This case was last updated from Los Angeles County Superior Courts on 10/21/2021 at 22:26:53 (UTC).

MATTHEW KATZ VS JAY BERNSTEIN, ET AL.

Case Summary

On 12/23/2019 MATTHEW KATZ filed a Contract - Other Contract lawsuit against JAY BERNSTEIN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6237

  • Filing Date:

    12/23/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

YOLANDA OROZCO

 

Party Details

Plaintiffs

KATZ MATTHEW

KATZ MATHEW

Defendants and Not Classified By Court

STUTZMAN LAUREN

AL WARGOCZ AN INDIVIDUAL REAL ESTATE AGENT AND/OR FIDUCIARY

RE/MAX OLSON & ASSOCIATES A CORPORATE AGENT AND CORPORATE FIDUCIARY

KINECTA FEDERAL CREDIT UNION

BERNSTEIN MELISSA

CHARLAND JOHN

BERNSTEIN JAY

STUTZMAN RICHARD

DOES 9 THROUGH 15 INCLUSIVE

BOND ALAN

SPIEGELMAN RITA

CITY OF MALIBU

CUNIN LEVI YITZCHOCK AKA LEVI CUNIN

STUTSMAN LAUREN

STUTSMAN RICHARD

Attorney/Law Firm Details

Plaintiff Attorneys

INGERSON GREGORY M.

OLLA MARK

INGERSON GREGORY MOORE

INGERSON GREG M.

Defendant Attorneys

KALE MICHAEL ALAN

CARTER RICHARD D.

SANDS EUGENE P

SANDS EUGENE P.

BATES TERRY BRYAN

CARTER RICHARD

WILSON REBECCA L.

CARTER RICHARD D

ROMAIN GEORGE G.

 

Court Documents

Opposition - OPPOSITION OPPOSITION OF PLAINTIFF TO DEFENDANT JAY BERNSTEIN'S DEMURRER TO HIS THIRD AMENDED COMPLAINT

10/19/2021: Opposition - OPPOSITION OPPOSITION OF PLAINTIFF TO DEFENDANT JAY BERNSTEIN'S DEMURRER TO HIS THIRD AMENDED COMPLAINT

Declaration - DECLARATION DECLARATION RE ANTICIPATED REQUEST TO CONTINUE HEARING ON DEMURRER

9/29/2021: Declaration - DECLARATION DECLARATION RE ANTICIPATED REQUEST TO CONTINUE HEARING ON DEMURRER

Declaration - DECLARATION DECLARATION OF MARK OLLA IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION

9/29/2021: Declaration - DECLARATION DECLARATION OF MARK OLLA IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION

Declaration - DECLARATION DECLARATION OF MATTHEW KATZ IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION

9/29/2021: Declaration - DECLARATION DECLARATION OF MATTHEW KATZ IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR AN ORDER EXTENDING TIME TO OPPOSE DEMURRER

9/29/2021: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR AN ORDER EXTENDING TIME TO OPPOSE DEMURRER

Notice - NOTICE OF EX PARTE HEARING

9/29/2021: Notice - NOTICE OF EX PARTE HEARING

Declaration - DECLARATION DECLARATION IN OPPOSITION TO EX PARTE TO CONTINUE HEARING ON DEMURRER

9/30/2021: Declaration - DECLARATION DECLARATION IN OPPOSITION TO EX PARTE TO CONTINUE HEARING ON DEMURRER

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER EXTENDING TIME T...)

10/1/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER EXTENDING TIME T...)

Notice of Change of Address or Other Contact Information

10/1/2021: Notice of Change of Address or Other Contact Information

Declaration - DECLARATION DECLARATION OF MARK OLLA IN SUPPORT OF PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF

9/17/2021: Declaration - DECLARATION DECLARATION OF MARK OLLA IN SUPPORT OF PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF

Notice - NOTICE NOTICE OF PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF

9/17/2021: Notice - NOTICE NOTICE OF PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF AND...) OF 09/21/2021

9/21/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF AND...) OF 09/21/2021

Minute Order - MINUTE ORDER (HEARING ON PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF AND...)

9/21/2021: Minute Order - MINUTE ORDER (HEARING ON PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF AND...)

Notice - NOTICE NOTICE OF NO OPPOSITION TO DEMURRER

9/23/2021: Notice - NOTICE NOTICE OF NO OPPOSITION TO DEMURRER

Notice - NOTICE OF PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF DISQUALIFICATION OF ATTORNEYS CARTER AND SANDS

9/17/2021: Notice - NOTICE OF PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF DISQUALIFICATION OF ATTORNEYS CARTER AND SANDS

Ex Parte Application - EX PARTE APPLICATION PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF DISQUALIFICATION OF ATTORNEY CARTER AND SANDS

9/17/2021: Ex Parte Application - EX PARTE APPLICATION PLAINTIFF'S APPLICATION FOR EX PARTE RELIEF OF DISQUALIFICATION OF ATTORNEY CARTER AND SANDS

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR RELIEF OF EMERGENCY DISQUALIFICATION OF ATTORENYS RICHARD D. CARTER AND EUGENE P SANDS

9/17/2021: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR RELIEF OF EMERGENCY DISQUALIFICATION OF ATTORENYS RICHARD D. CARTER AND EUGENE P SANDS

Order - ORDER EXPUNGING LIS PENDENS

8/12/2021: Order - ORDER EXPUNGING LIS PENDENS

155 More Documents Available

 

Docket Entries

  • 05/16/2022
  • Hearing05/16/2022 at 10:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/05/2022
  • Hearing05/05/2022 at 09:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/28/2022
  • Hearing01/28/2022 at 08:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike

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  • 01/10/2022
  • Hearing01/10/2022 at 08:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Sanctions

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  • 12/07/2021
  • Hearing12/07/2021 at 08:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike

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  • 12/01/2021
  • Hearing12/01/2021 at 08:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike

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  • 11/01/2021
  • Hearing11/01/2021 at 08:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike

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  • 10/19/2021
  • DocketOpposition (OF PLAINTIFF TO DEFENDANT JAY BERNSTEIN'S DEMURRER TO HIS THIRD AMENDED COMPLAINT -[Hrg: 11/01/2021]); Filed by Mathew Katz (Plaintiff)

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  • 10/04/2021
  • Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Demurrer - without Motion to Strike (- by Defendants Re/Max Olson & Associates, Inc. and Al Wargocz) - Not Held - Advanced and Continued - by Court

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  • 10/01/2021
  • Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Ex Parte Application (for an Order extending time to oppose Demurrer) - Held - Motion Granted

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206 More Docket Entries
  • 02/06/2020
  • DocketCertificate of Mailing for ((Hearing on Motion to be Admitted Pro Hac Vice) of 02/06/2020); Filed by Clerk

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  • 02/06/2020
  • DocketMinute Order ( (Hearing on Motion to be Admitted Pro Hac Vice)); Filed by Clerk

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  • 01/13/2020
  • DocketMotion to Be Admitted Pro Hac Vice (-[Res ID: 4002]); Filed by Matthew Katz (Plaintiff)

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  • 01/13/2020
  • DocketApplication to be Admitted Pro Hac Vice (of Mark Olla -[Res ID: 4002]); Filed by Matthew Katz (Plaintiff)

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  • 01/13/2020
  • DocketDeclaration (OF MARK OLLA IN SUPPORT OF HIS VERIFIED APPLICATION TO THE COURT, PURSUANT TO CALIF. RULED OF COURT 9.40 (c) (1), FOR PERMISSION TO APPEAR PRO HAC VICE AS CO-COUNSEL FOR PLAINTIFF -[Res ID: 4002]); Filed by Matthew Katz (Plaintiff)

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  • 12/27/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/23/2019
  • DocketSummons (on Complaint); Filed by Matthew Katz (Plaintiff)

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  • 12/23/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 12/23/2019
  • DocketComplaint; Filed by Matthew Katz (Plaintiff)

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  • 12/23/2019
  • DocketCivil Case Cover Sheet; Filed by Matthew Katz (Plaintiff)

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Tentative Rulings

b"

Case Number: 19STCV46237 Hearing Date: August 5, 2021 Dept: 31

\r\n\r\n

DEFENDANT'S MOTION TO EXPUNGE LIS PENDENS IS GRANTED. Background

\r\n\r\n

This action was initially filed by plaintiff Matthew Katz\r\n(“Plaintiff”) on December 23, 2019. On June 1, 2021, Plaintiff a Verified Third\r\nAmended Complaint (“TAC”) against Defendants Jay Bernstein; Al Wargocz; RE/MAX\r\nOlson & Associates (“RE/MAX”); Kinecta Federal Credit Union; Richard\r\nStutzman; Lauren Stutzman; John Charland; Rita Spiegelman; Alan Bond; Levi\r\nQitzchock Cunin aka Levi Cunin; City of Malibu; and Does 12 through 15.

