Demurrer With Motion To Strike Ccp 43010

Motion

Cal. Super. - 2nd Dist.March 5, 2020

Electronically FILED by © 0 Na A EAE W N ee N O O N O N N N BN N N N em em mm p m mk mk fe d mk mk WW J SO W n Ea W N m S YO 0 N N N Ea WwW N = uperior Court of California, County of Los Angeles on 07/21/2020 12:49 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk SUSAN L. CALDWELL (SBN 190421) CALDWELL LAW GROUP 9701 Wilshire Blvd., 10" Floor Beverly Hills, CA 90212 Telephone: 310-858-7000 Facsimile: 310-858-7008 Email: scaldwell@caldwelllaw.com Attorneys for Defendant OLUFEMI OGUNTOLU SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT NINA MONTOYA, an Individual, CASE NO. 20STCV09311 [Assigned to the Honorable Jon R. Takasugi, Judge Presiding] Plaintiff, DEFENDANT OLUFEMI OGUNTOLU’S DEMURRER TO FIRST AMENDED vs. COMPLAINT; DECLARTION IN SUPPORT co [Filed concurrently with Motion to Strike; OLUFEMI OGUNTOLU, an individual; Request for Judicial Notice] CITIBANK, N.A. a federally chartered banking institution; and DOES 1-20, inclusive; | [RESERVATION NO.490007242442]_ Defendants. Date: December 4, 2020 Time: 8:30am Dept.: 17 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Defendant OLUFEMI OGUNTOLU, an individual (hereinafter “OGUNTOLU” or “DEFENDANT”) herein intends to proceed to hearing on December 4, 2020, at 8:30 a.m., or as soon thereafter as this matter may be heard in Department “17” of the above-entitled court, located at 111 N. Hill Street, Los Angeles, California 90012, on demurer to the 157 Amended Complaint of NINA MONTOYA (“Plaintiff”) pursuant to California Code of Civil Procedure §§ 430.10 et seq. and pertinent case law. Defendant OGUNTOLU demurrers on the following grounds: 1 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION eo 0 NN SN nT A W N N O O N O N O N O N O N N N N em em em em je m mk je t md j d fe d QR 0 A Un Ea W N = SS VW 0 N N N E W N = e 1. Defendant OGUNTOLU Demurrers to the Second and Third Causes of Action for ACCOUNTING & DECLARATORY RELIEF Based Upon the Fact Plaintiff has Premised Allegations of her First Amended Complaint Based Upon Contracts for Mortgage Payments as Plead - and, Yet, is Unwilling to Attach thee Contracts Plead to the First Amended Complaint (or Specify their Terms) - Making the Complaint Fatally Uncertain and Vague. Plaintiff’s 1° cause of action - for partition - is not disputed by Defendant, with agreement to sell the property. Plaintiff premises her 2" Cause of Action (for Accounting) and 3" Cause of Action (Declaratory Relief) on contracts entered between the parties - and plead - which set forth the mortgage payment obligations between the parties for the property, and request the court exercise rights under these agreements - but, yet, Plaintiff has refused to attach these deed of trust written agreements or provide their terms despite their clear and direct relevancy to an accounting. The Allegations: Para. 8 - Plaintiff acknowledges title to the property is held in joint tenancy and was recorded on October 25, 2007, which is incorporated at Exhibit 1 to the First Amended Complaint. Para. 12 - Plaintiff assumed title with Defendant on October 25, 2007. Para. 13 - Plaintiff alleges that the parties secured a primary (1%) mortgage from CitiMortgage (Deed of Trust) on October 25, 2007, which would have set forth the mortgage obligations between the Parties on the 1% mortgage from 2007. This contract - the Deed of Trust is not attached. Para. 14 - Plaintiff alleges that the parties secured a secondary (2°) mortgage from CitiMortgage (Deed of Trust) on October 25, 2007. This contract - the Deed of Trust is not attached. Para. 15 - Plaintiff alleges that the parties - 8 years later - refinanced the primary (1%) mortgage with CitiBank (Deed of Trust) dated December 28, 2015. Para. 18-19 - Plaintiff alleges that on September 28, 2007, before purchase or entry of the deeds of trust or grant deeds, Plaintiff and Defendant entered an oral agreement on how to split the mortgage for real property. 2 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION $ 0 NN a nh A W N N O N O N N N N N N N e m em mk je m md ml mk je k e h ed @ 3 A Wn Ea W O N mE DS VO N S N NN E W N = SQ e Exhibit 3 - Plaintiff attaches documents memorializing the oral agreement entered in 2007, and alleges to attach “electronic mail on or around September 28, 2007” memorializing the oral agreement on the payment of the mortgage. e Exhibit 3 - Attaches emails actually dated on the 1% page as November 7, 2007 (not September 27, 2007 as the Complaint alleges), a correction Plaintiff would not make to the complaint. e At Paras. 20-2 - Plaintiff alleges that on this same date of September 28, 2007, the oral agreement entered provided for Plaintiff to (1) make the $79,500 down payment for the property, (2) with Defendant paying a larger amount of the monthly mortgage payment, and (3) Defendant also assuming and allocating $80,000 debt to the 2" mortgage, only. Allegations of the Contract Her Rights Under the 1% and 2™ Deeds of Trust: Para 39 - Plaintiff alleges that she has a “right and interest in her property including the loan repayments due under the First and Second Loan” (1°! and 2" Deeds of Trust, referenced at Para. 13 (1% Deed of Trust - 2007), Para. 14 (2™ Deed of Trust - 2007), and Para. 15 (Refinance of 2" Deed of Trust - 2015). Because these deed of trust agreements are not attached, the complaint stands as fatally uncertain and vague as to these claims as asserted. Plaintiff alleges this Court release Plaintiff from the Obligations of the 1 and 2" Ioan: Para. 25 - “Plaintiff demands that she is released from any and all obligations under the Deed of Trust and any accompanying note.” Defendant is wholly Because Plaintiff has refused to attach the Deed of Trust Agreements or provide their terms the complaint is fatally uncertain and vague as a result. Plaintiff alleges An Additional Right of Reimbursement - Without Any Agreement: Para. 24 - Right to reimbursement of “work toward capital improvements and maintenance” but fails to identify the contract or agreement on which this is based as these are otherwise not recoverable between joint tenants. Here, Plaintiff allege a right of reimbursement that is not addressed in any of the 3 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Lo 0 uN a nt As W N N O N RN O N N N N N N e m je m em em je m e k m k je k e d ed WW N S N UN hE W N = S 8 0 NN N N R W N = Oo agreements, and is otherwise unrecoverable for joint tenants (where all proceeds are merely split). The complaint is fatally uncertain as a result of the failure to address these terms or attach the agreement. Plaintiff alleges that There Has Been No Prior Finding on Title or Ownership: Para 29 - Plaintiff alleges that “there is a prior action between the Parties related to the Property, but not as to their title ownership.” e However, this is contradicted by the Verdict entered on January 31, 2020 - specific to title and equal ownership of the property between these parties. e Special Verdict Question No 1 - The Jury found the property was held in “joint tenancy” and the parties were “equal” owners of the property. e This document has been filed concurrently for judicial notice. Defendants thus demurrers to this cause of action on Civil Code 1624 and 7031 and 683 and Code of Civil Procedure 873.220. In sum - in the absence of attaching written contracts (or providing their terms) addressing the agreements entered by/between the parties on the mortgage obligation, the causes of action for an Accounting and/or Declaratory Relief are uncertain, ambiguous, and/or unintelligible. Cal. Code Civ. Proc. § 430.10(e)-(f). This demurrer is based on the provision of the California Code of Civil Procedure §430.10, and Civil Code §§ 1624 and 7031 and 683, this Notice, the attached Memorandum of Points and Authorities, the declaration of Susan L. Caldwell, the Request for Judicial Notice, and Motion to Strike, and all filings submitted hereto, as well as all pleadings, records and files in this action, and on such oral and documentary evidence as may be presented at the hearing on this matter. 