019: Proof of Personal Service

Minute Order

6/5/2017: Minute Order

Minute Order

6/14/2017: Minute Order

Minute Order

9/12/2017: Minute Order

Complaint

12/3/2018: Complaint

Minute Order

12/21/2018: Minute Order

Certificate of Mailing for

12/21/2018: Certificate of Mailing for

Notice Re: Continuance of Hearing and Order

1/17/2019: Notice Re: Continuance of Hearing and Order

65 More Documents Available

 

Docket Entries

  • 09/24/2019
  • Hearingat 08:30 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Demurrer - without Motion to Strike

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  • 09/10/2019
  • Hearingat 08:30 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

    Read MoreRead Less
  • 08/29/2019
  • Hearingat 08:30 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

    Read MoreRead Less
  • 08/29/2019
  • Hearingat 08:30 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Order to Show Cause Re: (name extension)

    Read MoreRead Less
  • 08/29/2019
  • Hearingat 08:30 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Case Management Conference

    Read MoreRead Less
  • 07/30/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Ross Morgan & Company, Inc. (Defendant); Brian Davidoff (Defendant)

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  • 07/19/2019
  • DocketMemorandum of Points & Authorities; Filed by Ross Morgan & Company, Inc. (Defendant); Brian Davidoff (Defendant)

    Read MoreRead Less
  • 07/19/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Ross Morgan & Company, Inc. (Defendant); Brian Davidoff (Defendant)

    Read MoreRead Less
  • 07/19/2019
  • DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by Ross Morgan & Company, Inc. (Defendant); Brian Davidoff (Defendant)

    Read MoreRead Less
  • 07/19/2019
  • DocketMotion to Strike (not initial pleading); Filed by Ross Morgan & Company, Inc. (Defendant); Brian Davidoff (Defendant)

    Read MoreRead Less
98 More Docket Entries
  • 11/03/2016
  • Docketat 08:30 AM in Department A; Case Management Conference - Held - Continued

    Read MoreRead Less
  • 11/03/2016
  • DocketMinute order entered: 2016-11-03 00:00:00; Filed by Clerk

    Read MoreRead Less
  • 10/25/2016
  • DocketCase Management Statement; Filed by John H. Thaler (Plaintiff)

    Read MoreRead Less
  • 06/13/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 06/13/2016
  • DocketComplaint; Filed by John H. Thaler (Plaintiff)

    Read MoreRead Less
  • 06/13/2016
  • DocketCivil Case Cover Sheet; Filed by John H. Thaler (Plaintiff)

    Read MoreRead Less
  • 06/13/2016
  • DocketRequest to Waive Court Fees; Filed by John H. Thaler (Plaintiff)

    Read MoreRead Less
  • 06/13/2016
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Court

    Read MoreRead Less
  • 06/13/2016
  • DocketSummons; Filed by null

    Read MoreRead Less
  • 01/01/1900
  • Docketat 08:32 AM in Department Legacy; Unknown event

    Read MoreRead Less

Tentative Rulings

Case Number: LC104303    Hearing Date: August 25, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

JOHN THALER, an individual,

Plaintiff,

vs.

TARZANA FALLS HOMEOWNERS ASSOCIATION, INC., a California non-profit corporation, ANTHONY DONATO, an individual, ROSS MORGAN & COMPANY, INC., a California corporation, BRIAN DAVIDOFF, an individual, PROFESSIONAL LIEN SERVICES, LLC, a California limited liability company, JOSHUA SPIES, an individual, STACY LEVY, an individual, BARRY LEVY, an individual, GARRY VOGEL, an individual, WOLF ROFKIN, a partnership of unknown type of origin, and DOES 1 through 100, inclusive,

Defendant(s).

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CASE NO: LC104303

[TENTATIVE] ORDER RE: DEFENDANTS DONATO & BUCHWALTER’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT AND MOTION TO STRIKE

Dept. U

8:30 a.m.

August 25, 2020

I. BACKGROUND

On October 11, 2019, John Thaler (Plaintiff) filed his second amended complaint (SAC) against Ross Morgan & Company and Brian Davidoff, et al. (Ross Morgan). This second amended complaint includes claims for: (1) fraud/concealment and (2) conversion.

