Judge Peter A. Hernandez, Case 21PSCV00841 2022-10-18 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

1. The hearing on Defendant George Larrazolo’s Demurrer to Plaintiff’s Second Amended Complaint is CONTINUED to November 15, 2022 at 9:30 a.m.

2. The hearing on Defendant George Larrazolo’s Motion to Strike Portions of Plaintiff’s Second Amended Complaint is CONTINUED to November 15, 2022 at 9:30 a.m.

Irene Larrazolo (“Irene”) and George Larrazolo (“George”) are Lisa’s parents. Lisa works as Project and Operations Manager for the family business, American Riggers Inc. (“ARI”), which is an industrial moving company providing hauling, rigging, equipment relocation, assembly and installation of heavy equipment and machinery for businesses. Lisa and her husband transformed ARI into a million-dollar corporation, loaned ARI over six figures to pay bills and cover payroll over the years and withheld many of their own payroll checks to ensure employees could be paid. On October 29, 1986, George and Irene created the Larrazolo Trust. On October 17, 2019, George and Irene executed an “Amendment to the Fourth Amendment and Complete Restatement of the Larrazolo Trust Under Declaration of Trust Dated October 29, 1986, as Restated April 7, 2016” (“Fifth Amendment”), which provided that Irene’s 51% share in ARI was to be immediately distributed to Lisa outright and free of Trust upon Irene’s death. Also, on or about February 15, 2020, George, Irene and Lis entered into a Business Operating Agreement (“Agreement”), which provided, in pertinent part, that George would continue to operate ARI during the lifetime of Irene and George or until Lisa obtained a property to which ARI could be relocated at which time Lisa would then take over all of ARI’s operations and be 100% owner. The Agreement also provided that Lisa would receive 49% of ARI as a gift from the Trust upon Irene’s death. The Agreement also provided that ARI would pay for 100% relocation of the business onto a new property, that George would pay off a $230,000.00 loan to Adobe Oil, that any future loans or debt were to be approved by Lisa and that George would receive up to $1,200/week for up to 2 years after the transfer.

Irene died on February 19, 2020. George breached the Agreement by failing and refusing (1) to transfer 100% ownership and operation of ARI to Lisa upon her obtaining a property to which ARI could be relocated, (2) to transfer 49% of ARI stock to Lisa as a gift from the Trust upon Irene’s death, (3) to have ARI to pay for 100% for the relocation of the ARI to a new property, (4) to pay off the Adobe Oil loan, (5) to have any future loans or debt to be approved by Lisa, (6) to transfer 100% ownership of ARI to Lisa once she obtained a new property for ARI to move to and by failing and refusing (7) to limit payment to himself to $1,200 per week and instead receiving payments in significantly greater amounts. In June 2021, Lisa signed the lease agreement for the new ARI property; however, George refused to have funds released for paying said lease.

On August 18, 2022, Plaintiff filed a Second Amended Complaint, asserting causes of action against George, ARI and Does 1-50 for:

George demurs, per Code of Civil Procedure § 430.10, subdivision (e), to the second and fourth through eighth causes of action, on the basis that they each fail to state facts sufficient to constitute a cause of action. George also demurs, per subdivision (f), to the fourth, seventh and eighth causes of action on the basis of uncertainty and, per subdivision (b), to the fourth and sixth causes of action on the basis of lack of capacity.

The hearing on the demurrer is CONTINUED to November 15, 2022 at 9:30 a.m. (Code Civ. Proc., §§ 128; 430.41[1].) Code of Civil Procedure § 430.41 requires a demurring party in certain civil actions, before filing the demurrer, to engage in a specified meet and confer process with the party who filed the pleading demurred to 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.

Meet and confer declarations are still required for amended complaints, as per Code of Civil Procedure § 430.41, subdivision (a). George’s demurrer is accompanied by a meet and declaration from attorney Scott J. Sheldon (“Sheldon”); however, the meet and confer efforts identified therein are from April and May 2022, which predates the August 18, 2022 filing of the SAC. (Sheldon Decl., ¶¶ 3-15.) Plaintiff, in opposition, points out that Sheldon’s declaration “confirms that no meet and confer efforts were communicated to Plaintiff’s counsel subsequent to the filing and service of the SAC.” (Opposition, 2:10-12.)

Counsel for George must file and serve a declaration in compliance with Code of Civil Procedure § 430.41 at least nine court days prior to the continued hearing date.

The hearing on the demurrer is CONTINUED to November 15, 2022 at 9:30 a.m. (Code Civ. Proc., §§ 128; 435.5[2].) Code of Civil Procedure § 435.5 requires a moving party in certain civil actions, before filing a motion to strike, to engage in a specified meet and confer process with the party who filed the pleading that is subject to a motion to strike 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 motion to strike.

Meet and confer declarations are still required for amended complaints, as per Code of Civil Procedure § 435.5, subdivision (a). George’s motion is accompanied by a meet and declaration from Sheldon; however, said declaration is deficient for the reasons noted above.

Counsel for George must file a declaration in compliance with Code of Civil Procedure § 435.5 at least nine court days prior to the continued hearing date.

[1] Code of Civil Procedure § 430.41 provides, in relevant part, as follows: “(a) Before filing a demurrer pursuant to this chapter, the 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, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

(2) 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. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. . .” (Emphasis added).

[2] Code of Civil Procedure § 435.5 provides, in relevant part, as follows: (a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, 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. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. . .” (Emphasis added).