This case was last updated from Los Angeles County Superior Courts on 01/24/2022 at 11:08:30 (UTC).

GLORIA BROWN VS JOHN THOMAS, LLC, ET AL.

Case Summary

On 03/05/2021 GLORIA BROWN filed a Property - Other Real Property lawsuit against JOHN THOMAS, LLC. This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judges overseeing this case are STEPHEN P. PFAHLER and MELVIN D. SANDVIG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0170

  • Filing Date:

    03/05/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN P. PFAHLER

MELVIN D. SANDVIG

 

Party Details

Plaintiff and Cross Defendant

BROWN GLORIA

Cross Defendants and Defendants

HABASHY JOHN REFAAT

HOUSINGASSISTANT.ORG A WYOMING NONPROFIT CORPORATION

JOHN THOMAS LLC A CALIFORNIA LIMITED LIABILITY COMPANY

LOUVIERE VENUS MARIE

GARZA DAVID DBA LEGAL CENTER NETWORK

OUTFIT REALTY INC. A WYOMING CORPORATION

THOMAS CLAUDINE GEORGE

MINOGUE RICHARD

BROWN GLORIA

BROWN AARON

Cross Plaintiffs, Defendants and Cross Defendants

JOHN THOMAS LLC A CALIFORNIA LIMITED LIABILITY COMPANY

LOUVIERE VENUS MARIE

Attorney/Law Firm Details

Plaintiff Attorneys

BRAULT STEPHANIE MYLES

SPENCER SUZANNE

Cross Defendant and Defendant Attorneys

AMIN ISMAIL

TAYLOR BRETT NICOLE

GRESEN SOLOMON

STELNICK STEFFANIE DANIELLE

MCMAHON BRIAN D.

Defendant and Cross Plaintiff Attorney

MCMAHON BRIAN D.

 

Court Documents

Complaint

3/5/2021: Complaint

Unknown - DECLARATION OF DEMURRING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

1/19/2022: Unknown - DECLARATION OF DEMURRING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

Motion to Compel Further Discovery Responses - MOTION TO COMPEL FURTHER DISCOVERY RESPONSES - 1ST SET OF SPECIAL INTERROGATORIES

1/14/2022: Motion to Compel Further Discovery Responses - MOTION TO COMPEL FURTHER DISCOVERY RESPONSES - 1ST SET OF SPECIAL INTERROGATORIES

Declaration - DECLARATION KATHERINE J. VESCERA, ESQ.

1/14/2022: Declaration - DECLARATION KATHERINE J. VESCERA, ESQ.

Separate Statement

1/14/2022: Separate Statement

Summons - SUMMONS ON COMPLAINT (1ST)

11/17/2021: Summons - SUMMONS ON COMPLAINT (1ST)

Answer

11/17/2021: Answer

Cross-Complaint

11/17/2021: Cross-Complaint

Answer

11/15/2021: Answer

Substitution of Attorney

10/20/2021: Substitution of Attorney

Substitution of Attorney

10/20/2021: Substitution of Attorney

Substitution of Attorney

10/20/2021: Substitution of Attorney

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

10/1/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

Answer

10/1/2021: Answer

Opposition - OPPOSITION TO CERTAIN DEFENDANTS MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT

9/20/2021: Opposition - OPPOSITION TO CERTAIN DEFENDANTS MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT

Opposition - OPPOSITION TO DEMURRER BY CERTAIN DEFENDANTS TO PLAINTIFFS FIRST AMENDED COMPLAINT

9/20/2021: Opposition - OPPOSITION TO DEMURRER BY CERTAIN DEFENDANTS TO PLAINTIFFS FIRST AMENDED COMPLAINT

Summons - SUMMONS ON COMPLAINT (1ST)

9/1/2021: Summons - SUMMONS ON COMPLAINT (1ST)

Cross-Complaint

9/1/2021: Cross-Complaint

58 More Documents Available

 

Docket Entries

  • 06/10/2022
  • Hearing06/10/2022 at 08:30 AM in Department F47 at 9425 Penfield Ave., Chatsworth, CA 91311; Hearing on Motion to Compel Further Discovery Responses

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  • 03/08/2022
  • Hearing03/08/2022 at 08:30 AM in Department F47 at 9425 Penfield Ave., Chatsworth, CA 91311; Case Management Conference

