Judge: Helen Zukin, Case: 22SMCV00649, Date: 2022-10-28 Tentative Ruling
Case Number: 22SMCV00649 Hearing Date: October 28, 2022 Dept: 207
Background
This is an action for the partition of real estate located
at 10337 Wilshire Boulevard, Los Angeles, California 90024. Plaintiff Chateau
de Monte Cristo, LLC, (“Plaintiff”) purports to own a 99.98% interest in the
subject property, with the remaining .02% interest held by Defendant Justus
Senftner (“Senftner”).
Plaintiff’s operative Complaint, filed May 6, 2022, asserts a single cause of
action for partition. Defendant Martinez Law Group P.C. (“Defendant”) was named
as a Defendant in this action as it claims an interest in the property by
virtue of an attorney’s fee lien. Defendant brings this demurrer to the
Complaint under Code Civ. Proc. §§ 430.10 (a)-(g). Plaintiff opposes the
demurrer.
Legal Standard
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.) No matter how unlikely or improbable, the
plaintiff’s allegations must be accepted as true for the purpose of ruling on
the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123
Cal.¿ App. 3d 593, 604.) 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.)
A special demurrer
for uncertainty under Section 430.10(f) is disfavored and will only be
sustained where the pleading is so unintelligible a defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her. (Khoury v.
Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
Analysis
1. Timeliness
Plaintiff
argues Defendant’s demurrer is untimely filed on September 7, 2022. On July 7,
2022, the Court granted Defendant’s request to extend the time to respond to
Plaintiff’s Complaint to August 8, 2022. On August 8, 2022, Defendant filed a declaration
seeking to obtain 30-day extension of time to file a responsive pleading
pursuant to Code Civ. Proc. § 430.41(a)(2). Section 430.41(a)(2) provides: “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.” Defendant’s declaration stated Plaintiff
had refused to meet and confer or provide legal support for its arguments as
required by section 430.41(a).
Plaintiff
argues Defendant’s August 8 declaration incorrectly claimed Plaintiff refused
to meet and confer, and thus Defendant was not entitled to a 30-day extension
under section 430.41(a)(2), making the demurrer untimely. On August 1, 2022,
Defendant emailed Plaintiff and set forth the grounds on which Defendant
intended to demurrer to Plaintiff’s Complaint. Defendant’s email also stated, “Let
me know various times when you are available to discuss these demurrer issues
via phone … unless you waive a telephone meet and confer.” (Ex. 6 to Kennedy
Decl.) Plaintiff responded that same day, stating “We waive the requirement
[to] meet and confer in person or by telephone” and providing responses to each
of the grounds for demurrer asserted in Defendant’s email. (Id.)
Before filing a
demurrer, the demurring party is required to “meet and confer in person or by
telephone” with the party who filed the pleading demurred to for the purposes
of determining whether an agreement can be reached through a filing of an
amended pleading to resolve the objections to be raised in the demurrer.
(C.C.P. § 430.41.) Nothing in section 430.41 gives the parties the power to
waive this meet and confer requirement. Both Plaintiff and Defendant appear to
have been under the incorrect impression that they did not have to meet and
confer in person or by telephone prior to the filing of the demurrer. The Court
finds this mutual mistake prevented an in person or telephonic meet and confer
from occurring as required five days before the August 8 deadline for Defendant
to respond to the Complaint. While the parties each appear to have made a good
faith effort to discuss the merit of the arguments Defendant raises with its
demurrer by email, this was not the meet and confer required by the statute. Because
the parties’ misconception about their ability to waive the statutory
requirements prevented the necessary in-person or telephonic meet and confer
from occurring, the Court finds Defendant was entitled to the 30-day extension
of time to respond under Code Civ. Proc. § 430.41(a)(2). Defendant’s demurrer
was timely filed before the expiration of that extension.
2. Jurisdiction and Pending Litigation
Defendant
raises arguments under Code Civ. Proc. §§ 430.10 (a) and (c) and the Court will
discuss them together. Defendant alleges there is other pending litigation
between the parties which concern the subject property. Defendant argues an
appeal in the case Olson v. Aarnoff, Case No. 19STCV46503 operates to
stay proceedings, which divests this Court of jurisdiction.
Defendant claims there are five
cases (SC126806, SC128027, 17SMRO00308, 19STCV46503, and 2:21-cv-09747) and
eight appeals (B295388, B298224, B298532, B305935, B309136, B314319, B315237
and B321560) currently pending between the parties. Plaintiff states these
cases are “for civil damages relating to claims of harassment, invasion of
privacy, assault, defamation, and literally dozens of other completely
unrelated tort claims.” (Opp. at 4.) Plaintiff also asserts there are no
appeals or stays in place in those actions which involve partition or ownership
of the property. (Id.) The Court finds Defendant has failed to
demonstrate the cited actions and appeals involve the same dispute or issues
raised in this action. Defendant has not requested the Court take judicial
notice of any documents filed in the other actions, nor does Defendant explain
how the subject matter of those actions necessarily involves the same claims or
parties raised in this partition action. Defendant claims these actions “directly
and substantially effect the title and ownership interests” of the subject property,
but Defendant has made no showing as to the subject matter of those lawsuits
and appeals.