\r\n\r\n

The TAC asserts causes of action for:

\r\n\r\n
\r\n\r\n

\r\ni. \r\nDeclaratory Relief;

\r\n\r\n

\r\nii. \r\nJudicial Rescission;

\r\n\r\n

\r\niii. \r\nFraud and Deceit;

\r\n\r\n

\r\niv. \r\nQuiet Title;

\r\n\r\n

\r\nv. \r\nBreach of Fiduciary Duty;

\r\n\r\n

\r\nvi. \r\nConversion;

\r\n\r\n

vii. \r\nIntentional Interference with Prospective Economic\r\nAdvantage;

\r\n\r\n

viii. \r\nInfliction of Emotional Distress;

\r\n\r\n

\r\nix. \r\nElder Abuse;

\r\n\r\n

\r\nx. \r\nNegligence; and

\r\n\r\n

\r\nxi. \r\nAccounting.

\r\n\r\n

Plaintiff was the previous owner of the real property\r\nlocated at 29903 Harvester Rd.,\r\nMalibu 90265 (parcel number 4469-010-005) (the “Subject Property”). The\r\nSubject Property was subject to foreclosure, and the first mortgage lienholder,\r\nKinecta Federal Credit Union (“Kinecta”), offered Plaintiff the opportunity of\r\na short sale of the Property (TAC ¶ 4.1.) Ultimately, though, the Plaintiff\r\nentered into the short sale of the Subject Property with a relative, and not with\r\nKinecta.

\r\n\r\n

Now,\r\nDefendant Jay Bernstein (“Bernstein”) moves the Court to expunge the lis\r\npendens recorded on the Subject Property by Plaintiff on April 10, 2021. The\r\nCourt takes judicial notice of the Lis Pendens issued on April 10, 2021, by\r\nthis Court. (Evid. Code, § 452(d).)

\r\n\r\n

Legal Standard

\r\n\r\n

Under\r\nCode Civ. Proc., section 405.30, any party with an interest in the real\r\nproperty may apply to the Court to expunge the notice of pendency, at any time\r\nafter a notice of pendency of action has been recorded. A lis pendens may be\r\nexpunged either under Code Civ. Proc., section 405.31, if the pleadings do not\r\ncontain a real property claim, or under Code Civ. Proc., section 405.32, if the\r\nCourt finds that the party claiming the lis pendens has not established by a\r\npreponderance of the evidence the probable validity of the real property claim.\r\nUnder Code Civ. Proc., section 405.30, the party claiming the lis pendens has\r\nthe burden of proof of showing either that the pleadings contain a real\r\nproperty claim or that the probable validity of the real property claim can be\r\nestablished by a preponderance of the evidence.

\r\n\r\n

Discussion

\r\n\r\n

\r\n\r\n

Defendant Bernstein moves the Court to expunge the lis pendens recorded on\r\nthe Subject Property. Defendant Bernstein argues that the lis pendens should be expunged because\r\nthe Plaintiff cannot establish the probable validity of his real property\r\nclaims. As noted above, the Subject Property was subject to foreclosure,\r\nand the first mortgage lienholder, Kinecta, offered Plaintiff the opportunity\r\nof a short sale of the Property (TAC ¶ 4.1.)

\r\n\r\n

From that\r\npoint on, Plaintiff alleges he was fraudulently induced by his second cousin,\r\nDefendant Bernstein, and his real estate agents, Defendants Al Wargocz and\r\nRE/MAX Olson & Associates, to enter into a short sale of the Subject Property.\r\n(TAC ¶1.4.) Plaintiff alleges that, as an inducement to enter into the short\r\nsale, Defendants Bernstein and Wargocz promised Plaintiff that a $300,000.00\r\nSony Music Judgment lien against the Subject Property would be paid in full at\r\nclosing; that following the short sale closing Plaintiff would be allowed to\r\nlive on the Property until his death; and that Bernstein would loan Plaintiff\r\nthe sum of $50,000.00 (Fifty Thousand Dollars) so he could purchase additional\r\nmachinery for and otherwise meet some near-term operating costs of Plaintiff’s\r\nOxnard, California packaging plant. (TAC ¶1.5.) Ultimately, though, the\r\nPlaintiff entered into the short sale of the Subject Property with a relative,\r\nand not with Kinecta.

\r\n\r\n

On May 3,\r\n2021, the Court sustained Defendant Bernstein’s demurrer to the Verified Second\r\nAmended Complaint (“SAC”) with regard all the causes of action pled predicated\r\nupon a short sale real estate transaction of the Subject Property on the\r\ngrounds that Plaintiff “failed to allege facts sufficient to state causes of\r\naction against Defendant.” The basis for the ruling was that the face of the\r\nSAC disclosed the terms of a contract between the Plaintiff and Bernstein “that\r\nare illegal or in violation of public policy under Civil Code sections 1550 and\r\n1605, rendering the contract void.” In granting Plaintiff leave to amend, the Court\r\nstated: “[I]mportantly, the SAC fails to allege that Plaintiff disclosed the\r\nterms of is oral agreement with Defendant to Kinecta and fails to explain why\r\n‘Plaintiff considered it most prudent and expeditious to contact one of his\r\nOrthodox Jewish relatives to possibly purchase the property via short sale in\r\navoidance of foreclosure,’ if not to defraud Kinecta and allow a relative to\r\npurchase the property.” (Decl. of Carter, Exh. 1)

\r\n\r\n

Defendant\r\nBernstein adds that Plaintiff did not take the opportunity given by the Court\r\nto explain why he sought out a relative to purchase the Harvester property that\r\nthe Court indicated was necessary to overcome the problems noted in its ruling on\r\nthe demurrer. Instead, Plaintiff deleted\r\nboth the offending allegation and the breach of oral contract cause of action\r\nfrom the third amended complaint (TAC) believing that by so doing he could\r\ncircumvent the illegal contract doctrine. (Decl. of Carter, 5) Defendant Bernstein\r\ncontends that Plaintiff’s efforts, however, run afoul of the sham pleading\r\ndoctrine. Thus, the defects in the SAC infect the TAC to render the TAC\r\nvulnerable to demurrer on the same grounds as those on which the demurrer to\r\nthe SAC was sustained. (See Lamereaux v. San Diego etc. Ry. Co. (1957)\r\n48 Cal. 2d 617, 623.)

\r\n\r\n

Furthermore,\r\nDefendant Bernstein argues that in his demurrer to the SAC, Bernstein argued\r\nthat each of the oral agreements alleged in paragraph 4.1 of the SAC quoted\r\nabove were independent acts of lender fraud and were thus void as a matter of\r\npublic policy. Although the Court did not address Bernstein’s arguments in its\r\ndecision, Plaintiff omitted those allegations from the TAC. Thus, Bernstein\r\nargues that the latter omissions also violate the sham pleading doctrine.

\r\n\r\n

Plaintiff has not met his burden of\r\ndemonstrating that he has a valid real property claim because he did not file\r\nany opposition papers. Further, Plaintiff’s pleadings likely do not contain any\r\nreal property claim because, as noted above, the defects in the SAC infect\r\nthe TAC such as to render the TAC vulnerable to demurrer on the same grounds as\r\nthose which the demurrer to the SAC was sustained.

