Pending - Other Pending
DEBRE K. WEINTRAUB
LISA HART COLE
ELAINE W. MANDEL
NANCY L. NEWMAN
MARK A. YOUNG
MARK H. EPSTEIN
H. JAY FORD III
CORNISH MAXWELL GEORGE
WELLS FARGO BANK N.A
STAUB DAVID JOSHUA
STAUB D. JOSHUA
6/30/2022: Notice - NOTICE OF ENTRY OF JUDGMENT OR DISMISSAL
6/29/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY ADJUDICATION)
3/24/2022: Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER
2/24/2022: Request for Judicial Notice
8/13/2018: Notice of Ruling
6/20/2022: Order - ORDER ON NOTICE OF REMOTE APPEARANCE
6/30/2022: Proof of Service (not Summons and Complaint)
6/30/2022: Proof of Service (not Summons and Complaint)
6/30/2022: Proof of Service (not Summons and Complaint)
6/30/2022: Request for Dismissal - REQUEST FOR DISMISSAL WITHOUT PREJUDICE AS TO THE 2ND, 3RD, & 5TH CAUSES OF ACTION IN "FIRST AMENDED COMPLAINT" FILED 12/13/2017 ONLY
6/30/2022: Request for Dismissal
6/29/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY ADJUDICATION) OF 06/29/2022
5/27/2022: Opposition - OPPOSITION TO JAMES DUTTON'S MOTION FOR AWARD OF POST JUDGMENTS COSTS
5/31/2022: Opposition - AMENDED RODICA MARINESCU' OPPOSITION TO JAMES DUTTON'S MOTION
5/31/2022: Proof of Service (not Summons and Complaint)
5/31/2022: Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) (AMENDED)
6/3/2022: Proof of Service (not Summons and Complaint)
Hearing07/22/2022 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Hearing on Motion for Order Awarding Post Judgment Costs of Enforcement[+] Read More [-] Read Less
Hearing07/18/2022 at 09:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Jury Trial[+] Read More [-] Read Less
Hearing07/11/2022 at 09:00 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Final Status Conference[+] Read More [-] Read Less
DocketProof of Service (not Summons and Complaint); Filed by James Dutton (Plaintiff)[+] Read More [-] Read Less
DocketRequest for Dismissal; Filed by James Dutton (Plaintiff)[+] Read More [-] Read Less
DocketNotice (of entry of judgment or dismissal); Filed by James Dutton (Plaintiff)[+] Read More [-] Read Less
DocketProof of Service (not Summons and Complaint); Filed by James Dutton (Plaintiff)[+] Read More [-] Read Less
DocketRequest for Dismissal (Without prejudice as to the 2nd, 3rd, & 5th causes of action in "First Amended Complaint" filed 12/13/2017 only); Filed by James Dutton (Plaintiff)[+] Read More [-] Read Less
DocketProof of Service (not Summons and Complaint); Filed by James Dutton (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department M, Mark A. Young, Presiding; Hearing on Motion for Summary Adjudication - Held[+] Read More [-] Read Less
DocketEx-Parte Application (FOR RIGHT TO ATTACH ORDER & ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT ); Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketEx Parte Right to Attach Order and Order for Issuance of Writ of Attachment (Resident); Filed by James Dutton (Plaintiff); Patricia Dutton (Plaintiff)[+] Read More [-] Read Less
DocketApplication for Right to Attach Order, Temporary Protective Order, etc.; Filed by James Dutton (Plaintiff); Patricia Dutton (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by James Dutton (Plaintiff); Patricia Dutton (Plaintiff)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by James Dutton (Plaintiff); Patricia Dutton (Plaintiff)[+] Read More [-] Read Less
DocketSummons Filed; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk[+] Read More [-] Read Less
DocketComplaint Filed[+] Read More [-] Read Less
DocketSummons (on Complaint); Filed by Clerk[+] Read More [-] Read Less
DocketNotice (OF NONOPPOSITION TO HIS "PLAINTIFF JAMES DUTTON'S NOTICE OF MOTION AND MOTION FOR EVIDENTIARY, ISSUE, TERMINATING, AND MONETARY SANCTION OF $1,282 AGAINST RODICA MARINESCU ); Filed by Attorney for Plaintiff[+] Read More [-] Read Less
Case Number: ****7259 Hearing Date: September 8, 2022 Dept: M
CASE NAME: Dutton, et al., v. Marinescu, et al.
CASE NO.: ****7259
MOTION: Motion to Compel Initial Discovery Responses
HEARING DATE: 9/8/2022
Where there has been no timely response to a Code of Civil Procedure (CCP) section 2031.010 inspection demand, the demanding party must seek an order compelling a response. (CCP 2031.300.) Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required.
If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (CCP 2030.290(b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.)
As to the interrogatories, on June 4, 2022, the Duttons served the “Interrogatories to Judgment Debtor Rodica Marinescu” pursuant to Code of Civil Procedure section 708.030. (Staub Decl., 12-14, Ex. 1.) Marinescu did not initially respond to the discovery. (Id., 15.)
In opposition, Marinescu objects to service of the underlying discovery. However, Marinescu simply contends that the regular mail service was invalid since she unilaterally declared that she could only be served via electronic service. This position is without legal authority. Marinescu proffers her verified responses to the interrogatories. (See Attachment to Marinescu Decl.) These responses are in substantial compliance with sections 2030.210-2030.240. In reply, the Duttons contend that the responses are evasive and withholds certain critical information. While that appears to be true, this does not render the responses not in “substantial” compliance. The motion would still be substantively moot. If the Duttons wish to compel a further response, then a noticed motion will be necessary. That said, sanctions are not moot.
As to the inspection demands, on June 4, 2022, the Duttons served the “Demand for Production of Document to Judgment Debtor Rodica Marinescu” pursuant to Code of Civil Procedure section 708.030. (Staub Decl., 12-14, Ex. 1.) Marinescu failed to respond to the discovery, despite being obligated to respond by July 11, 2022. While unnecessary, counsel also provides for good cause/relevancy of the sought discovery. (Id., 16-22.) Given the failure to respond, the motion to compel is GRANTED. Further responses are due within 10 days without objection. Monetary sanctions are mandatory, unless the imposition of sanctions would be unjust or the party subject to the sanctions acted with substantial justification. (CCP 2030.290; 2031.300.)
As to the interrogatories, the Duttons request monetary sanctions of $4,010.00. The Court finds these fees excessive, given the substantial similarity form this motion and the other discovery motions, and the relative simplicity of this motion. The Court will therefore impose sanctions in the reduced amount of $750.00, inclusive of costs. As to the inspection demand, Marinescu failed to respond to the inspection demand. The Duttons seek $3,010.39 in fees. The Court likewise finds these fees inflated. Accordingly, the Court will grant an additional $750 in sanctions, inclusive of costs.