In relevant part, Plaintiff’s second amended complaint states: (1) When Plaintiff was in escrow for the purchase of his unit in Tarzana Falls, he requested and received financial documents from Ross Morgan on Tarzana Falls for the years of 2006 and 2007. (Complaint, ¶220.); (2) These financials showed a monthly general assessment of $360.00 and a reserve of approximately $300,000. (Id.); (3) These financials also showed a 2004 independent review of the books and records with a reserve of $200,000. (Id.); (4) HOA board members, Anthony Donato and Steven A. Buchwalter, and other defendants intended for Plaintiff to rely on these documents in completing the purchase of his unit. (Id., ¶ 221.); (5) Plaintiff did rely on these financials in completing his purchase of his unit. (Id., ¶ 222.); (6) Plaintiff’s reliance was reasonable because financial and operational materials from homeowner’s associations (HOA) usually include audits and accounting reviews. (Id., ¶ 223.); (7) The truth was that the HOA board did not follow the bylaws and rarely provided financial information to its residents. (Id., ¶ 224.); (8) Plaintiff first noticed in April 2011 that the fixed expense amounts stated in the HOA’s financials were fabricated. (Id., ¶ 224j.); (9) Repair records were falsified to indicate that repair requests had been completed when they had not been. (Id., ¶ 224k.); (10) Ross Morgan schemed and conspired to take dues and assessment payments from owners and converted them for its own benefit. (Id., ¶ 238.); (10) Payments and assessments were sent by check to Ross Morgan and then were supposed to be deposited into bank accounts owned by Tarzana Falls. (Id., ¶ 242.); (11) However, these checks were actually deposited into accounts that neither the HOA board nor residents could access so that Ross Morgan could use the funds for its own benefit. (Id., ¶ 244); and (12) When residents tried to refuse to pay assessments, Ross Morgan threatened to place liens on their property.

On November 15, 2019, Anthony Donato and Steven A. Buchwalter (here, Defendants) filed a demurrer pursuant to Code of Civil Procedure section 430.10(d) through (g) to Plaintiff’s SAC. Defendants move on the grounds that the fourth, fifth, and sixth causes of action are barred by the statutes of limitation, res judicata, and collateral estoppel, fail to state facts sufficient to constitute causes of action, and are uncertain. Defendants also filed an accompanying motion to strike pursuant to Code of Civil Procedure section 436.

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II. LEGAL STANDARD

A. Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, at p. 747.)

Code of Civil Procedure section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85.) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)  

B. Motion to Strike

Code of Civil Procedure, section 435, subdivision (b)(1), provides that “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.”

Code of Civil Procedure, section 436 provides:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

The grounds for moving to strike must appear on the face of the pleading or by way of

judicial notice. (Code Civ. Proc. § 437.)

III. DISCUSSION

A. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) The Court finds that Defendants have complied with the requirements of this provision as to both the demurrer and the motion to strike. (Hobson declaration.)

B. Judicial Notice

Defendants request that the Court take judicial notice of: (1) Notice of Motion, Motion to Set Aside/Vacate Default Judgment, Memorandum of Points & Authorities, and Declaration of John H. Thaler in Case Number 11E11652; (2) Exhibits N, F, and G to the Declaration of John H. Thaler in support of Motion to Set Aside/Vacate Default Judgment in Case Number 11E11652; (3) May 17, 2016 Minute Order in Case Number 11E11652; (4) Notice of and Motion for Reconsideration in Case Number 11E11651; (5) August 18, 2016 Court Order Re: Motion for Reconsideration in Case Number 11E11652; (6) May 11, 2018 Remittitur in appellate Case Number BV031999; and (7) appellate transcript index in appellate case number BV031999. Code of Civil Procedure section 452 allows a Court to take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Therefore, the Court takes judicial notice of each of the requested documents as they are court records, but does not take judicial notice of the facts set forth in these documents as they may be subject to reasonable dispute.

C. Fraud/Concealment

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338(d).) The cause of action begins to accrue when the aggrieved party discovers the facts constituting the fraud. (Id.; San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1327 (“A cause of action does not accrue until the plaintiff either discovers the injury and its negligent cause or could have discovered the injury and cause through the exercise of reasonable diligence.”).)

Plaintiff states in his SAC that he first noticed discrepancies in Tarzana Fall’s financial records in 2011 when he was investigating why the repairs to his unit were not being completed. Plaintiff stated this was when he first became suspicious that Ross Morgan and other defendants were presenting the residents of Tarzana Falls with fraudulent information. Plaintiff wrote three letters, on August 1, 2011, August 21, 2011, and February 28, 2012, acknowledging his suspicions of Defendants’ fraudulent conduct. Therefore, Plaintiff’s injury accrued with this knowledge in 2011 and he would have had to bring his claim for fraud/concealment no later than 2014. Therefore, because Plaintiff did not assert his claims until 2016, his allegations of fraud/concealment against Defendants are time-barred by the three-year statute of limitations.