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  • 01/19/2022
  • DocketDeclaration of Demurring Party in Support of Automatic Extension; Filed by Gloria Brown (Cross-Defendant)

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  • 01/14/2022
  • DocketSeparate Statement; Filed by John Thomas, LLC, a California limited liability company (Defendant)

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  • 01/14/2022
  • DocketDeclaration (Katherine J. Vescera, Esq.); Filed by John Thomas, LLC, a California limited liability company (Defendant)

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  • 01/14/2022
  • DocketMotion to Compel Further Discovery Responses (- 1st Set of Special Interrogatories); Filed by John Thomas, LLC, a California limited liability company (Defendant)

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  • 11/17/2021
  • DocketSummons (on Complaint (1st)); Filed by John Thomas, LLC, a California limited liability company (Defendant)

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  • 11/17/2021
  • DocketCross-Complaint; Filed by John Thomas, LLC, a California limited liability company (Defendant)

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  • 11/17/2021
  • DocketAnswer; Filed by John Thomas, LLC, a California limited liability company (Defendant); John Refaat Habashy (Defendant); Claudine George Thomas (Defendant)

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  • 11/15/2021
  • DocketAnswer; Filed by John Refaat Habashy (Cross-Defendant); John Thomas, LLC, a California limited liability company (Cross-Defendant); Claudine George Thomas (Cross-Defendant)

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62 More Docket Entries
  • 03/24/2021
  • DocketProof of Service by Substituted Service; Filed by Gloria Brown (Plaintiff)

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  • 03/24/2021
  • DocketProof of Service by Substituted Service; Filed by Gloria Brown (Plaintiff)

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  • 03/24/2021
  • DocketProof of Service by Substituted Service; Filed by Gloria Brown (Plaintiff)

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  • 03/23/2021
  • DocketNotice of Lis Pendens; Filed by Gloria Brown (Plaintiff)

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  • 03/08/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/05/2021
  • DocketComplaint; Filed by Gloria Brown (Plaintiff)

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  • 03/05/2021
  • DocketSummons (on Complaint); Filed by Gloria Brown (Plaintiff)

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  • 03/05/2021
  • DocketCivil Case Cover Sheet; Filed by Gloria Brown (Plaintiff)

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  • 03/05/2021
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 03/05/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

b"

Case Number: 21CHCV00170 Hearing Date: October 1, 2021 Dept: F47

Dept. F-47

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Date: 10/1/21

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Case #21CHCV00170

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DEMURRER & MOTION TO STRIKE TO THE\r\nFIRST AMENDED COMPLAINT

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Demurrer & Motion\r\nto Strike filed on 8/10/21.

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MOVING PARTY: Defendants John\r\nThomas, LLC; John Refaat Habashy, Claudine George Thomas, David Garza and\r\nHousingassistant.org (These are\r\nthe moving parties on the demurrer. See\r\nbelow for moving parties on motion to strike.)

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RESPONDING PARTY: Plaintiff Gloria Brown

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NOTICE: ok

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Demurrer is to the entire First Amended Complaint:

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1. \r\nViolations of Civil Code 1695, et seq.

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2. \r\nViolations of Civil Code 2945, et seq.

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3. \r\nBreach of Fiduciary Duty

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4. \r\nAiding and Abetting Breach of Fiduciary Duty

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5. \r\nConstructive Fraud

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6. \r\nViolations of the Real Estate Settlement\r\nProcedures Act (RESPA)

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7. \r\nUnfair Practices Under California Business &\r\nProfessions Code 17200, et seq.

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8. \r\nQuiet Title

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9. \r\nViolation of Racketeer Influenced and Corrupt\r\nOrganization Act (RICO) (18 U.S.C. 1961, et seq.)

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10. Conspiracy\r\nto Violate RICO

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11. Declaratory\r\nRelief

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12. Declaratory\r\nRelief

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RELIEF REQUESTED IN MOTION TO STRIKE: An order\r\nstriking certain portions of the First Amended Complaint: (1)\r\n¶23 regarding Habashy being a “ring-leader” of a fraudulent real estate scheme;\r\n(2) ¶24 regarding Habashy having “…a history of disciplinary actions with\r\nCalifornia State Bar and the California Department of Real Estate (CalDRE)”;\r\n(3) ¶66(a)-(g) regarding violations of the Home Equity Sales Contract Act; and\r\n(4) ¶114 regarding prior fees and kickbacks as a violation of RESPA. (The motion to strike is made only by Defendants John Thomas, LLC; John Refaat Habashy and\r\nClaudine George Thomas.)\r\n

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RULING: The demurrer is overruled and the motion to\r\nstrike is denied. Answer is due within\r\n20 days.