Accordingly, the request for sanctions is GRANTED in the reduced total amount of $1,500.00 against Marinescu payable within 30 days.
The Court has a few notes on the tenor of this litigation. The Court understands counsel’s frustration with Defendant Marinescu. The Court agrees that Marinescu has been less-than-truthful during this process, and takes opportunities to attack counsel during various hearings. Unlike a pro-per defendant, however, Mr. Staub is an officer of the court, and will be held to a higher standard than a pro-per litigant. While the Court commends Mr. Staub for ignoring these attacks in the past, it appears that he has taken a different road with this motion. In the future, Mr. Staub shall refrain from disrespectful verbiage and ad hominem attacks in pleadings. For example, Mr. Staub shall refrain from referring to anyone as “wretched” or “the most full of crap person who has ever contaminated a courthouse with her ogrish presence.” “Ad hominem arguments, of course, constitute one of the most common errors in logic: Trying to win an argument by calling your opponent names (‘Jane, you ignorant etcetera ....’) only shows the paucity of your own reasoning.” (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430.) Such attacks are inappropriate in the papers, and the court disregards such arguments. Furthermore, “[P]ersonal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct. [Citation omitted.]” (In re S.C. (2006) 138 Cal.App.4th 396, 412.) Counsel does not need to use this language to persuade the Court, and it only reflects poorly on counsel and harms Plaintiffs’ position.
In the past, Defendant Marinescu has used oral argument to tangentially and wrongfully attack counsel, and that behavior, much like counsel’s current filing, shall not continue. Going forward, Defendant Marinescu shall limit her comments and arguments at any hearings to the issues at hand, and if she fails to follow that order, then the Court shall consider other options to enforce appropriate and civil behavior. “Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.) All parties and counsel are forewarned.
Case Number: ****7259 Hearing Date: July 22, 2022 Dept: M
CASE NAME: Dutton, et al., v. Marinescu, et al.
CASE NO.: ****7259
MOTION: Motion for Order Awarding Post-Judgment Costs of Enforcement
HEARING DATE: 6/10/2022
This is technically a post-judgment matter related to various discovery-related sanction orders. On January 18, 2022, judgment creditor (JC) James Dutton filed the instant motion for costs/fees against judgment debtor (JD) Rodica Marinescu. JD opposes the motion. The discovery sanctions were issued on September 13, 2017, October 25, 2017, June 15, 2018, July 25, 2018, July 31, 2018, August 7, 2018, and October 18, 2018.
“The Enforcement of Judgments Law provides two remedies through which a judgment creditor may obtain an order for post judgment attorney fees as costs: section 685.070, subdivision (b) [memorandum of costs] and section 685.080, subdivision (a) [motion for costs].” (Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 897.)
CCP section 685.070 states that “(a) The judgment creditor may claim under this section the following costs of enforcing a judgment: . . . (6) Attorney's fees, if allowed by Section 685.040.” CCP 685.040 provides that:
“The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.”
CCP section 1033.5(a)(10)(A) allows fees as costs when authorized by contract.
CCP section 685.080 states “(a) The judgment creditor may claim costs authorized by Section 685.040 by noticed motion. The motion shall be made before the judgment is satisfied in full, but not later than two years after the costs have been incurred. The costs claimed under this section may include, but are not limited to, costs that may be claimed under Section 685.070 and costs incurred but not approved by the court or referee in a proceeding under Chapter 6 (commencing with Section 708.010) of Division 2.”
The parties each request judicial notice of various court documents. These requests are GRANTED.
JC moves for $11,600.00 of post-judgment enforcement costs to the money judgment entered against JD on September 13, 2017, which consists of: a) $600 in costs for a court reporter in case no. BC710605; and b) $11,000.00 in fees for motions heard on December 1, 2021 and January 19, 2022 in case no. BC710605.
JC filed a lien in case no. BC710605 for certain judgments entered against JD. These judgments were entered pursuant to the Civil Discovery Act. Upon discovering that JD was due to receive $15,000.00 in that case, JC requested the money from the receiver. The receiver did not comply. Thus, on October 2, 2021, JC filed a motion for an order that the receiver be required to pay JC the $15,000 due to JD under the judgment in that action. The Court granted this motion and ordered payment. JC states that the receiver was still resistant, despite the order. JC thereafter moved for an OSC re: contempt against the receiver, which was denied on January 19, 2022. On that same date, the Court did order the receiver to tender the funds to JC.
JC argues that he can recover his attorney’s fees to enforce the judgment pursuant to CCP sections 685.040 and 685.080 because the Judgment is an award of attorney fees for discovery sanctions based on section 2023.010 et seq. However, JC cannot recover fees here because he does not demonstrate that the underlying judgment included a fee award based in contract. Dutton does not otherwise provide any authority for judgment collection fees.
As noted above, CCP sections 685.070 and 685.080 provides two grounds for recovery of fees. Specifically, fees are awardable if “otherwise provided by law” or “if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” (See Rosen v. LegacyQuest (2014) 225 Cal.App.4th 375, 383–384 [“some other legal basis” for award includes award of fees incurred in enforcing the judgment against sureties under section 996.480(a)(2)]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141 [“some other legal basis” includes award made under the anti-SLAPP statute].) “In other words, when a fee-shifting statute provides the substantive authority for an award of attorney fees, any such fees incurred in enforcement of the judgment are within the scope of section 685.040.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 614; see, e.g., Downen's, Inc. v. City of Hawaiian Gardens Development Agency (2001) 86 Cal.App.4th 856 [inverse condemnation substantively provides for statutory fees “incurred because of that proceeding”]; Berti v. Santa Barbara Beach Properties (2006) 145 Cal.App.4th 70, 74 [fees awarded under Corp. Code 15634, which substantively provides for attorneys’ fees “in connection with the action or proceeding”].)
JC cites the fact that the underlying judgment has attorneys’ fees in it, as they are sanctions for discovery abuse based on counsel’s reasonable fees. However, such sanctions were not awarded under contract. Furthermore, the discovery statutes do not give a substantive right to attorneys’ fees related to the entire action. Instead, discovery sanctions are for limited purposes related to discovery misconduct only. (CCP 2023.010 et seq.) This is unlike the various statutes relied-upon in the above authorities where fees were awarded. Such statutes entitled those plaintiffs to recover all fees related to the action, not just a single instance of discovery abuse.
Importantly, JC fails to state any authority for the position that enforcement of a discovery sanction would be recoverable under section 685. The Court was unable to find any published authority on the matter. As JC has failed to show that the fees were “otherwise provided by law,” the Court will not award such fees.