As the statute of limitation bars Plaintiff’s recovery against Defendants for fraud/concealment, the remaining issues raised by Defendants are moot.

D. Conversion

Code of Civil Procedure section 338 provides a three-year statute of limitations period for a conversion cause of action. (AmerUS Life Insurance Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639.) This statute of limitations for conversion is triggered by the act of wrongfully taking property. (AmerUS Life Insurance Co., supra, 143 Cal.App.4th at 639.)

Here, Plaintiff relinquished possession of the check to pay the general and special assessments to Ross Morgan in 2011. Plaintiff’s right to the money represented by the check was also relinquished at that time. Therefore, the alleged conversion of Plaintiff’s money by any defendant would have taken place in 2011 and the three-year statute of limitations expired in 2014. Plaintiff’s claim of conversion against Defendants is, thus, time-barred by the three-year statute of limitations because he did not file this cause of action until 2016.

As the statute of limitation bars Plaintiff’s recovery against Defendants for conversion, the remaining issues raised by Defendants are moot.

E. Abuse of Process

Abuse of process requires: (1) an ulterior purpose in commencing a process; and (2) a willful act in an unauthorized use of the process. (Rusheen v. Coden (2006) 37 Cal.4th 1512, 1523.) Under Code of Civil Procedure section 335.1, the applicable statute of limitations for a claim for abuse of process is two years. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 886 (citing former Code Civ. Proc., §340(3)).

Here, abuse of process is alleged only against Buchwalter. Plaintiff alleges that in early 2004, Buchwalter developed a scheme to defraud Plaintiff by enforcing a judgment against him in Arizona. (FAC, ¶ 273.) Plaintiff claims Buchwalter abused service of process by domesticating the void California judgment in Arizona, noticing a judgment debtor’s examination against Plaintiff, and serving papers at the residence of Plaintiff’s former spouse solely for the purpose of harassing Plaintiff. (Id., ¶¶ 278-280.)

Buchwalter produces evidence, in the form of Plaintiff’s judicially-noticed declaration in support of his Motion to Set Aside/Vacate Default Judgment in case number 11E11652, showing that Plaintiff knew of the judgment against him as early as August 2012. However, just because Plaintiff knew of the default judgment against him in August 2012, does not equate to Buchwalter’s alleged abuse of process commencing at that time. There is no evidence contradicting that Buchwalter purportedly began conduct amounting to abuse of service until 2014. As this case was initiated on June 13, 2016, two years after the purported conduct began, the Court cannot conclusively find that this claim is barred by the statute of limitations because Plaintiff alleges that the conduct began in “early 2014” which not provide a definitive enough accrual date to prevent recovery on this grounds.

Plaintiff claims that Buchwalter’s efforts to enforce the California judgment against him in Arizona were done with the ulterior motive to defraud Plaintiff and cause him and his family emotional distress. (FAC, ¶¶ 273-280.) However, Plaintiff does not provide sufficient evidence showing why the conduct of Buchwalter was willful and an unauthorized use of process rather than merely an attempt to enforce a judgment. Therefore, this claim does not survive demurrer.

Discussion of Defendants’ further contentions are moot as to this claim.

F. Motion to Strike

As the demurrer is sustained, Defendants’ motion to strike is moot.

G. CONCLUSION

For the foregoing reasons, Donato and Buchwalter’s demurrer to Plaintiff’s SAC is SUSTAINED without leave to amend as to the fourth and fifth claims and SUSTAINED with leave to amend as to the sixth claim.

Donato and Buchwalter’s motion to strike is DENIED as moot.

Donato and Buchwalter are ordered to give notice of the Court’s ruling.

DATED: August 25, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

JOHN THALER, an individual,

Plaintiff,

vs.

TARZANA FALLS HOMEOWNERS ASSOCIATION, INC., a California non-profit corporation, ANTHONY DONATO, an individual, ROSS MORGAN & COMPANY, INC., a California corporation, BRIAN DAVIDOFF, an individual, PROFESSIONAL LIEN SERVICES, LLC, a California limited liability company, JOSHUA SPIES, an individual, STACY LEVY, an individual, BARRY LEVY, an individual, GARRY VOGEL, an individual, WOLF ROFKIN, a partnership of unknown type of origin, and DOES 1 through 100, inclusive,

Defendant(s).

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CASE NO: LC104303

[TENTATIVE] ORDER RE: DEFENDANTS ROSS MORGAN & COMPANY, INC. AND BRIAN DAVIDOFF’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT AND MOTION TO STRIKE

Dept. U

8:30 a.m.

