Judge Ashfaq G. Chowdhury, Case Number: 24NNCV05860, Date: 2025-05-23 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV05860, Date: 2025-05-23 Tentative Ruling

Case Number: 24NNCV05860 Hearing Date: May 23, 2025 Dept: E

Case No: 24NNCV05860
Hearing Date: 05/23/2025 – 8:30am

Trial Date: UNSET

Case Name: VICTOR ORLANDO ONTIVEROS aka VICTOR OLANDO ONTIVEROS, an individual; ET AL. v. LAURA YESENIA ONTIVEROS aka LAURA YESENIA REYES, an individual; and DOES 1-25, inclusive

[TENTATIVE RULING ON DEMURRER & MOTION TO STRIKE]

PROCEDURAL

Moving Party: Defendant, Laura Reyes

Responding Party: Plaintiffs – (1) Victor Orlando Ontiveros aka Victor Olando Ontiveros; (2) Savanah Hope Ontiveros aka Savanah Hope Ontiveros; (3) Sierra Faith Ontiveros aka Siera Fe Ontiveros by and through her Guardian Ad Litem Victor Orlando Ontiveros; (4) Orlando Max Ontiveros aka Oranndo Max Ontiveros, by and through his Guardian Ad Litem Victor Orlando Ontiveros

Moving Papers: Notice/Demurrer; Proof of Service; Proposed Order

Opposition Papers: Opposition

Reply Papers: No Reply

Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

RELIEF REQUESTED

Defendant, Laura Reyes, demurs to Plaintiffs’ Complaint on the following grounds:

1. The Court has no jurisdiction of the subject of the cause of action alleged in the pleading. CCP section 430.10(a)

2. The second cause of action in the complaint for Partition fails to state facts sufficient to constitute a cause of action. CCP section 430.10(E)

The Demurrer shall be based on this Notice, Memorandum of Points and Authorities, on the pleadings and paper on file in this action, and on such other oral and/or documentary evidence as may be presented at the hearing on the Motion.

(Def. Dem. p. 2.)

Meet and Confer
A party filing a demurrer “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.” (Code Civ. Proc., §430.41, subd. (a).) “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.” (Code Civ. Proc., §430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Here, Defendant’s demurrer does not contain a meet and confer declaration.

Plaintiffs’ Opposition points out that Defendant’s counsel did not meet and confer. Plaintiffs argue that if Defendant had met and conferred, the need for this demurrer would have been eliminated.

Here, the Court is considering ordering the parties to meet and confer because Defendant’s demurrer is poorly written, at times fails to cite legal authority to support Defendant’s arguments, and appears to rely on hyper-technical procedural issues.

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) 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 pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

ANALYSIS

Allegations

The instant action involves a dispute over real property situated at 8040 Hellman Avenue located in the City of Rosemead, County of Los Angeles, State of California (Subject Property). (Compl. ¶ 8.)

This action was filed on 11/15/2024.

The Complaint alleges two causes of action for: (1) Declaratory Relief and (2) Partition.

The body of the Complaint names the Plaintiffs as follows:

1. Plaintiff VICTOR ORLANDO ONTIVEROS aka VICTOR OLANDO ONTIVEROS, is, and at all times herein mentioned was an individual residing in the City of Covina, County of Los Angeles, State of California.

2. Plaintiff SAVANNAH HOPE ONTIVEROS aka SAVANAH HOPE ONTIVEROS, is, and at all times herein mentioned was an individual residing in the City of Covina, County of Los Angeles, State of California.

3. Plaintiff SIERRA FAITH ONTIVEROS aka SIERA FE ONTIVEROS, is, and at all times herein mentioned was a minor residing in the City of Covina, County of Los Angeles, State of California.

4. Plaintiff ORLANDO MAX ONTIVEROS aka ORANNDO MAX ONTIVEROS, is, and at all times herein mentioned was a minor residing in the City of Covina, County of Los Angeles, State of California.

(Compl. ¶¶ 1-4.)

In relevant part, the Complaint names the Defendant as:

5. Plaintiffs are informed, believe, and thereon allege that Defendant LAURA YESENIA ONTIVEROS aka LAURA YESENIA REYES, is, and at all times herein mentioned was an individual residing in the City of Rosemead, County of Los Angeles, State of California.