7 DATED: July 20, 2020 AE LAW GROUP /s/ S us in LI yA Caldwell Attorneys for Defendant OLUFEMI OGUNTOLU 4 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Vo 0 3 N t Aa W N N O O N O N N N NBN N N N O N e m je m jm s mk je t md ed fe d ed fe d WW J A Wn EA W N E O S YW W N S N E W N = e TABLE OF CONTENTS LL BASIS FOR DEMURRER IL. INTRODUCTION III. STATEMENT OF RELEVANT FACTS IV. THE PURPOSE OF A DEMURRER IS TO DISPOSE OF BASELESS ACTIONS AT THE PLEADING STAGE V. LEGAL ARGUMENT A. PLAINTIFF IS REQUIRED TO ATTACH ALL WRITTEN CONTRACTS FOR WHICH CLAIMS ARISE OR RELATE FROM - BUT PLAINTIFF HAS REFUSED TO DO SO, MAKING THE COMPLAINT FATALLY UNCERTAIN B. PLAINTIFF - WHO DOES NOT DISPUTE TITLE HELD BETWEEN THE PARTIES IS IN JOINT TENANCY - PRAYS FOR CONTRIBUTION FOR MAINTENANCE AND CAPITAL IMPROVEMENTS WHICH ARE COSTS NOT PERMITTED BETWEEN JOINT TENANTS UNLESS SPECIFIED BY SEPARATE CONTRACT WHEREBY PLAINTIFF’S FAILURE TO IDENTIFY/ ATTACH THE UNDERLYING AGREEMENT MAKES THE PLEADINGS FATALLY UNCERTAIN 1. Joint Tenants Do Not Have a Right of an Accounting - as they are Equal Owners of the Whole of The Property UNLIKE Tenants-In-Common - UNLESS They Have Entered a Separate Agreement (and/or it was the Clear Intention of the Parties) 2. Plaintiff Fails to Allege a Contract Underlying Claims for Reimbursement Jor Capital Improvements and/or Maintenance - and Absent a Contract Alleged or Attached Supporting this Recovery - Plaintiff Fails to State a Cause of Action VI. CONCLUSION 3 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION 11 14 15 15 17 17 20 22 eo 0 NN a n t R W NY NN O R N O N N N N N N E m em em em e m em e m mk mk 0 NN A Wn E W N = O NO QW a N E W N = TABLE OF AUTHORITIES Air Quality Products, Inc. v. California (1979) 96 Cal. App. 3d 340 Blank v. Kirwan (1985) 39 Cal. 3d at 311 Clements v TR Bechtel (1954) 43 Cal.2d 227 Construction Protective Services, Inc. v TIG Specialty Ins. Co (2002) 29 Cal.4™ 189 Combs v Ritter (1950) 100 Cal.App.2d 315 Cosler v Norwood (1950) 97 Cal.App.2d 665 CDM Investors v Travelers Casualty & Surety Co, (2006) 139 Cal. App.4™ 1251 Cole v Cole (1956) 139 Cal.App.2d 691 Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566 Demetris v Demetris (1954) 125 Cal.App.2d 440 Donlon v Donlon (19570 155 Cal.App.2d 362 George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112 Kershman v Kershman (1961) 192 Cal. App.2d Meyer v Sup. Ct. (1927) 200 Cal.776 Donavan v Donovan (1963) 223 Cal.App.2d 691 McWhorter v McWhorter (1929) 99 Cal. App. 293 Meyer v Sup. Ct. (1927) 200 Cal.776 Milian v DeLeon (1986) 181 Cal.App.3d 1185 Ochoa v McCush (1931) 213 Cal. 426 Olivero v Rosana (1941) 42 Cal. App.2d 740 Ochs v PacifiCare of California (2004) 115 Cal. App.4™ 782 Palacin and Columbia Casualty (2004)119 Cal. App.4™ 855 Rakestraw v. California Physicians, Service (2000) 81 Cal.App.4th 39 Richardson v Sup. Ct. (1929) 101 Cal.App. 638 Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal. App. 3d 292 Civil Code $§685 Civil Code $686 Code of Civil Procedure §873.260 Code of Civil Procedure §872.720 Code of Civil Procedure $872.801 6 . 14 14 15 15 20 20 15 18 14 20 18 21 20 20 18 18 18 19 20 20 15 21 14 18 14 21 21 21] 21 21 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION eo 0 NN n T Ra W N N O O N N N O N O N N N N em em em mk ee d em e d e d e d e d W@W 1 AN Un A W N E D Y e N S N NN E W N = e IL BASIS FOR DEMURRER Pursuant to California Code of Civil Procedure §§ 430.10(a)-(g), 430.30, 430.60, 851, and California Rules of Court, Rule 3.1320, subdivision (e) and (f), DEFENDANT OGUNTOLU hereby demurrers to Plaintiff’s First Amended Complaint on the following grounds. DEMURRER TO THE 1 CAUSE OF ACTION FOR AN ACCOUNTING WITHOUT ATTACHING OR OUTLINING TERMS OF MORTGAGE AGREEMENTS 1. Plaintiff and Defendant own a single parcel of property that houses a duplex located at 3242-3244 Ingledale Terrace, Los Angeles, CA 90039. 2. Plaintiff alleges and does not dispute that title was recorded in Joint Tenancy when the property was purchased in October, 2007 and remained in Joint Tenancy until Plaintiff severed the survivorship provision late this year. 3. Plaintiff and Defendant litigated this property for the last 2 years - since 2018 - disputing the rights of ownership and division of the property. On July 31, 2020, the JuryReturned a verdict finding: * Jury Verdict Question No. 1 - Finding that the Property is a Joint Tenancy; * Jury Verdict Question No 1 - Finding the Plaintiff and Defendant are “Equal” Owners. ! 4, Plaintiff alleges - that despite being joint tenants - that an oral agreement was entered in September, 2007, allocating the mortgage payments in the written deed of trust for the purchase of real property. Plaintiff attaches the memorializing notes of this oral agreement, no other contract. 5. Plaintiff also alleges that written deeds of trust were entered for the 1% and 2" mortgages at time of purchase with CitiBank - and that the parties entered into a refinancing in 2015 - but has failed to produce any of these agreements (the 1%, 2", and Refinancing) that ! See concurrently filed Request for Judicial Notice, Special Verdict of January 31, 2020. 7 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION ee 0 N A n T Ee W N N O O N N N N N N N NN DN o m mm mm em em me d p e d ed fe d ed W N A UN E W N = S O ww N N N R A W N = Plaintiff is seeking to enforce, is seeking “release”, and/or relate to the prior oral agreement related to these same terms. 6. Plaintiff's failure (refusal) to attach the written Deed of Trust Agreements (including the 2015 refinance) that are plead and rights and demands are made - arise from contract and are required to be attached and/or the terms of these agreements specified. Plaintiff has refused to do so, making the allegations to enforce these contracts and rights (or to secure release from them) inherently uncertain and vague and subject to demurrer. DEMURRER TO THE 1% CAUSE OF ACTION FOR AN ACCOUNTING - WHERE AN AGREEMENT WOULD BE REQUIRED AND IS NOT PLEAD 7. Plaintiff addresses the terms of the oral agreement she wishes to enforce in the Complaint - one which allocated another $80,000 to Defendant for the 2° Trust Deed. However, Plaintiff also alleges reimbursement for improvements to the property, including home renovations. 8. Because Plaintiff acknowledges that the property is held in Joint Tenancy, reimbursement for improvements and/or an accounting of these costs is impermissible in the absence of a contract between the parties (or challenge/correction to title.) These allegations are fatally uncertain where there is no agreement alleged or basis for these claims, as would be required as a matter of law. DEMURRER TO THE 1% CAUSE OF ACTION FOR AN ACCOUNTING BASED UPON AN ORAL CONTRACT ALLEGED TO BE ENTERED IN SEPTEMBER, 2007 - BUT FOR WHICH A NOVEMBER, 2007 EMAIL IS ATTACHED 9. Defendant further demurrers on grounds that the Complaint is uncertain where the allegations allege a September, 2007 oral agreement and allege that the memorializing email from 8 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Oo 0 NN SA A W N N O O N N N N N N NN N e m oe s em em je m je m mk pe md W@W 3 A WN E W N = D VY 0 Na N S N E W N =m September, 2007 is attached - when, instead, a November, 7, 2007 email is attached. This conflict makes the pleading fatally uncertain and factually defective, and subject to demurrer. DEMURRER TO THE 3RP CAUSE OF ACTION FOR DECLARATORY RELIEF WHERE STATEMENT OF NO LITIGATION ON TITLE OR SHARE OF OWNERSHIP IS INACCURATE AND DISPUTED BY JUDICIAL NOTICE 10. Lastly, Defendant further demurrers on grounds that the 3" cause of action for Declaratory Relief alleges that there has been no prior litigation related to title or the parties share of ownership. However, a Jury Verdict was returned on January 31, 2020, directly contradicting this allegation - finding, instead, that the property was a Joint Tenancy and was equally owned by both parties. This was in response to claims at trial by Plaintiff