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This case was last updated from Los Angeles County Superior Courts on 08/02/2018 at 02:22:33 (UTC).

PMI MORTGAGE INSURANCE CO. VS. FRANK GOMEZ, JR.

Case Summary

On 08/11/2017 PMI MORTGAGE INSURANCE CO filed a Contract - Debt Collection lawsuit against FRANK GOMEZ, JR. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judge overseeing this case is LAURA A. MATZ. The case status is Disposed - Dismissed.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****7099

  • Filing Date:

    08/11/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Glendale Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

LAURA A. MATZ

 

Party Details

Plaintiff

PMI MORTGAGE INSURANCE CO.

Defendant

GOMEZ FRANK JR.

Attorney/Law Firm Details

Plaintiff Attorney

GABA LAW CORPORATION

Defendant Attorneys

SUE HONG

PRIMUTH & DRISKELL LLP

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 02/23/2018
  • Request for Dismissal (WITH PREJUDICE ENTIRE ACTION OF ALL PARTIES AND ALL CAUSES OF ACTION ); Filed by Attorney for Plaintiff

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  • 01/11/2018
  • at 08:30 am in Department NCGE, Laura A. Matz, Presiding; Conference-Case Management - Trial and Conference Set

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  • 01/03/2018
  • Statement-Case Management; Filed by Attorney for Plaintiff

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  • 12/22/2017
  • Statement-Case Management; Filed by Attorney for Plaintiff

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  • 12/13/2017
  • Proof of Service; Filed by Attorney for Defendant

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  • 12/11/2017
  • Answer (OF FRANK GOMEZ, JR. ); Filed by Attorney for Defendant

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  • 12/01/2017
  • at 08:30 am in Department NCGE, Laura A. Matz, Presiding; Hearing on Demurrer (OF DEFENDANT FRANK GOMEZ, JR., TOCOMPLAINT OF PLAINTIFF PMIMORTGAGE INSURANCE CO., 2) MOTIONOF DEFENDANT FRANK GOMEZ, JR., TOSTRIKE COMPLAINT OF PLAINTIFF PMIMORTGAGE INSURANCO CO.) - Denied

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  • 11/22/2017
  • Reply (TO OPPOSITION TO DEMURRER ); Filed by Attorney for Defendant

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  • 11/22/2017
  • Reply (TO OPPOSITION TO MOTION TO STRIKE ); Filed by Attorney for Defendant

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  • 11/15/2017
  • Opposition (TO MOTION TO STRIKE ); Filed by Attorney for Plaintiff

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  • 11/15/2017
  • Opposition (TO DEMURRER TO COMPLAINT ); Filed by Attorney for Plaintiff

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  • 11/07/2017
  • Declaration (OF JOSHUA DRISKELL REGARDING MEET AND CONFER ); Filed by Attorney for Defendant

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  • 10/26/2017
  • at 08:30 am in Department NCGE, Laura A. Matz, Presiding; Order to Show Cause (RE FAILURE TO COMPLY WITH TRIALCOURT DELAY REDUCTION ACT) - OSC Discharged

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  • 10/05/2017
  • Demurrer (TO COMPLAINT ); Filed by Attorney for Defendant

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  • 10/05/2017
  • Motion to Strike (TO COMPLAINT ); Filed by Attorney for Defendant

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  • 10/03/2017
  • Statement-Case Management; Filed by Attorney for Plaintiff

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  • 09/01/2017
  • Proof of Service; Filed by Attorney for Plaintiff

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  • 08/11/2017
  • Summons Filed

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  • 08/11/2017
  • Complaint filed-Summons Issued

