Pending - Other Pending
Contract - Other Contract
RALPH C. HOFER
JAMES R. DUNN
PACIFIC COAST HOME SOLUTIONS INC.
1ST POINT LENDING INC.
RENOVATE AMERICA INC. - DOE 1
EXTERIOR SPECIALIST INC. - DOE 2
NELSON ALEX - DOE 3
GROSSMAN MARC ELLIOT
MARC GROSSMAN LAW OFFICES OF
NEUDECKER JAMES MARK
BABICH PHILLIP HOWARD
GREENBLATTLOVERIDGE ATTORNEYS AT LAW
REED SMITH LLP
6/17/2021: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: MEDIATION AND DISCOVERY)
6/17/2021: Notice - NOTICE OF RULING RE STATUS CONFERENCE RE MEDIATION AND DISCOVERY AND NOTICE OF ORDERS TO SHOW CAUSE
7/13/2021: Declaration - DECLARATION OF JAMES T. LEE IN RESPONSE TO ORDERS TO SHOW CAUSE
7/14/2021: Declaration - DECLARATION OF FREDRIC J. GREENBLATT RE ORDERS TO SHOW CAUSE
7/20/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: MANDATORY SETTLEMENT CONFERENCE; ORDE...)
8/24/2021: Proof of Service by Mail
8/25/2021: Stipulation and Order - STIPULATION AND ORDER DEPARTMENT D
8/25/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: MANDATORY SETTLEMENT CONFERENCE RETUR...)
9/20/2021: Notice of Case Reassignment and Order for Plaintiff to Give Notice
2/1/2022: Minute Order - MINUTE ORDER (POST-SETTLEMENT STATUS CONFERENCE)
3/8/2022: Notice of Settlement - NOTICE OF SETTLEMENT OF ENTIRE CASE
3/10/2022: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)
3/10/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (FINAL STATUS CONFERENCE) OF 03/10/2022
4/6/2022: Proof of Service by Mail
4/6/2022: Request for Dismissal
4/2/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT F...)
4/1/2021: Declaration - DECLARATION OF FREDRIC J. GREENBLATT RE TIMELINESS OF DEMURRER AND MEET AND CONFER
Docketat 08:30 AM in Department 3; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Vacated by Court[+] Read More [-] Read Less
DocketProof of Service by Mail; Filed by ELVA CASTORENA (Plaintiff)[+] Read More [-] Read Less
DocketRequest for Dismissal; Filed by ELVA CASTORENA (Plaintiff)[+] Read More [-] Read Less
Docketat 09:00 AM in Department 3; Jury Trial - Not Held - Advanced and Vacated[+] Read More [-] Read Less
Docketat 09:00 AM in Department 3; Final Status Conference - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
DocketMinute Order ( (Final Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketCertificate of Mailing for ((Final Status Conference) of 03/10/2022); Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Settlement (of Entire Case); Filed by ELVA CASTORENA (Plaintiff)[+] Read More [-] Read Less
Docketat 1:30 PM in Department STL-C, James R. Dunn, Presiding; MSC Timeslot (Judge James R. Dunn)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 3; Post-Settlement Status Conference - Held[+] Read More [-] Read Less
DocketComplaint filed-Summons Issued; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketSummons Filed; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketCivil Case Cover Sheet[+] Read More [-] Read Less
DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk[+] Read More [-] Read Less
DocketComplaint filed-Summons Issued[+] Read More [-] Read Less
DocketSummons; Filed by Plaintiff[+] Read More [-] Read Less
DocketOSC-Failure to File Proof of Serv; Filed by Court[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Court[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Case[+] Read More [-] Read Less
DocketRequest to Waive Court Fees; Filed by ELVA CASTORENA (Plaintiff)[+] Read More [-] Read Less
Case Number: ****7436 Hearing Date: August 14, 2020 Dept: NCD
Case No: EC 067436 Trial Date: October 5, 2020
Case Name: Castorena v. Villalobos, et al.
JUDGMENT ON THE PLEADINGS
[CCP ; 438]
Moving Party: Defendants Alex Nelson, 1st Point Lending, Inc., and ASO, LLC
Responding Party: Plaintiff Elva Castorena
Order granting judgment on the pleadings
CAUSES OF ACTION FROM THE (Form) Complaint
1) Breach of Contract
2) Intentional Tort: Fraud
3) Intentional Tort: Financial Elder Abuse
SUMMARY OF FACTS:
Plaintiff Elva Castorena alleges that plaintiff entered into a written contract with defendant Pacific Coast Home Solutions, Inc. for significant home remodeling work, and that separate contracts were formed between plaintiff and defendant ASO, LLC and defendant1st Point Lending for a loan to pay for the work. Plaintiff also alleges that a third agreement existed between plaintiff and defendant HERO Program, whereby HERO was to partially subsidize and oversee the performance of the other contracts.