of an oral agreement that modified these rights. II. INTRODUCTION Plaintiff and Defendant own a single parcel or property in Atwater Village, California - to which both parties are in agreement to partition by sale. Underlying Litigation on Title & Equal Ownership Interest: Plaintiff and Defendant have been in litigation with respect to the ownership interest and rights since 2018 arising from Defendant (who is now Plaintiff) MONTOYA’s ouster of Plaintiff (who is now Defendant) OGUNTOLU’s right to access parts of the property due to MONTOYA’s claims that the parties entered an oral agreement before the purchase of the property that unequally divided the rights to the property and which involved MONTOYA'’s claim of owning more of the property (and carrying less debt) than OGUNTOLU on the 2" mortgage. After consideration of the evidence, a jury verdict was returned in Plaintiff (now Defendant) OGUNTOLU’s favor on January 31, 2020, (LASC BC722093) on claims of ouster 9 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION eo 0 a N n RE W N N O N NN N N N N N N ee em j m em em em em E m em WR 9 AN NM A W N = OS VW 0 N N N R W N = and nuisance - and specifically issuing a finding that the parties were (1) joint tenants, and (2) equal owners of the property. Special Verdict (Entered 1/31/20) & Judgment (Entered 5/1/20): The jury verdict - adopted by way of Judgment - found Plaintiff and Defendant owed the property as Joint Tenants and that the Plaintiff and Defendant were “equal” owners of the property. MONTOYA, who has since filed this subsequent action for Partition and an Accounting/Declaratory Relief, alleges incorrectly that no prior litigation respecting title has occurred, but the Special Verdict (Question No. 1) by the Jury and the Judgment refute this. Plaintiff Montoya’s Claims for an Accounting Based Upon 2007 Oral Agreement: MONTOYA now sues for (1) Partition for sale - a cause of action NOT contested by Defendant, but also sues for (2) an Accounting and (3) Declaratory Relief, the latter two causes of action for which Plaintiff Montoya asserts ~ despite the parties being Joint Tenants which by legal definition presumes an equal ownership interest in all proceeds for the property - that the parties entered an oral agreement in September, 2007, before the property was purchased, allocated an unequal interest in the property to Defendant on the 2" mortgage (Deed of Trust) entitling MONTOYA to more than 50% of the proceeds of the property’s sale. Plaintiff also asks for an accounting of her interest in the property. This oral agreement is alleged in the FAC to have been entered in September, 2007, before the purchase of the property, and the FAC incorrectly references an email allegedly memorializing this oral agreement as an email dated September 28, 2007, but attaches to the FAC at Exh. 3 an email dated November 7, 2007. (First page of Exh. 3 to the FAC). 2 See Exh. 1 to the Declaration of Susan L Caldwell (“Caldwell Decl.) hereto - the Special Verdict entered January 31, 2020, and Exh. 2 to the Caldwell Decl. - the Judgment entered in OGUNTOQOLU’s favor; These documents are concurrently filed in duplicate in Plaintiff's Request for Judicial Notice in Support of Demurrer and Motion to Strike. 10 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Oo 0 NN a nn ea W N N O O N N N M N N N N N E E em em em em em em em mm WW N S A " E d W N O E O Y 0 NN N N E W N =e Plaintiff Montoya’s Claims Arising From/Relating to the Written Deeds of Trust (Mortgage Agreements) Subsequently Entered by the Parties: Plaintiff MONTOYA acknowledges in her First Amended Complaint that the parties subsequently entered written Deed of Trust Agreements for the 1% mortgage and 2"! mortgage with respect to the mortgages at time of purchase in October, 2007, and acknowledges that the 2" mortgage (to which the oral agreement relates) was refinanced by a 3™ deed of trust in 2015 - but she does not attach any of these agreements or identify their terms, despite the fact that these are plead to have necessarily modified the oral agreement of September, 2007 and be the basis for claims asserted. Plaintiff Montoya Prays for Unidentified Rights to be Enforced Under the Unattached Written Deed of Trust Agreements (1% and ond Mortgage) - and for the Court to Release her From Unidentified Provisions of the Unattached Written Deed of Trust Agreement (Refinancing -2015): Plaintiff MONTOYA also prayers in her FAC to exercise her rights under both the 1° and 2™ Deeds of Trust - and, in conflict, also pleads for this court to release her from the obligations of the 1% and 2™ Deeds of Trust, and all of these allegations are vague and uncertain where Plaintiff has failed to attach the contracts (or specify their terms). Defendant Oguntolu’s Demurrer: Defendant thus demurrers on grounds that none of the contracts alleged in the FAC - and for which Plaintiff seeks remedy/relief in her FAC - are attached to the operative pleading and/or their terms are not specified. Further, Plaintiff pleads for rights and remedies of an Accounting which violate the equal-interest principle of Joint Tenancy absent an agreement between the parties (or modification of title) to unequally divide interests/assets from the sale of a property - and, yet, does not provide this agreement or a basis for these claims. 11 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Oo WW a a h A W N N O O N O N O N N N N N O N ee em em em em je m je m mk je k 0 3 A Nn E W N = OS Ne 0 N N N N R W Ny = D To resolve the pleadings, Defendant OGUNTOLU met and conferred and requested: e 1) Oguntolu requested the written deed of trust agreements which are alleged in the FAC at 713, 14, 15 - and of which Montoya seeks remedies in the FAC 9425, 39 - be attached to the FAC, or the terms specified. (This was refused by Montoya.) ¢ 2) Oguntolu requested Plaintiff’s additional claim for reimbursement of maintenance and capital improvements FACY{24 - since these payments are not otherwise permitted for Joint Tenants - be clarified as arising from an agreement (and/or attaching the agreement) to the FAC, since the complaint is unclear. (This, too, was refused.) ¢ In sum: Oguntolu requested these changes to permit the the pleadings to be certain. They were all refused by Plaintiff Montoya. III. STATEMENT OF RELEVANT FACTS Plaintiff and Defendant own a single parcel or property in Atwater Village, California. (FAC 1-2; Pg. 2:1-11) Plaintiff acknowledges title to the property is held in joint tenancy and was recorded on October 25, 2007, which is incorporated at Exhibit 1 to the First Amended Complaint. (FAC 8, Pg. 3:5-8) Plaintiff assumed title with Defendant on October 25, 2007. (FAC 12, Pg. 3:19-20) Plaintiff alleges that the parties secured a primary (1%) mortgage from CitiMortgage (via Deed of Trust) on October 25, 2007. . (FAC 13, Pg. 3:25-26) The deed of trust agreement, by its nature, would have set forth the mortgage obligations between the Parties on the 1% mortgage from 2007. This contract - the Deed of Trust for the primary/1% mortgage from 2007 - is not attached to the FAC, although Plaintiff Montoya seeks remedies and release from terms (unidentified) in this agreement. (FAC 939, Pg. 6:25-27 - Plaintiff asserts a claim of her “right and interest. ..due under the First and Second Loans”, and demands “release from any and all obligations under the Deed of Trust.”) Plaintiff alleges that the parties secured a secondary (2"%) mortgage from CitiMortgage (Deed of Trust) on October 25, 2007. (FAC 14, Pg. 3:27-28) This contract, however, the 2" Deed of Trust from 2007 is not attached. Plaintiff alleges that the parties - 8 years later - refinanced the primary (1*') mortgage with CitiBank (Deed of Trust) dated December 28, 2015. (FAC 415, Pg. 4:1-4) Plaintiff alleges that on September 28, 2007, before purchase or entry of the deeds of trust 12 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION eo 0 a Nt AR W N N O N N N N N N N N EE em em em em em p e t m l mk ek 0 ~~ A Wn sa WwW N = Do 8 ag N N N Ee W N =e or grant deeds, Plaintiff