This case was last updated from Los Angeles County Superior Courts on 05/31/2019 at 03:19:10 (UTC).

FERNANDO HERNANDEZ VS GEORGE "FRANK" ALVAREZ

Case Summary

On 07/27/2017 FERNANDO HERNANDEZ filed a Contract - Other Contract lawsuit against GEORGE FRANK ALVAREZ. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are OKI, DAN THOMAS, DUKES, ROBERT A. and GLORIA WHITE-BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9491

  • Filing Date:

    07/27/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

OKI, DAN THOMAS

DUKES, ROBERT A.

GLORIA WHITE-BROWN

 

Party Details

Plaintiffs and Cross Defendants

HERNANDEZ FERNANDO

HERNANDEZ MARIA DE JESUS

Defendants and Cross Plaintiffs

ALVAREZ GEORGE "FRANK"

OSGUERA INVESTMENTS

Attorney/Law Firm Details

Plaintiff Attorneys

DERBARSEGHIAN AREN

DERBARSEGHIAN ARN

Defendant Attorneys

CAO LUAT T. ESQ

TARAN DAVID A.

CAO LUAT TRONG ESQ

 

Court Documents

Unknown

11/17/2017: Unknown

Unknown

11/17/2017: Unknown

Proof of Service by Mail

1/3/2018: Proof of Service by Mail

Unknown

2/8/2018: Unknown

Unknown

2/8/2018: Unknown

Unknown

2/28/2018: Unknown

Minute Order

3/12/2018: Minute Order

Minute Order

3/26/2018: Minute Order

Unknown

4/23/2018: Unknown

Reply

7/24/2018: Reply

Unknown

8/2/2018: Unknown

Notice of Posting of Jury Fees

8/3/2018: Notice of Posting of Jury Fees

Proof of Service by Mail

9/24/2018: Proof of Service by Mail

Proof of Service (not Summons and Complaint)

11/13/2018: Proof of Service (not Summons and Complaint)

Other -

1/31/2019: Other -

Reply

1/31/2019: Reply

Proof of Service (not Summons and Complaint)

1/31/2019: Proof of Service (not Summons and Complaint)

Motion for Leave to Amend

5/28/2019: Motion for Leave to Amend

121 More Documents Available

 

Docket Entries

  • 05/28/2019
  • Motion for Leave to Amend (Answer); Filed by George "Frank" Alvarez (Defendant)

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  • 05/10/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion for Leave to Amend (Motion for Leave to Amend Answer) - Not Held - Vacated by Court

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  • 05/07/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Jury Trial - Not Held - Vacated by Court

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  • 05/07/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 05/06/2019
  • Notice of Motion; Filed by George "Frank" Alvarez (Defendant)

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  • 04/29/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/29/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 04/29/2019
  • Opposition (Plaintiffs' Opposition to Defendant's Motion for Leave to File an Amended Answer); Filed by Fernando Hernandez (Plaintiff); Maria De Jesus Hernandez (Plaintiff)

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  • 04/18/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion - Other

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  • 04/10/2019
  • Motion for Leave to Amend (Motion for Leave to Amend (Motion for Leave to Amend Answer)); Filed by George "Frank" Alvarez (Defendant)

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168 More Docket Entries
  • 08/31/2017
  • Answer; Filed by George "Frank" Alvarez (Defendant)

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  • 08/31/2017
  • Request to Waive Court Fees; Filed by George "Frank" Alvarez (Defendant)

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  • 08/31/2017
  • Order on Court Fee Waiver (Superior Court); Filed by Plaintiff

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  • 08/31/2017
  • Rtn of Service of Summons & Compl

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  • 08/31/2017
  • Order on Court Fee Waiver (Superior Court); Filed by George "Frank" Alvarez (Defendant)

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  • 08/31/2017
  • Request to Waive Court Fees; Filed by George "Frank" Alvarez (Defendant)

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  • 07/28/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 07/27/2017
  • Summons (on Complaint); Filed by Clerk