(Compl. ¶ 5.)

With respect to the subject property, the Complaint alleges as follows:

9. On or about December 1, 1971, Victor Ontiveros and Magdalena P. Ontiveros aka Megdelena Ontiveros purchased the Subject Property and took title as “VICTOR ONTIVEROS and MAGDALENA P. ONTIVEROS, husband and wife, AS JOINT TENANTS.” Attached hereto as Exhibit A is a true and correct copy of the 1971 Joint Tenancy Grant Deed (recorded on December 16, 1971).

10. On or about October 6, 2016, Victor Ontiveros and Magdalena P. Ontiveros aka Megdelena Ontiveros executed a Quitclaim Deed transferred the Subject Property to “Laura Yesenia Ontiveros, Victor Olando Ontiveros, Savanah Hope Ontiveros, Siera Fe Ontiveros, Orlanndo Max Ontiveros” (hereinafter referred to as “2016 Quitclaim Deed”). Attached hereto as Exhibit B is a true and correct copy of the 2016 Quitclaim Deed (recorded on October 20, 2016).

11. Plaintiffs are unaware of and have never executed any deed or agreement releasing his/her interest in the Subject Property.

12. Plaintiffs are unaware of any liens or encumbrances on the Subject Property.

13. On or about October 20, 2021 Victor Ontiveros passed away.

14. On or about October 22, 2021 Magdalena P. Ontiveros aka Megdelena Ontiveros passed away.

(Compl. ¶¶ 9-14.)

Plaintiffs allege that they are co-owners of the subject property as tenants in common, and Plaintiffs allege the subject property consists of a single-family dwelling. (Compl. ¶¶ 21 & 22.)

Plaintiffs allege that Defendant, Laura Yesenia Ontiveros aka Laura Yesenia Reyes, currently has sole possession of the subject property and has excluded/ousted Plaintiffs. (Compl. ¶ 23.)

Plaintiffs allege that their relationship with Defendant has deteriorated so much that Plaintiffs do not wish to co-own the subject property with Defendant. (Compl. ¶ 24.)

Plaintiffs allege a partition by sale of the property is more equitable than division in kind of the property because the main structure on the property is a single-family house, which cannot be divided without destroying the value of the property or without unreasonable expense. (Compl. ¶ 28.)

Introduction

Defendant has a section in its demurrer titled “INTRODUCTION.” (Def. Dem. p. 3.) In this section, Defendant states:

Plaintiffs commenced this action on November 15, 2025 filing a complaint requesting declaratory relief and partition. On January 2, 2025, Plaintiffs then filed for their Summons. Plaintiffs’ served Defendant LAURA on January 11, 2025 with a summons and Complaint both of which erroneously indicate Pasadena Courthouse at 300 E. Walnut Street as the venue.

Plaintiffs rely on a quitclaim deed for their request for Partition. The quitclaim deed does not specify tenancy in common. The quitclaim deed does not specify the percentage interest of title. The alleged quitclaim deed transfers property to three minor children. The Defendant was not provided with the quitclaim deed at any time close to the execution of the deed. A current search of title for the subject property shows that the house is held in joint tenancy between a deceased couple.

(Def. Dem. p. 3.)

Here, the Court is not entirely sure what purpose Defendant’s “INTRODUCTION” serves. If this section is for the purpose of asserting arguments as to why the demurrer should be sustained, then the Court does not find this section availing. Defendant cites no legal authority for its arguments in this section.

Jurisdiction

The party against whom a complaint has been filed may object by demurrer on the grounds that the court has no jurisdiction of the subject of the cause of action alleged in the pleading. (See CCP § 430.10(a).)

Defendant has a section in its demurrer titled “THE DEMURRER SHOULD BE SUSTAINED BECAUSE PLAINTIFFS EXHBITS SHOW THE COURT HAS NO JURISDICTION TO THE REAL PROPERTY ALLEGED IN THE COMPLAINT.” (Def. Dem. p. 4.)