and Defendant entered an oral agreement on how to split the mortgage for real property. (FAC 918-23, Pg. 4:9-28) o The Terms of the 2007 Oral Agreement: Plaintiff alleges that on this same date of September 28, 2007, the oral agreement entered provided for Plaintiff to (1) make the $79,500 down payment for the property, (2) with Defendant paying a larger amount of the monthly mortgage payment - Plaintiff's $347/month vs Defendant’s $893/month since 2007 (Para. 23), and that (3) Defendant also assumed and allocating $80,000 more debt from the 2" mortgage (Deed of Trust), only. e Exhibit 3 to the FAC Plaintiff attaches documents memorializing the oral agreement entered in 2007, and alleges to attach “electronic mail on or around September 28, 2007” memorializing the oral agreement on the payment of the mortgage. (FAC 18, Pg. 4:9-10) o Incorrect Date on Exhibit 3 - Plaintiff attaches the email and alleges it to be dated September 28, 2007 - but Exh. 3 is actually dated November 7, 2007. o Defendant Oguntolu Requested Correction of the Date (or Attachment of the Correct Email) to Correct the Pleading Error: This was refused by Montoya. Plaintiff Montoya’s Claims Arising from Contract (Mortgage Agreements) Under the 1% and 2" Deeds of Trust: Plaintiff alleges that she has a “right and interest in her property including the loan repayments due under the First and Second Loan.” (FAC 39, Pg. 6:25-27). Plaintiff pleads the 1% and 2" Deeds of Trust, referenced at Para. 13 (1 Deed of Trust - 2007), Para. 14 (2™ Deed of Trust - 2007), and Para. 15 (Refinance of 2" Deed of Trust - 2015). Plaintiff then - also - pleads to be released “[F] rom any and all obligations under the Deed of Trust” agreements (1%, 2" and Refinancing Deeds of Trust). (FAC 29, Pg. 4:20-21) Notably, these agreements (including the refinancing deed of trust) are directly relevant to Plaintiff’s claims of a pre-existing oral agreement on the mortgage payment - and the refusal to provide all agreements related to the mortgage payments entered makes the claims unclear and fatally uncertain, 13 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION No 0 NN A Wn Re W N N N N N N N N N N m m em ew em pm mk mk mk e m GQ J A Wn a W N =m Oo VW 0 N N E W N Plaintiff alleges An Additional Right of Reimbursement -from Another Agreement: As clear from the FAC, Plaintiff alleges an oral agreement was entered by the parties which provided the Defendant would owe more money on the 2" (unattached) written Deed of Trust Agreement. (FAC 421, Pg. 4:19-22) However, Plaintiff also alleges that - despite being joint tenants - she is further entitled to reimbursement of “work toward capital improvements and maintenance, specifically new flooring, new fixtures, new ceilings, remodeling the kitchen, a new water heater, a new retaining wall, new built-in outdoor seating, a new retaining wall [sic], new landscaping, and gardening.” (FAC 24, Pg. 5:1-5) 1°: The costs for maintenance and/or capital improvements are not allocated for Joint Tenants under California law (as they are for Tenants-in-Common) - absent a contract reflecting the intention of the Joint Tenants to do otherwise. Yet, the FAC fails to identify the contract or agreement underlying these demands which are clearly different and outside of the oral agreement allegedly in the FAC to have apportioned more of the debt on the 2" written Deed of Trust to Defendant. 2": Plaintiff does not allege when these costs were incurred and fails to provide that these fall within the 2 year statute of limitation, even if recoverable. Here, Plaintiff’s allegations of a right of reimbursement that is not addressed in any of the agreements alleged or attached to the pleadings, and is otherwise unrecoverable for joint tenants (where all proceeds are merely split), along with a failure to specify these costs occurred within the 2 year statute of limitation, causes this claim to be fatally uncertain and subject to demurrer. IV. THE PURPOSE OF A DEMURRER IS TO DISPOSE OF BASELESS ACTIONS AT THE PLEADING STAGE California Code of Civil Procedure §430.10, subdivision (e), allows a party to object by demurrer to a complaint that fails to state facts sufficient to constitute a cause of action. California Code of Civil Procedure §430.10, subdivision (f), also allows a party to abject by demurrer to a complaint when the complaint is uncertain. One of the primary functions of a 14 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Oo 0 NN a nn E W N N O N O N N N N N N N NN O N o e em o m em em em mk je l em ed 0 VN SN WN A W N QS Oo Ww a N R a W N = Oo demurrer is to filter out actions that lack a substantial basis, before the Court and the parties expend significant resources on cases that should not proceed beyond the pleading stage. Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal. App. 3d 292, 300. Conclusory allegations are insufficient to overcome a demurrer; otherwise, plaintiffs would have no reason to plead in any other manner, thereby significantly postponing the determination of which cases lack substantial factual or legal support and rendering demurrers as virtually meaningless for challenging baseless actions. Id. To survive a demurrer, a complaint must allege facts "sufficient to establish every element of each cause of action." Rakestraw v. California Physicians, Service (2000) 81 Cal.App.4th 39, 43. Although a court is to assume the truth of the factual allegations in ruling on a demurrer, mere contentions, deductions, or conclusions of fact or law cannot defeat a demurrer. Air Quality Products, Inc. v. California (1979) 96 Cal. App. 3d 340, 347; Rakestraw V. California Physicians’ Service (2000) 81 Cal. App. at 43. Moreover, unless the Plaintiff can demonstrate a reasonable possibility that a defect can be cured by amendment, a demurrer should be sustained without leave to amend. Blank v. Kirwan (1985) 39 Cal. 3d at 311, 318; see, also, Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-71. Here, where Plaintiff alleges claims arising from contracts (deeds of trust) which are not attached and their terms are not specified, and where recovery of certain other proceeds is not alleged to be based upon a contract and/or any of its terms, these allegations are unclear and fatally vague and uncertain - warranting demurrer to permit amendment and clarity of claims asserted. V. LEGAL ARGUMENT A. PLAINTIFF IS REQUIRED TO ATTACH ALL WRITTEN CONTRACTS FOR WHICH CLAIMS ARISE OR RELATE FROM - BUT PLAINTIFF HAS REFUSED TO DO SO, MAKING THE COMPLAINT FATALLY UNCERTAIN Plaintiff alleges claims and remedies arising from the written Deeds of Trust (1% and 2™ of 2007 and Refinance of 2015) - and even her underlying oral agreement required Defendant to 15 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION eo 0 Na N SN n T E W N N O N O N N N N N N O N O e mm p m pe p m je l em e d e d ed QW J A N E W N = S e 0 N N N R W N = assume a greater portion of the debt of the 2" written Deed of Trust Agreement entered in 2007, of which was refinanced in 2015. It is well accepted doctrine of this state that a party alleging claims arising from contract must identify whether a contract is oral and written, and - if written -is required to attach the agreement unless the complaint alternatively sets forth all of the substantive and material terms for the written contract so as to provide a clear understanding of its terms. See, Clements v TR Bechtel (1954) 43 Cal.2d 227 (where operative complaint details all of the material terms of the contract and parties in formation and relevant to the breach, challenge to the complaint by demurrer may properly be sustained.) See, also, Construction Protective Services, Inc. v TIG Specialty Ins. Co (2002) 29 Cal.4™ 189, 198-199 (in an action with allegations based upon or arising from contract, the contract if written should be attached or its terms specified); Ochs v PacifiCare of California (2004) 115 Cal.App.4™ 782, 795-797 (demurrer proper where contract is not attached); CDM Investors v Travelers Casualty & Surety Co, (2006) 139 