Moreover, the Court does not find that the $600.00 in costs associated with the January 19, 2022, hearing were reasonably incurred. The hearing was on JC’s request for an OSC re: contempt against the Receiver Andrew Adams for his failure to pay on the lien. While the court did order Adams to pay Dutton the $15,000.00 by January 31, 2022, the Court denied the OSC request. Thus, Dutton seeks fees and costs on a motion that was denied. The Court does not find this proper, as it was not successful and therefore not necessary to enforce the judgment. If anything, the motion delayed the payment since Adams suggested that he would pay after the time to appeal expired. That time expired prior to January 31, 2022. Thus, the Court does not find this reasonably incurred.
Accordingly, JC’s motion is DENIED.
Case Number: ****7259 Hearing Date: June 29, 2022 Dept: M
CASE NAME: James Dutton, et al v. Rodica Marinescu, et al
CASE NO.: ****7259
MOTION: Motion for Summary Adjudication by Plaintiffs
HEARING DATE: 6/29/2022
SUMMARY OF RULING
Plaintiffs’ motion for summary adjudication is GRANTED as to the first, fourth and fifth causes of action of their First Amended Complaint (FAC), and defendant Marinescu’s remaining affirmative defenses contained in the her answer to the FAC.
On March 21, 2017, Plaintiff James and Patricia Dutton filed this contract/elder abuse action against Defendants Rodica Marinescu and Maxwell George Cornish. The operative FAC alleges six causes of action for: 1) breach of written contract; 2) breach of oral contract; 3) breach of involuntary trust; 4) money had and received; 5) financial abuse of an elder; and 6) injunctive relief. The FAC alleges two pertinent contracts. First, on September 10, 2016, the Duttons loaned $11,327.70 to Marinsecu. Marinescu breached this loan agreement by failing to pay $1,000.00 per month commencing November 1, 2016. Second, during January and February 2017, Marinescu informed the Duttons that she was negotiating to purchase certain real property, and that she needed proof of funds. The Duttons loaned Marinescu $427,000.00 for her to use as proof of funds. Marinescu has since refused to return the funds in breach of the oral agreement.
On January 11, 2018, Marinescu filed her operative answer to the FAC. The answer asserted defenses of (2) failure of consideration, (3) offset, (5) unclean hands, (8) in pari delicto, (9) equitable estoppel, (14) forbearance/modification, (15) usury, (16.) excuse of performance, (17) illegality, (18) duress, undue influence, (19) sham pleading/no financial elder abuse and (20) lack of standing. On March 15, 2018, the court partially granted the Duttons’ demurrer to the Answer leaving defenses for (2) failure of consideration, (3) offset, (5) unclean hands, (8) in pari delicto, (9) equitable estoppel, (16) excuse, (17) and illegality.
On August 22, 2017, the Court granted Plaintiffs’ motion to deem matters admitted against Marinescu. On October 9, 2020, the Court denied Marinescu’s motion for relief from admissions. On April 11, 2022, Plaintiffs moved for summary adjudication of each cause of action.
A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code of Civ. Proc., 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code of Civ. Proc., 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (Code of Civ. Proc., 437c(t).)
To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP, 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code of Civ. Proc., 437c(e).)
Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code of Civ. Proc., 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)
Plaintiffs’ objections to the Marinescu declaration are immaterial to the Court’s analysis and ruling. (Code of Civ. Proc., 437c(q).)
The motion for summary adjudication is granted based, in large part, on defendant Marinescu’s admitted responses to Plaintiffs’ requests for admissions. (See Staub Decl., Exs. 18, 19, 21, 22.) Importantly, Marinescu’s responses were deemed admitted by court order (see 7/25/18 Minute Order). (Staub Decl., Ex. 22.) Many of the admissions go to the heart of the action. For example, among other admissions, Marinescu has admitted the following:
27. Admit that YOU did not return any portion of the $427,000 to James Dutton.
171. Admit that in 2016 YOU did not repay any portion of the $11,327.70 that YOU borrowed from Patricia Dutton and James Dutton as evidenced by the "Promissory Note" dated 9/10/16.
188. Admit that Patricia Dutton did not cause YOU any damages.
189. Admit that James Dutton did not cause YOU any damages.
190. Admit that YOU are guilty of financial elder abuse against James Dutton.
191. Admit that YOU are guilty of financial elder abuse against Patricia Dutton.
196. Admit that YOU are not excused from having to repay the $427,000 that YOU borrowed from James Dutton.
198. Admit that YOU have not repaid any portion of the $427,000 that YOU received from James Dutton.
204. Admit that YOU have paid no interest on the $427,000 that YOU received from James Dutton in February 2017.
As discussed below, the admissions are conclusive as to the material facts of Plaintiffs’ causes of action and the defenses at issue in this motion. Further, Marinescu admits that she failed to properly respond to these admissions and did not relieve herself of her admissions. Marinescu subsequently moved for relief, but relief was denied on October 9, 2020. Marinescu’s belated request under Code of Civil Procedure section 473(b) is untimely. (Code of Civ. Proc., 473(b) [the motion “shall be made within a reasonable time, in no case exceeding six months”].) Marinescu’s cited procedural errors by the Court are not a basis to deny this motion.
As an independent basis for granting the motion, Marinescu does not offer any responsive separate statement. An opposing party's failure to comply with the separate statement requirement may, in the court's discretion, alone constitute a sufficient ground for granting the motion. (CCP 437c(b)(3); see Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 568 [trial court did not abuse its discretion by denying request to continue the hearing and submit revised separate statement].) Even examining the opposition, Marinescu does not explain why the motion would fail as a matter of law in any respect. Thus, so long as the Court finds that Plaintiffs meet their initial burden, Marinescu will fail to meet her burden. Plaintiffs’ motion will be granted also on this independent basis.
Issue no. 1 - Breach of the Note
The elements for breach of contract cause of action are: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Plaintiffs shift their initial burden on summary adjudication by producing the following evidence, much of which is established by Marinescu’s discovery admissions. The Duttons allege a written promissory note dated 9/10/16 whereby they lent $11,323.70 to Marinescu (the “Note”). Marinescu admits that the Note is genuine, and borrowing the stated sum from the Duttons. (UMF 1-2.) Provision 1 of the Note required that Marinescu and Maxwell Cornish commence repayment to the Duttons on 11/1/16, which never happened. (UMF 3-4.) The Note is unambiguous, Marinescu admits its execution, and nonpayment. Plaintiffs thereby shift their burden on this issue.
Marinescu offers no facts in opposition. Accordingly, Plaintiffs’ motion is GRANTED as to this issue.
