Judge: Blaine K. Bowman, Case: 37-2022-00033608-CU-OR-NC, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 02, 2023

11/03/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2022-00033608-CU-OR-NC PACIFIC MANAGEMENT GROUP INC VS SCHAU [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 10/05/2023

The Demurrer to Second Amended Cross-Complaint brought by plaintiffs/cross-defendants Ronald Fleming (Mr. Fleming) and Pacific Management Group Inc. (PMG or the Panama Corporation) (collectively, Plaintiffs) is OVERRULED in its entirety.

The Motion to Strike Portions of the Second Amended Cross-Complaint brought by Plaintiffs is DENIED.

Plaintiffs shall have 10 days to answer or otherwise plead.

The Request for Judicial Notice brought by Plaintiff is GRANTED pursuant to Evidence Code § 451, et seq., but only as to the existence of the documents in question, not necessarily as to the truth of their contents.

The operative complaint tells a narrative, alleging fraud, that spans a time period beginning as early as 2000 and continuing through December 2021 when defendant/cross-complainant John Schau (Attorney Schau) purportedly learned of the recording of a Grant Deed that had been executed many years ago in 2004. On demurrer, the Court must indulge all facts as alleged. As the recording of the Grant Deed appears to be critical to the damages element of the claims being made, such that the statute of limitations may not have begun to run until those damages accrued, the demurrer cannot be sustained on statute of limitations grounds. Moreover, the arguments of the parties on this issue appear to be factually-intensive and thus inappropriate for resolution via demurrer.

Plaintiffs also claim that Attorney Schau lacks standing to bring a quiet title claim to the Carlsbad property in question because it was conveyed to his trust. Plaintiffs' argument appears to be a semantic or technical one about which of these two entities (Attorney Schau individually or Attorney Schau in his capacity as trustee of his trust) can sue. The facts indicate a number of purported conveyances. Indeed, Plaintiffs are suing Attorney Schau in both capacities claiming some of his transfers have been improper.

As such, the Court views the allegations, as they currently stand, as sufficient to encompass 'in the alternative' theories, which are allowable under California law, such that wherever a fact-finder ultimately determines the ownership to reside, it is possible that it may reside with Attorney Schau either individually or in his capacity as a trustee. Given that Attorney Schau remains the trustee of his trust, the facts alleged are sufficient to establish standing and overcome demurrer.

As to the Motion to Strike, the allegations at issue are not sufficiently false, irrelevant, improper, not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court and thus do not merit striking.

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3000921 CASE NUMBER: CASE TITLE:  PACIFIC MANAGEMENT GROUP INC VS SCHAU [IMAGED]  37-2022-00033608-CU-OR-NC Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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3000921