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This action arises out of Defendant John Thomas, LLC’s\r\npurchase of Plaintiff’s home located at 22147 Ballinger Street, Chatsworth,\r\nCalifornia 91311. Plaintiff alleged that\r\nshe engaged certain of the defendants to assist her and her husband from losing\r\ntheir home to foreclosure. Plaintiff\r\nalleges that rather than assisting her in keeping her home, the defendants\r\nacted together to purchase the home, strip Plaintiff and her husband of their\r\nequity in the home and listed the home for sale in an attempt to “flip” the\r\nproperty for a substantial profit.

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Plaintiff alleges that “each of the Defendants is now,\r\nand has been at all times herein mentioned, the agent, servant, employee,\r\npartner, associate, member, joint venturer, co-participant, officer,\r\nrepresentative and/or principal of or with the remaining Defendants, and that\r\neach Defendant has been, at all relevant times herein mentioned, acting within\r\nthe course and scope of such relationship and with the full knowledge, consent,\r\nauthority, ratification, and/or permission of each of the remaining\r\nDefendants.” (FAC ¶12). Additionally, Plaintiff alleges that\r\n“Defendants GARZA, HABASHY, THOMAS, JOHN THOMAS, LLC, LOUVIERE, OUTFIT REALTY, MINOGUE\r\nand DOES 1-30 entered into a partnership to acquire the Property and to secure\r\na secret profit and the payment of illegal referral fees and are jointly and\r\nseverally liable pursuant to Corporations Code § 16306 for the harm their\r\npartnership caused Plaintiff under the First, Second, Third, Fifth and Sixth\r\nCauses of Action. In the alternative, GARZA, HABASHY, THOMAS, LOUVIERE, JOHN\r\nTHOMAS, LLC and DOES 1-10 and 21-30 aided and abetted OUTFIT REALTY, MINOGUE\r\nand DOES 11-20 in the commission of their breaches of fiduciary duty to\r\nPlaintiff as alleged in the Fourth Cause of Action.” (FAC ¶58). \r\n

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On 3/5/21, Plaintiff filed this action for: (1)\r\nViolations of Civil Code 1695, et seq.; (2) Violations of Civil Code 2945, et\r\nseq.; (3) Breach of Fiduciary Duty; (4) Aiding and Abetting Breach of Fiduciary\r\nDuty; (5) Constructive Fraud; (6) Violations of the Real Estate Settlement\r\nProcedures Act (RESPA); (7) Unfair Practices Under California Business &\r\nProfessions Code 17200, et seq.; (8) Quiet Title; (9) Violation of Racketeer\r\nInfluenced and Corrupt Organization Act (RICO) [18 U.S.C. 1961, et seq.]; (10)\r\nConspiracy to Violate RICO; (11) Declaratory Relief and (12) Declaratory\r\nRelief. On 4/2/21, Plaintiff recorded a\r\nnotice of pendency of action/lis pendens regarding the property.

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In response to a demurrer filed on 5/5/21, on 6/10/21,\r\nPlaintiff filed the subject First Amended Complaint adding additional facts in\r\nsupport of the same twelve causes of action as alleged in the original\r\nComplaint. On 5/7/21, a Motion to\r\nExpunge Lis Pendens was filed which was denied on 7/14/21.

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On 8/10/21, Defendants John Thomas, LLC; John Refaat\r\nHabashy, Claudine George Thomas, David Garza and Housingassistant.org\r\n(Defendants) filed the instant demurrer as to all twelve of the causes of\r\naction asserted in the First Amended Complaint. \r\nDefendants John Thomas, LLC, John Refaat Habashy and Claudine George\r\nThomas move to strike the following portions of the First Amended Complaint: (1)\r\n¶23 regarding Habashy being a “ring-leader” of a fraudulent real estate scheme;\r\n(2) ¶24 regarding Habashy having “…a history of disciplinary actions with\r\nCalifornia State Bar and the California Department of Real Estate (CalDRE)”;\r\n(3) ¶66(a)-(g) regarding violations of the Home Equity Sales Contract Act; and\r\n(4) ¶114 regarding prior fees and kickbacks as a violation of RESPA.

