Judge: Randall J. Sherman, Case: Carlsonvs.Mikles2012IrrevocableTrust, Date: 2022-09-30 Tentative Ruling

Defendant CalPrivate Bank’s Demurrer to Third Amended Complaint is sustained without leave to amend.  Defendants Mikles 2012 Irrevocable Trust dated March 14, 2012, Phil Davis, Alan Line, PIMRAX-2016 Series A, LLC, Kingfisher Trust (incorrectly named Kingfisher Island Trust), Kingfisher Island, Inc., Kingfisher Hangar 18, LLC, Kingfisher Mistral, LLC, Kingfisher Holdings, LLC, Sovereign Capital Management Holdings, LLC, SCMG Liquidation, LLC, Infinity Urban Century, LLC, and ARPT Property Fund, Inc.’s Demurrer to Third Amended Complaint is sustained without leave to amend.

All four of the Requests for Judicial Notice are granted.  However, while courts may take judicial notice of public records and their dates, parties and legally operative language, they do not accept the truth of matters stated in those documents.  Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264-65; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375.

Plaintiff has failed to amend the Second Amended Complaint’s substantive allegations despite two previous rulings sustaining the demurrers to plaintiff’s First Amended Complaint and Second Amended Complaint with leave to amend.  The issues of failure to state causes of action due to vague or conclusory allegations, failure to join a necessary party, and statutes of limitations are left unaddressed.  Plaintiff seeks leave to file a First Consolidated Class Action Complaint in the Carlson v. Hunt case, but that is a separate case that due process prevents from being addressed here.  Plaintiff has failed to cure the issues in this action despite multiple opportunities to do so, and so the court must sustain these demurrers without further leave to amend.

The court previously ruled that plaintiff has improperly split his causes of action between two cases because there were overlapping allegations between this action and the complaint in Carlson v. Hunt, OCSC Case No. 30-2018-00982195, and noted, “Plaintiff should bring one lawsuit, not two, to seek redress for defendants’ alleged wrongful conduct in connection with a singular set of facts.”  The court noted that the overlapping allegations permeated the First through Fifth Causes of Action.  Yet plaintiff has not made any changes to the allegations in the First through Fifth Causes of Action to show that the claims in this case are distinct from the claims in the Carlson v. Hunt case, despite multiple opportunities to do so.  On this ground, the court sustains the Mikles Defendants’ Demurrer to the First through Fifth Causes of Action.

Plaintiff failed to add necessary party Todd A. Mikles to the First, Second, and Fourth Causes of Action.  As the court ruled previously, Todd A. Mikles is a necessary party since he is the transferor of the transfers that plaintiff seeks to set aside in the First, Second and Fourth Causes of Action.  CCP §389(a)(1)(i) (a party must be joined if “he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest”).  Since plaintiff has failed to cure this defect despite multiple opportunities to do so, the court sustains CalPrivate Bank and the Mikles Defendants’ demurrers to the First, Second and Fourth Causes of Action without leave to amend on this additional ground.

Plaintiff failed to allege any additional facts to show that his claims against CalPrivate Bank under the First, Second and Third Causes of Action are not time-barred by the applicable statute of limitations.  The statute of limitations that applies to plaintiff's fraudulent transfer claims is four years after the transfer, or one year after the transfer was or could have been discovered, but in no case longer than seven years.  Civil Code §3439.09.  Here, the transfers at issue concerning CalPrivate Bank took place in February 2014, November 2016 and December 2016.  However, this action was not filed until January 20, 2021.  Plaintiff has failed to amend the complaint to state any facts supporting any tolling or to show that the applicable statute of limitations is longer than four years.  On this additional ground, the court sustains CalPrivate Bank’s demurrer to the First, Second and Third Causes of Action without leave to amend.

The court previously ruled, “Plaintiff fails to allege sufficient facts, rather than vague, overbroad, conclusory allegations, that would amount to actionable conduct on the part of the Mikles Defendants or defendant CalPrivate Bank.”  Despite the opportunity to cure this defect, plaintiff made no substantive changes to the allegations in the Third Amended Complaint as to the Mikles Defendants or CalPrivate Bank.  On this additional ground, the court sustains CalPrivate Bank’s and the Mikles Defendants’ Demurrers to the First through Fifth Causes of Action without leave to amend.

The moving party defendants are ordered to give notice of the ruling unless notice is waived, and to submit proposed Orders of Dismissal.