August 25, 2020

I. BACKGROUND

On October 11, 2019, John Thaler (Plaintiff) filed his second amended complaint (SAC) against Ross Morgan & Company and Brian Davidoff, et al. (Ross Morgan). This second amended complaint includes claims for: (1) fraud/concealment and (2) conversion.

In relevant part, Plaintiff’s second amended complaint states: (1) When Plaintiff was in escrow for the purchase of his unit in Tarzana Falls, he requested and received financial documents from Ross Morgan on Tarzana Falls for the years of 2006 and 2007. (Complaint, ¶220.); (2) These financials showed a monthly general assessment of $360.00 and a reserve of approximately $300,000. (Id.); (3) These financials also showed a 2004 independent review of the books and records with a reserve of $200,000. (Id.); (4) Ross Morgan intended for Plaintiff to rely on these documents in completing the purchase of his unit. (Id., ¶ 221.); (5) Plaintiff did rely on these financials in completing his purchase of his unit. (Id., ¶ 222.); (6) Plaintiff’s reliance was reasonable because financial and operational materials from homeowner’s associations (HOA) usually include audits and accounting reviews. (Id., ¶ 223.); (7) The truth was that the HOA board did not follow the bylaws and rarely provided financial information to its residents. (Id., ¶ 224.); (8) Plaintiff first noticed in April 2011 that the fixed expense amounts stated in the HOA’s financials were fabricated. (Id., ¶ 224j.); (9) Repair records were falsified to indicate that repair requests had been completed when they had not been. (Id., ¶ 224k.); (10) Ross Morgan schemed and conspired to take dues and assessment payments from owners and converted them for its own benefit. (Id., ¶ 238.); (10) Payments and assessments were sent by check to Ross Morgan and then were supposed to be deposited into bank accounts owned by Tarzana Falls. (Id., ¶ 242.); (11) However, these checks were actually deposited into accounts that neither the HOA board nor residents could access so that Ross Morgan could use the funds for its own benefit. (Id., ¶ 244); and (12) When residents tried to refuse to pay assessments, Ross Morgan threatened to place liens on their property.

On November 19, 2019, Ross Morgan filed a demurrer to Plaintiff’s SAC arguing that both the fraud/concealment and the conversion causes of action are barred by the statute of limitations.

II. LEGAL STANDARD

A. Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, at p. 747.)

B. Motion to Strike

Code of Civil Procedure, section 435, subdivision (b)(1), provides that “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.”

Code of Civil Procedure, section 436 provides:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

The grounds for moving to strike must appear on the face of the pleading or by way of

judicial notice. (Code Civ. Proc. § 437.)

III. DISCUSSION

A. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) The Court notes that Ross Morgan has complied with the requirements of this provision as to both the demurrer and the motion to strike. (N. Rogers’ declaration.)

B. Judicial Notice

Ross Morgan requests the Court take judicial notice of the Court’s September 10, 2019 Minute Order sustaining, in part, Ross Morgan’s Demurrer to Plaintiff’s First Amended Complaint (FAC) and granting, in part, Ross Morgan’s Motion to Strike Plaintiff’s FAC. Code of Civil Procedure section 452 allows a Court to take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Pursuant to Code of Civil Procedure section 453, Ross Morgan has provided the opposing side and the Court with notice of this request and has included copies of the minute order. Therefore, the Court takes judicial notice of the Court’s Minute Order from September 10, 2019.

C. Fraud/Concealment

Ross Morgan argues that Plaintiff’s fraud/concealment cause of action against it is barred by the statute of limitations. Plaintiff purchased his unit in Tarzana Falls in 2007, allegedly in reliance on the falsified financials provided by the HOA board. Ross Morgan argues that Plaintiff’s alleged injury would have occurred in 2007 when he relied on the misrepresentations and purchased his unit. Ross Morgan contends that Plaintiff began investigating Tarzana Fall’s financials in early 2011, which would make this the year his injury accrued because it was through this investigation that Plaintiff gained knowledge of the falsity of the financials provided to him in 2007. Therefore, Ross Morgan contends that the three-year statute of limitations for Plaintiff’s fraud/concealment claims would have expired in early 2014. Plaintiff did not file his initial complaint in this action until June 13, 2016, making his claims time-barred.

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338(d).) The cause of action begins to accrue when the aggrieved party discovers the facts constituting the fraud. (Id.; San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1327 (“A cause of action does not accrue until the plaintiff either discovers the injury and its negligent cause or could have discovered the injury and cause through the exercise of reasonable diligence.”).)