\r\n\r\n

For the reasons stated, the Court GRANTS Defendants’\r\nmotion to expunge the lis pendens.

\r\n\r\n

Attorney’s\r\nFees

\r\n\r\n

Defendant Bernstein requests that the\r\nCourt order Plaintiff to pay attorney’s fees in the approximate amount of\r\n$13,000.00 stating that an accounting of the actual amount of fees would\r\nbe provided with Bernstein’s reply to Plaintiff’s opposition to this motion. However,\r\nPlaintiff did not file any opposition papers and Bernstein has failed to submit proof for the requested attorney’s\r\nfees.

\r\n\r\n

Conclusion

\r\n\r\n

The Court GRANTS Defendant’s motion to\r\nexpunge the lis pendens.

\r\n\r\n

The Court CONTINUES Defendant’s motion\r\nfor attorney’s fees to August 27, 2021,\r\nat 8:30 a.m. Defendant Bernstein is ordered to file proof to support his requested\r\nattorney’s fees no later than August 20, 2021 and deliver a courtesy copy to\r\nDepartment 31.

\r\n\r\n

Defendant is to give notice.

\r\n\r\nThe\r\nparties are strongly encouraged to attend all scheduled hearings virtually or\r\nby audio. Effective July 20, 2020, all matters will be scheduled virtually\r\nand/or with audio through the Court’s LACourtConnect technology. The parties\r\nare strongly encouraged to use LACourtConnect for all their matters. All masking\r\nprotocols will be observed at the Courthouse and in the courtrooms."

Case Number: 19STCV46237    Hearing Date: May 14, 2021    Dept: 31

DEMURRER BY RE/MAX AND WARGOCZ IS SUSTAINED WITH LEAVE TO AMEND.Background

On December 23, 2019, Plaintiff Matthew Katz filed the instant action against Defendants Jay Bernstein (“Jay”); Melissa Bernstein (“Melissa”); Kinecta Federal Credit Union; Al Warcogz; RE/MAX Olson & Associates (“RE/MAX”); Richard Stutzman; Lauren Stutzman; John Charland; and Does 9 through 15. On April 6, 2020, Plaintiff filed the Verified First Amended Complaint (“FAC”), excluding Kinecta Federal Credit Union, Richard Stutzman; Lauren Stutzman; and John Charland as parties. On October 27, 2020, Plaintiff filed the Verified Second Amended Complaint (“SAC”). The SAC adds Kinecta Federal Union (“Kinecta”); Richard Stutzman (“Richard”); Lauren Stutzman (“Lauren”); Rita Spiegelman; Alan Bond; and John Charland as defendants. The SAC asserts causes of action for:

(1) Judicial Rescission Based Upon Fraud or, in the alternative, Damages for Breach of Verbal Contract (against Jay & Kinecta);

(2) Declaratory Judgment (against Jay, Kinecta, Wargocz, & RE/MAX);

(3) Fraud and Deceit (against Jay, Wargocz, & RE/MAX);

(4) Quiet Title (against Jay & Kinecta);

(5) Breach of Fiduciary Duty (against Jay, Wargocz, & RE/MAX);

(6) Conversion (against Jay, Richard, Lauren, & Charland);

(7) Intentional Interference with Prospective Economic Advantage (against Jay, Wargocz, RE/MAX, Richard, Lauren, & Charland);

(8) Infliction of Emotional Distress (against Jay, Wargocz, Richard, Lauren, & Charland);

(9) Elder Abuse (against Jay, Wargocz, Richard, Lauren, Charland, & Bond); and

(10) Accounting (against Jay, Wargocz, RE/MAX, & Kinecta).

Defendants RE/MAX and Wargocz (hereinafter “Defendants”) now demur to the second, third, fifth, seventh, eighth, ninth, and tenth causes of action in the SAC.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Discussion

Sham Pleading Doctrine

The sham pleading doctrine generally prohibits a plaintiff from amending a complaint to omit harmful allegations from prior pleadings, without explanation. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) Under the sham pleading doctrine, “[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false.” (Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 877-878.) Where an amended complaint omits harmful allegations without explanation, the Court may take judicial notice of the prior pleadings and disregard any inconsistent allegations in the amended pleading. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751.) The sham pleading doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent correction of ambiguous facts. (Ibid.) Instead, it is intended to enable courts “‘to prevent an abuse of process.’” (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1390-1391.)

The sham pleading doctrine can be invoked when the newly alleged facts contradict or substantively alter the prior allegations. (See Owens v. Kings Supermarket (1988) 198 Cal. App.3d 379.) The pleadings in Owens were substantially altered when the plaintiff first alleged that the slip and fall occurred on a street adjacent to the supermarket, and then alleged that the slip and fall occurred on the defendant's premises rather than on the street. (Id. at 384.) This was to avoid demurrer on a premises liability theory. (Ibid.) Absent a satisfactory explanation for the change, the court properly disregarded the sham pleadings. (Ibid.) Such a factual contradiction would clearly invoke the sham pleading rule.

Defendants demur to the entirety of the SAC arguing that the complaint is a sham pleading and contradicts allegations in the verified Complaint and FAC. Defendants argue that the FAC alleges that the oral agreement entered into between Plaintiff and Jay was entered into on December 4, 2017. (FAC ¶ 19.) Defendants assert that the complaints further allege that Defendants fraudulently induced Plaintiff to enter the October 2, 2017 Residential Purchase Agreement (“RPA”) by assuring Plaintiff that the RPA would conform to the terms of the oral agreement. (FAC ¶ 22.) Defendants contend that such allegations are fatal to Plaintiff’s complaint as there is no way Plaintiff was induced in December to sign an agreement that was entered into in October 2017. Defendants further argue that on December 4, 2017, the lender’s consent to the Short Sale had not been given, as the Kinecta letter was not dated until December 7, 2017. (SAC, Exh. 4.) Defendants assert that accordingly, there is a failure to state facts sufficient to state any causes of action against them as the allegation that the verbal agreements were now entered into in late September or early October directly contradicts the allegations from the 3 previous versions of the complaint.

In opposition, Plaintiff argues that the filing of the SAC was driven by necessity which arose from the fact that all of Plaintiff’s personal property, including all of his business and legal records, were destroyed by the Woolsey fires in November 2018. Plaintiff asserts that he received the exhibits attached to the SAC from opposing counsel. Plaintiff contends that Plaintiff’s attorney Mark Olla was then obligated to correct the dates that had previously been alleged to the best of Plaintiff’s memory. Plaintiff argues that it just so happens to be the case that the corrected dates and newly attached exhibits bolster the merits of Plaintiff’s case. Plaintiff asserts that in granting leave to file the SAC, the Court took into consideration the indisputable fact that the Woolsey fires destroyed the property of Plaintiff and that the circumstances of Plaintiff’s advanced age and physical infirmity and found that there was merit to Plaintiff’s request to the Court to allow him to correct the relevant dates and to include additional newly discovered exhibits in his amended pleadings.

The Court finds that Plaintiff has failed to allege facts sufficient to state causes of action against Defendants. Contrary to Plaintiff’s arguments otherwise, in granting Plaintiff leave to file the SAC, the Court did not rule on the propriety of Plaintiff’s amended pleading. In fact, the Court explicitly stated:

While Defendants spend a significant amount of time arguing the merits of the amendments, as noted above, the preferable practice when a defendant opposes a motion for leave to amend on the merits of the amendment is to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings, or other appropriate pleadings. Accordingly, the Court does not consider the merits of Plaintiff’s proposed amendment in ruling on the instant motion for leave to amend.

(October 21, 2020 Minute Order.)