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Tentative Rulings

Case Number: EC067099    Hearing Date: April 30, 2021    Dept: D

TENTATIVE RULING
Calendar: 18
Date:          4/30/21
Case No: EC067099 Trial Date:   None Set 
Case Name: Tiongson v. Diramarian, et al. 
DEMURRER
MOTION TO STRIKE
[CCP §430.10 et. seq.] 
Moving Party: Defendants Jack Diramarian and Scientific Automotive, Inc.     
Responding Party: Plaintiff Joey Tiongson      
Meet and Confer:  Plaintiff did not meet and confer as ordered to do so by the court’s order of April 9, 2021
RELIEF REQUESTED:
Sustain demurrer to Complaint 
Strike Punitive Damages  
CAUSES OF ACTION:  from Complaint
1) Breach of Contract (Bailment) 
2) Conversion
3) Injunctive Relief 
4) Fraud (Deceit)  
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff Joey Tiongson alleges that he and defendant Jack Diramarian had been friends for most of their lives, and that in 2015, plaintiff agreed to allow defendant Diramarian and the business entity defendant Scientific Automotive to possess plaintiff’s 1989 Porsche Speedster automobile, and his Porsche 930 Turbo automobile pursuant to a contract of bailment. 
Plaintiff alleges that at the time, the vehicles had a fair market value in excess of $160,000 and were each considered a “collector’s item.”  
The complaint alleges that prior to the time plaintiff was coerced into allowing defendants, and each of them, to enter into the agreement, defendants knew that plaintiff had recently suffered a life-altering traumatic brain injury, which required that plaintiff be placed into a medically induced coma for a period of months in order to save his life, and which has caused plaintiff ongoing medical issues which tended to impair his judgment. 
Plaintiff alleges that after entering the agreement, defendant coerced plaintiff to allow the Porsche Speedster to be sold for the sum of $50,000, when, in fact, the vehicle had a fair market value of $75,000, with the proceeds of the sale to be divided between plaintiff and defendants. Defendants then in fact sold the vehicle for $75,000, and kept the $25,000 for themselves, and delayed and stalled for a number of months when plaintiff requested payment of his share of the $25,000 in additional proceeds, and have refused to provide plaintiff with any documentation with respect to the sale of the Speedster. 
The complaint also alleges that with respect to plaintiff’s Porsche 930 Turbo, defendants, without plaintiff’s knowledge or consent, systematically and over time dismantled and stripped plaintiff’s vehicle into its component parts at defendants’ auto shops in Pasadena.  When plaintiff asked for the return of his Porsche 930 Turbo, defendant stalled and again refused to turn over the automobile. Defendants finally indicated they were unable to turn over the automobile because they had stripped it, claiming they did so to teach aspiring auto mechanics how to disassemble and reassemble a Porsche 930 Turbo, for which defendants received fees for the classes offered.   Plaintiff alleges that as a result of the conduct of defendants, plaintiff has suffered damages.
This demurrer and motion to strike were originally scheduled to be heard on April 9, 2021.  The minute order indicates that there was no meet and confer declaration submitted with the motions, and that the court was also in receipt of an untimely opposition, in which plaintiff’s counsel indicated no meet and confer had occurred.  The reply conceded that meet and confer did not occur prior to the filing of the motions.  The minute order states:
“There is no meet and confer declaration submitted with the demurrer or motion to strike, as required under CCP § 430.41 and 435.5. The untimely opposition confirms that meet and confer did not occur prior to the filing of these motions. The opposition also indicates that plaintiff’s counsel did not receive service of the moving papers. The matters are accordingly continued to April 30, 2021 at 9:00 a.m. The parties are ordered to engage in the required meet and confer. If plaintiff agrees to file an amended pleading, the pleading must be filed and served sixteen court days prior to the new hearing date. If plaintiff does not agree to file an amended pleading, defendants’ counsel is ordered to submit the appropriate meet and confer declaration which fully complies with the meet and confer statutes no later than sixteen court days prior to the new hearing date. Any supplemental opposition and reply must be filed and served according to statute.”
Notice was waived. 
The opposition previously filed did not oppose the demurrer or motion to strike on their merits, only arguing that no meet and confer had occurred and that plaintiff had not received service of the moving papers. 
Since the previous hearing, no timely amended pleading has been filed.  Defendant has filed a declaration of counsel re meet and confer, which states that since the hearing defendant’s counsel has via telephone and email on multiple occasions requested that the parties meet and confer, and has sent copies of the moving papers to plaintiff’s counsel a total of five times, but that plaintiff’s counsel has not responded by agreeing to meet and confer, or participating in such a meet and confer.  [Weber Decl., paras. 7-15, Exs. E, F].   
No further papers have been filed by plaintiff, so that there is no opposition to the demurrer on its merits, and it appears plaintiff does not dispute that plaintiff did not respond to meet and confer efforts with respect to this motion.  
RULING:
Demurrer to Complaint:
The Court notes that the declaration submitted by counsel for defendant indicates that plaintiff’s counsel failed to respond to meet and confer efforts, despite the obligations imposed by statute, and this Court’s order of April 9, 2021, expressly ordering the parties to meet and confer.  Counsel for plaintiff appeared at the hearing at which that order was issued and waived notice.   The Court views the obligation to meet and confer to extend to both plaintiffs and defendants.  See CCP § 430.41(a)(1) (“The party who filed the complaint… shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint… could be amended to cure any legal insufficiency.”).  
The Court accordingly may set an OSC re Sanctions for plaintiff’s counsel’s failure to meet and confer as ordered by the Court. 
The Court also notes that no timely opposition on the merits has been filed to the demurrer or motion to strike, despite a continuance being granted to submit supplemental papers, so the motions are considered unopposed.  
Demurrer is OVERRULED to the first cause of action for breach of contract.  Although no written contract is attached to the pleading, the pleading sufficiently alleges that defendants gave plaintiff a written document, as required by law, documenting receipt of the vehicles for storage, and that, if such written documentation was not given, defendants were in violation of applicable provisions of California law.  [Complaint, paras. 9, 10].  This appears sufficient to allege the alternate nature of the contract, as either written or oral, and to support an inference that defendant is in a superior position to know the nature of the agreement, which can be explored through discovery. This would in the Court’s view excuse any obligation to attach a copy of the written contract.  To the extent the argument is that any oral contract would be barred by the two year statute of limitations, this fact does not affirmatively appear from the pleading, as the only date alleged is that the contract was formed in 2015; no dates of the alleged breaches are alleged. See Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 (“A general demurrer based on statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations.  (Citation omitted.)  The running of the statute must appear “clearly and affirmatively” from the dates alleged.  It is not sufficient that the complaint might be barred.”) 
Demurrer is OVERRULED to the second cause of action for conversion.  All elements of a conversion claim have been stated as to the conversion to defendants’ own use of the parts taken without permission from the Porsche 930 Turbo. [Complaint, paras. 30, 33, 32, incorporating paras. 16, 17, 18]. 
Demurrer is SUSTAINED to the third cause of action for injunctive relief.  The demurrer argues that an injunction is not a stand-alone cause of action but a remedy.  It is generally required that a pleading may not seek injunctive relief without clearly alleging a claim giving rise to such a remedy.  In pleading a cause for injunctive relief, the plaintiff must plead not only the grounds for equitable relief, but a tort or other wrongful act constituting a cause of action.   Porters Bar Dredging Co. v. Beaudry (1911) 15 Cal.App.751, 760; See also 5 Witkin, California Procedure (5th Ed. 2008) Pleading § 822 et seq; see also Roberts v. Los Angeles County Bar Association (2003, 2nd Dist.) 105 Cal.App.4th 604, 618; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159-1160.   The cause of action does not attempt to plead a cause of action pursuant to which the remedy of injunctive relief would be available.  To the extent plaintiff seeks this remedy in conjunction with another cause of action, the demurrer is sustained without prejudice to amending the pleading to seek that remedy in connection with another cause of action. 
Demurrer to the fourth cause of action for fraud (deceit) is SUSTAINED WITH LEAVE TO AMEND on the ground the cause of action is not alleged with sufficient specificity as to each defendant. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation].  With respect to the defendant Scientific Automotive, see also Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [in fraud complaints against a corporation, a plaintiff must allege the names of the persons who made the misrepresentation, the authority of such persons to speak for the corporation; the persons to whom they spoke; what was said or written; and when it was said or written].  
Ten days leave to amend the fourth cause of action for fraud, and to seek injunctive relief in connection with the other causes of action only. 
Motion to Strike Complaint:
Motion is DENIED as to the punitive damages sought in connection with the second cause of action for conversion.  A cause of action for conversion is in the nature of a criminal act, theft, such that such a claim ordinarily supports a claim for punitive damages.  See Witkin, Summary of Cal. Law (10th Ed.)  6 Torts section 1589 (“Conversion is a tort that often justifies an award of punitive damages,” citing multiple authorities, including Haigler v. Donnelly (1941) 18 Cal.2d 674, 681).
Motion is MOOT as to the punitive damages sought in connection with the fourth cause of action for fraud (deceit) in light of the sustaining of the demurrer with leave to amend. 
Both parties are ordered to meet and confer in full compliance with CCP §§ 430.41 and 435.5 before any further demurrer or motion to strike may be filed.  
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC067099    Hearing Date: April 9, 2021    Dept: D