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  • 07/27/2017
  • Complaint; Filed by Fernando Hernandez (Plaintiff)

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  • 07/27/2017
  • Civil Case Cover Sheet; Filed by Fernando Hernandez (Plaintiff)

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Tentative Rulings

Case Number: KC069491    Hearing Date: July 07, 2020    Dept: J

HEARING DATE: Tuesday, July 7, 2020

NOTICE: See below[1]

RE: Hernandez v. Alvarez (KC069491)

______________________________________________________________________________

 

1. Defendant George Alvarez’s MOTION TO DISMISS PLAINTIFFS’ SECOND CAUSE OF ACTION IN THE THIRD AMENDED COMPLAINT AND TO DISMISS UN-SERVED DEFENDANTS PURSUANT TO CCP § 583.420

Responding Party: Plaintiffs, Fernando Hernandez and Maria De Jesus Hernandez

2. Defendant George Alvarez’s MOTION TO CONTINUE TRIAL OR, IN THE

ALTERNATIVE, TO SHORTEN TIME TO HEAR DEFENDANT’S MOTIONS

CURRENTLY SCHEDULED FOR JUNE 29, 2020 TO THIS DATE

Responding Party: Plaintiffs, Fernando Hernandez and Maria De Jesus Hernandez

Tentative Ruling

1. Defendant George Alvarez’s Motion to Dismiss Plaintiffs’ Second Cause of Action in the Third Amended Complaint and to Dismiss Un-Served Defendants Pursuant to CCP § 583.420 is DENIED.

2. Defendant George Alvarez’s Motion to Continue Trial or, in the Alternative, to Shorten Time to Hear Defendant’s Motions Currently Scheduled for June 29, 2020 to this Date is TAKEN OFF-CALENDAR as MOOT.

Background

Plaintiffs Fernando Hernandez (“F. Hernandez”) and Maria De Jesus Hernandez (“M. Hernandez”) (collectively, “Plaintiffs”) claim that they purchased the real property located at 4847 Slancroft Avenue in Baldwin Park (“subject property”) from George “Frank” Alvarez (“Alvarez”) in 2005 and thereafter made mortgage payments to him. Alvarez apparently sold the subject property in 2017 to Oseguera Investments Inc. (“Oseguera”). On April 2, 2018, Alvarez filed an amendment to his cross-complaint, wherein he purported to add M. Hernandez as a cross-defendant.

On June 6, 2018, Plaintiffs filed a Third Amended Complaint (“TAC”), asserting causes of action against Defendants Alvarez, Juan Sanchez, Oseguera, Steve Carmona, Laikin Realty Corp., All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs’ Title or Any Cloud on Plaintiffs’ Title Thereto and Does 1-20 for:

  1. Quiet Title

  2. Breach of Contract

  3. Breach of the Covenant of Good Faith and Fair Dealing

  4. Breach of Fiduciary Duty

  5. Negligent Misrepresentation

  6. Fraud

  7. Money Had and Received/Unjust Enrichment

On July 31, 2018, the court sustained Alvarez’s demurrer to the third cause of action in the Third Amended Complaint, without leave to amend. On August 2, 2018, Alvarez filed a First Amended Cross-Complaint, asserting causes of action against Plaintiffs and Roes 1-20 for:

  1. Breach of Contract

  2. Breach of the Implied Covenant of Good Faith and Fair Dealing

  3. Fraud

  4. Unjust Enrichment

  5. Elder Abuse

A Trial Setting Conference is set for July 7, 2020.

1. Motion to Dismiss

Alvarez moves the court for orders dismissing Plaintiff’s second cause of action for breach of contract and dismissing all un-served defendants.

Alvarez cites to CCP § 583.420[2] for his latter request; however, Alvarez does not have standing to seek such relief. “To have standing, a party must be beneficially interested in the controversy, and have ‘some special interest to be served or some particular right to be preserved or protected.’ [Citation omitted]. This interest must be concrete and actual, and must not be conjectural or hypothetical. [Citation omitted].” (Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God (2009) 173 Cal.App.4th 420, 445.)