Plaintiff states in his SAC that he first noticed discrepancies in Tarzana Fall’s financial records in 2011 when he was investigating why the repairs to his unit were not being completed. Plaintiff stated this was when he first became suspicious that Ross Morgan was presenting the residents of Tarzana Falls with fraudulent information. Therefore, Plaintiff’s injury accrued with this knowledge in 2011 and he would have had to bring his claim for fraud/concealment no later than 2014. Therefore, because Plaintiff did not assert his claims until 2016, his allegations of fraud/concealment against Ross Morgan are time-barred by the three-year statute of limitations. Ross Morgan’s demurrer to the fraud cause of action must be sustained.

D. Conversion

Ross Morgan argues that Plaintiff’s claim of conversion against it is barred by the three-year statute of limitations. Plaintiff made his last payment of regular and special assessments to the HOA in the amount of $20,880.00 by check in 2011. Conversion also carries a three-year statute of limitations. Therefore, if Plaintiff made his final payment that was allegedly converted by Ross Morgan in 2011, Plaintiff was required to assert this claim by 2014. As Plaintiff did not file his initial complaint until 2016, it is argued, the conversion claim is barred by the statute of limitations.

Code of Civil Procedure section 338 provides a three-year statute of limitations period for a conversion cause of action. (AmerUS Life Insurance Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639.) This statute of limitations for conversion is triggered by the act of wrongfully taking property. (AmerUS Life Insurance Co., supra, 143 Cal.App.4th at 639.)

Here, Plaintiff relinquished possession of the check to pay the general and special assessments to Ross Morgan in 2011. Plaintiff’s right to the money represented by the check was also relinquished at that time. Therefore, Ross Morgan’s alleged conversion of Plaintiff’s money would have taken place in 2011 and the three-year statute of limitations expired in 2014. Plaintiff’s claim of conversion against Ross Morgan is, thus, time-barred by the three-year statute of limitations because he did not file this cause of action until 2016.

As the statutes of limitations bar Plaintiff’s recovery against Ross Morgan for fraud/concealment and conversion, the remaining issues raised by Ross Morgan are moot.

E. Motion to Strike

Ross Morgan seeks to strike all references to punitive damages in Plaintiff’s SAC. As the Court has sustained the demurrer, however, the motion to strike is moot.

F. CONCLUSION

For the foregoing reasons, Ross Morgan’s demurrer to Plaintiff’s SAC is SUSTAINED without leave to amend.

Ross Morgan’s motion to strike is DENIED as moot.

Ross Morgan is ordered to give notice of the Court’s ruling.

DATED: August 25, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

JOHN THALER, an individual,

Plaintiff,

vs.

TARZANA FALLS HOMEOWNERS ASSOCIATION, INC., a California non-profit corporation, ANTHONY DONATO, an individual, ROSS MORGAN & COMPANY, INC., a California corporation, BRIAN DAVIDOFF, an individual, PROFESSIONAL LIEN SERVICES, LLC, a California limited liability company, JOSHUA SPIES, an individual, STACY LEVY, an individual, BARRY LEVY, an individual, GARRY VOGEL, an individual, WOLF ROFKIN, a partnership of unknown type of origin, and DOES 1 through 100, inclusive,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

) ) ) ) ) )

CASE NO: LC104303

[TENTATIVE] ORDER RE: DEFENDANT TARZANA’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT AND MOTION TO STRIKE

Dept. U

8:30 a.m.

August 25, 2020

I. BACKGROUND

On October 11, 2019, John Thaler (Plaintiff) filed his second amended complaint (SAC) against Ross Morgan & Company and Brian Davidoff, et al. (Ross Morgan). This second amended complaint includes claims for: (1) fraud/concealment and (2) conversion.

In relevant part, Plaintiff’s second amended complaint states: (1) When Plaintiff was in escrow for the purchase of his unit in Tarzana Falls, he requested and received financial documents from Ross Morgan on Tarzana Falls for the years of 2006 and 2007. (Complaint, ¶220.); (2) These financials showed a monthly general assessment of $360 and a reserve of approximately $300,000. (Id.); (3) These financials also showed a 2004 independent review of the books and records with a reserve of $200,000. (Id.); (4) Ross Morgan intended for Plaintiff to rely on these documents in completing the purchase of his unit. (Id., ¶ 221.); (5) Plaintiff did rely on these financials in completing his purchase of his unit. (Id., ¶ 222.); (6) Plaintiff’s reliance was reasonable because financial and operational materials from homeowner’s associations (HOA) usually include audits and accounting reviews. (Id., ¶ 223.); (7) The truth was that the HOA board did not follow the bylaws and rarely provided financial information to its residents. (Id., ¶ 224.); (8) Plaintiff first noticed in April 2011 that the fixed expense amounts stated in the HOA’s financials were fabricated. (Id., ¶ 224j.); (9) Repair records were falsified to indicate that repair requests had been completed when they had not been. (Id., ¶ 224k.); (10) Ross Morgan schemed and conspired to take dues and assessment payments from owners and converted them for its own benefit. (Id., ¶ 238.); (10) Payments and assessments were sent by check to Ross Morgan and then were supposed to be deposited into bank accounts owned by Tarzana Falls. (Id., ¶ 242.); (11) However, these checks were actually deposited into accounts that neither the HOA board nor residents could access so that Ross Morgan could use the funds for its own benefit. (Id., ¶ 244); and (12) When residents tried to refuse to pay assessments, Ross Morgan threatened to place liens on their property.