TENTATIVE RULING
Calendar:    9
Date:          4/9/2021
Case No: EC067099 Trial Date:   None Set 
Case Name: Tiongson v. Diramarian, et al. 
DEMURRER
MOTION TO STRIKE
[CCP §430.10 et. seq.] 
Moving Party:          Defendants Jack Diramarian and Scientific Automotive, Inc.     
Responding Party: Plaintiff Joey Tiongson      
RELIEF REQUESTED:
Sustain demurrer to Complaint 
Strike Punitive Damages   
ANALYSIS:
Meet and Confer
There is no meet and confer declaration submitted with the demurrer or motion to strike.  CCP § 430.41 requires that before filing a demurrer, the demurring party must meet and confer:
“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.
 (1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.
 (2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.
 (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:
 (A) The means by which the demurring party 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.
 (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.
 (4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”
A similar provision applies to motions to strike. CCP § 435.5.  
The court is also in receipt of an untimely opposition, in which plaintiff’s counsel represents that no meet and confer has occurred.  The reply concedes that defendants’ counsel did not meet and confer with plaintiff’s counsel regarding the motions, but indicates that there have since been attempts to meet and confer. 
The court also notes that the opposition represents that plaintiff’s counsel did not receive service of the motion to strike, which is why the opposition was untimely.   Under the circumstances, the court will continue the hearing on the demurrer and motion to strike and order the parties to meet and confer.   If plaintiff agrees to file an amended pleading, the pleading must be filed and served sixteen court days prior to the new hearing date.  If plaintiff does not agree to file an amended pleading, defendants’ counsel is ordered to submit the appropriate meet and confer declaration which fully complies with the statute sixteen court days prior to the new hearing date.   Any supplemental opposition and reply will be required to be filed and served according to statute.  
RULING:
There is no meet and confer declaration submitted with the demurrer or motion to strike, as required under CCP § 430.41 and 435.5.  The untimely opposition confirms that meet and confer did not occur prior to the filing of these motions.  The opposition also indicates that plaintiff’s counsel did not receive service of the moving papers.   The matters are accordingly continued to April 30, 2021 at 9:00 a.m.   The parties are ordered to engage in the required meet and confer.   If plaintiff agrees to file an amended pleading, the pleading must be filed and served sixteen court days prior to the new hearing date.  If plaintiff does not agree to file an amended pleading, defendants’ counsel is ordered to submit the appropriate meet and confer declaration which fully complies with the meet and confer statutes no later than sixteen court days prior to the new hearing date.   Any supplemental opposition and reply must be filed and served according to statute.  
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC067099    Hearing Date: April 2, 2021    Dept: D