Here, Plaintiff concedes that the allegations in the original Complaint and FAC contradict the allegations in the operative SAC. The Court finds that Plaintiff has failed to adequately explain the changes in the SAC, as the change in dates is related to the formation of the alleged oral agreements, not the execution of the RPA. Accordingly, Plaintiff’s recovery of the allegedly lost documents would have no bearing on the dates related to the oral agreement. Furthermore, the prior complaints accurately alleged that the RPA was entered into on or about October 2, 2017. The exhibits attached to the SAC indicate that the RPA was entered into on October 3, 2017. Accordingly, Plaintiff’s recovery of documents related to the RPA does not adequately explain the date change related to the formation of the oral agreements. Absent a satisfactory explanation for the contradicting allegations, the SAC is subject to demurrer.

Based on the foregoing, Defendants’ demurrer to the SAC is SUSTAINED with leave to amend.

Conclusion

Defendant’s demurrer to the SAC is SUSTAINED in its entirety with leave to amend.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Case Number: 19STCV46237    Hearing Date: May 5, 2021    Dept: 31

DEMURRER IS SUSTAINED WITH LEAVE TO AMEND.Background

On December 23, 2019, Plaintiff Matthew Katz filed the instant action against Defendants Jay Bernstein (“Jay”); Melissa Bernstein (“Melissa”); Kinecta Federal Credit Union; Al Warcogz; RE/MAX Olson & Associates (“RE/MAX”); Richard Stutzman; Lauren Stutzman; John Charland; and Does 9 through 15. On April 6, 2020, Plaintiff filed the Verified First Amended Complaint (“FAC”), excluding Kinecta Federal Credit Union, Richard Stutzman; Lauren Stutzman; and John Charland as parties. On October 27, 2020, Plaintiff filed the Verified Second Amended Complaint (“SAC”). The SAC adds Kinecta Federal Union (“Kinecta”); Richard Stutzman (“Richard”); Lauren Stutzman (“Lauren”); Rita Spiegelman; Alan Bond; and John Charland as defendants. The SAC asserts causes of action for:

(1) Judicial Rescission Based Upon Fraud or, in the alternative, Damages for Breach of Verbal Contract (against Jay & Kinecta);

(2) Declaratory Judgment (against Jay, Kinecta, Wargocz, & RE/MAX);

(3) Fraud and Deceit (against Jay, Wargocz, & RE/MAX);

(4) Quiet Title (against Jay & Kinecta);

(5) Breach of Fiduciary Duty (against Jay, Wargocz, & RE/MAX);

(6) Conversion (against Jay, Richard, Lauren, & Charland);

(7) Intentional Interference with Prospective Economic Advantage (against Jay, Wargocz, RE/MAX, Richard, Lauren, & Charland);

(8) Infliction of Emotional Distress (against Jay, Wargocz, Richard, Lauren, & Charland);

(9) Elder Abuse (against Jay, Wargocz, Richard, Lauren, Charland, & Bond); and

(10) Accounting (against Jay, Wargocz, RE/MAX, & Kinecta).

Defendant Melissa (hereinafter “Defendant”) now demurs to each cause of action alleged in the SAC.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Discussion

The Court notes at the outset that no cause of action has been brought against Defendant despite her being named in the caption and there being certain allegations about “Bernstein’s wife.” Accordingly, no cause of action has been stated against Defendant.

Moreover, to the extent Plaintiff seeks to hold Defendant liable based on the allegations against Defendant Jay, as held in the Court’s May 3, 2021 Minute Order, Plaintiff has failed to allege causes of action against Defendant Jay as the face of the SAC discloses terms of a contract between the parties that are illegal or in violation of public policy under Civil Code sections 1550 and 1605, rendering the contract void.

Based on the foregoing, Defendant’s demurrer is SUSTAINED with leave to amend.

Conclusion

Defendant’s demurrer to the SAC is SUSTAINED in its entirety with leave to amend.

Defendant to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Case Number: 19STCV46237    Hearing Date: May 3, 2021    Dept: 31

DEMURRER TO THE COMPLAINT IS SUSTAINED.Background

On December 23, 2019, Plaintiff Matthew Katz filed the instant action against Defendants Jay Bernstein (“Jay”); Melissa Bernstein (“Melissa”); Kinecta Federal Credit Union; Al Warcogz; RE/MAX Olson & Associates (“RE/MAX”); Richard Stutzman; Lauren Stutzman; John Charland; and Does 9 through 15. On April 6, 2020, Plaintiff filed the Verified First Amended Complaint (“FAC”), excluding Kinecta Federal Credit Union, Richard Stutzman; Lauren Stutzman; and John Charland as parties. On October 27, 2020, Plaintiff filed the Verified Second Amended Complaint (“SAC”). The SAC adds Kinecta Federal Union (“Kinecta”); Richard Stutzman (“Richard”); Lauren Stutzman (“Lauren”); Rita Spiegelman; Alan Bond; and John Charland as defendants. The SAC asserts causes of action for:

(1) Judicial Rescission Based Upon Fraud or, in the alternative, Damages for Breach of Verbal Contract (against Jay & Kinecta);

(2) Declaratory Judgment (against Jay, Kinecta, Wargocz, & RE/MAX);

(3) Fraud and Deceit (against Jay, Wargocz, & RE/MAX);

(4) Quiet Title (against Jay & Kinecta);

(5) Breach of Fiduciary Duty (against Jay, Wargocz, & RE/MAX);

(6) Conversion (against Jay, Richard, Lauren, & Charland);

(7) Intentional Interference with Prospective Economic Advantage (against Jay, Wargocz, RE/MAX, Richard, Lauren, & Charland);

(8) Infliction of Emotional Distress (against Jay, Wargocz, Richard, Lauren, & Charland);

(9) Elder Abuse (against Jay, Wargocz, Richard, Lauren, Charland, & Bond); and

(10) Accounting (against Jay, Wargocz, RE/MAX, & Kinecta).

Defendant Jay (hereinafter “Defendant”) now demurs to each cause of action alleged in the SAC.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Discussion

Illegal Contract

A general demurrer may lie where the terms of the contract alleged are illegal and thus void, as the complaint discloses on its face a bar to recovery. (Beck v. American Health Group Int’l, Inc. (1989) 211 Cal.App.3d 1555, 1564-1565 (superseded by statute on other grounds).)

Moreover, “[w]here the complaint's allegations or judicially noticeable facts reveal the existence of an affirmative defense, the “plaintiff must ‘plead around’ the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action ....” [Citations.]” (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824–825.)

“California statutes require that a contract have “a lawful object.” [Citations.] Otherwise the contract is void. [Citation.] Civil Code section 1668 provides that a contract that has as its object a violation of law is “against the policy of the law.” Civil Code section 1667 states that “unlawful” is “1. Contrary to an express provision of law; [¶] 2. Contrary to the policy of express law, though not expressly prohibited; or, [¶] 3. Otherwise contrary to good morals.” [Citations.] California courts have stated that an illegal contract “may not serve as the foundation of any action, either in law or in equity” [citation], and that when the illegality of the contract renders the bargain unenforceable, “ ‘[t]he court will leave them [the parties] where they were when the action was begun’ ” [citations].” (Kashani v. Tsann Kuen China Enterprise Co. (2004) 118 Cal.App.4th 531, 541.)

18 U.S.C § 1344, entitled “Bank fraud,” makes it a crime for a person to “knowingly execute[], or attempt[] to execute, a scheme or artifice – (1) to defraud a financial institution.”

“In a short sale, the lender agrees to release its lien on the borrower's property so that the borrower can sell the property to a third party. In exchange, the borrower agrees to give the lender all of the proceeds from the sale. Both parties know that the sale proceeds will fall short of the total amount that the borrower owes.” (Coker v. JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667, 673.)

Defendant demurs to the entirety of the SAC arguing that the short sale at the heart of this action has at its heart an illegal scheme to defraud Kinecta. Defendant argues that here, the verified SAC alleges Plaintiff’s scheme to defraud Kinecta. (SAC ¶ 4.1.) Defendant asserts that by Plaintiff’s own admission, Plaintiff was upside down on his mortgage and was unable to fund his business when he made the decision that the best way to get out from under the threatened foreclosure by Kinecta was to effectuate a short sale to a relative. (SAC ¶ 4.1.) Defendant contends that Plaintiff also alleges that Defendant, in exchange for the opportunity to purchase the property by way of short sale, orally agreed to: “(ii) satisfy in full the judgment lien held against the subject property by Plaintiff’s judgment creditor Sony Music Entertainment, Inc; (iii) allow Plaintiff to live on the subject property until his demise; and (iv) loan Plaintiff the sum of $50,000.00 (Fifty Thousand Dollars) to meet near-term operating costs of his Oxnard, California packaging plant.” (SAC ¶ 4.3.)

