Ruth Mary Jay, as Trustee of the John Nikitich Trust Dated June 29, 2000 v. Robert Dowell, et al.

(1) DEMURRER TO COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTY: Defendant Robert Dowell, individually and as Trustee of the Dowell Family Trust of 1986; Peggy Dowell, individually

RESPONDING PARTY(S): Plaintiff Ruth Mary Jay, as Trustee of the John Nikitich Trust dated June 29, 2000

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Ruth Mary Jay, as Trustee of the John Nikitich Trust Dated June 29, 2000, brings this action against Defendants Robert Dowell individually and as Trustee of the Dowell Family Trust of 1986, and Peggy Dowell individually.  

Plaintiff alleges that the John Nikitich Trust and Dowell Family Trust are part-shareholders of Plasma Technology Incorporated (“PTI”), a closely-held surface engineering company located in Torrance, CA.  Plaintiff’s father, John, was Trustee of the John Nikitch Trust until his death in 2018.  Upon his death, Plaintiff’s mother, Lily, became Trustee. Since September 2020, Lily has suffered severe cognitive decline. As a result of her diminished capacity, Lily was the victim of an online “romance scam” through which she sent over $3,200,000 to a fictitious person.  Plaintiff informed the Defendants—as Lily’s friends and co-shareholders of PTI—that Lily was the victim of an elder abuse scam, and that she should not be permitted to make financial decisions.

Plaintiff alleges that Defendants took advantage of Lily’s diminished capacity by purchasing the John Nikitch Trust’s shares of PTI at a substantial discount for the Dowell Trust, so that Lily had additional money to send to the scammer. As a result, the Dowell Trust became PTI’s majority shareholder. Thereafter, Defendants arranged for Lily to attend the PTI shareholder’s meeting to tender her resignation, and replaced her with a shareholder of their choice.  All the while, Defendants knew that an Arizona court had deemed Lily incapacitated and had appointed Plaintiff as her conservator.  Plaintiff brings causes of action for (1) enforcement of rescission, (2) breach of fiduciary duty, (3) conversion, (4) unjust enrichment, (5) constructive fraud, and (6) financial elder abuse.

Defendants now demur to the Complaint and move to strike portions therein.  Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Demurrer to the Sixth Cause of Action for elder abuse is SUSTAINED, with leave to amend. However, rather than filing a First Amended Complaint, Plaintiff should file a form “Amendment to the Complaint” within 10 days, simply adding as a Plaintiff Ruth Mary Jay also in her capacity as Lily’s Conservator.  

Defendants’ Demurrer to the First, Second, Third, Fourth, and Fifth Causes of Action is OVERRULED.

Defendants’ Motion to Strike is DENIED in its entirety.

Since a First Amended Complaint is not required under this ruling, Defendants are to file an Answer to the Complaint, as modified by this ruling (and subsequent form amendment), within 21 days.

Plaintiff to give notice, unless waived.  

DISCUSSION:

Demurrer

I. Meet and Confer

The declaration of Attorney Jason Luedekke reflects that the meet and confer obligation was met.  (CCP § 430.41.) 

II. Judicial Notice

Pursuant to Defendants’ request, the court takes judicial notice of Exhibits A and B. 

Pursuant to Plaintiff’s request, the court take judicial notice of Exhibit A.

The court takes judicial notice of the exhibits without assuming the truth of the assertions contained therein.  (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

III. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  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.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  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, 147 Cal.App.4th at 747.) 

IV. Analysis

Defendants demur to each cause of action in the Complaint on the grounds they fail to state facts sufficient to constitute a cause of action.  Each is addressed in turn.

1. First Cause of Action (Enforcement of Rescission)

Defendants first argue that rescission is only a remedy, not a proper cause of action. (citing Nakash v. Superior Ct. (1987) 196 Cal. App. 3d 59, 70 [“Rescission is not a cause of action; it is a remedy.”].) In opposition, Plaintiff argues she is asking the Court for enforcement of said rescission,” which is a separate and viable cause of action.  (Opp. 7: 14-17 [emphasis in original].) 