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Despite being warned by the Court in its 7/14/21 ruling\r\non Defendants John Thomas, LLC; John Refaat Habashy and Claudine George Thomas’\r\nMotion to Expunge Lis Pendens that filing excessive memorandums without first\r\nobtaining court approval may result in the Court exercising its discretion to\r\nnot consider such papers, Defendants have, again, filed a memorandum which\r\nexceeds the fifteen-page limit set forth in CRC 3.1113(d) by five pages without\r\nobtaining court approval. See 7/14/21\r\nMinute Order, p.2; CRC 3.1113(d), (e), (g); CRC 3.1300(d). If Defendants violate the page limitations\r\nrules again, their papers will not be considered.

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Additionally, in the notice of demurrer and notice of\r\nmotion to strike, Defendants set forth the following misinformation:

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PLEASE TAKE FURTHER NOTICE THAT: Pursuant to Local Rules,\r\nthe Court will make a tentative ruling on the merits of this matter by 2:00\r\np.m., the court day before the hearing. The complete text of the\r\ntentative rulings for the department may be downloaded off the court's website.\r\nIf the party does not have online access, they may call the dedicated phone\r\nnumber for the department as referenced in the local telephone directory\r\nbetween the hours of 2:00 p.m. and 4:00 p.m. on the court day before the\r\nhearing and receive the tentative ruling. If a party does not call the court\r\nand the opposing party by 4:00 p.m. the court day before the hearing, no\r\nhearing will be held.”

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(See\r\nNotice of Demurrer, p.2:14-20; Notice of Motion to Strike, p.2:19-26).

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Contrary to Defendants’ assertion, unless both parties call\r\nthe courtroom and submit on the posted tentative ruling, a hearing will be\r\nheld.

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In addition to the procedural defects noted above, the demurrer\r\nand motion strike fail on the merits.

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DEMURRER

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1ST CAUSE OF ACTION – VIOLATIONS OF CIVL\r\nCODE 1695, et seq. (Home Equity Sales Contract Act (HESCA))

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In denying the motion to expunge\r\nlis pendens, this Court has already determined that Plaintiff has established\r\nthe probable validity of her 1st cause of action. (See 7/14/21 Minute Order). As such, the claim is sufficiently pled and\r\nnot uncertain.

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2ND CAUSE OF ACTION – VIOLATIONS OF\r\nCIVIL CODE 2945, et seq. (Mortgage Foreclosure Consultant Act (MFCA))

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Plaintiff has alleged that Defendants are vicariously\r\nliable for the alleged violations of the MFCA committed by\r\nHousingassistant.org, David Garza and the other foreclosure consultants. (See\r\nFAC ¶¶75, 82, 85). Plaintiff has alleged\r\nthat Defendants entered into a partnership to acquire the property and secure a\r\nsecret profit and the payment of illegal referral fees and are jointly and\r\nseverally liable under Corporations Code 16306 for the harm their partnership\r\ncaused Plaintiff under the 1st, 2nd, 3rd, 5th\r\nand 6th causes of action. (FAC ¶58). \r\nDefendants’ argument that the allegations of vicarious liability are\r\nineffective because the MFCA only provides for liability to a person that meets\r\nthe definition of a “foreclosure consultant,” and there is no provision for\r\nliability for a person who is not a “foreclosure consultant” is without\r\nmerit. (See Demurrer, p.7:7-10). The MFCA contemplates situations such as alleged\r\nin the First Amended Complaint where a homeowner in foreclosure is taken\r\nadvantage of by foreclosure consultants and their affiliates. The purpose of the statutory scheme is to\r\nprevent the type of conduct allegedly engaged in by Defendants. See \r\nCC 2945(a). It is irrelevant, at\r\nleast at the pleading stage, that the foreclosure consultant acts through\r\naffiliates and with others to engage in the conduct the Legislature expressly\r\nintended to prevent. See Onofrio\r\n(1997) 55 CA4th 413, 420.

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Plaintiff has sufficiently alleged that the MFCA applies,\r\nalleges which provisions of the Act Defendants violated and how. (See FAC ¶¶72-82). Additionally, the First Amended Complaint\r\nsufficiently alleges Defendants’ alleged deception and unconscionable acts. (See FAC ¶¶37-38, 40-41, 44-45,\r\n66(f)).

