Judge Teresa A. Beaudet, Case Number: 22STCV39928, Date: 2023-06-29 Tentative Ruling

Plaintiff Douglas A. Bagby (“Plaintiff”) filed this action on December 22, 2022 against defendant Joseph Daniel Davis.

On September 1, 2023, Plaintiff filed a Verified Second Amended Complaint (“SAC”) against defendants Joseph Daniel Davis, Hilary Davis, and Randi Desnoes.

The SAC alleges causes of action for (1) “perjury by Defendants Joseph D. Davis and Hilary Davis Regarding the Transfer of Title of the Ketchum Home to Hilary Davis,” (2) “intentionally transferring $3.5 million to Nevis Island to ‘Hinder, Delay, or Defraud’ Plaintiff,” (3) “perjury regarding [Defendant Joseph D. Davis’s] alleged move to Florida in 2020,” (4) “transfers of assets to Hilary Davis to ‘hinder, delay, or defraud’ Plaintiff,” (5) “aiding and abetting defendant Joseph D. Davis in violating the Uniform Voidable Transactions Act,” (6) “violating orders of the court,” and (7) “assets transferred to any such Doe Defendants.” The caption page of the SAC states that the SAC is for “(1) perjury, (2) violations of the Uniform Voidable Transactions Act, (3) aiding and abetting defendant in transferring and concealing assets, (4) violations of orders of the court, (5) injunctive orders, and (6) punitive and exemplary damages.” The Court notes that the caption page of the SAC is inconsistent with the causes of action alleged in the remainder of the SAC.

Joseph Daniel Davis and Hilary Davis (jointly, the “Davis Defendants”) demurred to the first, second, third, fourth, sixth, and seventh causes of action of the SAC, as well as the request for punitive damages in the SAC. Plaintiff opposed.

On January 10, 2024, the Court issued an Order on the Davis Defendants’ demurrer providing, inter alia, that “the Davis Defendants’ counsel’s declaration and the letter attached thereto as Exhibit 1 do not demonstrate that the parties met and conferred by telephone or in person.” (January 10, 2024 Order at p. 2:13-15.) The Court continued the hearing on the Davis Defendants’ demurrer from January 10, 2024 to March 11, 2024.

The January 10, 2024 Order further provides that “[t]he Davis Defendants are¿ordered to meet¿and confer¿with Plaintiffs¿within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, the Davis Defendants are to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with¿Code of Civil Procedure section 430.41, subdivision (a)(3) within 15 days of this order.¿The Davis Defendants shall also include in such declaration an update regarding the status of the filing of the SAC.”[1] (January 10, 2024 Order at p. 3:8-13.)

On January 25, 2024, the Davis Defendants’ counsel filed a declaration stating that “[o]n January 17, 2024, I had a telephone call with Plaintiff Douglas A. Bagby (‘Mr Bagby’) regarding Defendants Joseph Daniel Davis and Hilary Davis’ Demurrer to Mr. Bagby’s Second Amended Complaint (‘SAC’)…Mr. Bagby agreed to dismiss the third and sixth causes of action in his Second Amended Complaint.” (Niedbalski Decl., ¶¶ 3-4.)

The Davis Defendants’ counsel further states that “[o]n January 18, 2024, I raised the issue mentioned in the Court’s January 10, 2024 tentative ruling that the caption page of the SAC is inconsistent with the causes of action alleged in the remainder of the SAC to Mr. Bagby via email…On January 18, 2024, Mr. Bagby responded to my email and agreed with the Court’s comments and stated ‘I do not know if that mistake requires the filing of a Third Amended Complaint. Do you have authority suggesting I am required to file an amended complaint to correct that mistake?’…On January 22, 2024, I responded to Mr. Bagby’s email and requested a Third Amended Complaint (‘TAC’) be filed to address the mistake and the Davis Defendants would then withdraw the demurrer to the SAC as it would be moot if a TAC is filed.” (Niedbalski Decl., ¶¶ 6-8.)

The Court notes that on February 26, 2024, Plaintiff filed a Third Amended Complaint. As set forth above, the Davis Defendants’ counsel states that the “the Davis Defendants would…withdraw the demurrer to the SAC as it would be moot if a TAC is filed.” (Niedbalski Decl., ¶ 8.) In light of the foregoing, the Court finds that the Davis Defendants’ instant demurrer to the SAC is moot.

[1]The Court noted in the January 10, 2024 Order that “the SAC shows that it was ‘electronically received’ on August 31, 2023 and the docket shows ‘entered 9/1/23.’ It is unclear whether the SAC has been ‘filed.’ The Court notes that on August 4, 2023, the parties filed a ‘Stipulation of the Parties Regarding the Filing of a Second Amended Complaint and Response by Defendants.’ The Stipulation provides, inter alia, that ‘Plaintiff shall file and serve a Second Amended Complaint on Defendants…within thirty (30) days of this Stipulation.’ An Order on the Stipulation was issued on August 4, 2023.” (January 10, 2024 Order at pp. 2:22-3:5.) The Court notes that the docket now appears to show that the SAC was filed on September 1, 2023.

DOUGLAS A. BAGBY, Plaintiff, vs. JOSEPH DANIEL DAVIS, et al. Defendants.	Case No.:	22STCV39928
	Hearing Date:	March 11, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEMURRER BY DEFENDANTS JOSEPH DANIEL DAVIS AND HILARY DAVIS TO PLAINTIFF’S SECOND AMENDED COMPLAINT

Superior Court of California

County of Los Angeles

Department 50