Although not expressly stated, the Complaint seeks court enforcement of a unilateral rescission of the stock transfer.  (See Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 38 [it is policy to “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”].) Plaintiff seeks to rescind the Stock Purchase Agreement through which Lily transferred 2,138 shares of PTI from the Nikitich Trust to the Dowell Trust. (Compl. ¶ 34.) Plaintiff alleges that Defendants knew Lily was incapacitated at the time of the transfer. (Id. ¶ 35.) Plaintiff alleges that Defendants obtained Lily’s apparent consent to the Stock Purchase Agreement through fraud and/or undue influence, or alternatively, that the Stock Purchase Agreement was invalid due to Lily’s incapacity to contract. (Id. ¶¶ 36, 37.)

Whether viewed as a cause of action or a remedy, the result is largely the same—Plaintiff has pled facts supporting rescission of the Stock Purchase Agreement.  “The courts of this state have ... long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’” (Id. at 38-39.) For that reason, the demurrer fails.

Accordingly, Defendants’ Demurrer to the First Cause of Action is OVERRULED.

2. Second Cause of Action (Breach of Fiduciary Duty)

Defendants next demur to the Second Cause of Action, arguing the cause of action fails against Peggy only because the Complaint “is purely conclusory and devoid of any facts” showing she owed any fiduciary duty to the Nikitich Trust.  (Dem. 15: 15.) 

“The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Gutierrez v. Girardi (2011) 194 Cal. App. 4th 925, 932.) Whether a fiduciary duty exists is generally a question of law. (Hodges v. Cnty. of Placer (2019) 41 Cal. App. 5th 537, 546.) “A fiduciary relationship is ‘ “any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent ....” (Id. at 546-47.) “Traditional examples of fiduciary relationships in the commercial context include trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint adventurers, and agent/principal. [Citations.]” (Id. at 547.) 

At least one court has recognized that “an officer who participates in management of the corporation, exercising some discretionary authority, is a fiduciary of the corporation as a matter of law.” (GAB Bus. Servs., Inc., supra, 83 Cal. App. 4th at 420–21.) On the other hand, “a ‘nominal’ officer with no management authority is not a fiduciary. Whether a particular officer participates in management is a question of fact.” (Id.)

Here, Plaintiff alleges “that Peggy worked at PTI in a position which afforded her management responsibility, control, and the ability to make business decisions on behalf of the company, such that Peggy owed PTI’s shareholders, including the Nikitich Trust, fiduciary duties as a matter of law.” (Compl. ¶ 43.) Thus, “Peggy was obligated to refrain from attempting to deceptively and fraudulently deprive the Nikitich Trust of its rightful ownership interest in PTI by exploiting the mental incapacity of its former Trustee, Lily.” (Id.) On these facts, Plaintiff has presented a factual question on the extent of Peggy’s management role within PTI.  The demurrer fails for that reason.

To the extent this is insufficient, the court also finds the existence of a fiduciary relationship on other grounds.  In addition to a fiduciary duty created by law, a fiduciary relationship may be “undertaken by agreement when one person enters into a confidential relationship with another.” (GAB Bus. Servs., Inc. v. Lindsey & Newsom Claim Servs., Inc. (2004) 83 Cal. App. 4th 409, 417 [disapproved of on other grounds by Reeves v. Hanlon (2004) 33 Cal. 4th 1140].) A confidential relationship arises “where a confidence is reposed by one person in the integrity of another, and ... the party in whom the confidence is reposed, ... voluntarily accepts or assumes to accept the confidence[.]” (Id.) In this scenario, the existence of such a relationship is also a question of fact. (Id.)

Plaintiff alleges that once Defendants learned of Lily’s diminished mental capacity, Dowell and Peggy “assured Ruth Jay that they would reach out and attend to Lily as friends, and that they would try to persuade Lily to stop communicating with the scammer.” (Compl. ¶ 18.) They told Plaintiff “they would protect Lily.” (Id. ¶ 21.) “[Holding] themselves out as friends to Lily,” Defendants “took advantage of their position of trust and confidence…all for purposes of securing the position of majority shareholder of PTI.” (Id. ¶ 26.) On these facts, Plaintiff has adequately alleged a fiduciary duty based on a confidential relationship.

Thus, for pleadings purposes, Plaintiff has alleged the existence of a relationship sufficient to impose fiduciary duties on Peggy.  

Accordingly, Defendants’ Demurrer to the Second Cause of Action is OVERRULED.