Alvarez, moreover, does not provide any legal authority for his first request, i.e., to dismiss the second cause of action for breach of contract in Plaintiffs’ TAC. CCP § 1010 provides that a notice of motion “must state . . . the grounds upon which it will be made.” In addition, California Rules of Court (“CRC”) Rule 3.1113(b) states that a memorandum of points and authorities “must contain . . . a concise statement of the law. . . and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” Alvarez’s references to CRC Rules 3.1342, 3.723, 3.727 and 3.728 provide no basis for the filing of a motion to dismiss, and merely discuss the matters to be addressed by the court during a Case Management Conference. It appears to the court that Alvarez is seeking reconsideration of the court’s February 7, 2019 denial of Alvarez’s motion for summary judgment and the court’s October 10, 2019 denial of Alvarez’s motion for CCP § 128.7 sanctions, without complying with CCP § 1008.

The motion is denied.

2. Motion to Continue Trial

Alvarez moves the court for an order to continue the June 9, 2020 trial date and all applicable trial related deadlines until after Alvarez’s “Motion to Dismiss Plaintiffs’ Second Cause of Action in the Third Amended Complaint and to Dismiss Un-Served Defendants Pursuant to § 583.420” is heard (i.e., on June 29, 2020) or, in the alternative, for an order shortening time to hear said motion contemporaneously with the instant motion.

Alvarez’s motion is TAKEN OFF-CALENDAR as MOOT. On April 16, 2020, the court vacated the June 9, 2020 trial date.


[1] Motion #1 was filed and mail-served on March 30, 2020 and originally set for hearing on June 29, 2020. Motion #2 was filed and mail-served on March 30, 2020 and originally set for hearing on June 1, 2020. On April 16, 2020, the court vacated the June 9, 2020 trial date and continued the hearing on Motions #1 and #2 to July 7, 2020; notice was given to Plaintiff’s counsel and counsel for Oseguera Investments. On May 4, 2020, the court continued the time of the July 7, 2020 hearing on these motions (i.e., to 10:00 a.m.); notice was provided to Plaintiff’s counsel and counsel for Oseguera Investments. There is no indication on ecourt as of June 25, 2020 at 10:59 a.m. that Alvarez has been given notice of the July 7, 2020 hearing date/time; with that said, Plaintiffs’ oppositions (which were served via mail and email on June 23, 2020) list the July 7, 2020 hearing date/time.

[2] This provision reads, in relevant part, as follows: “(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: (1) Service is not made within two years after the action is commenced against the defendant . . .”

Case Number: KC069491    Hearing Date: November 26, 2019    Dept: J

HEARING DATE: Tuesday, November 26, 2019

NOTICE: OK[1]

RE: Hernandez v. Alvarez (KC069491)

______________________________________________________________________________

 

Defendant George Alvarez’s MOTION FOR SANCTIONS PURSUANT TO CIVIL CODE

[SIC] SECTION 128.7 AGAINST PLAINTIFFS AND THEIR ATTORNEY OF RECORD

AREN DERBARSEGHIAN

Responding Party: Plaintiffs, Fernando Hernandez and Maria De Jesus Hernandez

Tentative Ruling

Defendant George Alvarez’s Motion for Sanctions Pursuant to Civil Code [Sic] Section 128.7 Against Plaintiffs and their Attorney of Record Aren Derbarseghian is DENIED.

Background

Plaintiffs Fernando Hernandez (“F. Hernandez”) and Maria De Jesus Hernandez (“M. Hernandez”) (collectively, “Plaintiffs”) claim that they purchased the real property located at 4847 Slancroft Avenue in Baldwin Park (“subject property”) from George “Frank” Alvarez (“Alvarez”) in 2005 and thereafter made mortgage payments to him. Alvarez apparently sold the subject property in 2017 to Oseguera Investments Inc. (“Oseguera”). On April 2, 2018, Alvarez filed an amendment to his cross-complaint, wherein he purported to add M. Hernandez as a cross-defendant.