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3RD CAUSE OF ACTION – BREACH OF\r\nFIDUCIARY DUTY

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Plaintiff has sufficiently alleged that she was owed a\r\nfiduciary duty. The breach of fiduciary\r\nduty cause of action is based on the duties owed by Defendants Outfit Realty\r\nand Richard Minogue as Plaintiff’s real estate agents and brokers. (FAC ¶87). \r\nPlaintiff alleges that Defendants are “vicariously liable for [Outfit’s\r\nand Minogue’s] breaches of fiduciary duties” (FAC ¶94) because “the Defendants\r\nentered into a partnership to acquire the Property and to secure a secret\r\nprofit and the payment of illegal referral fees and are jointly and severally\r\nliable pursuant to Cal. Corp. Code § 16306 for the harm their partnership\r\ncaused Plaintiff under the First, Second, Third and Fifth Causes of Action.” (FAC ¶58). The partners of a partnership are jointly and\r\nseverally liable for the conduct and torts injuring a third party committed by\r\none of the partners. Corp. Code 16306; Black\r\n(1975) 48 CA3d 557; See also Kadota Fig Ass'n of Producers (1946)\r\n73 CA2d 796 (holding that all partners are liable jointly and severally for\r\neverything chargeable to partnership by reason of a partner's wrongful act or\r\nbreach of trust).

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4TH CAUSE OF ACTION – AIDING &\r\nABETTING BREACH OF FIDUCIARY DUTY

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The elements of a cause of action for aiding and abetting\r\na breach of fiduciary duty are: (1) a third party’s breach of fiduciary duties\r\nowed to plaintiff; (2) defendant’s actual knowledge of that breach of fiduciary\r\nduties; (3) substantial assistance or encouragement by defendant to the third\r\nparty’s breach; and (4) defendant’s conduct was a substantial factor in causing\r\nharm to plaintiff. Nasrawi (2014)\r\n231 CA4th 328, 343, 345. Plaintiff has\r\nsufficiently alleged all of the foregoing elements. (See FAC ¶¶96-99). At the pleading stage, Plaintiff need only\r\nallege facts sufficient to state the cause of action and need not allege all of\r\nthe evidentiary facts which support the claim. \r\nSee C.A. (2012) 53 C4th 861, 872. However, here, Plaintiff has included facts\r\nwhich show Defendants’ alleged substantial assistance and/or\r\nencouragement. (See FAC ¶¶26-47,\r\n89, 98).

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5TH CAUSE OF ACTION – CONSTRUCTIVE FRAUD

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Contrary to Defendants assertion, Plaintiff has\r\nsufficiently alleged how they engaged in the purported fraud. (See FAC ¶¶17-19, 35-38, 41, 45,\r\n66(f), 89). Plaintiff has also\r\nsufficiently alleged actual reliance. (FAC\r\n¶¶20, 87, 102). As noted above,\r\nPlaintiff has sufficiently alleged that Defendants are vicariously liable for\r\nthe conduct which forms the basis of the claim based on the tortious conduct of\r\ntheir partners. (See FAC ¶107).

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6TH CAUSE OF ACTION – VIOLATIONS OF THE\r\nREAL ESTATE SETTLEMENT PROCEDURES ACT (RESPA)

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RESPA regulates the market for real estate “settlement\r\nservices,” which includes any service provided in connection with a real estate\r\nsettlement such as title searches, loan origination, and real estate or broker\r\nservices. 12 U.S.C. 2602(3); Freeman (2012) 566 U.S. 624, 626-627. Among other things, RESPA prohibits any\r\nperson from giving or accepting any “fee, kickback, or thing of value pursuant\r\nto any agreement” that real estate settlement services will be referred to any\r\nperson. 12 U.S.C. 2607(a).

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Plaintiff has sufficiently alleged that Defendants\r\nparticipated in a referral/kickback scheme with respect to the real estate\r\nbrokerage services and real estate negotiation services provided by Defendants\r\nOutfit Realty and Richard Minogue (and through Garza’s d/b/a, PPLP). (FAC ¶¶9, 25, 27, 28, 35, 38-39, 44, 53, 114-119).\r\n

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Defendants have not established that the claim is\r\ntime-barred because Plaintiff alleges that the RESPA violations are ongoing. Although the sale of the property occurred in\r\nJuly 2019 and Defendants listed the home for sale in January 2021, Defendants\r\nstill purport to own the property despite Plaintiff’s formal written rescission\r\nof contract under HESCA on 2/2/21 and recordation of a formal Notice of\r\nRescission of Grant Deed. Plaintiff\r\ncontends that the first illegal kickbacks were paid concurrently with the\r\nclosing of the purchase transaction on or 7/15/19, and Defendants intend to\r\nshare profits once the property is resold in the alleged flip scheme.