Issue no. 2 – Money Had as to the $427,000
A plaintiff establishes the common count of money had and received by proving that “defendant ‘is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.’” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) Here, Marinescu admits to receiving $427,000 from the Duttons. (UMF 5.) Specifically, she admits that this was the first installment of a $900,000 loan that matured within 1 year. (UMF 6.) Marinescu admits that she inexcusably retains the $427,000.00. (UMF 7-8.) Moreover, she has not given anything of value to the Duttons. (UMF 9-10.) Thus, Plaintiffs establish undisputed facts that Marinescu has retained the $427,000 long after the maturity date, and without an excuse.
Again, Marinescu offers no facts in opposition. Accordingly, Plaintiffs’ motion is GRANTED as to this issue.
Issue no. 3 – Financial Elder Abuse
Financial elder abuse generally consists of: (1) the taking, secreting, appropriating obtaining or retaining of property, (2) of a person over the age of 65, (3) for a wrongful use or with the intent to defraud, and (4) resulting damages. Pursuant to Welfare & Institutions Code 15610.30, financial elder abuse occurs when a person does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both; (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both; (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code. Wrongful use is met when defendant “knew or should have known” that her conduct was likely to cause the harm. (Welf. & Inst. Code 15610.30(b).)
Marinescu obtained $427,000 from the Duttons and retained the $427,000 pass the date of maturity. (UMF 12-13.) Duttons are over the age of 65. (UMF 14-15.) Marinescu admits that the Duttons are residents of the state of California. (UMF 16.) Moreover, Marinescu admits to having committed financial elder abuse of James and Patricia. (UMF 18-19.) Again, Marinescu admits that the purported $900,000 loan, of which the $427,000 was part, was due in one year, and she has not repaid any part of the loan. (UMF 20-22.) From this evidence, Plaintiffs demonstrate that Marinescu knew or should have known that retaining the sum after the maturity date would harm Plaintiffs. Thus, Plaintiffs meet their burden as to this issue.
Accordingly, Plaintiffs’ motion is GRANTED as to this issue.
There are three remaining defenses the answer: (1) failure of consideration; (2) unclean hands; and (3) in pari delicto. As set forth herein, Plaintiffs demonstrate that these defenses are without merit.
“Failure of consideration” is the failure to execute a promise, the performance of which was exchanged for performance by the other party. (Bliss v. California Co-op. Producers (1947) 30 Cal.2d 240, 248.). “[T]he failure of the consideration is total ... [where] nothing of value has been received under the contract by the party...” seeking restitution. (Richter, supra, 129 Cal. at p. 373.) Where the failure of the consideration is total, “the law implies a promise on the part of the other to repay what has been received by him under the contract....” (Ibid.) Such a promise is implied because the “defendant cannot in equity and good conscience retain the benefits of the agreement and repudiate its burdens....” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230.) Even if this defense applied, this would only justify the money had cause of action. Further, this would still entitle Plaintiffs to receive restitution of the funds at issue. Thus, Plaintiffs demonstrate that the failure of consideration is not a defense to any of the relevant contract causes of action.
“The doctrine of unclean hands requires unconscionable, bad faith, or inequitable conduct by the plaintiff in connection with the matter in controversy.” (Mendoza v. Ruesga (2008) 169 Cal.App.4th 270, 279.) “Unclean hands applies when it would be inequitable to provide the plaintiff any relief, and provides a complete defense to both legal and equitable causes of action.” (Id.) Whether the unclean hands doctrine applies depends on whether the unclean conduct directly relates to the transaction upon which the complaint is made, i.e., the subject matter involved. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 681.) In pari delicto is a related concept to unclean hands. “The doctrine of in pari delicto dictates that when a participant in illegal, fraudulent, or inequitable conduct seeks to recover from another participant in that conduct, the parties are deemed in pari delicto, and the law will aid neither, but rather, will leave them where it finds them.” (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1143, fn.1.)
Unclean hands and in pari delicto are equitable defenses (Waters v. San Dimas Ready Mix Concrete (1963) 222 Cal.App.2d 380, 383.). “He who seeks equity must do equity.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 576.) The doors of a court of equity are closed ‘…to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.” (Quick v. Pearson (2010) 186 Cal.App.4th 371, 380.)
The record demosntrates that the equities favor Plaintiffs and not Defendant Marinescu. The above admissions establish that Marinescu agreed to borrow $900,000 from the Duttons and repay that sum within one year. She failed to pay anything to the Duttons. (UMF 42-45.) Marinescu retains the $427,000 without excuse (UMF 46.) Plaintiffs fairly claim that this is inequitable conduct. Marinescu admitted that she committed financial elder abuse of the Duttons. (UMF 47-48.)
Accordingly, Plaintiffs’ motion is GRANTED as to the defenses, which were identified as issues no. 4-9, which are (4) The Duttons are entitled to summary adjudication on the “failure of consideration” defense; (5) Marinescu cannot invoke equity unclean hands or in pari delicto as a defense to financial elder abuse; (6) Equity should not apply because it would unjustly enrich Marinescu; (7) The Duttons are entitled to summary adjudication that the equitable defenses of “unclean hands” and (8) in pari delicto do not apply because Marinescu did not come to court with clean hands; and (9) The Duttons are entitled to summary adjudication as to the defense of “unclean hands.”
Remaining Causes of Action: Plaintiffs noticed the motion against all causes of action, including the oral contract and declaratory relief causes of action. Despite noticing the motion as to all causes, Plaintiffs failed to address these remaining two causes of action -- the oral contract and declaratory relief causes. Plaintiffs will have to dismiss these remaining causes of action or prevail on those causes of action at trial in order to obtain judgment.
Case Number: ****7259 Hearing Date: March 4, 2022 Dept: M
CASE NAME: James Dutton, et al. v. Rodoca Marinescu, et al.
CASE NO.: ****7259
SUBJECT: Plaintiffs’ Motion for Judgment on the Pleadings
HEARING DATE: 03/04/2022
This action was filed on March 21, 2017. On January 11, 2018, Marinescu answered the first amended complaint (FAC) with 12 defenses (hereinafter, the “Answer”) (RJN Ex. 11, pp. 107-113.). The Answer asserted defenses of (2) failure of consideration, (3) offset, (5) unclean hands, (8) in pari delicto, (9) equitable estoppel, (14) forbearance/modification, (15) usury, (16.) excuse of performance, (17.) illegality, (18) duress, undue influence, (19) sham pleading/no financial elder abuse and (20) lack of standing.
On March 15, 2018, the Court sustained demurrers to affirmative defenses Nos. 14, 15, 18, and 20, struck No.19, and struck her allegation that the Duttons lacked California residency (RJN Ex.13, pp. 144-146 & 148.) The Court also overruled the demurrer to defense nos. 5, 8, and 17. On December 23, 2021, Plaintiffs filed this motion for judgment on the pleadings as to the remaining affirmative defenses with respect to two of the claims in the FAC. (See RJN Ex. 9.)