In this section, Defendant argues:

The Superior Court has jurisdiction of proceedings under this code concerning administration of the decedent’s estate. Probate Code 7050

This matter should be adjudicated in Probate court. The persons holding title to the subject property are both deceased. A search through the Los Angeles County Recorder’s office shows that title to the subject property is held as Victor Ontiveros and Magdalena P. Ontiveros as Husband and Wife, as Joint Tenants. (see Plaintiffs’ Exhibit A). The 2024 Annual Secured Property Tax Bill is addressed to Victor and Magdalena P Ontiveros referencing the subject property. Victor Ontiveros passed away on October 20,2021 and Magdalena P. Ontiveros passed away on October 22, 2021. ( See Petitioners’ Complaint, paragraph 13 and 14). The Probate court should be the court to administer the decedent’s estate.

(Def. Dem. p. 4-5.)

Here, the Court will hear argument.

Defendant cites to Probate Code § 7050 which states, “The superior court has jurisdiction of proceedings under this code concerning the administration of the decedent’s estate.” (Prob. Code § 7050.)

First, the Court is not entirely clear why Defendant cites to Probate Code § 7050.

Probate Code § 7050 appears to be a general section about the jurisdiction of the probate court with respect to the administration of estates of decedents. Defendant provides no explanation backed by legal authority as to how, when, or why this section is implicated here.

From the Court’s reading of the Complaint, there is not a “decedent’s estate” involved in this action.

Although Plaintiffs’ Complaint alleges that Victor Ontiveros and Magdalena P. Ontiveros aka Megdelena Ontiveros passed away on October 20, 2021 and October 22, 2021, respectively, Victor Ontiveros and Magdalena P. Ontiveros aka Megdelena Ontiveros are not parties in this action. Nor are their estates parties in this action.

Plaintiffs appear to be alleging that they are co-owners of the subject property as tenants in common via the 2016 Quitclaim Deed in which Victor Ontiveros and Magdalena P. Ontiveros aka Megdelena Ontiveros executed in order to transfer the subject property to Plaintiffs and Defendant. (See Compl. ¶ 10.)

Second, with respect to Defendant arguing that county records and the 2024 Annual Secured Property Tax Bill indicate that non-parties, Victor Ontiveros and Magdalena P. Ontiveros, hold title as joint tenants, the Court fails to see how this is relevant for purposes of a demurrer hearing.

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 pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.)

Here, Defendant did not request anything for judicial notice. Further, even if Defendant had requested judicial notice for records from the Los Angeles County Recorder’s office and the 2024 Annual Secured Property Tax Bill, the Court fails to see how it would not be a factual dispute outside the scope of a demurrer in light of Plaintiffs pleading they are co-owners of the subject property as tenants in common via the 2016 quitclaim deed attached in Exhibit A of the Complaint.

With respect to the Probate Code, Plaintiffs’ Opposition states:

Even putting Defendant’s demurrer in the best light possible, i.e. that the Quitclaim Deed is void or voidable, that is an issue to be determined by this Court, not the Probate Court. The Probate Court’s jurisdiction would lie only where the Quitclaim Deed is determined to be invalid, at which point the Estate of Magdalena P. Ontiveros aka Megdelena Ontiveros would need to be administered.

(Pl. Oppo. p. 6.)

The Court calls attention to Plaintiffs’ argument because it also is particularly unhelpful to the Court. Plaintiffs cited no legal authority as to when this action would be appropriately before either this Court or the Probate Court.

However, since moving Defendant has not provided this Court with any legal authority or convincing/persuasive arguments as to how this Court does not have jurisdiction, the Court does not find Defendant’s argument availing.

The Court to hear argument; however, it is unlikely to sustain Defendant’s demurrer based on Defendant’s jurisdictional argument.

Compliance

Defendant has a section in its demurrer titled “THE DEMURRER SHOULD BE SUSTAINED BECAUSE PLAINTIFFS FAILED TO PLEAD COMPLIANCE WITH THE PARTITION OF REAL PROPERTY ACT.” (Def. Dem. p. 5.)

Defendant argues as follows:

The Partition of Real Property Act (the “PRPA”) is at Code of Civil Procedure sections 874.311, et seq. The PRPA “applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of property.” CCP section 874.311(b),

Further, “immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.” CCP section 872.252(a)

(Def. Dem. p. 5.)

Here, the Court will hear argument.

With respect to Defendant citing CCP § 874.311(b), the Court has no idea why Defendant is citing to 874.311(b).