The form complaint alleges that Pacific Coast failed to perform the contracted work in a workmanlike fashion, leaving plaintiff’s house in a state of utter disrepair, and arranged for the home loan with ASO and 1st Point which effectively stripped all the equity from plaintiff’s home and left her in a loan she could not afford, and that HERO failed to oversee the project and protect plaintiff.
Moving defendant Alex Nelson was added to the action by Amendment to Complaint, by which plaintiff substituted Nelson’s name as the true name of Doe 3.
CCP ; 438 establishes the procedures for moving for judgment on the pleadings, and provides, in pertinent part:
“(c)(1) The motion provided for in this section may only be made on one of the following
(B) If the moving party is a defendant, that either of the following conditions exist:
(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.
(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”
Subdivision (d) provides that “The grounds for the motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”
The motion may be granted with leave to file an amended complaint, or without leave to amend, in which case, judgment may be entered in favor of the moving defendant. CCP ; 438 (h).
Defendants ASO, LLC, 1st Point Lending, and Nelson (evidently a principal of 1st Point Lending) (the “Lending Defendants”) argue that the complaint fails to allege any breach of contract pertaining to the alleged contract between plaintiff and the Lending Defendants, fails to allege the terms of that contract, or attach a copy to the pleading, fails to sufficiently allege facts to support a claim that these defendants were involved in a conspiracy to defraud plaintiff, and fails to allege sufficient facts to support a claim of financial elder abuse against the moving defendants.
Plaintiff in opposition does not address the merits of the motion for judgment on the pleadings but concedes that the complaint does not set forth the material terms of the contract or attach the contract as an exhibit to the complaint, fails to plead the fraud cause of action with the requisite specificity, and does not properly state a cause of action for financial elder abuse.
Plaintiff requests leave to amend, indicating that the defects in the causes of action can be cured by plaintiff attaching the operative contracts as exhibits, or fully setting forth the terms, alleging the fraud with particularity, and setting forth more details in support of the elder abuse cause of action.
Defendants in reply object that plaintiff did not agree to amend the pleading during detailed meet and confer discussions, during which these same arguments were raised, but plaintiff insisted the pleading was sufficient. Defendants request that the court grant the motion without leave to amend.
This outcome would be a particularly harsh result, which would not be warranted here, particularly as this is the original pleading. As pointed out in the opposition, in the case of an original complaint, leave to amend must be granted unless the complaint on its face appears incapable of amendment:
“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. v. ABC Unified
Here, the complaint does not appear incapable of amendment, and the opposition
explains how the defects can be cured, which are primarily defects of lack of detail. Leave to amend is accordingly granted.
The opposition also requests that if the court grants leave to amend, such leave include permission to add causes of action for Unfair Business Practices, IIED, Civil Conspiracy to Commit Fraud and Civil Conspiracy to Commit Elder Abuse.
This request is denied, and if plaintiff wants to add such causes of action, plaintiff must bring a noticed motion which fully complies with the statutory requirements for such a motion. The court also points out that conspiracy is ordinarily not a stand-alone cause of action, and plaintiff would be within the scope of permitted leave to amend if plaintiff chooses to include conspiracy allegations in the existing fraud and elder abuse claims.
Under CCP section 438 (h)(2), the court must grant 30 days leave to amend: “Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.”
Defendants Alex Nelson, ASO, LLC and First Point Lending, Inc.’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND at the concession of plaintiff in the opposition that the motion is meritorious, and for the reasons stated in the moving papers.
Thirty days leave to amend to amend the existing causes of action only, if possible.
CCP ; 438 (h)(2).
Request for leave to allege additional causes of action is DENIED. Plaintiff may bring a noticed motion for leave to make such amendments, if appropriate. The court notes that conspiracy is ordinarily not a stand-alone cause of action, so that plaintiff is permitted to amend the existing causes of action to include conspiracy allegations, if appropriate. The court further notes that on amendment, plaintiff must plead the fraud and financial elder abuse causes of action with the requisite particularity as to each moving defendant.
GIVEN THE RECENT CORONAVIRUS CRISIS, UNTIL FURTHER ORDERED, DEPARTMENT D WILL ALLOW APPEARANCES ONLY BY COURTCALL.
Please make such arrangements in advance if you wish to appear via CourtCall at (888) 882-6878 (or www.courtcall.com). Counsel and parties (including self-represented litigants) are not to personally appear, absent a compelling emergency reason. If none of the litigants on a matter set up a CourtCall appearance, then the Court will assume the parties are submitting on the tentative.
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