Defendant argues that Kinecta agreed to Plaintiff’s sale proposal as evidenced by the December 7, 2017 letter to Plaintiff setting forth the conditions of the short sale. (SAC, Exh. 4.) Defendant asserts that as a condition precedent to escrow closing, Kinecta mandated that Plaintiff execute, under penalty of perjury and before a notary public, a Short Sale Affidavit. (SAC, Exh. 7.) The Short Sale Affidavit provides, in pertinent part:

NOW, THEREFORE, the Seller(s), Buyer(s), Agent(s), and Facilitator to the Servicer do hereby represent, warrant, and agree under the pains of perjury, to the best of each signatory’s knowledge and belief, as follows:

(a) The sale of the Property is an “arm’s length” transaction, between Seller(s) and Buyer(s) who are unrelated and unaffiliated by family, marriage, or commercial transaction.

(b) There are no agreements, understandings or contracts between the Seller(s) and Buyer(s) that the Seller(s) will remain in the Property as tenants or later obtain title or ownership of the Property, except that the Seller(s) are permitted to remain as tenants in the Property for a short term, as is common and customary in the market but no longer than ninety (90) days, in order to facilitate relocation. . . .

(e) There are no current agreements, understandings or contracts relating to the current sale or subsequent sale of the Property that have not been disclosed to the Servicer; . . .

(g) Each signatory understands, agree and intends that the Servicer and the Investor are relying upon the statements made in this Affidavit as consideration for the reduction of the payoff amount of the Mortgage and agreement to the sale of the Property[.]

(SAC, Exh. 7.)

Defendant contends that by Plaintiff’s own allegations in the SAC, Defendant is a relative of Plaintiff’s and Plaintiff sought additional consideration from Defendant for the short sale in the form of a life estate for himself and an opportunity for his heirs and assigns “to yet participate in property’s near-term upside appreciation. (SAC ¶ 4.1.) Defendant argues that additionally, there are no allegations in the SAC that Plaintiff disclosed to Kinecta that he and Defendant had agreed that in addition to paying the purchase price for the property, that Defendant also agreed to satisfy the $300,000.00 judgment creditor lien held by Sony Music, that Defendant had agreed to loan Plaintiff $50,000.00 to save his failing business, that Defendant agreed to let Plaintiff’s heirs “participate in the prospective near-term appreciation” of the property, and that Defendant agreed that Plaintiff could continue to live on the property until his demise. (SAC ¶ 4.1.)

Defendant asserts that the facts alleged in the verified SAC show that Plaintiff never intended to keep his end of the bargain with Kinecta, giving up all rights in and vacating the property as well as giving all sale proceeds to Kinecta. Defendant contends that instead, Plaintiff, by his own admission, concealed from Kinecta that he was to receive an additional $300,000 from Defendant to satisfy the Sony Music judgment creditor lien and that he was to receive a $50,000.00 loan from Defendant as well. Defendant argues that the object of agreements between Plaintiff and Defendant was to defraud Kinecta. Defendant asserts that 18 U.S.C. § 1344(1) has been successfully employed in the short sale context because “each time a financial institution approves a short sale based upon misleading information, it relinquishes its mortgage interest for less than what it could have if it had known the actual circumstances.” (United States v. Springer (2017 8th Cir.) 866 F.3d 949, 955.)

In opposition, Plaintiff argues that because the subject verbal contract with Defendant was made prior to a judgment, a foreclosure, and before Plaintiff obtained approval from Kinecta for a short sale of the subject real property, Plaintiff has no reason to know of any clause that would bar his being granted a life estate in or otherwise remaining on the subject real property. Plaintiff asserts that the SAC specifically alleges that Wargocz, Plaintiff’s fiduciary and real estate agent, presented the Short Sale Affidavit to his and fraudulent induced him into signing the Short Sale Affidavit by rushing him into signing it, in full knowledge that Plaintiff’s poor vision due to advanced age and declining health prevent him from reading and understanding their contents. (SAC, Lewis Decl. ¶ 18-20.) Plaintiff contends that the only person justifiably liable to Kinecta for defrauding a financial institution would be Wargocz.

Plaintiff further argues that the subject verbal agreement was not an illegal side agreement. Plaintiff asserts that he had only received a notice of intent to foreclose from Kinecta, which provided the impetus to make the subject verbal contract with Defendant. Plaintiff contends that accordingly, at the time the verbal agreement was made, the property was not in actual foreclosure. Plaintiff argues that he was free to enter the subject verbal contract with Defendant.

The Court finds that Plaintiff has failed to allege facts sufficient to state causes of action against Defendant, as the face of the SAC discloses terms of a contract between the parties that are illegal or in violation of public policy under Civil Code sections 1550 and 1605, rendering the contract void. (Civ. Code § 1550 (“It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.”); Civ. Code § 1605 (“Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.”).) The verified SAC alleges that Plaintiff, as opposed to Defendant or any other party, was the actor who proposed the alleged terms of the agreement between Plaintiff and Defendant, terms which are contrary to the express terms provided in the Short Sale Affidavit and which are contrary to the very definition of a short sale, which requires an arms-length transaction. (SAC ¶ 4.1.)

In 2018 Plaintiff received a notice from Kinecta in the fall of 2017 of its intent to proceed with a foreclosure sale of the subject property. All of Plaintiff’s cash on-hand having been expended at said time and with operating cash still needed for his Oxnard, California packaging plant, and the balance of his net worth then tied up in his long term real estate asset holdings, Plaintiff considered it most prudent and expeditious to contact one of his Orthodox Jewish relatives to possibly purchase the subject property via short sale in avoidance of foreclosure. [Defendant] emerged as a ready and willing best of these candidates. Plaintiff made clear to [Defendant] the only way he would grant [Defendant] this economic opportunity, however, would be that [Defendant] as short sale buyer permit Plaintiff [to] continue to live on at the subject property so dear to his heart until his passing and that [Defendant] provide Plaintiff with additional economic relief including the opportunity for Plaintiff's heirs and assignees to yet participate in the property’s prospective near-term upside appreciation, complete relief from a judgment lien held against the subject property by a judgment creditor of Plaintiff and a short term loan for business use by Plaintiff.

(SAC ¶ 4.1 (emphasis added).)

As noted by Defendant, “each time a financial institution approves a short sale based upon misleading information, it relinquishes its mortgage interest for less than what it could have if it had known the actual circumstances.” (United States v. Springer (2017 8th Cir.) 866 F.3d 949, 955.) The intentional provision of misleading information to induce a short sale constitutes a violation of 18 U.S.C. § 1334. (Id.) Importantly, the SAC fails to allege that Plaintiff disclosed the terms of his oral agreement with Defendant to Kinecta and fails to explain why “Plaintiff considered it most prudent and expeditious to contact one of his Orthodox Jewish relatives to possibly purchase the subject property via short sale in avoidance of foreclosure,” if not to defraud Kinecta and allow a relative of Plaintiff’s to purchase the property. (SAC ¶ 4.1.) As provided by the authorities above, “[w]here the complaint's allegations or judicially noticeable facts reveal the existence of an affirmative defense, the “plaintiff must ‘plead around’ the defense, by alleging specific facts that would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action ....” [Citations.]” (Gentry, supra, 99 Cal.App.4th at 824–825.)

Based on the foregoing, Defendant’s demurrer to the SAC is SUSTAINED in its entirety with leave to amend.

Conclusion

Defendant’s demurrer to the SAC is SUSTAINED in its entirety with 30 days leave to amend.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Case Number: 19STCV46237    Hearing Date: December 09, 2020    Dept: 31

DEMURRER IS PLACED OFF CALENDAR.