Cal. App.4™ 1251, 1268-1269. Here, however, what is evident from the FAC is that Plaintiff Montoya: 1) Alleges that 4 mortgage agreements were entered - a 2007 Oral agreement, the 2007 written deeds of trust (1% and 2") and the refinancing of the 2° in 2015 (via deed of trust); 2) Plaintiff alleges that the oral agreement to which she seeks to enforce - allocated a greater portion of the mortgage to Defendant - and allocated a greater share of debt for the 2™ written Deed of Trust agreement to Defendant; 3) Plaintiff alleges the oral agreement setting forth mortgage payments and debt on the 2™ Deed of Trust was also subject to refinancing in 2015 - per the 2015 written Deed of Trust Agreement; and 16 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION ee 0 NN N n EAE W N N O N N N O N O N O N N O N O e em em e m em je m pm b pe d mk ed WW I A Wn Ea W O N =m S Y W N S N NN R W N = 4) Lastly, Plaintiff alleges that she is entitled to her “rights and interests” in all written Deed of Trust agreements but, also, asks this Court to release her from certain unidentified provisions of these written Deed of Trust agreements (1%, 2™ of 2007 and Re-fi of 2015) In sum: It is evident that Plaintiff is alleging and pursuing claims under the totality of agreements for the mortgage, inclusive of the written Deed of Trust Agreements, to which even her oral agreement necessarily refers. However, Plaintiff has refused to attach these agreements to provide clarity on (1) the allegations, (2) the terms she wishes to enforce, and (3) the terms she wishes to be released. Plaintiff cannot state a cause of action for an accounting which is necessarily based on contracts between the parties and not attach the contracts (or plead their terms). On these grounds, Defendant requests the court sustain demurrer to permit the deeds of trust to be attached and clarity of the claims and terms raised in this lawsuit. B. PLAINTIFF -- WHO DOES NOT DISPUTE TITLE HELD BETWEEN THE PARTIES IS IN JOINT TENANCY - PRAYS FOR CONTRIBUTION FOR MAINTENANCE AND CAPITAL IMPROVEMENTS WHICH ARE COSTS NOT PERMITTED BETWEEN JOINT TENANTS UNLESS SPECIFIED BY SEPARATE CONTRACT WHEREBY PLAINTIFE’S FAILURE TO IDENTIFY/ATTACH THE UNDERLYING AGREEMENT MAKES THE PLEADINGS FATALLY UNCERTAIN Plaintiff alleges in her FAC that title is held by herself and Defendant as Joint Tenants (Para. 8), Plaintiff does not dispute title. Even further, the jury verdict returned on January 31, 2020 in the action related to the division of the property and rights thereto, the jury also made an affirmative finding that the parties were - in fact - joint tenants at all relevant times. (Exh. 1 to Caldwell Decl., and Exh. A to Request for Judicial Notice.) Further, it is clear that the FAC alleges an oral contract that apportioned a higher mortgage payment to the Defendant (Para. 23) and for Defendant to assume a higher debt ratio of the 2" Deed of Trust (Para. 21) - which was refinanced in 2015 (Para. 15). However, the FAC alleges a right to recovery maintenance and capital improvements and fail to identify what basis these terms are recoverable. 17 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION OC 0 N h Ee W N N O N N N N N N N N E em em je m mk mk md ed mk p d 0 J SA Wn A W O N O m S e Ww NN N n E W N = 1. Joint Tenants Do Not Have a Right of an Accounting - as they are Equal Owners o the Whole of The Property UNLIKE Tenants-In-Common - UNLESS They Have Entered a Separate Agreement (and/or it was the Clear Intention of the Parties) California Civil Code §683(a) defines Joint Tenancy, in part, as: “IA] joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer....” One of the cardinal distinctions between a Joint Tenancy and Tenancy-in-Common is that (1) a Joint Tenancy provides the owners jointly an indivisible 100% interest in the property as a whole - versus, with Tenants-in-Common, a divisible interest in less then the whole of the property,’ (2) a Joint Tenancy provides - in the absence of a contract modifying this right - that the owners have an equal interest - versus, with Tenants-in-Common, owners do not have an equal interest in the property, and (3) Joint Tenancy provides for successorship of title to the other owner(s) - versus, with Tenants-in-Common, the owners do not carry a right of successorship of the other owners’ interests. Under California law, because Joint Tenants are equal owners in the whole of the property, indivisibly, they have a right - absent a contract to the contrary - to equal interest in proceeds without regard to an Accounting (or reimbursement for costs of the project). Joint Tenants are entitled to equal shares of rents paid on the property by tenants, and claims on partition for an accounting of rents is commonly seen. See, for example, McWhorter v McWhorter (1929) 99 3 Joint Tenancy and Tenancy -in-Common are two distinct ways to hold a common interest in property. While joint tenants hold an indivisible interest in the entire share of the property, Tenants-in-Common can hold varying interests in the property. See, for example, Donlon v Donlon (19570 155 Cal. App.2d 362, 367 (joint tenancy confers an indivisible right to the whole of the property - the fee); Cole v Cole (1956) 139 Cal. App.2d 691, 695 (Joint Tenants have equal interests; Meyer v Sup. Ct. (1927) 200 Cal. 776. 18 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Oo 0 Na A hh AE W N N N O N N N N N N N NN N N N o o m em em em mk mk mk em ed 0 J A Wn A W N = S Y 0 N N N E W N = Se Cal. App. 293; Richardson v Sup. Ct. (1929) 101 Cal. App. 638. The parties - here - did not have tenants. Outside of contribution of rents from tenants between all Joint Tenant owners, however, the presumption of Joint Tenancy - and the required equal payout of funds/interests - is not abrogated merely as a result of differing contributions to the purchase or operation of the property. Donavan v Donovan (1963) 223 Cal. App.2d 691, 696-697 (presumption is that title in Joint Tenancy is correct, without regard to source of funds for purchase or otherwise). The mere fact that one Joint Tenant paid more for the property than the other - or, here, that Plaintiff paid the $79,500 down payment in 2007 or that Defendant Oguntolu has paid $85,000 more in mortgage payments - is irrelevant for Joint Tenants who are deemed to be equal owners with an equal interest in the property at large, as a whole, indivisibly, with equal rights to proceeds. See, also, Donlon v Donlon )(1957) 155 Cal.App.2d 362. In fact, the Court noted in the pivotal case of Milian v DeLeon (1986) 181 Cal. App.3d 1185, 1195, that there is not 1 case in California that provides an Accounting to reimburse a Joint Tenants for capital contributions, down payments, or financial contributions to the property - in the absence of a contract permitting reimbursement. In Milian, an engaged couple purchased a property and placed title in Joint Tenancy. After never marrying and separating, the male took the position that upon partition, a Joint Tenant is entitled to reimbursement for costs of the property, including payment of a disproportionate portion of the purchase price as he had done, so as to permit an unequal division of proceeds from the sale. Id. at 1195. As the Milian Court disputed all authority cited by the plaintiff - on grounds it applied to Tenants-in-Common and not Joint Tenants - even further noting that “[n]or indeed have we discovered a single case in which a true joint tenancy was found [where].... an accounting and contribution was ordered because of disproportionate contributions by the 19 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION Lo 0 NN SA Un ER W N BN O N N N N N N N N O ms mm p m mm e d mk mk pe d f m @ N S Nn A W N = O Y NN S N E W N m e parties” to the property and/or including down payment for the “original purchase price.” Id. at 1195. The Milian Court went on to note: “If a tenancy in common rather than a joint tenancy is found, the court may either order reimbursement (citation omitted) or determine the ownership interests in the property in proportion to the amounts contributed (citation omitted). It appears to be otherwise in respect to true joint tenancies, however, where by definition ownership of the property is equal.” Id at 1196 [Emphasis added. ] It is clear and evident, absent contract between parties for reimbursement, the right of recovery between joint owners on partition has only been extended to Tenants-in-Common, only, arising from the payment by one owner in excess of his “interest” in the property (Civil Code §§685, 686) which may be recovered in equity which exceed their interest/share in the property at large. See, for example Code of Civil Procedure §§ 873.260, 872.720. 