TENTATIVE RULING
Calendar:    12
Date:          4/2/2021
Case No: EC067099 Trial Date:  October 25, 2021
Case Name: Castorena v. Villalobos, et al.
DEMURRER
[CCP §430.10 et. seq.] 
Moving Party:            Defendants Alex Nelson, 1st Point Lending, Inc., and ASO, LLC  
Responding Party:      Plaintiff Elva Castorena (No Opposition)       
RELIEF REQUESTED:
Sustain demurrer to Second Amended Complaint 
 
CAUSES OF ACTION: from Second Amended Complaint 
1) Breach of Contract 
2) Fraud 
3) Elder Abuse  
SUMMARY OF FACTS:
Plaintiff Elva Castorena alleges that plaintiff entered into a written contract with defendant Pacific Coast Home Solutions, Inc. for significant home remodeling work, and that separate contracts were formed between plaintiff and defendant ASO, LLC and defendant1st Point Lending for a loan to pay for the work.  Plaintiff also alleges that a third agreement existed between plaintiff and defendant HERO Program, whereby HERO was to partially subsidize and oversee the performance of the other contracts. 
Plaintiff alleges that Pacific Coast failed to perform the contracted work in a workmanlike fashion, leaving plaintiff’s house in a state of utter disrepair, and arranged for the home loan with ASO and 1st Point which effectively stripped all the equity from plaintiff’s home and left her in a loan she could not afford, and that HERO failed to oversee the project and protect plaintiff. 
Moving defendant Alex Nelson was added to the action by Amendment to Complaint, by which plaintiff substituted Nelson’s name as the true name of Doe 3. 
Moving defendants Nelson, 1st Point Lending, Inc., and ASO, LLC filed a motion for judgment on the pleadings in response to the initial complaint.  The motion was heard on August 14, 2020.   Plaintiff had opposed the motion by requesting leave to amend.  The motion was granted as follows:
“Defendants Alex Nelson, ASO, LLC and First Point Lending, Inc.’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND at the concession of plaintiff in the opposition that the motion is meritorious, and for the reasons stated in the moving papers. 
Thirty days leave to amend to amend the existing causes of action only, if possible. CCP § 438 (h)(2). 
Request for leave to allege additional causes of action is DENIED. Plaintiff may bring a noticed motion for leave to make such amendments, if appropriate. The court notes that conspiracy is ordinarily not a stand-alone cause of action, so that plaintiff is permitted to amend the existing causes of action to include conspiracy allegations, if appropriate. The court further notes that on amendment, plaintiff must plead the fraud and financial elder abuse causes of action with the requisite particularity as to each moving defendant.
Moving defendants then filed a demurrer to the First Amended Complaint, which was heard on December 11, 2020.  There was no written opposition to the demurrer, although there was an appearance for plaintiff at the hearing. 
The unopposed demurrer was sustained with 30 days leave to amend.  
Moving defendants now challenge the sufficiency of the Second Amended Complaint. 
 
