Judge: Nick A. Dourbetas, Case: 2021-01222351, Date: 2022-08-12 Tentative Ruling

1. Demurrer to Amended Complaint

2. Motion to Strike Complaint

3. Case Management Conference

Demurrer to Amended Complaint:

Defendant Byron Richard Tarnutzer aka Rick Tarnutzer’s demurrer to the first amended complaint is SUSTAINED, with 10 days leave to amend.

The first, second, and third causes of action for failure to comply with levy, creditor suit, and accounting, are each founded upon a contract, i.e., the alleged loan(s) between defendant and the judgment debtors. Each of these claims, however, fails to state whether the contract(s) were written, oral, and/or implied. (Code Civ. Proc., § 430.10, subd. (e).)

The first amended complaint further fails to set forth the material terms of the subject loan(s), and therefore fails to state facts sufficient in support of the conclusory allegation that defendant is indebted to the judgment debtors and/or has possession/control of property in which the judgment debtors have an interest, that entitles the plaintiffs to their alleged damages of at least $755,000. (See Code Civ. Proc., §§ 701.020 [liability for failure to comply with levy], 708.210 [creditor’s suit].)

Defendant shall give notice.

Motion to Strike Complaint:

Defendant’s motion to strike portions of first amended complaint is MOOT, in light of the ruling on the demurrer above.

Defendant shall give notice.