The
Complaint alleges the property is owned 99.98% by Plaintiff and .02% by
Defendant Senftner. (Complaint at ¶ 12.) The Complaint acknowledges Defendant claims
an interest in the property by virtue of an attorney’s fee lien. (Id. at
¶ 10.) The Complaint states the 19STCV46503 action was brought to assert this
lien was fraudulently obtained and is voidable. (Id.) Defendant filed an
anti-SLAPP motion to strike the claims raised in the 19STCV46503 action, which
the trial court denied. Defendant’s appeal of this denial is pending. It is the
appeal which Defendant argues divests this Court of jurisdiction. The Court
disagrees. As Plaintiff points out, Defendant is asserting a lien over the
property and does not claim ownership of it. Properties encumbered by liens are
still subject to partition. (See Code Civ. Proc. § 873.820.) Accordingly, the
validity of Defendant’s lien has no bearing on Plaintiff’s right to seek
partition in this action. The pending appeal impacts the trial court’s
jurisdiction in the 19STCV46503 action; however, Defendant has not shown the
appeal in any way divests this Court of jurisdiction over a separately filed
action on a different claim.
The Court
also notes Plaintiff is not a party to any of the other actions cited by
Defendant. Defendant argues Plaintiff should be considered an alter ego of Curtis
Olson, who is a party to the other actions. However, as set forth above, in
ruling on a demurrer the Court is limited to defects which are apparent on face
of the pleading or subject to judicial notice. Defendant’s claim that Plaintiff
should be considered an alter ego of Curtis Olson is thus beyond the Court’s
purview in ruling on the demurrer.
Accordingly,
the Court finds Defendant has failed to show the Court lacks jurisdiction over
the subject matter of this lawsuit or that there is another action pending
between the parties on the same cause of action. Defendant’s demurrer is
OVERRULED with respect to Code Civ. Proc. § 430.10(a) and (c).
3. Statute
of Repose
Defendant argues Plaintiff lacks
the capacity to bring this action under Code Civ. Proc. § 430.10(b) because it
is barred by a seven-year statute of repose. Defendant claims Plaintiff’s
Complaint in this action “is built upon an underlying pending
action that is based on the January 1, 2012 title transfer of the Property to
the ATW Trust. This title transfer cannot be considered by any court as a
fraudulent transfer because the law of repose prevents real property transfers
more than 7 years prior to a given date being treated as actionable fraudulent
transfers.” (Demurrer at 7.) While it is far from clear, Defendant appears to
be arguing Plaintiff acquired title to the property because an unspecified
court previously adjudicated a January 2012 transfer of the property to a
third-party trust to be fraudulent and void. Defendant appears to be arguing
the court’s order voiding the 2012 transfer as fraudulent was improper as it
occurred after the expiration of the statute of repose. The propriety of an
unspecified order invalidating the 2012 transfer is not properly before the
Court on this demurrer. Plaintiff’s Complaint alleges Plaintiff owns 99.98% of
the property and the Court must assume this to be true in ruling on the
demurrer. Defendant’s arguments as to the validity of Plaintiff’s alleged
ownership go to the merits of Plaintiff’s claims rather than the sufficiency of
Plaintiff’s pleadings. Accordingly, Defendant’s demurrer is OVERRULED with
respect to Code Civ. Proc. § 430.10(b).
4. Defect or Misjoinder of Parties
Defendant
argues Code Civ. Proc. § 389 requires Plaintiff to name all individuals,
persons, and entities who claim an interest in the property as defendants in
this action. Defendant claims “Plaintiff is aware of other parties that claim
an interest that are named in the related actions.” (Demurrer at 10.) Defendant
does not identify any person or entity with an interest in the action who must
be joined pursuant to section 389. Plaintiff states it has complied with Code
Civ. Proc. § 872.230(c), which provides that a complaint must set forth “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.” Plaintiff states it is unaware
of any individuals or entities who claim ownership of or an interest in the
subject property beyond the parties named in this case. As Defendant has not
demonstrated there is any individual or entity which has an interest in the
property beyond the parties in this action, Defendant’s demurrer under Code
Civ. Proc. § 430.10(d) is OVERRULED.
5. Code
Civ. Proc. § 430.10(g)
Code Civ.
Proc. § 430.10(g) provides a defendant may bring a demurrer on the basis that “In
an action founded upon a contract, it cannot be ascertained from the pleading
whether the contract is written, is oral, or is implied by conduct.” Defendant
argues the subject property in this action “is subject to a contract, which
Plaintiff attempts to circumvent.” (Demurrer at 10.) Defendant does not
identify what this purported contract is, how it relates to the subject
property, or how this partition action is “founded upon” it such as to trigger
the application of Code Civ. Proc. § 430.10(g). Accordingly, Defendant’s
demurrer is OVERRULED with respect to Code Civ. Proc. § 430.10(g).
6. Failure to State a Cause of Action and Uncertainty
Defendant
argues Plaintiff has failed to plead a cause of action for partition under Code
Civ. Proc. §§ 430.10(e) and (f). Defendant claims the Complaint “is uncertain,
ambiguous and unintelligible to the extent that specific factual allegations
made are not explicitly tied to special required elements of the other related
pending actions.” (Demurrer at 10.) In other words, Defendant is arguing
Plaintiff’s current Complaint must satisfy the pleading requirements imposed on
other parties pleading other causes of action in other pending litigation.
Defendant provides no authority for this assertion, and the Court is not aware
of any. Plaintiff argues the Complaint contains all the material required for a
partition action under Code Civ. Proc. § 872.230. (Opp. at 6-7.) The Court
agrees. As the Complaint it not ambiguous or uncertain and sufficiently alleges
facts to state a cause of action for partition, Defendant’s demurrer on these
grounds is OVERRULED.
7. Request
for Stay
Defendant argues
this action must be stayed pending service on Defendant Senftner. Defendant offers no
authority in support of this assertion, and the Court is unaware of any
authority which requires proceedings be stayed until all defendants have been
served. Accordingly, Defendant’s request for a stay is DENIED.
Conclusion
Defendant’s demurrer is OVERRULED in its entirety.