“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) A motion for judgment on the pleadings “may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense.” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650, citing McCutchen v. City of Montclair, (1999) 73 Cal.App.4th 1138, 1144.)
“Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice.” (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27.)
The standard for granting “a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.” (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, quoting Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Per California Code of Civil Procedure section 439(a), “[b]efore filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings . . . for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (Code Civ. Proc., 439(a).) “The moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following: “(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. [or] (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., 439(a)(3).)
Code of Civil Procedure section 438(c)(1) provides that a Plaintiff/Cross-Complainant may make a motion for judgment on the pleadings only on one of the following grounds: “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., 438(c)(1).) “The motion provided for in this section may be made as to either of the following: (A) The entire complaint or cross-complaint or as to any of the causes of action stated therein. (B) The entire answer or one or more of the affirmative defenses set forth in the answer.” (Code Civ. Proc., 438(c)(2).) “Where a plaintiff brings such a motion, [the Court] assume[s] the defendant could have proven all of the factual allegations in its answer. (Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, 1115, 130 Cal.Rptr.2d 149.)” (Alameda County Waste Management Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174, as modified (Sept. 8, 2021).)
“Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. [Citation.] Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits.” (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321-322.)
Request for judicial notice
The request for judicial notice is GRANTED IN PART and DENIED IN PART.
Exhibits 6-7, 9-11, 13, 14-17 are judicially noticeable as court records. Therefore, the Court grants judicial notice of Exhibits 6-7, 9-11, 13, 14-17.
Exhibits 1-5, 8 and 12 are discovery and discovery responses. Plaintiffs cited Evidence Code section 452, subdivisions (c) and (d) in support of the Court taking judicial notice. Those subdivisions permit judicial notice of “(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States” and “(d) Records 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.” Plaintiffs have not shown that these provisions apply. In the motion, Plaintiffs argue that the Court may take judicial notice of discovery responses and discovery admissions “that cannot reasonably be controverted, even if it negates an express allegation of the pleading. [citation])” (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 disapproved on other grounds by Black Sky Capital, LLC v. Cobb (2019) 7 Cal.5th 156.) Plaintiffs argue that the Court can take judicial notice of interrogatories. Plaintiffs, however, have not explained why the responses to the form interrogatories would be judicially noticeable. Plaintiffs’ authorities only show that requests for admissions would be judicially noticeable but not discovery responses. Therefore, the request for judicial notice of requests for admission and responses is GRANTED as to Exhibits 1, 3-5, 12, and DENIED as to the interrogatories, Exhibits 2, 8.
Plaintiffs oppose the oppositions submitted by Defendant arguing that neither the first opposition filed on February 22, 2022, nor the second opposition filed on February 24, 2022, are timely based on the March 4, 2022, hearing date because neither were filed, and served 9 court days before March 4, 2022 but rather 4 or 6 days late (Code Civ. Proc., 1005(b).) Here, the papers were filed after February 18, 2022, making them untimely for the March 4, 2022, hearing date. Moreover, both oppositions exceeded the 15-page limit set forth in California Rules of Court Rule 3.1113(d). California Rules of Court Rule 3.1113(e) required Plaintiff to “apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum.” However, Defendant failed to do so. Consequently, California Rules of Court Rule 3.1113(g) requires that “A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (emphasis added). “A trial court has broad discretion under Rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Here, the Court exercises its discretion and refuse to consider the late filed and over-sized papers. (See Cal. Rules of Court, Rule 3.100(d).)
While Plaintiffs’ counsel filed a declaration, the declaration contained no facts regarding the mandatory meet and confer required prior to filing a motion for judgment on the pleadings. (See generally Staub Decl.)
Plaintiffs seek judgment on the pleadings pursuant to Code of Civil Procedure section 438 and common law on the grounds that the Duttons’ FAC signed 12/12/17 states facts sufficient to constitute causes of action for: (1) breach of written contract and (5) financial abuse of an elder against Defendant Marinescu, and that Defendant Marinescu’s January 11, 2018, Answer to Plaintiffs’ FAC does not state facts sufficient to constitute a defense to these two causes of action. In order to prevail on this motion, Plaintiffs would need to demonstrate that each of the affirmative defenses fails to constitute an affirmative defense to the breach of contract claim and the financial elder abuse claim.
Whether Plaintiffs has shown that the claims are sufficient
Plaintiffs’ first cause of action is for breach of contract. Plaintiffs argue that the FAC states a claim for breach of contract. The elements of breach of contract are: “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. [Citation.]” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) In their first cause of action for “breach of written contract”, the Duttons plead a loan of $11,327.70 to Marinescu by written note (RJN Ex. 9, FAC, 13-14 & Ex. A, pp. 102-103.), Marinescu’s breach by failing to perform the note’s repayment terms (Id. 17-28), and damages (Id. 29.) Here, Plaintiffs have stated a claim for breach of contract.
Plaintiffs also argue that they have stated a claim for financial elder abuse. “Elder” is defined as “any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, 15610.27.) The statute also defines “Financial abuse” of an elder or as “when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both[;] or (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, 15610.30(a)(1),(2).) In addition, “a person . . . shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person . . . takes, secretes, appropriates, obtains, or retains the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code, 15610.30(b).) The Duttons are over 65 (RJN Ex. 9, FAC 2, 4), Marinescu obtained $427,000 from the Duttons and had no intention to return the $427,000 to the Duttons (Id. 60), and wrongfully retained the $427,000 after the Duttons demanded that she do so. (RJN Ex. 9, 62-63.) Here, Plaintiffs have stated a claim for financial elder abuse.
Whether Plaintiffs have shown that the challenged affirmative defense fail to state a defense to the breach of contract claim and the elder abuse claim.
On March 15, 2018, the court partially granted the Duttons’ demurrer to the Answer leaving defenses for (2) failure of consideration, (3) offset, (5) unclean hands, (8) in pari delicto, (9) equitable estoppel, (16) excuse, (17) and illegality. (See RJN Ex. 13, pp. 137-150.)
Failure of consideration
Plaintiffs argue that failure of consideration does not factually apply to a breach of contract claim because Defendant admits the genuineness of the executed note on which it rests on. Plaintiffs do not cite authority for the position that the admission of the genuineness of a document negates an affirmative defense for failure of consideration. Therefore, the motion for judgment on the pleadings on this affirmative defense is DENIED.
