Judge: Stephen P. Pfahler, Case: 23CHCP00073, Date: 2023-09-19 Tentative Ruling

Case Number: 23CHCP00073    Hearing Date: October 11, 2023    Dept: F49

Dept. F-49

Date: 10-11-23

Case #23CHCP00073

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendants, Valentine Goelz, et al.

RESPONDING PARTY: Plaintiffs, Sherry Goldsmith, et al.

RELIEF REQUESTED

Demurrer to the Complaint

SUMMARY OF ACTION

Plaintiff Sherry Goldsmith, individually and on behalf of Electropath, alleges joint ownership of 10137 Canoga Ave., Chatsworth, with joint ownership of the corporate entity identified as Electropath—50% ownership by Goldsmith and 25% each by Valentine and Goel.

Goldsmith alleges the other defendants conspired to deprive Goldsmith’s participation in corporate operations, or other adherence to corporate formalities. Goldsmith additionally allege improper conduct on the premises.

On February 20, 2023, Goldsmith filed a verified complaint for Civil Extortion, Breaches of Fiduciary Duties, Unauthorized Distributions, Dissolution, Compel Issuance of Shares, Breach of Duty to Transfer Shares, Breach of Duty to Maintain Records, Declaratory Relief, False Reports – Derivative, Compel Annual Meeting, Accounting of Rents, and Quiet Title.

On September 19, 2023, the court denied Defendants motion to compel arbitration.

RULING: Overruled/Denied.

“Objections to Untimely Demurer and Motion to Strike” SUSTAINED.

The April 25, 2023, ex parte order specially set the responsive filing deadline for June 1, 2023. Even with more than five weeks notice (38 days), Defendants still untimely filed their responsive pleadings one day late on June 2, 2023. Defendants in reply requests the court allow the late filed pleading due to “excusable mistake, inadvertent (sic) or neglect” on third party delivery service “USA Express.” Defendant maintains the pleading was “rejected” by the clerk only to be resubmitted the next day, and the “systematic glitches” with the electronic filing system otherwise precluded timely filing.

The court finds no basis of relief, due to alleged third party conduct. Other than a conclusion of “glitches” indicated by an e-mail attachment showing actual submission of the document at 3:56 p.m. on June 1, 2023, and submission into the court filing queue at 4:23 p.m., the response to the objection lacks any factual support. A subsequent rejection by the clerk in no way indicates a problem with the electronic filing system, again, given the actual notice of submission of the filing to the clerk. The subsequent rejection by the clerk apparently comes from a defect in the document itself rather than service provider error.

Given the second e-mail confirmation sent at 3:24 p.m. on June 2, 2023, indicating a new submission, the court concludes an entirely new submission was in fact presented, rather than the implied refiling of the exact same previously rejected document. Nothing in the motion or e-mails indicates whether the documents were actually altered in order to conform to filing requirements either way, but even assuming the motion was presented as exactly as the day before, again nothing implicates an error by the service provider. The court therefore concludes attorney error in filing, and finds no assignable blame on the third party facilitated filing system.

Given the response actually fails to address whether request for relief under Code of Civil Procedure section 473 even qualifies for relief, and the mere rejection of a demurrer in no way constitutes a default to dismissal on the action, the court declines to award relief on this basis. While an argument can be made of no prejudice to Plaintiff, the court also finds no material prejudice to Defendants based on the sustaining of the objection.

As for the objection to the service of the objections, the objections were in fact served exactly five court days before the hearing date at 12:17 p.m., and were therefore timely. “Any document that is served electronically between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed served on that court day.” (Code Civ. Proc., § 1010.6, subd. (a)(1)C)(4).)

The timely objections are sustained, the court overrules the demurrer, and denies the motion to strike on this basis.

Demurrer

Even considering the merits of the demurrer, the court finds no basis to sustain.

Evidentiary Objections to Declarations of Mark Goelz, Valentine Goelz, Traci Kona, and Brett Goldsmith: SUSTAINED.

·         The declarations were improperly submitted with the reply thereby depriving Plaintiff of the opportunity to respond.

·         The declarations offer opinions on matters extrinsic to the scope of consideration for the demurrer.

Request for Judicial Notice: DENIED.

The court can only take judicial notice of the existence of the requested documents to the extent they’re incorporated into the operative pleading. The court can also consider the content, again, only if submitted with the operative complaint. The court therefore need not take judicial notice, if any and all documents are incorporated. The court otherwise remains barred from considering the subject documents as to their existence or for the truth of the matter asserted if not incorporated.

Defendants Valentine Goelz, Mark Goelz, Roy & Val Tool Grinding, Inc., Jan Mason (appearing in pro per), and Elctropath (derivatively) bring the demurrer to the entire verified complaint based on 25 separately articulated arguments providing a paragraph-by-paragraph summary of certain portions of selected challenged causes of action, then single paragraph summaries regarding the purported defects of the individual causes of action. The essence of the argument appears as a challenge on standing, misjoinder of parties, statute of limitations, and general uncertainty arguments. The argument appears to rely on accusations of Plaintiff “misleading” Defendants regarding the terms of the pour over trust upon the death of David Goldsmith and Plaintiff assuming ownership of the subject assets. Plaintiff in opposition challenge the legal and factual basis of the entire demurrer. Defendants in reply contends the opposition relies on improper ad hominem attacks, contends the opposition improperly “lumps together” all defendants under the alter ego umbrella, and reiterates the challenge on the civil extortion claim, as well as all but the second cause of action. Defendants continue to rely on claims of “falsely” based demands, lack of standing, etc.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

The court finds the arguments in support of the demurrer constitutes a series of legal conclusions and opinions based on extrinsic inference, as indicated by examples such as: “Plaintiff's flim flam, unsupported extortion claim sets the sick tone for the entire Complaint! (CCP Secs. 128.7, 430.10(f), 446, P.C. 518, 519)” [Demurrer, 7:21-22.] The follow up citations lack a sufficiently apparent nexus with the presented argument. Thus, even if the court considered the merits of the demurrer notwithstanding the untimely filing, the court declines to make the arguments for Defendants, and otherwise finds no defect with the pleading with the pleading sufficient to sustain the demurrer. The demurrer is Overruled on this basis as well.

The motion to strike appears as a duplicate, or alternative version of a demurrer. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [While a demurrer is not the exclusive means to challenge a cause of action, a motion to strike generally applies to parts of a cause of action, claim for damages, or where the cause of action or primary right is barred as a matter of law.]; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike”].) Again, the court declines to either reconsider the arguments made in the demurrer or alternatively determine any new arguments on behalf of Defendants. The motion to strike is denied.

In summary, the demurrer is overruled, and the motion to strike is denied. Defendants to answer the operative verified complaint within 10 days of this order.

Motion for Security of Costs, et al. set for November 28, 2023 (continued from September 28, 2023, per August 21, 2023, minute order). The court reserves the right to further continue the hearings due to calendar congestion, especially depending on the volume of the arguments and additional work required addressing potentially made and unmade arguments.

Defendants to give notice.