Judge: Mel Red Recana, Case: 23STCV19810, Date: 2024-09-03 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 23STCV19810    Hearing Date: September 3, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:  September 3, 2024

Moving Party:  Defendants Aegis Asset Backed Security, LLC erroneously also sued as aka Aegis Funding, Inc. (“Aegis”) and Jason Moore (“Moore”) (collectively, “Movants”)

Responding Party:  None

Demurrer without Motion to Strike

The Court considered the moving papers.

            The Court CONTINUES Defendant’s demurrer to the entirety of Plaintiff’s Complaint. Moving Defendants are ORDERED to comply with CCP §430.41. 

Background

            On August 18, 2023, Plaintiff Ih Heen Chang, Aka Bess Chang filed a complaint against Defendants Aegis Asset Backed Security, LLC erroneously also sued as aka Aegis Funding, Inc. (“Aegis”), the Grace M. Chien Trust, Escrow Heights Inc, Grace M. Chien, Jason Moore (“Moore”), Carrie Patrick, and Does 1 through 25. The complaint alleges (1) breach of contract; (2) fraud; and (3) breach of fiduciary duties. On August 19, 2024, Defendants filed a Reply regarding Non-Opposition to Demurrer. As of August 27, 2024, an opposition has not been filed.

Legal Standard

            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.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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 v. Mirda (2007) 147 Cal.App.4th 740, 747.)

            CCP §430.41(a) states that, before filing a demurrer, the moving party must engage in a specified meet and confer process with the party who filed the pleading at issue for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer/motion to strike.  “[T]he 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…is filed, the responding party shall meet and confer again with the party who filed the amended pleading before a demurrer to the amended pleading.” (emphasis added.) (CCP §430.41(a).) A declaration setting forth such meet and confer efforts must accompany the demurrer. (CCP § 430.41(a)(3).)   

Judicial Notice

            Defendants request the Court take judicial notice for the following document pursuant to California Evidence Code sections 451 and 452:

1. A Note Secured by Deed of Trust, - Exhibit “1.”

2. A Deed of Trust recorded with the Los Angeles County Recorder’s Office on January 26, 2018, as Instrument No. 20180088901 - Exhibit “2”

3. An Agreement to Modify Note Secured by Deed of Trust - Exhibit “3.”

4. The Notice of Default and Election to Sell Under Deed of Trust on the Deed of Trust - Exhibit “2”, recorded with the Los Angeles County Recorder’s Office on January 8, 2020, as Instrument No. 20200026206, a true copy of which is attached as Exhibit “4”.

5. The Notice of Trustee’s Sale on the Deed of Trust referenced and attached as Exhibit “2”, recorded with the Los Angeles County Recorder’s Office on April 14, 2020, as Instrument No. 20200412645, a true copy of which is attached as Exhibit “5”.

6. The Adequate Protection Order in the matter of In Re Ih Heen Bess Chang, filed on August 11, 2020, with the United States Bankruptcy Court, Central District of California, Case No. 2:20-bk-13978 - Exhibit “6”

7. The Trustee’s Deed Upon Sale recorded with the Los Angeles County Recorder’s Office on September 23, 2020, as Instrument No. 20201155440, a true copy of which is attached as Exhibit “7”

8. The Face Page of Plaintiff’s Complaint in the matter of Ih Heen Chang v. Aegis Asset Backed Securities, LLC, et al., filed on January 22, 2021, with the Los Angeles County Superior Court, Case No. 21PSSCV00055 - Exhibit “8”.

9. Plaintiff’s First Amended Complaint in the matter of Ih Heen Chang v. Aegis Asset Backed Securities, LLC, et al., filed on April 5, 2021, with the Los Angeles County Superior Court, Case No. 21PSSCV00055 - Exhibit “9”.

10. The Notice of Ruling re Motion for Summary Judgment in the matter of Ih Heen Chang v. Aegis Asset Backed Securities, LLC, et al., filed on July 7, 2022, with the Los Angeles County Superior Court, Case No. 21PSSCV00055 - Exhibit “10”.

11. The Judgment in the matter of Ih Heen Chang v. Aegis Asset Backed Securities, LLC, et al., filed on July 7, 2022, with the Los Angeles County Superior Court, Case No. 21PSSCV00055 - Exhibit “11”.

12. Plaintiff’s Notice of Appeal in the matter of Ih Heen Chang v. Aegis Asset Backed Securities, LLC, et al., filed on July 22, 2022, with the Los Angeles County Superior Court, Case No. 21PSSCV00055 - Exhibit “12”.

13. The Court of Appeals Docket in the matter of Ih Heen Chang v. Aegis Asset Backed Securities, LLC, et al., filed on July 22, 2022, with the California Court of Appeals, 2nd District, Case No. B322264 - Exhibit “13”.

14. A Printout from the California Secretary of State website, [https://bizfileonline.sos.ca.gov/search/business] confirming that Aegis Asset Backed Securities, LLC was and is in good standing at all relevant times - Exhibit “14.”

            The Court grants judicial notice pursuant to California Evidence Code sections 451 and 452, but not of the facts stated therein.

Discussion

Meet and Confer      

            As a preliminary matter, the Court notes Defendants have failed to satisfy the meet and confer requirements. Although Defendants attempted to meet and confer with Plaintiff’s former attorney to no avail, there was a substitution of attorney filed on 11/07/2023 where Plaintiff became self-represented. (Fink Decl. at ¶¶ 3-8.) On 11/08/2023, Defendants filed the instant demurrer but failed to meet and confer with Plaintiff.

Demurrer

            Moving Defendants are ORDERED to comply with CCP §430.41.  If, after complying with CCP §430.41, court intervention is needed, the parties may appear and argue the merits of the demurrer on the continued hearing date.  If the parties are unable to informally resolve the issues raised in the instant demurrer, then Counsel for the Moving Defendants must submit a signed declaration indicating such efforts pursuant to CCP §430.41. 

            The Court finds that the Moving Defendants have not satisfied their meet and confer obligations. The provisions of the Code are mandatory; compliance is not optional. 

            It is so ordered.

Dated: September 3, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court