Under CCP § 874.311:

(a) This act shall be known, and may be cited, as the Partition of Real Property Act.

(b) This act applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property.

(CCP § 874.311(a)-(c).)

Although Defendant cited to CCP § 874.311(b), Defendant makes no argument about how Plaintiffs did not comply with 874.311(b). The Court is unclear as to what Defendant’s argument is with respect to 874.311(b). Further, ¶ 21 of the Complaint alleges that Plaintiffs “are co-owners of the Subject Property as tenants in common. (Compl. ¶ 21.)

Further, with respect to Defendant citing to CCP § 872.252(a), the Court notes that it cannot find section 872.252(a). The Court is not entirely certain as to what Defendant is arguing with respect to “872.252(a).”

Presumably, Defendant intended to cite to CCP § 872.250 which states:

(a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.

(b) If, thereafter, partition of other real property is sought in the same action, the plaintiff or other person seeking such relief shall immediately record a supplemental notice.

(c) If the notice is not recorded, the court, upon its own motion or upon the motion of any party at any time, shall order the plaintiff or person seeking partition of the property, or another party on behalf of the plaintiff or other person, to record the notice and shall stay the action until the notice is recorded. The expense of recordation shall be allowed to the party incurring it.

(d) From the time of filing the notice for record, all persons shall be deemed to have notice of the pendency of the action as to the property described in the notice.

(CCP § 872.250(a)-(d).)

On page 6 of Defendant’s demurrer, Defendant argues that Plaintiffs do not allege in their complaint that they recorded the lis pendens notice. Defendant also argues that it is demanding compliance. Defendant further argues that since Plaintiffs do not allege the recorded notice requirement, this action must be stayed pending an order issued by the Court to record the notice of Lis Pendens.

Here, the Court is unlikely to sustain Defendant’s demurrer on the grounds that Plaintiff did not record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.

First, the Court notes that 872.250 does not state that failing to record a notice of the pendency of the action is grounds to sustain a demurrer.

In fact, CCP § 872.250(c) would seem to imply that failing to record a notice of pendency of the action is not grounds to sustain a demurrer because under 872.250(c) the Court can order the plaintiff to record the notice and stay the action until the notice is recorded.

“If the notice is not recorded, the court, upon its own motion or upon the motion of any party at any time, shall order the plaintiff or person seeking partition of the property, or another party on behalf of the plaintiff or other person, to record the notice and shall stay the action until the notice is recorded. The expense of recordation shall be allowed to the party incurring it.” (CCP § 872.250(c).)

Second, as noted in Plaintiffs’ Opposition, Plaintiffs argue that they recorded the Lis Pendens on March 7, 2025. [The Court notes that the recording of the lis pendens on March 7, 2025 would be after Defendant filed this demurrer on 2/20/2025.]

Further, Plaintiffs appear to have filed this notice of Lis Pendens with the Court in this action on 3/10/2025.

The Court would like Defendant to address how the document that Plaintiffs filed on eCourt on 3/10/2025 does not cure the defect that Defendant is arguing about with respect to failing to record a notice of the pendency of the action.

Lastly, to the extent Defendant is arguing that Plaintiffs do not “allege” in their complaint that they recorded the lis pendens notice, not only does Defendant fail to cite to any authority that Plaintiffs must “allege” in their complaint that they recorded the lis pendens notice, but 872.250 does not state anything about what must be alleged. CCP § 872.250 discusses what Plaintiff shall record and what the Court can do if the notice is not recorded.

The Court to hear argument, but the Court is unlikely to sustain Defendant’s demurrer on the basis that the lis pendens was not recorded, and the Court is also unlikely to sustain Defendant’s demurrer on the basis that Plaintiffs did not allege that they recorded the lis pendens notice. Defendant is to address how the lis pendens document that Plaintiffs filed with this Court on 3/10/2025 does not cure the issues discussed above.

Particularity

Defendant has a section in its demurrer titled “Plaintiffs Fail to Plead Facts With Particularity Showing title to the Subject Property is held in Tenancy in Common.” (Def. Dem. p. 6.)