Defendant Jay Bernstein’s Demurrer is placed OFF CALENDAR. Defendant’s Demurrer was as to the First Amended Complaint. On October 21, 2020, the Court granted Plaintiff’s Motion for Leave to Amend the Complaint. Pursuant to that order, Plaintiff filed the Second Amended Complaint on October 27, 2020. Defendant’s demurrer is therefore mooted by the filing of Plaintiff’s Second Amended Complaint.

Moving party is to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtroom.

Case Number: 19STCV46237    Hearing Date: October 21, 2020    Dept: 31

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT IS GRANTED.

Background

On December 23, 2019, Plaintiff Matthew Katz filed the instant action against Defendants Jay Bernstein; Melissa Bernstein; Kinecta Federal Credit Union; Al Warcogz; RE/MAX Olson & Associates; Richard Stutzman; Lauren Stutzman; John Charland; and Does 9 through 15. On April 6, 2020, Plaintiff filed the Verified First Amended Complaint (“FAC”), excluding Kinecta Federal Credit Union as a party. The FAC asserts causes of action for:

  1. Declaratory Judgment;

  2. Judicial Recission based upon Fraud or, in the alternative, Damages for Breach of Contract;

  3. Quiet Title;

  4. Conversion;

  5. Breach of Fiduciary Duty;

  6. Fraud and Deceit;

  7. Intentional Interference with Prospective Economic Advantage;

  8. Infliction of Emotional Distress;

  9. Elder Abuse; and

  10. Accounting.

Plaintiff now seeks leave to file a Second Amended Complaint (“SAC”). 

Legal Standard

The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

Request for Judicial Notice

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Defendant Bernstein requests that the Court take judicial notice of two orders entered in the Los Angeles Superior Court and the Superior Court of Washington for Kitsap County. The request is GRANTED.

Discussion

Proposed Amendment

Plaintiff seeks to amend the complaint, adding Kinecta Federal Credit Union (“Kinecta”); Richard Stutzman; Lauren Stutzman; Rita Spiegelman; Alan Bond; and John Charland as defendants, allegations related to those defendants, and the inclusion of various exhibits.

Plaintiff argues that the amended complaint is necessary and proper because the facts giving rise to the amended allegations were discovered only through Defendants’ filing of various motions. Plaintiff asserts that the Woolsey fires destroyed Plaintiff’s house, which contained, among other things, all of his personal records.

Plaintiff contends that Kinecta was added back in since Plaintiff now seeks a declaratory judgment that the December 2017 short sale of the subject property is void based on the fraud alleged in the complaint. Plaintiff argues that Richard Stutzman and Lauren Stutzman were added based upon alleged acts of harassment and interference with Plaintiff’s prospective economic advantage. Plaintiff asserts that the inclusion of Rita Spiegelman as a defendant is necessary and proper because she should be held responsible for vouchsafing for Defendant Bernstein’s character and trustworthiness. As to Alan Bond, Plaintiff contends that he is a necessary and proper defendant because his repeated refusal to cooperate and sign a declaration in the case indicates that he is seeking to conceal his spontaneous utterance reading the subject verbal contract. Plaintiff argues that John Charland was added as a defendant based upon allegations that, in the course of his agency with Bernstein at the subject property, converted or otherwise misappropriated Plaintiff’s personal property. Plaintiff asserts that the only remaining changes concern strengthening allegations to ensure that Defendants understand that Plaintiff did not conspire with Bernstein to defraud Defendant Kinecta.

Prejudice to Defendants & Merits of Amendment

In ruling on a motion for leave to amend the complaint, the Court does not consider the merits of the proposed amendment because “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge, supra, 213 Cal.App.3d at p. 1048.) While the court may deny leave to amend where the proposed amendment is insufficient to state a valid cause of action or defense, such denial is most appropriate where the insufficiency cannot be cured by further amendment—i.e., where the statute of limitations has expired or the insufficiency is established by controlling caselaw. (California casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)

Plaintiff argues that because Defendants have already filed their latest demurrers, the filing of the SAC is doubly efficient in terms of judicial economy and substantial justice. Plaintiff asserts that Defendants, as currently captioned, are not detrimentally affected by the amendments and the action has not been unreasonable delayed because most of the delays in the case are due to the COVID-19 pandemic.

In opposition, Defendants RE/MAX Olson & Associates, Inc. and Wargocz (hereinafter collectively referred to as “Defendants RE/MAX”) argue that the case is notably without merit, arguing the merits of their defense. Defendant Bernstein joins in those arguments, additionally asserting that the SAC is a sham pleading. Defendant Bernstein points out that Katz and attorney Ollo have both been declared vexatious litigants; Katz in California and Ollo in both California and Washington. (RJN, Exh. A-B.)

The Court finds that Defendants will not be prejudiced by the proposed amendment. While Defendants spend a significant amount of time arguing the merits of the amendments, as noted above, the preferable practice when a defendant opposes a motion for leave to amend on the merits of the amendment is to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings, or other appropriate pleadings. Accordingly, the Court does not consider the merits of Plaintiff’s proposed amendment in ruling on the instant motion for leave to amend.

The Court further finds that Plaintiff’s motion substantially complies with the requirements of California Rules of Court Rule 3.1324 and there exists good cause for allowing the amendment.

Based on the foregoing, Plaintiff’s motion for leave to amend the complaint is GRANTED.

Conclusion

Plaintiff’s motion for leave to amend the complaint is GRANTED. Plaintiff is ordered to file the Second Amended Complaint within ten (10) days of this Order.

Moving party to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Case Number: 19STCV46237    Hearing Date: August 05, 2020    Dept: 31

PLAINTIFF'S MOTION TO BIFURCATE IS DENIED.

Background

On December 23, 2019, Plaintiff Matthew Katz filed the instant action against Defendants Jay Bernstein; Melissa Bernstein; Kinecta Federal Credit Union; Al Warcogz; RE/MAX Olson & Associates; Richard Stutzman; Lauren Stutzman; John Charland; and Does 9 through 15. On April 6, 2020, Plaintiff filed the Verified First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Declaratory Judgment;

  2. Judicial Recission based upon Fraud or, in the alternative, Damages for Breach of Contract;

  3. Quiet Title;

  4. Conversion;

  5. Breach of Fiduciary Duty;

  6. Fraud and Deceit;

  7. Intentional Interference with Prospective Economic Advantage;

  8. Infliction of Emotional Distress;

  9. Elder Abuse; and

  10. Accounting.

Plaintiff seeks an order bifurcating the issue of liability as it relates to Plaintiff’s verbal contract with Defendant Jay Bernstein. On July 6, 2020, Defendants RE/MAX Olson & Associates, Inc. and Al Wargocz (hereinafter referred to as “Defendants”) filed an opposition to the instant motion.

Legal Standard

California Code of Civil Procedure section 1048, subdivision (b) provides: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” 

California Code of Civil Procedure section 598 provides that “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case…”

Discussion

Plaintiff seeks an order bifurcating the issue of liability as it relates to Plaintiff’s verbal contract with Defendant Jay Bernstein. Plaintiff argues that the issue of liability as it relates to the verbal agreement should be severed from trial on the subsequent short sale transaction and its associated Residential Purchase Agreement (“RPA”) in the interests of judicial economy. Plaintiff asserts the severance will best ensure that Plaintiff’s action is not prejudiced by Defendants’ respective efforts to cajole the Court into thinking that the verbal agreement was superseded by the consummation of the short sale of the property. Plaintiff contends that the short sale of the subject property was entirely vitiated by the fraud by which the contract was procured. Plaintiff argues that severance by means of bifurcation will best ensure against confusion of the dispositive issues in this case.