3. Third Cause of Action (Conversion)

Defendants demur to the third cause of action for conversion, first arguing that it fails as to Peggy.  They contend it is the Dowell Trust, and not Peggy, who “is alleged to have purchased the PTI shares that form the basis of the conversion claim.” (Dem. 16: 17-19.) Moreover, “the Complaint does not otherwise allege her to be a trustee of the Dowell Trust [and] [a]s a result, Peggy cannot legally be liable for the Dowell Trust’s alleged conversion of stock.” (Dem. 16: 19-20.)

In opposition, Plaintiff argues this point is immaterial, as neither “defendant’s possession” nor “defendant’s taking” of Plaintiff’s property are elements of a conversion claim.  (Opp. 11: 17-18.)  

“Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.]” (Regent All. Ltd. v. Rabizadeh (2014) 231 Cal. App. 4th 1177, 1181.)

As pled, the allegations omit a direct link between Peggy and the alleged conversion.  The Complaint alleges the shares “were unlawfully transferred to the Dowell Trust” (Compl. ¶ 48.) It does not allege that Peggy is a Trustee of the Dowell Trust or otherwise alleged to be a party to the Stock Purchase Agreement. 

Be that as it may, Defendant has not demonstrated that a party cannot be liable for conversion under similar circumstances.  Thus, while recognizing the absence of a direct connection between Peggy and the recipient of the shares (e.g., the Dowell Trust), the court finds the allegations of Peggy’s involvement are sufficient to state a cause of action for conversion against her.  In other words, Plaintiff has alleged Peggy’s interference with the Nikitich Trust’s shares, even if Peggy herself was not the direct recipient of said shares.  

Defendants then argue that the claim fails because it was Lily who initiated and then consented to the stock sale.  (See Compl. ¶ 22 [alleging “Lily approached Dowell and Peggy telling him that [she] wanted to sell some PTI shares so she had more money to send to her love interest”].) “[T]he law is well settled that there can be no conversion where an owner either expressly or impliedly assents to or ratifies the taking, use or disposition of his property.” (Chen v. PayPal, Inc. (2021) 61 Cal. App. 5th 559, 576.) 

Here, however, Plaintiff alleges that Lily’s incapacity left her unable to consent to the stock sale.  (Compl. ¶ 23.) (See Civ. Code § 38 [“A person entirely without understanding has no power to make a contract of any kind…”]; see also § 40 [“after his or her incapacity has been judicially determined a person of unsound mind can make no conveyance or other contract…”].) Thus, on these allegations and in light of the proposed rescission, Plaintiff has adequately stated a claim for conversion for pleading purposes.

Accordingly, Defendants’ Demurrer to the Third Cause of Action is OVERRULED.

4. Fourth Cause of Action (Unjust Enrichment)

Defendants demur to the fourth cause of action, arguing unjust enrichment is not a standalone cause of action.  The modern trend appears to take the position that unjust enrichment is a claim for restitution rather than a separate cause of action.  (See De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845.) The court will therefore construe the cause of action as one for restitution.  (See Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386 [in characterizing pleadings, it is policy to emphasize substance over form].)

Defendants next argue that Plaintiff is not entitled to restitution because Defendants have not been unjustly enriched.  Defendants argue that both sides benefitted from the stock exchange—shares for the Dowell Trust, and cash for the Nikitich Trust. 

However, Plaintiff alleges that the “Dowell Trust paid only $78 per share of PTI, as opposed to the last most recent transaction price of $120 per share, effectively dealing itself a 35% discount on the shares. Dowell, as Trustee of the Dowell Trust, did this knowing that: (a) Lily lacked the mental capacity to enter into the agreement, and (b) Dowell was underpaying for the shares.” (Compl. ¶ 25.) This also made the Dowell Trust “majority shareholder of PTI,” giving it “effective control over all significant corporate decisions.” (Compl. ¶ 24.) Defendants have not demonstrated that restitution is unavailable under the circumstances alleged.

Defendants then argue that unjust enrichment cannot apply where the parties had an express contract.  However, Defendants again ignore the allegation that the parties entered into the agreement “despite Lily’s demonstrable lack of capacity and soundness of mind[.]” (Compl. ¶ 23.) 

Finally, Defendant argues that the claim fails as to Peggy.  The court rejects this argument for the same reasons as above. Namely, the Complaint alleges Peggy’s involvement in effectuating the sale of shares, which gave her and her husband de facto control over PTI.  

Accordingly, Defendant’s Demurrer to the Fourth Cause of Action is OVERRULED.