ANALYSIS:
Procedural 
Untimely 
The demurrer was not timely filed or served.  
CCP § 430.40(a) provides “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” 
The SAC in this case was served by mail on January 12, 2021, and filed the same date. 
Permitting an additional five days for service by mail, the demurrer was required to be filed by February 11, 2021, but was not filed and served until February 22, 2021, eleven days late. 
There is in the file a declaration regarding meet and confer which was filed on February 22, 2012, the same day as the filing of the demurrer.  
CCP § 430.41 requires that before filing a demurrer, the demurring party must meet and confer.
Under CCP § 430.41(a)(2)
“(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.”
(emphasis added). 
Here, a meet and confer declaration was not filed before the date the demurrer was due, but eleven days late, and it does not appear that the parties had been unable to meet and confer so would have been entitled to an extension.  There is no court order obtained from the court. The demurrer would be overruled as untimely, but the court elects not to do so. 
Substantive First Cause of Action—Breach of Contract 
The demurrer to the First Amended Complaint was sustained as follows:
“The first cause of action for breach of contract fails to sufficiently allege the term of a contract which the moving defendants are alleged to have breached. While the FAC alleges that plaintiff executed certain loan documents, and attaches to the pleading copies of those alleged loan documents, it is not clearly alleged which express term included in those documents was breached by the moving defendants.  [FAC, para. 27, Ex. 2].  The FAC alleges that defendants breached the agreement “by failing to make certain required disclosures which they were obligated to make as part of the transaction as required under California and Federal Law….”  [FAC, para. 27].  It is not clear from the documents attached that any written agreement included such an express term.  The pleading fails to sufficiently allege the term or terms allegedly breached verbatim or according to legal effect.  It is also not clear how each of the moving defendants was in fact a party to any contract with plaintiff.”
The SAC now alleges in some detail that the moving defendants breached the agreements plaintiff executed to obtain a second mortgage on her home, with Nelson and 1st Point acting as broker and ASO acting as lender, and that defendants failed to make the disclosures required by California and federal law, which were implied terms of the agreements, and which were breached.  [SAC, paras. 26, 27, 31-33, 47, 48].  The demurrer argues that the documents attached do not include any express terms which were allegedly breached, so contradict the allegations that a contract was breached.   However, a breach of an implied term can support a pleading claiming a breach of contract.  See, e.g., CCP § 430.10 (g).
The SAC is now sufficiently stated, and the demurrer is overruled.  
Second Cause of Action—Fraud 
The demurrer to this cause of action was previously sustained as follows:
“The second cause of action for fraud again fails to allege that cause of action with the requisite particularity as to each moving defendant, as plaintiff was ordered to do by this Court’s previous August 14, 2020 order.  See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation); See also Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (in fraud complaints against a corporation, a plaintiff must allege all of the following: the names of the persons who made the misrepresentation; their authority to speak for the corporation; to whom they spoke; what they said or wrote; and when it was said or written).”
As noted above, the original judgment on the pleadings was granted with the court expressly stating “that plaintiff is permitted to amend the existing causes of action to include conspiracy allegations, if appropriate.” 
The general allegations allege in some detail that Villalobos made various representation, that he was an agent acting under the direction and authorization of moving defendants, and made fraudulent representations concerning the second position loan with which moving defendants were involved and ratified.  [SAC, paras. 19- 32].  
The pleading also alleges that moving defendants were in a fiduciary relationship with plaintiff, obligated to make certain disclosures to plaintiff, which were not made.  [SAC, paras. 33-38].   
This theory of a duty of disclosure and non-disclosure of fact gives rise to a relaxed pleading requirement, as there is authority under which it is held that in concealment claims, the plaintiff is not required to allege with the usual detail required in connection with fraud claims based on affirmative representations.   In Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App.4th 282, for example, the Second District found that the trial court had improperly sustained a demurrer to a concealment cause of action on the ground the cause of action on the ground plaintiff had failed to allege the cause of action “with the requisite degree of specificity,” noting “The pertinent question in a concealment case is not who said what to whom…”  Vega, at 296. 
The court of appeal observed in Alfaro v. Community Housing Improvement System & Planning Association, Inc. (2009) 171 Cal.App.4th 1356, 1384:
“As restated by Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 [22 Cal. Rptr. 3d 352, 102 P.3d 268], “‘[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] “Thus ‘“the policy of liberal construction of the plead- ings … will not ordinarily be invoked to sustain a pleading defective in any material respect.”’ [Citation.] [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ ” (Cf. Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, supra, 162 Cal.App.4th 858, 878.)
This statement of the rule reveals that it is intended to apply to affirmative misrepresentations. If the duty to disclose arises from the making of representations that were misleading or false, then those allegations should be described. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, supra, 162 Cal.App.4th 858, 877–878.) However, as noted above (see fn. 18, ante, at p. 1381), plaintiffs have apparently abandoned their earlier claims of intentional and negligent misrepresentations. As plaintiffs accurately respond, it is harder to apply this rule to a case of simple nondisclosure. “How does one show ‘how’ and ‘by what means’ something didn't happen, or ‘when’ it never happened, or ‘where’ it never happened?”
Alfaro, at 1384.
This principle has also more recently been applied by the Second District in Jones v. ConocoPhillips Company (2011) 198 Cal.App.4th 1187, 1198.   The SAC now sufficiently alleges details concerning conspiracy to engage in the fraud committed by the contracting defendants, as well as direct concealment on the part of the moving defendants.  The demurrer accordingly now is overruled. 
Third Cause of Action—Elder Abuse 
The demurrer to this cause of action was previously sustained as follows:
“The third cause of action for elder abuse also again fails to allege that cause of action with the requisite particularity as to each moving defendant, as plaintiff was ordered to do by this Court’s previous August 14, 2020 order.  See  Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, (holding that the facts constituting elder abuse, “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.”) Carter, at 407, quoting Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.”      
Again, the previous minute order on the motion for judgment on the pleadings anticipated that plaintiff could allege responsibility for the causes of action based on conspiracy liability. 
With respect to financial elder abuse, Welf & Inst. Code sec. 15610.30 defines financial abuse of an elder, in pertinent part: 
“(a) "Financial abuse" of an elder or dependent adult occurs 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.
 (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
As discussed above, the pleading now sufficiently alleges that the moving defendants assisted in the fraudulent and undue influence activities alleged.  [SAC, para. 60, and allegations incorporated]. The demurrer now overruled. 
RULING:
Defendants Alex Nelson, ASO, LLC and First Point Lending, Inc.’s UNOPPOSED Demurrer to Plaintiff’s Second Amended Complaint:
Demurrer is OVERRULED as untimely and on its merits. 
Ten days to answer. 
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: EC067099    Hearing Date: December 11, 2020    Dept: D

TENTATIVE RULING

Calendar: 18

Date: 12/11/2020

Case No: EC 067099 Trial Date: October 25, 2021

Case Name: Castorena v. Villalobos, et al.

DEMURRER

[CCP §430.10 et. seq.]