Plaintiffs argue that for her “offset” affirmative defense, Marinescu fails to allege that she is the Duttons’ creditor, and thus cannot maintain this defense citing Crasnick v. Marquez (2016) 248 Cal.App.4th. Supp. 1, 6 and Wallace v. Bear River Water & Mining Co. (1861) 18 Cal. 461, 465. Plaintiffs also argue that Defendant cannot obtain affirmative relief by an answer, and cannot assert offset as an affirmative defense on that basis. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 197–198.) Crasnick v. Marquez (2016) 248 Cal.App.4th Supp. 1, 6 is distinguishable because it dealt with the issue of offsetting judgments. This case does not stand for the proposition that a defendant must allege in the answer that defendant is a judgment creditor. A “defendant may only assert the setoff defensively to defeat the plaintiff's claim in whole or in part” but cannot obtain affirmative relief by offset. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198, as modified (Nov. 14, 2002).) However, Plaintiffs point to judicially noticeable admissions wherein Defendant Marinescu admits that Plaintiffs have not damaged Defendants. (RJN, Ex. 14, p. 155, admissions Nos. 188-189, and RJN Ex. 15.) As such, Plaintiffs have shown that Defendant has admitted facts that make this defense insufficient. Therefore, the motion for judgment on the pleadings is GRANTED as to this affirmative defense.
In pari delicto
Plaintiffs challenge the in pari delicto affirmative defense based on Defendant’s form interrogatory response. A motion for judgment on the pleadings challenges the sufficiency of the answer. “The doctrine of in pari delicto dictates that when a participant in illegal, fraudulent, or inequitable conduct seeks to recover from another participant in that conduct, the parties are deemed in pari delicto, and the law will aid neither, but rather, will leave them where it finds them.” (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1143, fn.1 [quoting Smith ex rel. Boston v. Arthur Andersen L.L.P. (D.Ariz.2001) 175 F.Supp.2d 1180, 1198.].) Here, Plaintiffs do not challenge the sufficiency of the allegations in the Answer. Plaintiffs do not argue that the affirmative defense is insufficient as pled. Therefore, the motion for judgment on the pleadings on this affirmative defense is DENIED.
For the unclean hands affirmative defense, Plaintiffs argue that the affirmative defense is insufficient because Marinescu does not plead that the Duttons violated a law, statute, regulation, good faith, conscience, or engaged in inequitable conduct citing Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 979. Plaintiffs argue that the affirmative defense only pleads that Plaintiff attempted to renegotiate the terms of a transaction and failed to perform according to a contract (RJN, Ex. 10, p. 109:1-17).
Not every wrongful act constitutes unclean hands. But, the misconduct need not be a crime or an actionable tort. Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine. (DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1395–1396, 262 Cal.Rptr. 370; Precision Co. v. Automotive Co., supra, 324 U.S. at pp. 814–815, 65 S.Ct. 993.)
(Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 979, as modified on denial of reh'g (Jan. 3, 2000).) Here, Defendant does not need to allege in her Answer that Plaintiffs violated a law, statute or regulation. Plaintiffs also cite the interrogatory responses to dispute the sufficiency of the allegations. Here, a motion for judgment on the pleadings challenges the sufficiency of the answer, and not the evidence in the form of discovery responses given. Therefore, the motion for judgment on the pleadings on this affirmative defense is DENIED.
For the “equitable estoppel” affirmative defense, Plaintiffs argue that Marinescu does not allege the requisite facts of “(1) a representation or concealment of material facts (2) made with knowledge, actual or virtual, of the facts, (3) to a party ignorant, actually and permissibly, of the truth, (4) with the intent, actual or virtual, that the latter act upon it, and (5) the party must have been induced to act upon it. [Citation.]” (San Diego Mun. Credit Union v. Smith (1986) 176 Cal.App.3d 919, 923.) Here, Plaintiffs do not challenge the sufficiency of the allegations in the Answer. Instead, once again, Plaintiffs base their arguments on Defendant’s response to the form interrogatories. Plaintiffs have not shown that the affirmative defense is insufficiently pled. Therefore, the motion for judgment on the pleadings on this affirmative defense is DENIED.
For the defense of “excuse,” Plaintiffs argue that excuse must be pleaded specifically (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1388.) Plaintiffs cite Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331 in support of their position that a party must allege every element of excuse with specificity. That citation only supports the proposition that fraud must be specifically plead and makes no mention of excuse. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) Plaintiffs also argue that this affirmative defense does not apply to financial elder abuse citing Civil Code section 1511. Plaintiffs also point to judicially noticeable admissions that show that Defendant admitted that she was not excused from performing. (RJN Ex. 14, p. 156, admissions Nos. 196 & 198, and RJN Ex. 15.). Here, since Plaintiffs point to Defendant’s judicial admissions which defeat this affirmative defense, Plaintiffs are entitled to judgment on the pleadings on this affirmative defense. Therefore, the motion for judgment on the pleadings is GRANTED as to this affirmative defense.
For the “illegality” defense, Plaintiffs argue that Marinescu’s Answer is difficult to follow and also fails to plead with specific allegations that Defendant or the Duttons committed a crime. (Severance v. Knight-Counihan Co. (1947) 29 Cal.2d 561, 576 [“Illegality is an affirmative defense that must be specially pleaded.”].) Illegality is a contractual defense, and Courts will not aid in the enforcement of an illegal agreement or an agreement that violates public policy. (Schaffter v. Creative Capital Leasing Group, LLC (2008) 166 Cal.App.4th 745, 755.)
Plaintiffs argue that this defense does not lie under the sham pleading doctrine. In Womack v. Lovell (2015) 237 Cal.App.4th 772, 786, the plaintiff homeowner alleged in an unverified complaint that the defendant contractor was licensed to support recovery on the contractor’s bond. In response to the contractor’s cross-complaint, the plaintiff generally denied the contractor’s license, and on that basis obtained nonsuit because the contractor did not produce a verified certificate of licensure at trial. (Womack, 237 Cal.App.4th at 775.). The Court of Appeal reversed, and ordered judgment entered for the contractor, finding that the judicial admission of licensure in the unverified complaint bound the plaintiff, and that the sham pleading doctrine precluded the homeowner from denying the contractor’s licensure in its answer (Id. at 787–788.)
Here, Plaintiffs argue that the sham pleading doctrine should apply to prevent Defendant from asserting in her Answer that the $427,000 was part of an illicit loan (RJN Ex. 10, pp. 111:27-112:7.), because in her cross-complaint she has asserted the opposite, that it was the first installment of a legal loan (RJN, Ex. 6, pp. 56:15-18, 57:25-26 & 59:12-14.) Under the sham pleading doctrine, a pleader cannot circumvent prior admissions by the easy device of amending a pleading without explanation. [Citations.]” (Womack, 237 Cal.App.4th at 787 [emphasis in original].) Since there is no explanation in the answer as why Defendant alleges that contract is legal in the cross-complaint, the Court finds that Plaintiffs are entitled to judgment on the pleadings on this affirmative defense based on sham pleading. Therefore, the motion for judgment on the pleadings is GRANTED as to this affirmative defense.
Case Number: ****7259 Hearing Date: August 2, 2021 Dept: M
CASE NAME: James and Patricia Dutton v. Ava Domanosvki, et al.