On June 6, 2018, Plaintiffs filed a Third Amended Complaint (“TAC”), asserting causes of action against Defendants Alvarez, Juan Sanchez, Oseguera, Steve Carmona, Laikin Realty Corp., All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs’ Title or Any Cloud on Plaintiffs’ Title Thereto and Does 1-20 for:

  1. Quiet Title

  2. Breach of Contract

  3. Breach of the Covenant of Good Faith and Fair Dealing

  4. Breach of Fiduciary Duty

  5. Negligent Misrepresentation

  6. Fraud

  7. Money Had and Received/Unjust Enrichment

On July 31, 2018, the court sustained Alvarez’s demurrer to the third cause of action in the Third Amended Complaint, without leave to amend. On August 2, 2018, Alvarez filed a First Amended Cross-Complaint, asserting causes of action against Plaintiffs and Roes 1-20 for:

  1. Breach of Contract

  2. Breach of the Implied Covenant of Good Faith and Fair Dealing

  3. Fraud

  4. Unjust Enrichment

  5. Elder Abuse

A Final Status Conference is set for June 1, 2020. Trial is set for June 9, 2020.

Legal Standard

Under CCP §128.7, an attorney or unrepresented party who presents a pleading, motion or other similar paper to the court makes an implied “certification” as to its legal and factual merit. A court may impose monetary and/or nonmonetary sanctions for violating the certification if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.) The motion must be made separately from any other motion and it must specifically describe the sanctionable conduct. (CCP § 128.7(c)(1).) A claim is factually frivolous if it is “not well grounded in fact” and is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189–190.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if “any reasonable attorney would agree that [it] is totally and completely without merit.” (Ibid.) However, “section 128.7 sanctions should be ‘made with restraint’ [Citation], and are not mandatory even if a claim is frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448.)

The Legislature enacted section 128.7 based on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), as amended in 1993 (rule 11). (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of section 128.7. (Guillemin, supra, 104 Cal.App.4th at 168.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (Childs v. State Farm Mut. Auto. Ins. Co. (5th Cir.1994) 29 F.3d 1018, 1025.) As a result, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Ibid.) This requires an attorney to conduct a reasonable inquiry to determine if his or her client's claim was well-grounded in fact and to take into account the adverse party's evidence. (Ibid.)

Filing a motion for sanctions under section 128.7 is a two-step process. First, the party must serve the motion for sanctions on the offending party as provided in CCP section 1010 at least 21 days before filing the motion with the court. Second, if the offending party does not withdraw the pleading or otherwise correct the sanctionable conduct, then the motion may be filed and the court may determine an appropriate sanction. (CCP § 128.7(c)(1); Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.)

Discussion

Alvarez moves the court for orders, per CCP § 128.7, striking the entirety of the TAC, imposing monetary sanctions in the amount of $9,186.75 against Plaintiffs and their attorney of record, Aren Derbarsegian (“Derbarsegian”) and/or imposing a monetary penalty payable to the court and Alvarez, on the basis that the TAC against Alvarez (1) fails to allege the facts as they exist and is entirely based upon an agreement that was superceded and novated, (2) is frivolous and being presented to the court for an improper purpose and (3) contains allegations and other factual contentions which have no evidentiary support. Alvarez contends that, after being advised of the existence of a subsequent and superceding agreement between the parties, and producing the same in their own discovery responses, Plaintiffs’ counsel failed to correct the TAC.