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Additionally, Plaintiff contends that the violation that\r\noccurred on 7/15/19 was hidden from Plaintiff and equitable tolling applies, as\r\nalleged in the First Amended Complaint. \r\n(See FAC ¶¶110-111).

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7TH CAUSE OF ACTION – UNFAIR PRACTICES\r\nUNDER BUSINESS & PROFESSIONS CODE 17200, et seq.

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Since Plaintiff’s other causes of action are sufficiently\r\nstated, this cause of action which relies on those claims is also sufficiently\r\npled. Additionally, Plaintiff has\r\nsufficiently alleged her standing to bring a claim under the Unfair Competition\r\nLaw (UCL). (FAC ¶¶127-128); See Clayworth\r\n(2010) 49 C4th 758, 789; Kwikset Corp. (2011) 51 C4th 310, 322-325.

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8TH CAUSE OF ACTION – QUIET TITLE

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In denying the motion to expunge lis pendens, this Court\r\nhas already determined that Plaintiff has established the probable validity of\r\nher quiet title cause of action. (See\r\n7/14/21 Minute Order). As such, the\r\nclaim is sufficiently pled and not uncertain. \r\n

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9TH CAUSE OF ACTION – VIOLATIONS OF\r\nRACKETEERING INFLUENCED AND CORRUPTION ORGANIZATION ACT (RICO) [18 U.S.C. 1961,\r\net seq.]

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The elements of a RICO cause of action are: (1) conduct\r\n(2) of an enterprise (3) through a pattern (4) of racketeering activity (5)\r\nwhich injured plaintiff’s business or property. See Stanfield (1990) 220 CA3d 59, 77. Plaintiff has alleged each RICO element along\r\nwith sufficient facts to support those elements at the pleading stage. (See FAC ¶¶17-19, 137-141).

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10TH CAUSE OF ACTION – CONSPIRACY TO\r\nVIOLATE RICO

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The conspiracy to violate RICO claim is also sufficiently\r\npled. Defendants rely on authority\r\ninvolving civil conspiracy.

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11TH CAUSE OF ACTION – DECLARATORY\r\nRELIEF & 12TH CAUSE OF ACTION – DECLARATORY RELIEF

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Plaintiff has sufficiently alleged actual controversies\r\nto support the claims and the alleged unenforceability of the agreements. (See FAC ¶¶149, 153).

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MOTION TO STRIKE

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The Motion to Strike improperly relies on and cites to a\r\nRequest for Judicial Notice and Declaration of Thomas that were not served or\r\nfiled in support of this motion. (See\r\nMotion, p.1:25, p.2:7, p.5:17, p.5:25,\r\np.6:9).

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Defendants’ basis for striking “the bulk of the first\r\ncause of action for Violation of [HESCA]” is that the Notice of Default\r\nPurchase Agreement (NODPA) supposedly attached as an exhibit to a Declaration\r\nnot actually served or filed in support of the Motion is inconsistent with\r\nthese allegations. The Court may not\r\nconsider the argument that the missing NODPA is inconsistent with the allegations\r\nin the First Amended Complaint because the NODPA is not properly part of the motion\r\nor of the record before the Court on this motion. Additionally, based on Nichols (1978) 83\r\nCA3d 956, Defendants contend that the NODPA may be considered by the Court\r\nbecause it is incorporated by reference into ¶44 of the First Amended\r\nComplaint. However, ¶44 does not so\r\nincorporate the NOPA. (See FAC\r\n¶44). Also, Defendants’ argument that\r\nthe NODPA complied with HESCA by giving notice that Plaintiff had until 7/3/21 to\r\ncancel the transaction and that Plaintiff’s right to cancel expired on that\r\ndate such that the allegations of paragraph 66(a)-(g) must be stricken, ignores\r\nthe Court’s prior ruling. (See\r\n7/14/21 Minute Order).

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The motion fails to adequately address the request to\r\nstrike part of ¶114 and the request to strike certain parts of ¶23 and ¶24 is\r\ninsufficiently supported.

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