CASE NO.: 19SMCV00329/ ****7259
MOTION: Defendant Ava Domanovski’s Demurrer to First Amended Complaint
Motion to Consolidate
HEARING DATE: 08/03/2021
This suit arises out of the alleged actions committed by Rodrica Marinescu, Ava Domanovski, and Robert Ouriel in connection with $427,000 allegedly belonging to Plaintiffs James and Patricia Dutton. The Court previously sustained Domanovski’s demurrer to the complaint with leave to amend. Plaintiffs filed the first amended complaint on February 14, 2020. On March 16, 2020, Domanovski filed a demurrer to the first amended complaint. On May 19, 2021, Plaintiffs filed an opposition. On July 23, 2021, Domanovski filed a reply.
“Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading . . . for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., ; 430.41.) To properly file a demurrer with the court, the party must also file a declaration noting that he or she “met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. [or] (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., ; 430.41(A) & (B).)
A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Code Civ. Proc., ; 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220. The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Young v. Gannon (2002) 97 Cal.App.4th 209, 220 (citing Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790).) The court treats all facts alleged in the complaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.)
When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.)) “The burden is on the plaintiff to demonstrate the manner in which the complaint can be amended.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748.)
Meet and Confer
The Court finds that the parties satisfied the meet and confer requirement. (See Campo Decl.)
Defendant Ava Domanovski demurs to the first and second causes of action for failure to state sufficient facts to state a claim.
COA 1 : Aiding and Abetting Fraud
The Court had previously sustained the demurrer to the aiding and abetting fraud cause of action for failing to meet the heightened pleading standard for fraud as well as for failure to allege facts that Domanovski knew about Marinescu’s scheme.
California imposes liability “ ‘ “on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person.” ’ ” (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1144, 26 Cal.Rptr.3d 401; accord American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1477, 171 Cal.Rptr.3d 548 [individual may be liable for aiding and abetting an intentional tort where he or she “makes ‘ “a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act” ’ ”].)
(Berger v. Varum (2019) 35 Cal.App.5th 1013, 1025.)
Domanovski argues that Plaintiffs have failed to state a claim for aiding and abetting fraud because Plaintiffs have not alleged facts that show that Domanovski knew that Marinescu intended to defraud Plaintiffs. Domanovski also argues that Plaintiffs have not alleged that Domanovski knew that the money itself had to be returned to Plaintiffs once Wells Fargo provided a proof of funds.
Plaintiffs argue that the FAC is sufficient as plead. Plaintiff contends that Domanovski had a duty to not harm Plaintiffs. “Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.” (Civ. Code ; 1708.). Plaintiffs argue that the complaint is sufficient under either prong described by the Court in Berger, 35 Cal.App.5th at 1025 and points to various allegations in the complaint. In reply, Domanovski argues that she did not owe a duty to aid the Duttons.
Here Plaintiffs allege, in relevant part: “Wells Fargo released the funds to Marinescu which would not have happened without the assistance of . . . Domanovski who knew that Marinescu [a] had obtained the $427,000 from the Plaintiffs on false pretenses. . . .” (FAC ¶ 121.) Plaintiffs also alleged, “In the 3/2/17 Letter, Ouriel and Domanovski misled Wells Fargo into thinking that there was a transaction going on, that the $427,000 related to James Dutton’s agreement to lend for that transaction, and the funds should be released to Marinescu. Their goal was to secure the release of the hold in the $427,000 so that they could share in those funds in exchange for the assistance that they gave Marinescu.” (FAC ¶ 100.)
Plaintiffs alleged sufficient facts as to the underlying fraud by Marinescu. (See FAC ¶¶ 18-24 & 26 [Misrepresented & concealed facts]; 25 [Transaction]; 24 [Knowledge of falsity]; 27 [Intent to defraud]; 30-35 [Reliance]; and 150 [Damage].) Plaintiffs also alleged how Domanovski assisted Marinescu, specifically, Plaintiffs alleged that Marinescu engaged Domanovski to obtain the release of funds held at Wells Fargo (FAC ¶¶ 43-44), that Domanovski did so by communicating in writing and on the telephone with Wells Fargo, holding meetings with Marinescu, and preparing real estate offers for the purpose of getting Wells Fargo to release the hold on the funds in Marinescu’s account. (FAC, ¶¶ 45-51, and 53-56, 111.) Therefore, the demurrer to the first cause of action is overruled.
COA 2 : Financial Elder Abuse
The Court had previously sustained the demurrer to the financial elder abuse cause of action because Plaintiff had failed to meet the heightened pleading standard for statutory causes of action and because Plaintiffs’ allegations were conclusory. (See 2/4/2020 Order.)
Financial abuse is broadly defined in the Welfare and Institutions Code. “Financial abuse” of an elder occurs when a person “[a]ssists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, ; 15610.30(a)(2).)
Domanovski demurs to this cause of action, arguing that since Plaintiffs have failed to allege that Domanovski knew about the underlying scheme to defraud Plaintiffs, Plaintiffs have failed to allege a cause of action, citing Das v. Bank of America, (2010) 186 Cal.App.4th 727, 745. The Court in Das held “that when . . . a bank provides ordinary services that effectuate financial abuse by a third party, the bank may be found to have ‘assisted’ the financial abuse only if it knew of the third party's wrongful conduct. [footnote omitted.]” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 745.) The Court also found that “[b]ecause appellant has not alleged that respondent [Bank] knew about the schemes that victimized her father, she has failed to allege that respondent assisted in financial abuse under section 15610.30.” (Ibid.) Domanovski argues that the holding is equally applicable to Domanovski in that Domanovski was acting as a real estate broker performing ordinary services without knowledge of the scheme.
In opposition, Plaintiffs argue that the FAC contains sufficient facts for financial elder abuse. Plaintiffs also point out that they are suing Domanovski for assisting Marinescu in taking, obtaining, or retaining property for a wrongful use or intent to defraud. Plaintiffs argue that the allegations as to Marinescu’s fraud are sufficient, citing paragraphs 18-24 and 26
[Misrepresented & concealed facts]; 25 [Transaction]; 24 [Knowledge of falsity]; 27 [Intent to defraud]; 30-35 [Reliance]; and 150 [Damage]. Plaintiffs also argue that the complaint contains sufficient facts as to Domanovski’s assistance to Marinescu because they have alleged that Marinescu engaged Domanovski to obtain the release of funds held at Wells Fargo (see FAC ¶¶ 43-44.)