On November 22, 2019, Tarzana Falls Homeowners Association (Tarzana) filed a demurrer pursuant to Code of Civil Procedure section 430.10(d) and (f) to Plaintiff’s SAC. Tarzana moves on the grounds that demurrer to the first cause of action was previously sustained without leave to amend and the second through fifth causes of action are barred by their respective statutes of limitation. Tarzana also filed an accompanying motion to strike pursuant to Code of Civil Procedure section 436.

II. LEGAL STANDARD

A. Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, at p. 747.)

Code of Civil Procedure section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85.) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlasham (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)  

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B. Motion to Strike

Code of Civil Procedure, section 435, subdivision (b)(1), provides that “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.”

Code of Civil Procedure, section 436 provides:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

The grounds for moving to strike must appear on the face of the pleading or by way of

judicial notice. (Code Civ. Proc. § 437.)

III. DISCUSSION

A. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) The Court notes that Tarzana has complied with the requirements of this provision as to both the demurrer and the motion to strike. (Ware declaration.)

B. Judicial Notice

Tarzana requests judicial notice be taken of: (1) Plaintiff’s December 3, 2018 first amended complaint (FAC); (2) the August 30, 2019 Notice of Ruling on Tarzana’s demurrer and motion to strike and OSC re Sanctions against Plaintiff; (3) Register of actions for Maricopa Superior Court Case Number CV2014-093510, April 12, 2016 entry Staying Proceedings Pending Outcome of California Court’s Resolution of Plaintiff’s Motion to Set Aside/Vacate Underlying Judgment; and (4) Maricopa Superior Court Case Number CV2014-093510, April 12, 2016 Order Staying Proceedings Pending Outcome of California Court’s Resolution of Plaintiff’s Motion to Set Aside/Vacate Underlying Judgment. Code of Civil Procedure section 452 allows a Court to take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Therefore, the Court takes judicial notice of each of the requested documents as they are court records.

C. Claim to Vacate the Void Default Judgment

On August 29, 2019, the Court heard Tarzana’s demurrer with motion to strike Plaintiff’s FAC. The Court sustained Tarzana’s demurrer to Plaintiff’s cause of action to vacate the void default judgment without leave to amend. Therefore, this claim has already been resolved against Plaintiff in response to Tarzana’s prior demurrer.

D. Declaratory Relief

The statute of limitations in a declaratory action does not begin to run until an actual controversy has accrued or come into existence. (Salada Beach Public Utility Dist. v. Anderson (1942) 50 Cal.App.2d 306, 308.) Code of Civil Procedure section 343 provides “[a]n action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.” Thus, the longest statute of limitation is four years for declaratory relief regardless of the claim upon which it is based.

Here, Plaintiff requests the Court declare that the May 31, 2012 judgment obtained by Tarzana against Plaintiff did not confer a personal judgment against him for monetary damages. (SAC, ¶ 201.) Plaintiff first pled this relief on December 3, 2018 in his FAC. Four years from the date Tarzana secured the judgment against Plaintiff was May 31, 2016. As Plaintiff did not request this declaratory relief until 2018 in his FAC, this request is untimely as the statute of limitation had already expired when the claim was brought.

As a result, Tarzana’s demurrer to this cause of action is sustained without leave to amend. Discussion of the remainder of Tarzana’s contentions with this claim are unnecessary.

E. Breach of Contract

Breach of contract requires: (1) the existence of a contract; (2) plaintiff’s performance or excuse of performance for nonperformance; (3) defendant’s breach; and (4) resulting damage. (Wall Street Network, Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

The statute of limitations to bring a claim for breach of a written contract is four years. (Code Civ. Proc., § 337(a).) Under the discovery rule recognized by California courts, a cause of action accrues when the plaintiff discovers or could have discovered, through the exercise of reasonable diligence, all the facts essential to his cause of action. (Perez-Encinas v. AmerUs Life Ins. Co. (2006) 468 F.Supp.2d 1127, 1135 (N.D. Cal.).)