5. Fifth Cause of Action (Constructive Fraud)

Defendants argue that the “Complaint lacks any allegation that Bob and/or Peggy failed to disclose information or otherwise disclosed incomplete or inaccurate information.” (Dem. 19: 22-23.) In related argument, Defendants contend the claims are not pled with the requisite specificity for fraud-based claims.

Constructive fraud “is a unique species of fraud applicable only to a fiduciary or confidential relationship.” [Citation.] “Constructive fraud ‘arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.’ [Citation.] Actual reliance and causation of injury must be shown. [Citation.]”  (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal. App. 4th 1105, 1131.) “[W]hether a fiduciary duty has been breached, and whether [conduct] constitutes constructive ... fraud, depends on the facts and circumstances of each case.” (Id.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) 

Plaintiff alleges “that Defendants, and each of them, misled and deceived Lily, and exploited her mental incapacity in an effort to wrongfully acquire common shares of PTI rightfully belonging to the Nikitich Trust. For example…Dowell feigned a romantic interest in Lily – often flirting with her and sending her flowers – and led Lily to believe that it was in her and the Nikitich Trust’s best interest to sell PTI shares to the Dowell Trust at a 35% discount from the most recent transaction price.” (Compl. ¶ 60.) 

The court finds the claim is well plead, and thus disagrees that there are “not enough allegations to allow Defendants to identify the alleged fraud and defend against it.” (Dem. 20: 21-22.) To the extend any ambiguities exist, they can be resolved through discovery.  Moreover, because the alleged victim of the fraud is alleged to have been largely incapacitated, this is a case where the facts lie more within the knowledge of Defendants. (Comm. On Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal. 3d 197, 217 [“Less specificity is required when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.’”].)

Finally, as explained above, Plaintiff sufficiently alleges that both Defendants, including Peggy, owed a fiduciary duty. The claim also survives against her.

Accordingly, Defendants’ Demurrer to the Fifth Cause of Action is OVERRULED.

6. Sixth Cause of Action (Financial Elder Abuse)

Finally, Defendants demur to the sixth cause of action, first arguing the claim cannot stand because Lily herself—and not the Nikitich Trust trustee—must be the named plaintiff. This Court agrees.

The Complaint alleges “[a]s her Conservator, Plaintiff Ruth Jay asserts this cause of action on Lily’s behalf.” (Compl. ¶ 71.) However, the only named Plaintiff here is Ruth Mary Jay “as Trustee of the John Nikitich Trust dated June 29, 2000.” In other words, Plaintiff is not bringing this action in her capacity as Lily’s conservator. (See Compl., Caption & ¶ 1.) The parties otherwise agree that a Plaintiff may bring a claim for elder abuse as the victim’s conservator.

In opposition, Plaintiff calls the argument “ultra-technical” and contends “its only significance would be to require that the caption of this lawsuit be slightly modified to name ‘Lily Nikitich, by and through her Conservator, Ruth Mary Jay’ as an additional Plaintiff.” (Opp. 15: 18-21.) 

Thus, the court sustains the demurrer on this limited ground, but grants Plaintiff leave to amend to add as an additional Plaintiff Ruth Jay in her capacity as Lily’s conservator.  

Defendants’ remaining arguments to the cause of action fail. Defendants argue the Complaint lacks facts setting forth “a wrongful use” or an “intent to defraud.” The court finds, however—as it did for the constructive fraud cause of action—that Plaintiff has alleged that Defendants used Lily’s mental incapacity to take control of PTI while also purchasing the shares at a discount.  For similar reasons, Plaintiff has alleged that Defendants intended to defraud the Trust.

Accordingly, Defendants’ Demurrer to the Sixth Cause of Action is SUSTAINED, with leave to amend. Plaintiff should file an Amendment to the Complaint within 10 days, adding as a Plaintiff Ruth Jay in her capacity as Lily’s conservator.

Motion to Strike

Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

Analysis

A. Claims of Fraud and Undue Influence

Defendants first move to strike portions of the Complaint alleging fraud and/or undue influence, arguing they are “legal conclusions unsupported by factual allegations.” (MTS 5: 6-7.) Plaintiff moves to strike the following:

(1) Paragraph 36:20-22 (in Count 1 for recission): “Dowell obtained Lily’s apparent consent to the Stock Purchase Agreement through fraud and/or undue influence, as alleged herein.”