Here, Plaintiffs have alleged that Domanovski assisted Marinescu by communicating in writing and on the telephone with Wells Fargo (see FAC ¶ 73, 76), holding meetings with Marinescu, and preparing real estate offers which Domanovski knew were not genuine and were not going to be used to purchase any property (FAC ¶¶ 48-51, 53-56) in order to obtain a release on the funds (see FAC ¶¶ 76, 80, 82, 85, 95, 97 104-107, 111). Plaintiffs also allege that Domanovski also knew that Plaintiffs would be harmed by the loss of their money and that they wanted their money back. (See FAC ¶ 150-151.)
Plaintiffs have made sufficient allegations as to Domanovski’s assistance to Marinescu to state a claim for financial elder abuse. Therefore, the demurrer to the elder abuse claim is overruled.
MOTION TO CONSOLIDATE
Motions to consolidate are governed by Code of Civil Procedure section 1048. ; Section 1048(a) provides that “[w]hen ;actions involving a common question of law or fact are pending before the court, ;[the court] ;may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc., ; 1048(a).) The purpose of consolidation is to avoid unnecessary costs or delay, avoid duplication of procedure, particularly in the proof of issues common to both ;actions, and avoid inconsistent results by hearing and deciding common issues together. (See ;Estate of Baker ;(1982) 131 Cal.App.3d 471, 485.) ;The granting or denial of a motion to consolidate rests in the trial court's sound ;discretion, and ;will not be reversed except upon a clear showing of abuse of discretion. ;(Feliner ;v. ;Steinbaum ;(1955) 132 Cal.App.2d 509, 511.) ; ; ;
LASC local rule 3.3(g) requires that cases be in the same department in order to consolidate cases. The Court related the cases 19SMCV00329 and ****7259 on May 17, 2019. Both cases are currently before Department M.
The action entitled Dutton et al. v. Marinescu et al., case number ****7259 was filed on March 21, 2017. The action entitled Dutton et al. v. Domanovski et al., case number 19SMCV00329 was filed on February 19, 2019. On December 7, 2020, Plaintiffs filed a motion to consolidate these two actions for trial only in both actions. Here, both actions relate to Plaintiffs allegations of the wrongful taking, retention, and disposition of $427,000 belonging to Plaintiffs, and the alleged manner in which the defendants participated. The Court finds that consolidating the cases would not make the case more complex than it already is. In addition, consolidating the trials would avoid unnecessary costs and would avoid duplication of procedure. Therefore, the motion to consolidate in granted.
Case Number: ****7259 Hearing Date: October 09, 2020 Dept: M
CASE NAME: James Dutton, et al v. Rodica Marinescu, et al
CASE NO.: ****7259
MOTION: Motion to Vacate July 25, 2018 Order Deeming RFAs Admitted
HEARING DATE: 10/9/2020
Defendant Rodica Marinescu seeks to vacate an order deeming the RFAs admitted. This order was entered on July 25, 2018. (See 7/25/2018 Order.) Marinescu appeared at this hearing. (See id.) Marinescu brought this motion under Code of Civil Procedure section 473 seeking relief based on excusable neglect arguing that she failed to reply to the RFAs due to an illness and a hospital stay.
Under Code of Civil Procedure section 473(b), an application for relief must be made no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., ; 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., ; 473, subd. (b).).
Under the discretionary provision of section 473(b), a court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694.) This part of section 473 is recognized as invoking the trial court's discretion, and the judgment of the trial court “‘shall not be disturbed on appeal absent a clear showing of abuse.’” (Ibid. quoting [Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254, 257.])
Plaintiffs October 2, 2020, evidentiary objections are overruled as untimely. Plaintiffs filed an opposition in March and failed to include evidentiary objections.
Request for judicial notice
Plaintiffs request judicial notice of Exhibits 1-21. Marinescu partially opposes judicial notice of Exhibit 6. Marinescu argues that the receipts attached to the Proof of Service with Exhibit 6 are not judicially noticeable under Evidence Code sections 451 or 452. In reply, Plaintiffs argue that the receipts are judicially noticeable by other courts. Here, the receipts show proof of mailing. The Court is satisfied that the receipts can be judicially noticed under the official acts portion of Evidence Code section 452. Therefore, the request for judicial notice is GRANTED.
This motion was filed on August 28, 2018. Plaintiffs argue that this motion is untimely because the motion is a discovery motion and it was not heard within 15 days of August 2, 2019. Plaintiff notes that the initial trial date in this matter was set for August 12, 2019. (See RJN Ex. 4 at page 35.) At the case management conference, the Court set a trial date for August 12, 2019, estimating 5 days. (Id.) The Court also set the final status conference for August 9, 2019. (Id. at 36.) The minute order also noted that Plaintiff was to provide notice, which Plaintiffs did. (See RJN Ex. 5.)
Section 2024.020 provides, “[e]xcept as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., ; 2024.020(a).) In addition, “[e]xcept as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Code Civ. Proc., ; 2024.020(b).)
Here, fifteen days before August 12, 2019 was on July 28, 2019. While Plaintiff seeks relief under Section 473(b) from an order entered against her on July 25, 2018, that order concerns discovery. Since the motion was not brought forth to be heard before Friday, July 26, 2019, the motion is DENIED.
Case Number: ****7259 Hearing Date: September 30, 2020 Dept: M
CASE NAME: James Dutton, et al. v. Rodoca Marinescu, et al.
CASE NUMBER: ****7259
MOTION: Plaintiffs’ Motion for trial preference
HEARING DATE: 9/30/2020
“A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole [and] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., ; 36(a)[emphasis added]; Fox v. Superior Court (2018) 21 Cal.App.5th 529, 533)
Plaintiffs seek trial preference under Code of Civil Procedure section 36(a) and (e). Defendant has not opposed this motion. Plaintiffs request that the court set a trial date within 120 days of the remittitur in appeal B305386.
Plaintiffs argue that the court should grant their motion for trial preference because of their age and their health conditions. James Dutton is 85 years old, and Patricia Dutton is 81 years old. (Staub Decl. ¶. 5.) Plaintiffs present evidence through the declaration of Mrs. Dutton’s doctor that her health is declining. (See Carroll, M.D.’s Decl.) Dr. Carroll states that Mrs. Dutton has suffered two strokes and currently suffers from severe depression. (Id. ¶ 12.) Dr. Carrol also expressed concern that Patricia Dutton is at risk of developing memory loss. (Id. ¶ 14.) As of the filing of the motion, James Dutton is in the hospital recovering from a broken femur. (Staub Decl. ¶ 5.)
The Court finds that Plaintiffs have met their burden in demonstrating that they have a substantial interest in the action as a whole and that both Plaintiffs have health issues such that the preference is necessary to prevent prejudice to Plaintiffs’ interests in the litigation. Under Code of Civil Procedure section 36(a), upon meeting their burden, trial preference is mandatory. Therefore, Plaintiffs’ request for trial preference is GRANTED. Once a remittitur is set in appeal B305386, the Court will set a trial date.
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