872.801, see. also, Ochoa v McCush (1931) 213 Cal. 426, 431; Olivero v Rosana (1941) 42 Cal. App.2d 740, 743. In every single case where an Accounting was permitted - or reimbursement for monies paid, equitable contributions - every case involved (1) either different title: Tenants-in-Common, or (2) where title was quieted to Tenants-in-Common, or (3) based upon contract/agreement between the parties for reimbursement. See, for example, Kershman v Kershman (1961) 192 Cal. App.2d 23, 26 (parties agreement was deemed by the court to have provided for reimbursement, which the court upheld); Cosler v Norwood (1950) 97 Cal.App.2d 665, 666 (court upheld understanding of parties at purchase and as related to interest)); Demetris v Demetris (1954) 125 Cal.App.2d 440, 442 (title challenged due to mistake and reformed to Tenancy-in-Common based upon understanding and agreement of parties which permitted reimbursement/reallocation). Thus, California does not permit Joint Tenants a right to an Accounting for reimbursement without a contract. Further, California also provides no right of reimbursement for “maintenance” of the property held in joint tenancy. See, Combs v Ritter (1950) 100 Cal.App.2d 315. Plaintiff nonetheless seeks this recovery without stating the required facts for such claim. 20 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION oo @® Na S n ae W N N O N N N N N N N N ee em em em em p m em ee e d ed 0 J A WN Ea W O N mE SS C W NN N N E W N e m e s 2. Plaintiff Fails to Allege a Contract Underlying Claims for Reimbursement for Capital Improvements and/or Maintenance - and Absent a Contract Alleged or Attached Supporting this Recovery - Plaintiff Fails to State a Cause of Action Here, Plaintiff clearly Seeks Remedies without Alleging an Underlying Contract: e At Para. 24 - Plaintiff seeks damages for maintenance of the property and improvements - including wood flooring and remodeling to her unit and Prays for an accounting at Pg. 7:14; Pg. 7:21-22; and Pg. 7:16 - which are not described or alleged in any agreement in the FAC and are not permissible for a Joint Tenancy. e At Plaintiff's Prayer for Relief, Pg: 7:15, further requests for an accounting of the parties’ interest - which, too, is not permissible for a Joint Tenancy in the absence of a contract. Plaintiff fails to state a cause of action for this recovery where - as here - she does not allege any contract underlying the recovery of these costs, attach the contract (if written), or provide its terms if oral. Absent the pleading of a contract - or the basis for this plea - Plaintiff’s First Amended Complaint is fatally uncertain and vague as to the basis for this claim and, to the extent it can only arise from a contract which has not been plead, fails to state a cause of action. Both grounds subject the First Amended Complaint to demurrer. 3. Plaintiff’s Citation to Wrong Dates - Inconsistency in the Pleading of a September Oral Contract with Attachment of a November Document - Subjects the First Amended Complaint to Demurrer. Lastly, and as reflected above, Plaintiff alleges that an oral agreement was entered and memorialized on September 28, 2007 and pleads that this September 28, 2007 document is being attached at Exh. 3 when, instead, a November 7, 2007 document is attached. It is clear on the face of the pleading that there is an error and inconsistency - between Para. 18 and Exh. 3 - which leaves the pleadings fatally unclear and uncertain. Where the Complaint alleges a statement of fact which is inconsistent with the document attached (and/or inconsistent with another factual pleading such as to deem the allegation to be incorrect), demurrer lies. George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1128; see, also, Palacin and Columbia Casualty (2004)119 Cal. App.4™ 855, 862. Defendant moves,herein. 21 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION oo 0 9 A N n t AR W N BN N N N N N BN O N N N e m em em em t mk em mk e k pe d pe d QL J & Wn A W O N = C N N N N ER W N e m s VI. CONCLUSION Based on the foregoing, and accompanying Judicial Notice and Declaration attached hereto, Defendant OLUFEMI OGUNTOLU respectfully demurrers to the First Amended Complaint. 7 DATED: July 20, 2020 cape fu GROUP /s/ Sus i By. [ -_- Attorneys “for DEFENDANT OLUFEMI OGUNTOLU DECLARATION OF SUSAN L. CALDWELL I, Susan L. Caldwell, am a licensed attorney before the laws of this state and a principal of Caldwell Law Group, counsel of record for Defendant DARLING INGREDIENTS, INC.. I know the following to be true of my own personal knowledge and if called to testify, I could and would competently do so. 22 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION eo WW NN N N Aa W N N O O N O N O N N N N N N ee j m mk e t p m mk pe d pe d e d e d WW NN S N Wn E W N E S VW NN S N N R W N = 1. Attached hereto at Exh 1 is a true and correct copy of the Special Verdict rendered between Plaintiff and Defendant on January 31, 2020 finding on Question No. 1 that the parties are “Joint Tenants” of the property at issue in this lawsuit - and have an “equal” ownership interest in the property; Attached hereto at Exh. 2 is a true and correct copy of the Judgment entered on May 1, 2020, which reflects the Jury’s finding that Plaintiff and Defendant - NINA MONTOYA and OLUFEMI OGUNTOLU - are joint tenants with equal ownership interests in the property. RE: MEET AND CONFER 3. Imet and conferred with Plaintiff's counsel via telephone and via email/letter on many occasions before this demurrer was filed. The meet and confers included a request by Defense counsel for Olufemi preparing a Stipulation and a Stipulation for Leave for Plaintiff to file a 2" Amended Complaint where Defendant requested: a. The Deeds of Trust be attached or terms explained since the First Amended Complaint seeks to enforce these contracts and incorporates them into the Oral Agreement; b. Requested clarification that there was no separate agreement for which Plaintiff Montoya was requesting reimbursement of maintenance and capital improvements, at Para. 24. ¢. Requested that the date of the memorialization at Para. 18 - or the correct email be attached that correlates with the date referenced in Para. 18. d. Defense counsel refused all of these proposals. 23 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION eo 0 9 a nt AR W N N O N BN N N BN N N N N e m em em t e k pe d md e d pe d e d pe 0 J & Wn hE W N = o 8 0 N N S N E W N = Oo 5. The meet and confers included the fact the Complaint was subject to demurrer per CCP 430.41 and the law included in this demurrer related to Joint Tenancy. 6. The meet and confers focused significantly on the fact that these minor changes can eliminate the costs necessary to demurrer -as, otherwise, the First Amended Complaint remained vague and uncertain as to certain allegations (and whether they were from a contract, or not, or which contract, much less the terms at-issue). 7. This demurrer and the accompanying motion to strike have been initiated in good faith and only after meaningful and multiple meet and confers with counsel, all of which were refused by Plaintiff. I declare under penalty of perjury that the foregoing is true and correct, executed this 20" day of July, in Beverly Hills, Ca 90212. /s/ Su a. Caldwell By: 24 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION EXHIBIT 1 L E E R ["] 28 I Ww N§ 10 11 12 13 14 I 18 16 | 17 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES ~ STANLEY MOSK OLUFEMI OGUNTOLU, Plaintiff, vs. NINA MONTOYA, Defendant. ol of E T - CASE NO.: BC722093 SPECIAL VERDICT Q T R a Ww v e 10 11 12 14 15 16 17? 