Plaintiff asserts that the FAC seeks relief against Defendant Jay Bernstein based on allegations that Defendant Jay Bernstein fraudulently induced Plaintiff into entering a verbal contract which approved Defendant Jay Bernstein as a short sale buyer of the subject property. Plaintiff contends that the FAC alleges that Defendant Jay Bernstein fraudulently misrepresented his intent to perform according to the terms on which Plaintiff granted his approval and that Defendant Jay Bernstein is in breach of that contract based upon his failure to perform. Plaintiff argues that the FAC further alleges that the subsequent short sale of the subject property is therefore invalid as a contract intimately connected to and an outgrowth of the verbal contract. Plaintiff asserts that the FAC alleges that Defendants fraudulently induced Plaintiff on or about October 3, 2017, into signing and/or initialing the real property agreement associated with the short sale transaction that was ultimately consummated in December 2017.

Plaintiff contends that the issue of liability as it relates respectively to the legal enforceability of the verbal contract as well as the voidability of the short sale documents is a threshold issue in the case. Plaintiff argues that the issue of liability should be adjudicated first by means of a preliminary fact-finding hearing. Plaintiff asserts that the outcome of the hearing would be fully dispositive on whether Plaintiff will be legally entitled to proceed on his remaining claims. Plaintiff contends that adjudicating the issues of liability will determine if the remaining claims will require discovery and a lengthier trial or alternatively dispose of the remainder of the action. Plaintiff argues that bifurcation may serve to expedite disposition in this case, which, as filed, is one in which liability and damage issues are divisible. 

In opposition, Defendants argue that the subject action is based on allegations that Plaintiff was fraudulently induced into agreeing to sell real property in Malibu, California to Defendant Jay Bernstein in a short sale. Defendants assert that Plaintiff’s case is without merit and that there can be no preliminary hearing on the issue of the verbal contract without the court hearing the circumstances surrounding the Short Sale itself. 

Defendants contend that the numerous references to the verbal contract in the original Complaint and the FAC demonstrate unequivocally that the alleged verbal contract was agreed to on December 4, 2017. Defendants argue that as such, it is impossible for Plaintiff to have been induced on December 4, 2017 to sign an agreement that he signed on October 3, 2017. Defendants assert that, additionally, the Short Sale required that Plaintiff, the Buyer, and the Realtors execute a document entitled Short Sale Affidavit. Defendants contend that the Affidavit provides in relevant part, that the sale was arm’s length; the Seller (Plaintiff) and Buyer were unrelated; there were no agreements, understandings, or contracts between Seller and Buyer that the Seller would remain on the property for more than 90 days; that neither the Seller nor Buyer would receive any funds or commission from the sale except the Seller could receive a payment offered by the Servicer (Defendant Kinecta) if approved by the investor; that there were no agreements, understandings, or contracts relating to the sale or a subsequent sale that had not been disclosed to the Servicer; that all amounts paid to a lienholder were approved by the Servicer; that the Servicer was relying on the statements in the Affidavit; and that all representations in the Affidavit would survive the closing.

Defendants argue that it appears that Plaintiff is trying to preclude Defendants from raising the above referenced issues. Defendants assert that Plaintiff’s requested relief is not bifurcation, as a bifurcation as to liability would not be so limited. 

Defendants also argue that there is no process for a preliminary hearing where the Court would hear the so-called preliminary matter of the verbal contract before a jury hears the balance of issues of the case. Defendants argue that this is simply not provided for in Section 598.

In reply, Plaintiff argues that the fraudulently induced verbal contract is a materially dispositive issue in this case. Plaintiff asserts that rather than strictly address the utility of bifurcation, Defendants seek for the Court to engage in premature fact finding as a means to avoid bifurcation. Plaintiff contends that such arguments should be viewed as diversionary and should properly be disregarded.

The Court finds that the interests of justice, convenience of the witnesses, and judicial economy do not weigh in favor of bifurcating the issue of liability as to the verbal contract from the remaining claims or issues of liability. As correctly noted by Defendants, the issue of liability is not as limited as Plaintiff argues it is. The Court finds that the circumstances surrounding the allegedly fraudulently induced verbal contract and the subsequent Short Sale are relevant to determining whether the verbal contract was, in fact, fraudulently induced. The Court finds persuasive Defendants’ argument that the instant motion to bifurcate would result in precluding Defendants from raising their relevant defenses. 

Contrary to Plaintiff’s arguments, Defendants are entitled to set forth their defenses in opposing the instant motion as such defenses are relevant to the issue of whether bifurcation is appropriate. In considering Defendants’ defenses, the Court is not acting as a trier of fact but is instead evaluating whether the interests of justice, convenience of the witnesses, and judicial economy weigh in favor of bifurcating the issues as requested by Plaintiff. The Court finds that in this instance, they do not. 

More importantly, the process by which Plaintiff seeks to bifurcate the issues, having the Court hold a preliminary hearing as to the issue of liability on the verbal contract and then a subsequent trial by jury of the remaining issues is not a procedure specified in in Section 598. Plaintiff has failed to cite to any authority that would allow the Court to proceed as requested.

Based on the foregoing, Plaintiff’s motion to bifurcate is DENIED.

Conclusion

Plaintiff’s motion to bifurcate is DENIED.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Moving party to give notice.

Case Number: 19STCV46237    Hearing Date: July 23, 2020    Dept: 31

PLAINTIFF'S MOTION TO BIFURCATE IS DENIED.

Background

On December 23, 2019, Plaintiff Matthew Katz filed the instant action against Defendants Jay Bernstein; Melissa Bernstein; Kinecta Federal Credit Union; Al Warcogz; RE/MAX Olson & Associates; Richard Stutzman; Lauren Stutzman; John Charland; and Does 9 through 15. On April 6, 2020, Plaintiff filed the Verified First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Declaratory Judgment;

  2. Judicial Recission based upon Fraud or, in the alternative, Damages for Breach of Contract;

  3. Quiet Title;

  4. Conversion;

  5. Breach of Fiduciary Duty;

  6. Fraud and Deceit;

  7. Intentional Interference with Prospective Economic Advantage;

  8. Infliction of Emotional Distress;

  9. Elder Abuse; and

  10. Accounting.

Plaintiff seeks an order bifurcating the issue of liability as it relates to Plaintiff’s verbal contract with Defendant Jay Bernstein. On July 6, 2020, Defendants RE/MAX Olson & Associates, Inc. and Al Wargocz (hereinafter referred to as “Defendants”) filed an opposition to the instant motion.

Legal Standard

California Code of Civil Procedure section 1048, subdivision (b) provides: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” 

California Code of Civil Procedure section 598 provides that “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case…”

Discussion

Plaintiff seeks an order bifurcating the issue of liability as it relates to Plaintiff’s verbal contract with Defendant Jay Bernstein. Plaintiff argues that the issue of liability as it relates to the verbal agreement should be severed from trial on the subsequent short sale transaction and its associated Residential Purchase Agreement (“RPA”) in the interests of judicial economy. Plaintiff asserts the severance will best ensure that Plaintiff’s action is not prejudiced by Defendants’ respective efforts to cajole the Court into thinking that the verbal agreement was superseded by the consummation of the short sale of the property. Plaintiff contends that the short sale of the subject property was entirely vitiated by the fraud by which the contract was procured. Plaintiff argues that severance by means of bifurcation will best ensure against confusion of the dispositive issues in this case.

Plaintiff asserts that the FAC seeks relief against Defendant Jay Bernstein based on allegations that Defendant Jay Bernstein fraudulently induced Plaintiff into entering a verbal contract which approved Defendant Jay Bernstein as a short sale buyer of the subject property. Plaintiff contends that the FAC alleges that Defendant Jay Bernstein fraudulently misrepresented his intent to perform according to the terms on which Plaintiff granted his approval and that Defendant Jay Bernstein is in breach of that contract based upon his failure to perform. Plaintiff argues that the FAC further alleges that the subsequent short sale of the subject property is therefore invalid as a contract intimately connected to and an outgrowth of the verbal contract. Plaintiff asserts that the FAC alleges that Defendants fraudulently induced Plaintiff on or about October 3, 2017, into signing and/or initialing the real property agreement associated with the short sale transaction that was ultimately consummated in December 2017.