Here, Plaintiff alleges that when he moved into Tarzana, he executed an agreement whereby he would pay all dues and assessments in exchange for Tarzana abiding by its bylaws and CC&R’s, the Stirling-Davis Act, providing certain services and amenities, and repairing common areas. (SAC, ¶ 206.) Examples of Tarzana’s alleged breach include falsely claiming special assessments in 2007, 2008, 2009, 2010, and 2011, failing to repair the exterior of Plaintiff’s unit, and converting funds meant for repairs for its own use. (Id., ¶ 208.) Plaintiff alleges that he satisfied his obligations under the agreement by paying all assessment payments through February 2011 and that Tarzana’s breach prevented the repairs of his unit rendering it unmarketable, thereby, diminishing its value. While Plaintiff has sufficiently pled facts stating a cause of action for breach of contract, the latest date of breach was in 2011. Therefore, the statute of limitations on this claim expired in 2015. Plaintiff did not initiate this lawsuit until 2016. Plaintiff’s breach of contract claim against Tarzana is barred by the statute of limitation.

Discussion of the remainder of Tarzana’s contentions with this claim is unnecessary.

F. Fraud/Concealment

The statute of limitations for fraud is three years. (Code Civ. Proc., § 338(d).) A fraud cause of action begins to accrue when the aggrieved party discovers the facts constituting the fraud. (Id.; San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1327 (“A cause of action does not accrue until the plaintiff either discovers the injury and its negligent cause or could have discovered the injury and cause through the exercise of reasonable diligence.”).)

Plaintiff states in his SAC that he first noticed discrepancies in Tarzana Fall’s financial records in 2011 when he was investigating why the repairs to his unit were not being completed. Plaintiff stated this was when he first became suspicious that Tarzana was presenting its residents with fraudulent information. Thus, Plaintiff’s injury accrued with this knowledge in 2011 and he would have had to bring his claim for fraud/concealment no later than 2014. Therefore, because Plaintiff did not assert his claims until 2016, his allegation of fraud/concealment against Tarzana is time-barred by the three-year statute of limitations. Thus, the demurrer to this cause of action must be sustained.

As the statute of limitation bars Plaintiff’s recovery against Tarzana for fraud and/or concealment, the remaining issues raised by Tarzana are moot.

G. Conversion

Code of Civil Procedure section 338 provides a three-year statute of limitations period for a conversion cause of action. (AmerUS Life Insurance Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639.) This statute of limitations for conversion is triggered by the act of wrongfully taking property. (AmerUS Life Insurance Co., supra, 143 Cal.App.4th at 639.)

Here, Plaintiff relinquished possession of the check to pay the general and special assessments to Ross Morgan in 2011. Plaintiff’s right to the money represented by the check was also relinquished at that time. Therefore, Ross Morgan’s alleged conversion of Plaintiff’s money would have taken place in 2011 so the three-year statute of limitations expired in 2014. Plaintiff’s claim of conversion against Tarzana is, thus, time-barred by the three-year statute of limitations because he did not file this cause of action until 2016. Tarzana’s demurrer to this claim must be sustained without leave to amend.

As the statute of limitation bars Plaintiff’s recovery against Tarzana for conversion, the remaining issues raised by Tarzana are moot.

H. Motion to Strike

As the demurrer is sustained, Defendants’ motion to strike is moot.

I. CONCLUSION

For the foregoing reasons, Tarzana’s demurrer to Plaintiff’s SAC is SUSTAINED without leave to amend.

Tarzana’s motion to strike is DENIED as moot.

Tarzana is ordered to give notice of the Court’s ruling.

DATED: August 25, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

JOHN THALER, an individual,

Plaintiff,

vs.

TARZANA FALLS HOMEOWNERS ASSOCIATION, INC., a California non-profit corporation, ANTHONY DONATO, an individual, ROSS MORGAN & COMPANY, INC., a California corporation, BRIAN DAVIDOFF, an individual, PROFESSIONAL LIEN SERVICES, LLC, a California limited liability company, JOSHUA SPIES, an individual, STACY LEVY, an individual, BARRY LEVY, an individual, GARRY VOGEL, an individual, WOLF ROFKIN, a partnership of unknown type of origin, and DOES 1 through 100, inclusive,

Defendant(s).