In this section, Defendant argues:

The Partition of Real Property Act applies to real property held in tenancy in common. The Demurrer must be sustained because Plaintiffs fail to plead facts with particularity that allege title to the subject property is held in tenancy in common. Plaintiffs rely on Exhibit “B” a quitclaim deed that does not indicate how title is intended to be held. At the time of execution of the quitclaim deed, three of grantees were minor children and no custodian was set up for the minor children . Defendant Laura Reyes did not receive the quitclaim deed at any time close to the execution. The title to the subject matter is currently held in joint tenancy between a deceased couple. The cause of action for partition must be dismissed because tenancy in common does not exist.

(Def. Dem. p. 6.)

Here, whatever Defendant’s arguments are, the Court does not find them availing.

Defendant does not cite any legal authority to support any of its arguments.

Further, Plaintiffs did in fact allege that they are tenants in common. “Plaintiffs are co-owners of the Subject Property as tenants in common.” (Compl. ¶ 21.)

Additionally, although Defendant states, “Plaintiffs rely on Exhibit “B” a quitclaim deed that does not indicate how title is intended to be held,” Defendant cites no legal authority to support the proposition that the quitclaim deed attached to the Complaint has to indicate how title is to be held.

Also, the Court does not find Defendant’s arguments availing about: children; Laura not receiving the quitclaim deed at any time close to execution; and tenancy in common not existing. The Court is not entirely clear what these arguments are, and Defendant cites no legal authority for whatever these arguments are.

Plaintiffs’ Opposition – CCP § 430.40(a)

“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.” (CCP § 430.40(a).)

Plaintiffs’ Complaint was filed on 11/15/2024. Plaintiffs’ proof of service of summons indicates service of the Complaint on Defendant on 1/11/2025.

The instant demurrer was filed and served on 2/20/2025.

Plaintiffs state that Defendant failed to demur to the Complaint within the time restriction of CCP § 430.40(a); however, Plaintiffs concede that they granted Defendant an extension to February 18, 2025. Plaintiffs argue that since Defendant filed/served its demurrer on 2/20/2025, the demurrer is untimely.

Plaintiffs concede that the Court has discretion to consider late filings under CCP § 473(a)(1), but Plaintiffs argue this discretion is not unlimited because under McAllister v. County of Monterey (2007) 147 Cal.4th 253 the Court’s discretion should only be exercised when doing so does not prejudice the parties’ substantial rights. Plaintiffs argue that Defendant has offered no justification for their delay, nor can they demonstrate "good cause" as discussed in Code of Civil Procedure § 1054(a) for an extension.

Here, the Court will consider Defendant’s demurrer.

TENTATIVE RULING DEMURRER

The Court tentatively plans to OVERRULE Defendant’s demurrer.

Further, the Court notes that the pleading standard for partition appears to be located in CCP § 872.230:

The complaint shall set forth:

(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

(b) All interests the plaintiff has or claims in the property.

(c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.

(d) The estate as to which partition is sought and a prayer for partition of the interests therein.

(e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.

(CCP § 872.230(a)-(e).)

Plaintiffs’ Complaint appears to allege these elements.

CCP § 872.230(a) appears to be pled at ¶ 8 of the Complaint.

CCP § 872.230(b) appears to be pled at ¶ 21 of the Complaint.

CCP § 872.230(c) appears to be pled at ¶¶ 12, 23, and 24 of the Complaint.

CCP § 872.230(d) appears to be pled at ¶ 28 and in the Prayer on the second cause of action at ¶¶ 1-2 of the Complaint.

CCP § 872.230(e) appears to be pled at ¶¶ 8-14 and 20-29 of the Complaint.

Further, the Court notes that although Defendant labeled this hearing on eCourt as a hearing on demurrer with motion to strike, the Court notes that Defendant did not file a motion to strike.

MOTION FOR SANCTIONS

PROCEDURAL

Moving Party: Plaintiffs – (1) Victor Orlando Ontiveros aka Victor Olando Ontiveros; (2) Savanah Hope Ontiveros aka Savanah Hope Ontiveros; (3) Sierra Faith Ontiveros aka Siera Fe Ontiveros by and through her Guardian Ad Litem Victor Orlando Ontiveros; (4) Orlando Max Ontiveros aka Oranndo Max Ontiveros, by and through his Guardian Ad Litem Victor Orlando Ontiveros