Compliance with Safe Harbor Provision

At the outset, the court notes that the Declaration of David Taran (“Taran”) is silent with respect to the issue of compliance with the safe harbor provision. Taran states that “[p]laintiffs’ attorney of record was made aware of these issues on March 19, 2019, via a letter sent from Defendant’s counsel, and therefore has had plenty of opportunity to correct the pleadings or dismiss this lawsuit.” (Taran Decl., ¶5, Exh. E.) Taran further states that he telephonically met and conferred with Plaintiffs’ counsel on March 26, 2019, regarding Defendant’s contemplated Motion for Sanctions. . .” (Id., ¶6.) The motion was filed on June 3, 2019. Taran does not state that a copy of the motion was served upon opposing counsel at least 21 days before it was filed.

With that said, Derbarsegian concedes in his opposing declaration that Alvarez’s counsel served a copy of the motion on May 1, 2019, that the motion listed a hearing date of June 17, 2019 and that he learned, a day before filing an opposition based on the June 17, 2019 hearing date, that the motion was not actually filed. (Derbarsegian Decl., ¶5, Exh. D.)

The court determines that Alvarez has complied with the safe harbor provision.

Merits

Plaintiffs’ TAC asserts causes of action against Alvarez for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Negligent Misrepresentation, Fraud and Money Had and Received/Unjust Enrichment. Plaintiffs have alleged that, on or about June 13, 2005, Plaintiffs purchased the property located at 4847 Stancroft Avenue in Baldwin Park (“subject property”) from Alvarez and that the sale was “evidenced by, among other things, a Purchase Agreement” between them and that “[t]he Purchase Agreement, including subsequent ‘addendums,’ is attached as Exhibit A. (TAC, ¶¶ 11, 12 and 14). Plaintiffs claim that on or about June 13, 2005, Plaintiffs entered into the written Purchase Agreement with Alvarez (“2005 Agreement”). (Id., ¶ 26, Exh. A). Plaintiffs assert that “Alvarez financed the purchase with a seller-financed mortgage, which was memorialized with an addendum to the Purchase Agreement” and that “[t]he parties subsequently extended the maturity date on the loan twice.” (Id., ¶ 27).

Plaintiffs assert that Plaintiffs “have performed all respective promises, covenants and conditions on their part to be performed under the Purchase Agreement, except to the extent such performance has been excused, relieved or discharged by the actions, breaches and other conduct by or on behalf of Defendants as alleged herein.” (Id., ¶ 28). Plaintiffs allege that Plaintiffs paid the $6,500.00 deposit required by the Purchase Agreement, moved into the property on or about July 15, 2005, forewent the opportunity to purchase another property they were then in the process of buying, moved from North Hollywood to Baldwin Park, “made substantial improvements, repairs, and renovations to the property,” and “[o]ver the last twelve years. . . made the required payments, which were over $250,000.00.” (Id.). Plaintiffs allege that Plaintiffs have also paid property tax payments. (Id., ¶ 15).

Plaintiffs allege that “[t]hroughout the years, Alvarez has repeatedly confirmed, in writing, that [their] payments were going towards paying down the mortgage. For example, in November 2009, Alvarez thanked Plaintiffs for making a timely monthly payment, but reminded Plaintiffs: ‘I don’t know if you realize how much paying late affects the amount of your payment that goes toward your principle…’ (Exhibit B).” (Id., ¶ 16). Plaintiffs also allege that Plaintiffs recently decided to refinance the mortgage and that Alvarez suggested to them Plaintiffs they reach out to Defendant Juan Sanchez (“Sanchez”) for help to obtain a new loan. (Id., ¶ 17). Plaintiffs allege that Plaintiffs did so, and submitted financial information to Sanchez so that they could obtain the new loan. (Id., ¶¶17-18.) Plaintiffs allege that, after reviewing the financial information, Sanchez told Plaintiffs that he did not think that Plaintiffs would qualify for a new loan. (Id., ¶18.) Plaintiffs allege that Sanchez told Plaintiffs this in order to discourage Plaintiffs from trying to refinance the mortgage so that Sanchez could sell the property. (Id.) Plaintiffs allege that, while Sanchez told Plaintiffs he would help them obtain the loan, Sanchez schemed with Alvarez to sell the property to someone else. (Id., ¶19.) Plaintiffs allege that Alvarez told Plaintiffs that there was no rush in getting the new loan. (Id.) Plaintiffs allege that the property was, in fact, sold to a third party and that, despite this, Alvarez accepted another mortgage payment from Plaintiffs. (Id., ¶¶19-20.)