Moving Party: Defendants Alex Nelson, 1st Point Lending, Inc., and ASO, LLC

Responding Party: Plaintiff Elva Castorena (No Opposition)

RELIEF REQUESTED:

Sustain demurrer to First Amended Complaint

CAUSES OF ACTION: from First Amended Complaint

1) Breach of Contract

2) Fraud

3) Elder Abuse

SUMMARY OF FACTS:

Plaintiff Elva Castorena alleges that plaintiff entered into a written contract with defendant Pacific Coast Home Solutions, Inc. for significant home remodeling work, and that separate contracts were formed between plaintiff and defendant ASO, LLC and defendant1st Point Lending for a loan to pay for the work. Plaintiff also alleges that a third agreement existed between plaintiff and defendant HERO Program, whereby HERO was to partially subsidize and oversee the performance of the other contracts.

Plaintiff alleges that Pacific Coast failed to perform the contracted work in a workmanlike fashion, leaving plaintiff’s house in a state of utter disrepair, and arranged for the home loan with ASO and 1st Point which effectively stripped all the equity from plaintiff’s home and left her in a loan she could not afford, and that HERO failed to oversee the project and protect plaintiff.

Moving defendant Alex Nelson was added to the action by Amendment to Complaint, by which plaintiff substituted Nelson’s name as the true name of Doe 3.

Moving defendants Nelson, 1st Point Lending, Inc., and ASO, LLC filed a motion for judgment on the pleadings in response to the initial complaint. The motion was heard on August 14, 2020. Plaintiff had opposed the motion by requesting leave to amend. The motion was granted as follows:

“Defendants Alex Nelson, ASO, LLC and First Point Lending, Inc.’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND at the concession of plaintiff in the opposition that the motion is meritorious, and for the reasons stated in the moving papers.

Thirty days leave to amend to amend the existing causes of action only, if possible. CCP § 438 (h)(2).

Request for leave to allege additional causes of action is DENIED. Plaintiff may bring a noticed motion for leave to make such amendments, if appropriate. The court notes that conspiracy is ordinarily not a stand-alone cause of action, so that plaintiff is permitted to amend the existing causes of action to include conspiracy allegations, if appropriate. The court further notes that on amendment, plaintiff must plead the fraud and financial elder abuse causes of action with the requisite particularity as to each moving defendant.

Moving defendants now challenge the sufficiency of the First Amended Complaint. There has been no timely opposition filed to the demurrer, and defendants have filed a Notice of No-Opposition to Demurrer, indicating that no timely opposition has been served.

RULING:

[No Opposition]

Defendants Alex Nelson, ASO, LLC and First Point Lending, Inc.’s UNOPPOSED Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED.

The first cause of action for breach of contract fails to sufficiently allege the term of a contract which the moving defendants are alleged to have breached. While the FAC alleges that plaintiff executed certain loan documents, and attaches to the pleading copies of those alleged loan documents, it is not clearly alleged which express term included in those documents was breached by the moving defendants. [FAC, para. 27, Ex. 2]. The FAC alleges that defendants breached the agreement “by failing to make certain required disclosures which they were obligated to make as part of the transaction as required under California and Federal Law….” [FAC, para. 27]. It is not clear from the documents attached that any written agreement included such an express term. The pleading fails to sufficiently allege the term or terms allegedly breached verbatim or according to legal effect. It is also not clear how each of the moving defendants was in fact a party to any contract with plaintiff.

The second cause of action for fraud again fails to allege that cause of action with the requisite particularity as to each moving defendant, as plaintiff was ordered to do by this Court’s previous August 14, 2020 order. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation); See also Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (in fraud complaints against a corporation, a plaintiff must allege all of the following: the names of the persons who made the misrepresentation; their authority to speak for the corporation; to whom they spoke; what they said or wrote; and when it was said or written).

The third cause of action for elder abuse also again fails to allege that cause of action with the requisite particularity as to each moving defendant, as plaintiff was ordered to do by this Court’s previous August 14, 2020 order. See Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, (holding that the facts constituting elder abuse, “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.”) Carter, at 407, quoting Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

The Court will hear argument with respect to whether one final opportunity to amend will be permitted. The Court is concerned that the pleading has not been appropriately amended despite plaintiff being permitted the opportunity to do so, with the guidance of the previous motion and the order of the Court, and plaintiff has not opposed the demurrer, so has failed to meet plaintiff’s burden of demonstrating how the complaint might be further amended to cure it of the defect. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

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