Responding Party: No opposition by Defendant

Moving Papers: Notice/Motion

Opposition Papers: No opposition submitted by Defendant

Reply Papers: No Reply submitted by Plaintiffs

Proof of Service Timely Filed (CRC Rule 3.1300(c)):Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

RELIEF REQUESTED

“Plaintiffs, VICTOR ORLANDO ONTIVEROS aka VICTOR OLANDO ONTIVEROS, an individual; SAVANAH HOPE ONTIVEROS aka SAVANAH HOPE ONTIVEROS, an individual; SIERRA FAITH ONTIVEROS aka SIERA FE ONTIVEROS, an individual by and through her Guardian Ad Litem VICTOR ORLANDO ONTIVEROS, and ORLANDO MAX ONTIVEROS aka ORANNDO MAX ONTIVEROS, an individual; by and through his Guardian Ad Litem VICTOR ORLANDO ONTIVEROS will move the court for an order imposing sanctions of $5,400.00 representing the reasonable attorney fees and costs incurred in making this motion jointly and severally, against Defendant LAURA YESENIA ONTIVEROS Defendant’s Counsel MARTIN ARTEAGA, ESQ. pursuant to Code of Civil Procedure §128.7.

This motion is made on the grounds that Plaintiff’s Demurrer lacks legal or factual merit and is violative of the Civil Code of Procedure § 128.7, et seq.

This motion will be based upon this notice, the Memorandum in support and the Declaration of Marc P. Grismer, the files and records in this action and any further evidence and argument that the Court may receive at or before the hearing.”

(Pl. Mot. p. 2.)

LEGAL STANDARD – CCP § 128.7

Under CCP § 128.7:

(a) Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.

(1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(2) On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b), unless, within 21 days of service of the order to show cause, the challenged paper, claim, defense, contention, allegation, or denial is withdrawn or appropriately corrected.

(d) A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.

(1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).

(2) Monetary sanctions may not be awarded on the court’s motion unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(e) When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.

(f) In addition to any award pursuant to this section for conduct described in subdivision (b), the court may assess punitive damages against the plaintiff upon a determination by the court that the plaintiff’s action was an action maintained by a person convicted of a felony against the person’s victim, or the victim’s heirs, relatives, estate, or personal representative, for injuries arising from the acts for which the person was convicted of a felony, and that the plaintiff is guilty of fraud, oppression, or malice in maintaining the action.

(g) This section shall not apply to disclosures and discovery requests, responses, objections, and motions.

(h) A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.

(i) This section shall apply to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter.

(CCP § 128.7(a)-(i).)

ANALYSIS

Safe Harbor – CCP § 128.7(c)(1)

Under CCP § 128.7(c)(1):

A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(CCP § 128.7(c)(1).)

The safe harbor provision of 128.7 is explained in Martorana as follows:

Under section 128.7, “[a] party seeking sanctions must follow a two-step procedure. First, the moving party must serve on the offending party a motion for sanctions. Service of the motion on the offending party begins a[21]-day³ safe harbor period during which the sanctions motion may not be filed with the court. During the safe harbor period, the offending party may withdraw the improper pleading and thereby avoid sanctions. If the pleading is withdrawn, the motion for sanctions may not be filed with the court. If the pleading is not withdrawn during the safe harbor period, the motion for sanctions may then be filed.” (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 440, 82 Cal.Rptr.2d 712.)

(Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698. Fn. 3 in Martorana states, “The 2002 amendments to section 128.7 changed the safe harbor period from 30 days to 21 days. (Stats.2002, c. 491.)

Here, Plaintiffs’ counsel’s declaration states, “This motion was electronically served on Plaintiffs on March 10, 2025.” (Grismer Decl. ¶ 3.)

The Court will hear argument as to whether or not the 21-day safe harbor provision was complied with. Plaintiffs’ counsel filed the instant motion for sanctions, yet Plaintiffs’ counsel’s declaration states that Grismer served it on “Plaintiffs.” (See Grismer Decl. ¶ 3.) Presumably, Grismer meant that he served Plaintiffs’ motion for sanctions on Defendant on March 10, 2025, and not on “Plaintiffs” on March 10, 2025.

At the hearing, it would be helpful if Plaintiffs’ counsel comes forward with the proof of service indicating service of the instant motion on Defendant on March 10, 2025.