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CASE NO: LC104303

[TENTATIVE] ORDER RE: DEFENDANTS PROFESSIONAL LIEN & SPIES’ DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT AND MOTION TO STRIKE

Dept. U

8:30 a.m.

August 25, 2020

I. BACKGROUND

On October 11, 2019, John Thaler (Plaintiff) filed his second amended complaint (SAC) against Ross Morgan & Company and Brian Davidoff, et al. (Ross Morgan). This second amended complaint includes claims for: (1) fraud/concealment and (2) conversion.

In relevant part, Plaintiff’s second amended complaint states: (1) When Plaintiff was in escrow for the purchase of his unit in Tarzana Falls, he requested and received financial documents from Ross Morgan on Tarzana Falls for the years of 2006 and 2007. (Complaint, ¶220.); (2) These financials showed a monthly general assessment of $360 and a reserve of approximately $300,000. (Id.); (3) These financials also showed a 2004 independent review of the books and records with a reserve of $200,000. (Id.); (4) Ross Morgan intended for Plaintiff to rely on these documents in completing the purchase of his unit. (Id., ¶ 221.); (5) Plaintiff did rely on these financials in completing his purchase of his unit. (Id., ¶ 222.); (6) Plaintiff’s reliance was reasonable because financial and operational materials from homeowner’s associations (HOA) usually include audits and accounting reviews. (Id., ¶ 223.); (7) The truth was that the HOA board did not follow the bylaws and rarely provided financial information to its residents. (Id., ¶ 224.); (8) Plaintiff first noticed in April 2011 that the fixed expense amounts stated in the HOA’s financials were fabricated. (Id., ¶ 224j.); (9) Repair records were falsified to indicate that repair requests had been completed when they had not been. (Id., ¶ 224k.); (10) Ross Morgan schemed and conspired to take dues and assessment payments from owners and converted them for its own benefit. (Id., ¶ 238.); (10) Payments and assessments were sent by check to Ross Morgan and then were supposed to be deposited into bank accounts owned by Tarzana Falls. (Id., ¶ 242.); (11) However, these checks were actually deposited into accounts that neither the HOA board nor residents could access so that Ross Morgan could use the funds for its own benefit. (Id., ¶ 244); and (12) When residents tried to refuse to pay assessments, Ross Morgan threatened to place liens on their property.

On November 19, 2019, Professional Lien Services, Inc. and Joshua Spies (here, Defendants) filed a demurrer pursuant to Code of Civil Procedure section 430.10(d) through (f) to Plaintiff’s SAC. Defendants move on the grounds that the fifth cause of action for conversion is barred by its applicable statute of limitation. Defendants also filed an accompanying motion to strike pursuant to Code of Civil Procedure section 436.

II. LEGAL STANDARD

a. Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, at p. 747.)

Code of Civil Procedure section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85.) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)  

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b. Motion to Strike

Code of Civil Procedure, section 435, subdivision (b)(1), provides that “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.”

Code of Civil Procedure, section 436 provides:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

The grounds for moving to strike must appear on the face of the pleading or by way of

judicial notice. (Code Civ. Proc. § 437.)

III. DISCUSSION

A. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) The Court finds that Defendants have complied with the requirements of this provision as to both the demurrer and the motion to strike. (Gagnon declaration.)

B. Conversion

Code of Civil Procedure section 338 provides a three-year statute of limitations period for a conversion cause of action. (AmerUS Life Insurance Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639.) This statute of limitations for conversion is triggered by the act of wrongfully taking property. (AmerUS Life Insurance Co., supra, 143 Cal.App.4th at 639.)

Here, Plaintiff relinquished possession of the check to pay the general and special assessments to Ross Morgan in 2011. Plaintiff’s right to the money represented by the check was also relinquished at that time. Therefore, Ross Morgan’s alleged conversion of Plaintiff’s money would have taken place in 2011 and the three-year statute of limitations expired in 2014. Plaintiff’s claim of conversion against Defendants is, thus, time-barred by the three-year statute of limitations because he did not file this cause of action until 2016.

As the statute of limitation bars Plaintiff’s recovery against Defendants for conversion, the remaining issues raised by Defendants’ demurrer are moot.

a. Motion to Strike

As the demurrer is sustained, Defendants’ motion to strike is moot.

IV. CONCLUSION

For the foregoing reasons, Professional Lien and Spies’ demurrer to Plaintiff’s SAC is SUSTAINED without leave to amend.

Professional Lien and Spies’ motion to strike is DENIED as moot.

Professional Lien and Spies are ordered to give notice of the Court’s ruling.

DATED: August 25, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court