13 19 20 21 22 23 24 25 26 27 28 Ouster |{ We the jury answer the questions submitted to us as follows: 1. Was owner of the property with equal ownership? No If your Ewer to question 1 is yes, then answer question 2. If you answered no, continue to question 9. 2, Did Defendant's conduct manifest an unambiguous intent to exclude or dispossess, or preveat the use of property by another cotenant, from gaining or sharing possession of VY Ha 5 ) If yout answer to-question 2 is yes, then answer question 3. If you answered no, continue to question 9. 3. Did Defendant €Xthn If your answer to question 3 is yes, then answer question 4. If yon answered no, continue to question 9. 4. Was Defendant If your answer to question 4 is yes, then answer question 6. If you answered no, continue to question 9. If your answer to question $ is yes, then answer question 6. If you answered no, continue to question 9. VERDICT FORM KOA LOIGEIA "6 wonsanb 03 pasooly To ‘STW G14 PINOT JUBPTIR( 157) PUPAL AN, r-less 8 rb fz "g uonsanb 03 pasoog savy ssofeure( [E10], ] [ssemsiq pue dryspIeH] $3850] SIWOUOIS-UON *q A tag) 99-paly $m pnp preg soup of sopmeuadog) Qa BEG L$ omamumm1 jo potsag Sum prog 10 STA Freay {5985077 OMIOUOOH [B10], °B SP3pIBAE 3q PIROYS [Ruis]d S238TIEP JO JUNOIIE a1) 61 BUM. °L *6 uonsanb 0) s uyuoo S- *¢ uonsanb ramsue warp sa s1 9 uonsanb 0) zomsue mok Jy oN {urey 8,njojunSQ yaruiQ) SEND UY Joi) [PREKSGNS © POPUD CN SEAL °9 :14 Le 92 §C ve £C Te TT 0z 61 8t LT 97 ST of N Mm i -t e t [1 wt NN Mm WE o n VW ~~ © O&O =0 2 O n e s 10 11 12 13 14 16 17 is 19 20 21 22 23 24 25 26 27 28 \ A Yes occupy, or control the property? If your answer to question 9 is yes, then answer question 10. If you answered no, continue to question 20. 10. Did Defendant by acting or failing to act, create a condition or permit a condition to avon Rarsibel oy ucalsh, wad Iipcett ce fiaeive ta tn sence, or ous an He freg use of property, so as to interfere with the comfortable No continue to question 20. 12. If Defendant’s conduct was unintentional, was it negligent or reckless? No If you answered yes to either question 11 or 12, then answer question 13, If you answered no to both questions 11 and 12, continue to question 20. 13. Did Def substantially interfere with Piaintiff’s use or enjoyment of her land? { es No If wer to question 13 is yes, then answer question 14. If you answered no, continue o question 20, VERDICT FORM N = 0 OO NN a un de Ww 10 11 13 14 15 16 17 18 19 20 21 22 23 ‘24 25 26 27 28 I natty mle person be spat on dort by Defendant’s condict? a 7 No If your answer to question 14 is yes, then answer question 15. If you answered ro, continue to question 20. 5 to question 16 is yes, then answer question 17. If you answered no, coating to question cin 20. 17. Was Defen 3 conduct & substantial factor in causing Plaintifi’s harm? ve - No er to question 17 is yes, then answer question 18. If you answered no, continue to question 20. 18. me harm outweigh any public benefit of Defendant’s conduct? Yes No zd If your answer to question 18 is yes, then answer question 19. If you answered no, continue to question 20. 19. What is the amount of damages Plaintiff should be awarded? Economic Losses: SV Non-economic Losses: $ ST Proceed to question 20. VERDICT FORM ww 0 Ww UV 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I 20. Did Piaintiff consent to and approve all the acts and/or omissions about which Plaintiff now complains? - Yes Proceed to question 21. Consent = VERDICT FORM A T T QF . anh wm bk W N ww 0 «2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Waiver 21, Did Plaintiff believe was required to give her unfettered access to Defendant’s front yard? \ ~ Yes / No If your answer $5 izition 21 is yes, then answer question 22. If you answered no, proceed to question 23. 22. Did Plaintiff freely and knowingly give up her right to have Defendant perform this obligation? - Yes BVA No ) aon Proceed to question 23. VERDICT FORM S 0 o A S 0 E R WOW ® WN N V Ee Ww NN = o s Vv = Oo 13 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | Avoidable Consequences | 23. Could Plaintiff have avoided the Defendant's conduct through reasonable effort? - Yes If your answer to question 23 is yes, answer question 24. If you answered no, please sign the verdict form. 24. Did Plaintiff make a reasonable effort to avoid the harm caused by Def ndant's conduct? | - Yes No Please sign and date the verdict form. Signed: v e s t e J a Dated: ) 21/20 77 After the verdict form has been signed, notify the Courtroom Assistant that you are ready to present your verdict in the courtroom. VERDICT FORM EXHIBIT 2 El ec tr on ic al ly Re ce iv ed 03 /1 6/ 20 20 02 :5 6 PM OO 08 9 A Un E W N El ec tr on ic al ly Re ce iv ed 03 /1 6/ 20 20 02 :5 6 PM 1 2 13 14 15 16 17 18 19 20 21 23 26 27 28 SUSAN L. CALDWELL (SBN: 190421) CALDWELL LAW GROUP 9701 Wilshire Blvd., 10* Floor Beverly Hills, CA 90212 FILED Telephone: (310) 858-7000 Suparier Court of Caflornia Facsimile: (310) 858-7008 : unty of Los Angeles E-Mail: scaldwell@caldwelllaw.com 05/01/2020 Sherri R Carter, Exsautiva Oficer | Qe of Count Attorneys for Plaintiff OLUFEM] CGUNTOLU SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES -- CENTRAL DISTRICT OLUFEMI OGUNTOLU, Case No.: BC722093 [Assigned for all purposes to the Honorable Gregory Alarcon) : Plaintiff, vs. {FROROGSED} JUDGMENT FOLLOWING JURY VERDICT AT TRIAL NINA MONTOYA, An Individual, and Does 1 - 10, Inclusive, Defendants. TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Trial in the above-entitled matter came regularly for hearing before the Honorable Gregory Alarcon, Judge presiding. The matter was tried before a jury impaneled to hear the case, The operative complaint was the First Amended Complaint. The case proceeded to trial on behalf of Plaintiff OLUFEMI OCGUNTOLU seeking recovery on two causes of action: the Fi Cause of Action against Defendant NINA MONTOYA on Ouster/Ejectment and the Seco Cause of Action against Defendant NINA MONTOYA on Nuisance. Jury trial proceeded on January 22 - 24 and January 27 - 31, 2020, in Dept. 36 of the] above-entitled court, Los Angeles Superior Court, Central District - Stanley Mosk Courthouse, 1 PROPOSED] JUDGMENT ON VERDICT AFTER TRIAL OW 0 3 O N Wn bh W N B Y R R R B R E E B E I a a R S R = s located at 111 N. Hill Street, Los Angeles, California. Plaintiff OLUFEMI OGUNTOLU was represented by Susan L. Caldwell of the law firm of Caldwell Law Group. Defendant NINA MONTOYA was represented by Shannon Seibert of the law firm of Seibert Bautista Montoya. On January 31, 2020, the jury retumed a special verdict in favor of the Plaintiff OLUFEMI OGUNTOLU on both causes of action for Ouster/Ejectment and Nuisance as follows. “SP Ouster We the jury answer the questions submitted to us as follows: 1. Was Plaintiff a joint tenant owner of the property with equal ownership? X____ Yes No If your answer to question 1 is yes, then answer question 2. If you answered no, continue to question 9. 2. Did Defendant’s conduct manifest an unambiguous intent to exclude or dispossess, or prevent the use of property by another cotenant, from gaining or sharing possession of jointly owned property? X Yes No If your answer to question 2 is yes, then answer question 3. If you answered no, continue to question 9. 3. Did Defendant exclude, dispossess, or prevent the use of property by Plaintiff from jointly owned property? X Yes No If your answer to question 3 is yes, then answer question 4. If you answered no, continue to question 9. 2 [PROPOSED] JUDGMENT ON VERDICT AFTER TRIAL OW 00 NN O N a W N ee E N R B R B V R N E B E E S I a G R E T E S = 4. Was the Defendant’s conduct wrongful? XX Yes No If your answer to question 4 is yes, then answer question 6. If you answered no, continue to question 9. §. Was Plaintiff harmed by Defendant’s conduct? X Yes No If your answer to question 5 is yes, then answer question 6. If you answered no, continue to question 9. 