Plaintiff contends that the issue of liability as it relates respectively to the legal enforceability of the verbal contract as well as the voidability of the short sale documents is a threshold issue in the case. Plaintiff argues that the issue of liability should be adjudicated first by means of a preliminary fact-finding hearing. Plaintiff asserts that the outcome of the hearing would be fully dispositive on whether Plaintiff will be legally entitled to proceed on his remaining claims. Plaintiff contends that adjudicating the issues of liability will determine if the remaining claims will require discovery and a lengthier trial or alternatively dispose of the remainder of the action. Plaintiff argues that bifurcation may serve to expedite disposition in this case, which, as filed, is one in which liability and damage issues are divisible. 

In opposition, Defendants argue that the subject action is based on allegations that Plaintiff was fraudulently induced into agreeing to sell real property in Malibu, California to Defendant Jay Bernstein in a short sale. Defendants assert that Plaintiff’s case is without merit and that there can be no preliminary hearing on the issue of the verbal contract without the court hearing the circumstances surrounding the Short Sale itself. 

Defendants contend that the numerous references to the verbal contract in the original Complaint and the FAC demonstrate unequivocally that the alleged verbal contract was agreed to on December 4, 2017. Defendants argue that as such, it is impossible for Plaintiff to have been induced on December 4, 2017 to sign an agreement that he signed on October 3, 2017. Defendants assert that, additionally, the Short Sale required that Plaintiff, the Buyer, and the Realtors execute a document entitled Short Sale Affidavit. Defendants contend that the Affidavit provides in relevant part, that the sale was arm’s length; the Seller (Plaintiff) and Buyer were unrelated; there were no agreements, understandings, or contracts between Seller and Buyer that the Seller would remain on the property for more than 90 days; that neither the Seller nor Buyer would receive any funds or commission from the sale except the Seller could receive a payment offered by the Servicer (Defendant Kinecta) if approved by the investor; that there were no agreements, understandings, or contracts relating to the sale or a subsequent sale that had not been disclosed to the Servicer; that all amounts paid to a lienholder were approved by the Servicer; that the Servicer was relying on the statements in the Affidavit; and that all representations in the Affidavit would survive the closing.

Defendants argue that it appears that Plaintiff is trying to preclude Defendants from raising the above referenced issues. Defendants assert that Plaintiff’s requested relief is not bifurcation, as a bifurcation as to liability would not be so limited. 

Defendants also argue that there is no process for a preliminary hearing where the Court would hear the so-called preliminary matter of the verbal contract before a jury hears the balance of issues of the case. Defendants argue that this is simply not provided for in Section 598.

In reply, Plaintiff argues that the fraudulently induced verbal contract is a materially dispositive issue in this case. Plaintiff asserts that rather than strictly address the utility of bifurcation, Defendants seek for the Court to engage in premature fact finding as a means to avoid bifurcation. Plaintiff contends that such arguments should be viewed as diversionary and should properly be disregarded.

The Court finds that the interests of justice, convenience of the witnesses, and judicial economy do not weigh in favor of bifurcating the issue of liability as to the verbal contract from the remaining claims or issues of liability. As correctly noted by Defendants, the issue of liability is not as limited as Plaintiff argues it is. The Court finds that the circumstances surrounding the allegedly fraudulently induced verbal contract and the subsequent Short Sale are relevant to determining whether the verbal contract was, in fact, fraudulently induced. The Court finds persuasive Defendants’ argument that the instant motion to bifurcate would result in precluding Defendants from raising their relevant defenses. 

Contrary to Plaintiff’s arguments, Defendants are entitled to set forth their defenses in opposing the instant motion as such defenses are relevant to the issue of whether bifurcation is appropriate. In considering Defendants’ defenses, the Court is not acting as a trier of fact but is instead evaluating whether the interests of justice, convenience of the witnesses, and judicial economy weigh in favor of bifurcating the issues as requested by Plaintiff. The Court finds that in this instance, they do not. 

More importantly, the process by which Plaintiff seeks to bifurcate the issues, having the Court hold a preliminary hearing as to the issue of liability on the verbal contract and then a subsequent trial by jury of the remaining issues is not a procedure specified in in Section 598. Plaintiff has failed to cite to any authority that would allow the Court to proceed as requested.

Based on the foregoing, Plaintiff’s motion to bifurcate is DENIED.

Conclusion

Plaintiff’s motion to bifurcate is DENIED.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Moving party to give notice.

Case Number: 19STCV46237    Hearing Date: July 09, 2020    Dept: 31

Defendants RE/MAX Olson & Associates, Inc. and Al Wargocz’s Demurrer is placed OFF CALENDAR. A First Amended Complaint was filed on April 6, 2020, within the statutory period provided by Code of Civil Procedure section 472, subdivision (a). Accordingly, the instant demurrer is moot.

The parties are strongly encouraged to attend all scheduled hearings by telephone or CourtCall. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Moving party to give notice.

Case Number: 19STCV46237    Hearing Date: July 06, 2020    Dept: 31

MOTION FOR SANCTIONS IS DENIED AS MOOT.

Defendant Jay Bernstein’s Motion for Sanctions is DENIED as moot. Defendant’s motion was directed to the original complaint in this action. On April 6, 2020, Plaintiff filed the First Amended Complaint. Accordingly, Plaintiff has withdrawn the offending pleading. If Defendant feels sanctions remain warranted based on the First Amended Complaint, Defendant may serve and file a subsequent motion for sanctions which addresses that operative pleading.

The Court further notes that on April 13, 2020, a pleading titled “Verified First Amended Civil Complaint” was filed with the Court purporting to “correct . . . de minimis errors” in the First Amended Complaint filed on April 6, 2020. The April 13, 2020 pleading was improperly filed because no leave of court was obtained and should have been rejected for filing. The Court orders the pleading filed on April 13, 2020 STRICKEN.

The parties are strongly encouraged to attend all scheduled hearings by telephone or CourtCall. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Moving party to give notice.

Case Number: 19STCV46237    Hearing Date: March 09, 2020    Dept: 31

APPLICATION FOR ORDER TO APPEAR PRO HAC VICE IS GRANTED.

Attorney Mark Olla (“Applicant”) seeks admission to appear as counsel pro hac vice to represent Plaintiff Matthew Katz in this action alongside Greg M. Ingerson, an active member of the State Bar of California. (Olla Decl. ¶ 8.) Applicant is a resident of Oregon and is a member in good standing in the State of New Jersey. (Olla Decl. ¶ 3-5.) He has been admitted to practice before the courts of New Jersey including federal district courts located in that state. (Olla Decl. ¶ 5.) Applicant has not appeared pro hac vice in California in the past two years. (Olla Decl. ¶ 7.) 

Applicant’s application complies with the requirements of California Rules of Court Rule 9.40, including servicing notice and required fees on the State Bar of California.

The application is GRANTED. It is ordered that Mark Olla be admitted to appear as counsel pro hac vice for the purpose of representing Plaintiff in this action. Applicant shall be subject to all applicable rules of this Court.

Case Number: 19STCV46237    Hearing Date: February 06, 2020    Dept: 31

Attorney Mark Olla (“Applicant”) seeks admission to appear as counsel pro hac vice to represent Plaintiff Matthew Katz in this action alongside Greg M. Inverson, an active member of the State Bar of California. Applicant is a resident of Oregon and is a member in good standing in the State of New Jersey. (Olla Decl. ¶ 3-5.) He has been admitted to practice before the courts of New Jersey including federal district courts located in that state. (Olla Decl. ¶ 5.) Applicant has not appeared pro hac vice in California in the past two years. (Olla Decl. ¶ 7.) 

However, the Court finds that the application is deficient. Applicant has failed to indicate service of the application on the State Bar at its San Francisco Office and payment of the $50 required fee to the State Bar as required by California Rules of Court Rule 9.40(e). Applicant must remedy the deficiencies at the hearing or thereafter by providing a supplemental declaration with the required information and proof of service.

If the Applicant has remedied the deficiencies at the hearing, the application will be GRANTED. Otherwise, the Court will continue this matter.

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