Alvarez asserts that Plaintiffs’ TAC is “frivolous” because, according to Alvarez, “Plaintiffs have purposely, and in bad faith, omitted the true facts as they exist.” (Motion, 3:10-11.) Alvarez asserts that what in fact transpired between the parties was “that Plaintiffs breached the original agreement and then became tenants in the property, and that the parties entered into a subsequent superceding written purchase agreement on May 10, 2016 [“May 2016 Agreement”], which is the operative agreement.” (Id., 3:11-14.) Alvarez asserts that “Plaintiffs know that the original agreement was breached by them, then novated and superceded, and the Superceding Operative Agreement was also subsequently breached by Plaintiffs.” (Id., 3:18-29.) Alvarez’s version of the facts, however, is unsupported by any evidence.

While reference was made on page 7 of the moving memorandum to a declaration from Alvarez, the motion papers as originally filed failed to contain said declaration. On October 10, 2019, the court permitted Alvarez to file his missing declaration. Alvarez’s declaration concedes that on or about June 13, 2005, Alvarez and Plaintiffs entered into an agreement for the sale of the subject property. (Alvarez Decl., ¶2.) Alvarez subsequently states, without further explanation, that “Plaintiffs failed to perform pursuant to the Original Agreement and materially breached the same.” (Id.) Alvarez does not specify in what manner the agreement was breached and when. Alvarez then states that on or about May 1, 2014, “and after the Original Agreement was terminated due to Plaintiffs’ breach,” he offered Plaintiffs at a tenancy at the subject property and charged $1,323.99. (Id., ¶3.) Alvarez’s statement is not supported by any documentary evidence. Alvarez then states that on March 1, 2016, “Plaintiffs approached me about entering into a new agreement for the purchase of the Property, and hired a real estate professional, Alma Ardon, to prepare the May 10, 2016 (‘Superceding Operative Agreement’). Plaintiffs failed to carry out their obligations in accordance with the Superceding Operative Agreement and materially breached the same.” (Id., ¶4.) Again, Alvarez fails to explain in what manner Plaintiffs purportedly breached the Superceding Operative Agreement and when. Alvarez’s declaration, moreover, is devoid of any facts supporting his novation theory. “A novation is a substitution, by agreement, of a new obligation for an existing one, with intent to extinguish the latter. A novation is subject to the general rules governing contracts and required an intent to discharge the old contract, a mutual assent, and a consideration.” (Klepper v. Hoover (1971) 21 Cal.App.3d 460, 463.)

Alvarez cannot seek to correct the insufficiency of his moving papers by attaching exhibits to his reply brief which could have been provided earlier. “The general rule of motion practice. . . is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) At any rate, the Uniform Residential Loan Application that asks whether the applicant had an “ownership interest in a property in the last three years” is not, in fact, checked off. The 540 2EZ tax return, which contains a $120.00 “renter’s credit” on Line No. 19, moreover, is not signed.

Alvarez has not shown that Plaintiffs’ TAC was filed for an improper purpose or that it, as a whole, was indisputably without merit, either legally or factually.

Based on the foregoing, Alvarez’s motion for sanctions is denied. Plaintiffs’ opposition requested sanctions against Alvarez for bringing this motion as permitted by CCP § 128.7(h); however, a separate noticed motion is required. (See CCP § 128.7(c)(1).) Plaintiffs have since advised the court, via a November 1, 2019 filing, that they have withdrawn their request to file a motion for sanctions.


[1] This motion was originally heard on October 10, 2019; on that date, the hearing was continued to November 26, 2019. The court set the following briefing schedule: Plaintiff’s opposition due by October 21, 2019 and Defendant’s reply due by November 1, 2019. Notice was waived.