6. Was Nina Montoya’s conduct a substantial factor in causing Olufemi Oguntolu’s| harm? | X_ Yes No If your answer to question 6 is yes, then answer question 7. If you answered no, continue to question 9. 7. What is the amount of damages Plaintiff should be awarded? a. Total Economic Losses: Rental value of Yard During Period of Interference: $7,030.00 Compensation for Monies Paid during Interference: 35,889.66 b. Non-economic Losses [Hardship and Distress] $0 Total Damages: $12,919.66 Proceed to question 8. 8. Did Plaintiff prove by elear and convincing evidence that Defendant acted with malice, oppression, or fraud? Yes _X No Proceed to question 9. 3 (PROPOSED| JUDGMENT ON VERDICT AFTER TRIAL 0 0 NN O n Ae W N E I R V R B V B P Y R E S T s I a a z i r T o n o = os so ar m- c c - - Nuisance 9. Did Plaintiff own, lease, eccupy, or control the property? _X Yes No If your answer to question 9 is yes, then answer question 10. If you answered no, continue to questions 20. 10. Did Defendant by acting or failing to act, create a condition or permit a condition to exist that was harmful to health, was indecent or offensive to the senses, or was an obstruction to the free use of property, 30 as to interfere with the comfortable enjoyment of life or property? __X_ Yes No If your answer to question 10 is yes, then answer question 11. If you answered no, continue to questions 20. 11. Was Defendant’s conduct in acting or failing to act intentional and unreasonable? X Yes No Proceed to question 12. 12. If Defendant’s conduct was unintentional, was it negligent or reckless? “N/A” Yes No If answered yes to either question 11 or 12, then answer question 13. If you answered no to both questions 11 and 12, continue to question 20. 13. Did Defendant’s conduct substantially interfere with Plaintifi’s use or enjoyment of her land? X Yes No If your answer to question 13 is yes, then answer question 14. If you answered no, 4 IPROPOSED| JUDGMENT ON VERDICT AFTER TRIAL WO 00 N N nn a W N m d p d p m b p e d p e d e d E d p e d p e d 0 NN O W N hE W N = Oo 19 continue to question 20. 14. Would an ordinary, reasonable person be annoyed or disturbed by Defendant’s conduct? _X Yes No If your answer to question 14 is yes, then answer question 15. If you answered no, continue to question 20. 18. Did Plaintiff consent to Defendants conduct? Yes _X No If your answer to question 15 is yes, then answer question 20. If you answered no, continue to question 16. 16. Was Plaintiff harmed? X_ Yes No If your answer to question 16 is yes, then answer question 17. If you answered no, continue to question 20. 17. Was Defendant's conduct a substantial factor in causing Plaintiff’s harm? _X Yes No If your answer to question 17 is yes, then answer question 18. If you answered no, continue to questions 20. 18. Did the seriousness of the harm outweigh any public benefit of Defendant’s conduct? __X Yes No If your answer to question 18 is yes, then answer question 19. If you answered no, continue to questions 20. 5 {PROPOSED| JUDGMENT ON VERDICT AFTER TRIAL OO 0 N N B W NY o e DN ) mt mt m m e d md s m e t be d ed e m © VW 0 N A V A W N - O 21 19. What is the amount of damages Plaintiff should be awarded? Economic Losses: $0 Non-economic Losses: $12,500 Proceed to question 20. Consent 20. Did Plaintiff consent to and approve all the acts and/or omissions about which Plaintiff now complains? Yes _X_ No Proceed to question 21. Waiver 21. Did Plaintiff believe Defendant was required to give her unfettered access to Defendant's front yard? X Yes No IF your answer to question 21 is yes, then answer question 22. If you answered no, proceed to question 23. 22. Did Plaintiff freely and knowingly give up her right to have Defendant perform this obligation? Yes _X No Proceed to question 23. Avoidable Consequences 23. Could Plaintiff have avoided the harm caused by Defendant’s conduct through reasonable effort? Yes _X No If your answer to question 23 is yes, then answer question 24. If you answered no, please sign the verdict form. 6 IPROPOSED] JUDGMENT ON VERDICT AFTER TRIAL OW 0 NN Oh ni & W N T V R R B E B E = I a a r g d 8 = 3 26 28 24. Did Plaintiff make a reasonable effort to avoid the harm caused by Defendant's conduct? “N/A” Yes No Please sign and date the verdict form.” The verdict was signed by the Presiding Jury and dated January 31, 2020. (A true and correct copy of the handwritten special verdict has been attached hereto in duplicate, at Exh. A) Loss of Rental Value for Property (for 1# Cause of Action: Ouster): $7,030.00 Compensatory Economic Damages (for 1 Cause of Action: Quster): $5,889.66 Non-Economic Damages (for 2** Cause of Action: Nuisance): $12,500.00 TOTAL VERDICT AWARDED: 825,419.66 Antho-proveiling-pasty; Plaintiff OGUNTOLU is thus entitled to costs as provided by law, including California Code of Civil Procedure §§1032, 1033.5. THE COURT HEREBY ORDERS, AWARDS, AND DECREES AS FOLLOWS: Judgment is awarded in favor of Plaintiff OLUFEMI OGUNTOLU and against Defendant NINA MONTOYA as follows: 1) Judgment in favor of Plaintiff is awarded in the amount of $25,419.66 2) Judgment shall draw interest at the legal rate of 10% per annum from and after the date of entry of judgment per CCP §685.010(a). IT IS SO ORDERED, ADJUDGED AND DECREED DATED: Mereh » 2020 05/01/2020 By: W. Alarcon : THE HONORABLE GREGORY ALARCON ¥¢” JUDGE OF THE SUPERIOR COURT Gregory W. Alarcon /f Judge 7 IPROPOSED| JUDGMENT ON VERDICT AFTER TRIAL eo 0 uN Sa n t A W N N O N O N O N O N O N O N N N e m e m em mk e k e k e d e k e k pe 0 J O S WN Es W O N e S 0 NN S N DN E W N = O STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) [ am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 9701 Wilshire Blvd., 10" Floor, Beverly Hills, CA 90212. On July 20, 2020, I served the within document(s) described as: DEFENDANT OLUFEMI OGUNTOLU’S DEMURRER TO FIRST AMENDED COMPLAINT; DECLARTION IN SUPPORT on all interested parties through their attorneys of record, address as shown below by the means designated below: H. Michael Soroy, Esq. CITIBANK, N.A. Law Offices of Michael Soroy c/o Legal Services 11766 Wilshire Blvd., Suite 270 5800 South Corporate Place Los Angeles, CA90025 Mail Code 451 Sioux Falls, SD 57108 [XX] [MAIL/ by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Beverly Hills, California, addressed as set forth above. I am readily familiar with the firm's practice of collection and process in correspondence for mail. Under that practice, it would be deposited with the U.S Postal Service on the same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presume invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [] ELECTRONIC SEVICE- By having Ace Legal Service effect e-service to counsel at the email reflected above. [] PERSONAL SERVICE- By personally delivering the document listed above in a sealed enveloped personally at counsel’s office as reflected in this proof of service. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 20, 2020, in Beverly Hills, California. Christine Mills 25 DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT; DECLARATION | Journal Technologies Court Portal Make a Reservation NINA MONTOYA vs OLUFEMI OGUNTOLU, et al. Case Number: 20STCV09322 Case Type: Civil Unlimited Category: Other Real Property (not eminent domain, landlord/tenant, foreclosure) Date Filed: 2020-03-05 Location: Stanley Mosk Courthouse - Department 17 Reservation Case Name: NINA MONTOYA vs OLUFEMI OGUNTOLU, et al. Type: Demurrer - with Motion to Strike (CCP 430.10) Filing Party: Olufemi Oguntolu (Defendant) Date/Time: 12/04/2020 10:00 AM Reservation ID: 490007242442 Fees Description First Paper Fees (Unlimited Civil) Demurrer - with Motion to Strike (CCP 430.10) Credit Card Percentage Fee (2.75%) TOTAL Payment Case Number: 20STCV09322 Status: RESERVED Location: Stanley Mosk Courthouse - Department 17 Number of Motions: 1 Confirmation Code: CR-98PTPWAJQUXKIMFPH Fee Qty Amount 435.00 1 435.00 60.00 1 60.00 13.61 1 13.61 $508.61