(2) Paragraph 42:13-16 (in Count 2 for breach of fiduciary duty): “[Bob] was obligated to refrain from attempting to deceptively and fraudulently deprive the Nikitich Trust of its rightful ownership interest in PTI by exploiting the mental incapacity of its former Trustee, Lily.”

(3) Paragraph 43:21-23 (in Count 2 for breach of fiduciary duty: “Peggy was obligated to refrain from attempting to deceptively and fraudulently deprive the Nikitich Trust of its rightful ownership interest in PTI by exploiting the mental incapacity of its former Trustee, Lily.”

(4) Paragraph 49:16-17 (in Count 3 for conversion): “The Dowell Trust’s acquisition of the 2,138 common shares of PTI was accomplished by fraud and deceit on [Bob] and Peggy’s part . . . .”

(5) Paragraph 59:6-8 (in Count 5 for constructive fraud): “[Defendants] were obligated to refrain from attempting to deceptively and fraudulently deprive the Nikitich Trust of its rightful ownership interest in PTI by exploiting the mental incapacity of its former Trustee, Lily.”

(6) Paragraph 66:7-9 (in Count 6 for financial elder abuse): “Defendants, and each of them, concocted a scheme to appropriate and retain the property of the Nikitich Trust through illicit means, with the intent to defraud, and by exerting undue influence on Lily.”

As explained more fully when ruling on the demurrer, the court finds that Plaintiff has alleged specific facts to support the causes of action for rescission, breach of fiduciary duty, conversion, constructive fraud, and financial elder abuse.  It therefore rejects the contention that the allegations are conclusory, non-specific, or otherwise deficient for pleadings purposes.

B. Punitive Damages

Defendants also move to strike portions of the Complaint seeking punitive damages, namely: 

(1) Paragraphs 46:1-7 (in Count 2 for breach of fiduciary duty), 53:1-6 (in Count 3 for conversion), and 63:22-27 (in Count 5 for constructive fraud): In undertaking the wrongful conduct alleged herein, Defendants acted willfully, intentionally, maliciously, oppressively, and in conscious disregard of the rights of Plaintiff and the Nikitich Trust at all times to further Defendants’ respective economic and other interests at the expense and to the damage and injury of Plaintiff and the Nikitich Trust. Having acted with oppression, fraud and malice within the meaning of Civil Code section 3294, Plaintiff is entitled to recover punitive damages from Defendants in a sum to be determined at the time of trial.

(2) Paragraph 70:18-19 (in Count 6 for financial elder abuse): “Pursuant to Welfare and Institutions Code § 15657.5(d) and Civil Code § 3294, Defendants are liable for punitive damages in an amount to [be] proven at the time of trial.”

(3) Page 13:1, 4, 10, and 13 (in the Prayer for Relief): “For punitive and exemplary damages” in connection with Counts 2, 3, 5 and 6.

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 

As defined in § 3294(c):

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. 

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

(3) “Fraud” means that a defendant intentionally misrepresented or concealed a material fact and did so intended to harm a plaintiff.

Defendants argue the statements of punitive damages “are based on rote recitations of the legal standard without specific factual allegations establishing their imposition.”  (MTS 10: 6-10.)  The court disagrees.

Under the totality of the allegations, the requests for punitive damages are supported by specific allegations, that if true and proven at trial, could warrant the imposition of punitive damages.  In sufficient detail, Plaintiff alleges that Defendants—as friends with full knowledge of Lily’s diminished mental capacity—told Plaintiff “that they would protect Lily.” (Compl. ¶ 21.) Instead, they allegedly used that friendship and Lily’s diminished mental capacity to obtain controlling shares of PTI—at a discount, no less. (Id. ¶¶ 22, 23, 24, 25, 26.) Then, with knowledge that Lily had been deemed legally incapacitated—and without giving notice to Lily’s conservator—Defendants arranged for Lily to fly to California to give up her board seat with PTI. (Id. ¶¶ 27, 28, 29, 30.)  These allegations could amount to a showing of malice, oppression, or fraud, as those terms are defined in section 3294. Thus, the court permits the allegations at this time. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699 [stating courts are given “broad discretion” when ruling on a motion to strike].)

Accordingly, Defendants’ Motion to Strike is DENIED.

Moving party to give notice, unless waived.  

IT IS SO ORDERED.

Dated:   December 19, 2022 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.