If Plaintiffs’ counsel can come forward with the proof of service indicating service of the instant motion on Defendant on March 10, 2025, then this motion would appear to comply with the 21-day safe harbor provision because this motion was filed on 4/8/2025.

The notice requirements of section 128.7, subdivision (c)(1) are mandatory, and neither the parties nor the trial court are permitted to disregard them. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 700.)

The Court to hear argument.

Substantive

In relevant part of CCP § 128.7(b):

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(CCP § 128.7(b)(1)-(4).)

Further, in relevant part of CCP § 128.7(c)(1), “A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b).”

Here, although not entirely clear, it appears that the specific conduct Plaintiffs allege violates subdivision (b) are all the grounds on which Plaintiffs opposed Defendant’s demurrer.

For example, Plaintiffs argue that Defendant’s Demurrer contained frivolous contentions because: (1) Defendant did not comply with the meet and confer requirement for the demurrer; (2) The demurrer was not the appropriate tool to test factual disputes nor debate the validity of the quitclaim deed; (3) The missing Lis Pendens was not grounds to sustain a demurrer, and a missing lis pendens is not a pleading defect (4) Defendant’s demurrer misconstrues both facts and applicable law; (5) Lack of custodian for the minor grantees is irrelevant and without merit; and (6) The demurrer was untimely.

“If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.” (CCP § 128.7(c).)

With respect to 128.7(c), it is difficult for the Court to determine if subdivision (b) has been violated because Plaintiffs’ motion does not specify which paragraph, or paragraphs, within subdivision (b) the alleged conduct violates. Or to phrase it differently, does the alleged conduct that Plaintiffs discuss violate 128.7(b)(1), (b)(2), (b)(3), or (b)(4)? Plaintiffs appear to generally be arguing that 128.7(b) has been violated, but it is unclear to the Court which paragraphs within subdivision (b) the Plaintiffs are alleging Defendant’s conduct violates.

The Court brings up 128.7(c) and 128.7(b)(1)-(4) because of 128.7(d)(1).

Under CCP § 128.7(d)(1):

(1) Monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).

(CCP § 128.7(d)(1).)

Based on 128.7(d)(1), it appears as if the Court cannot award monetary sanctions against a represented party for violation of paragraph (2) of subdivision (b).

Here, Defendant appears to be a represented party. Further, the section in Plaintiffs’ motion that discusses all of Defendant’s conduct that violated 128.7 is titled, “Defendant’s Demurrer Contains Frivolous Contentions and is Violative of Civil Code of Procedure § 128.7.” (Pl. Mot. p. 4.)

By Plaintiffs bringing up all the issues that they believe demonstrates that Defendant violated 128.7 in this section titled “Defendant’s Demurrer Contains Frivolous Contentions and is Violative of Civil Code of Procedure § 128.7,” it appears as if the basis for Plaintiffs’ motion is premised on violations of 128.7(b)(2) based on the language of (b)(2).

“The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” (CCP § 128.7(b)(2).)

However, under 128.7(d)(1), monetary sanctions may not be awarded against a represented party for a violation of paragraph (2) of subdivision (b).

Further, the Court highlights its conundrum – its attempt to figure out which paragraphs within subdivision (b) Plaintiffs are arguing Defendant violated – because subdivision (h) would seem to indicate violations of different paragraphs within subdivision (b)(2) have different legal ramifications.

“A motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, shall itself be subject to a motion for sanctions.” (CCP § 128.7(h).)

Compare and contrast the language of (b)(1)-(b)(4):

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(CCP § 128.7(b)(1)-(4).)

Or to phrase it differently, 128.7(h) appears to specifically be referring to violations of 128.7(b)(1).

Not only does the Court have reason to believe Plaintiffs are bringing this motion based on violations of (b)(2) because of Plaintiffs’ section titled “Defendant’s Demurrer Contains Frivolous Contentions and is Violative of Civil Code of Procedure § 128.7,” but on page 4 Plaintiffs specifically cite to (b)(2) on page 4 at lines 9-12 of their motion.

TENTATIVE RULING MOTION FOR SANCTIONS

The Court to hear argument.

Plaintiffs’ counsel to address the service issue regarding the 21-day safe harbor provision.

“When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.” (CCP § 128.7(e).)

“A sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.” (CCP § 128.7(d).)

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