Mona Alaseri vs. The American Dream Home Mortgage And Realty

Motion to Strike

Cal. Super. - 4th Dist.November 2, 2015

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY FILED Superior Court of California, County of Orange 11/28/2016 at 11:41:00 Av Gene J. Goldsman, Esq. ~ SBN 76554 ~~ Clerk of the Superior Court LAW OFFICES OF GENE J. GOLDSMAN By Trinity Palabrica, Deputy Clerk 501 Civic Center Drive West Santa Ana, CA 92701-4059 (714) 541-3333/FAX (714) 541-0456 Attorney for Plaintiffs, MONA ALASERI and MANYAH ALMALKI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ALASERI, MONA; ALMALKI, MANYAH, Case No.: 30-2015-00817912 Plaintiff, Assigned: Hon. Nathan Scott Dept.. C-12 V. PLAINTIFF, MONA ALASERIA AND 2 THE AMERICAN DREAM HOME MOTION AND MOTION TO STRIKE MORTGAGE AND REALTY; HANNA LS OB AD RRA DEFENDANT, AMERICAN DREAM HOME MORTGAGE AND REALTY’S DEMURRER DOES 1 TO 20, INCLUSIVE TO PLAINTIFFS’ FIRST AMENDED Difendantis) COMPLAINT FILED IN COMPLETE DISREGARD AND IN VIOLATION OF CODE OF CIVIL PROCEDURE §§ 430.41, 472(a), 1008(a) AND BENNETT v. SUNCLOUD; MEMORANDUM OF POINTS & AUTHORITIES [CCP §§ 435-437; 1008, CCP §§ 177.5; CRC 3.1322(b), 2.30 ET SEQ.; FORBES v. CAMERON PETROLEUMS, INC. (1978) 83 CAL. APP. 3d. 257 AND BUCK v. MORROSSIS (1952) 114 CAL. APP. 3d. 461] [Filed Concurrently with Declaration of Evan A. Blair, Esq. and Attached Exhibits] Date: March 13, 2017 Time: 2:00 p.m. Dept. C12 Complaint Filed : November 2, 2015 Reservation #72488635 i PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A, BLAIR, ESQ. 10 11 12 I3 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that plaintiffs, MONA ALASERI, MONA and MANYAH ALMALKI, (collectively “plaintiffs”) hereby motions this Honorable court for an order against defendant, AMERICAN DREAM HOME MORTGAGE (“defendant” or ADHMR) to strike defendant, ADHMR’s: 1. Demurrer to plaintiffs’ first amended complaint (FAC) filed against plaintiff on or about October 24, 2016; A. Demurrer to plaintiffs’ first amended complaint filed by defendant in disregard and in violation of the limitations of demurring to a cause of action that was already demurred to and overruled as to plaintiff’s first cause of action for “general negligence” on 8/8/16 under CCP section 430.41 ef seq. and 472(a) ef seq.; B. Demurrer to plaintiffs’ first amended complaint filed by defendant in violation of Bennett v. Suncloud (1997) 56 Cal. App. 4% 91; C. Demurrer to plaintiffs’ first amended complaint filed by defendant in violation of the statutory meet and confer requirements under CCP section 430.41 et seq. (added 1/1/2016) and CCP section 472(a) (as amended on1/1/2016) and CCP section 430.41’s mandated meet and confer efforts to minimize demurrers which includes the filing of a meet and confer declaration pursuant to CCP section 430.41(a)(2) and (a)(3) (the statute's 30 day extension for failure to meet and confer declaration to extend the time to file a demurrer so more time is permitted to meet and confer), which was disregarded by defendant and defendant’s counsel, Mr. Stitz, Esq. (see, Blair, Esq. decl., Exhibit 5). Hence, plaintiff moves to strike defendant’s demurrer motion for failure to conform and comply with statutes, rules and California law under CCP section 435-437. This Motion Is Made Pursuant CCP §§ 435-437; 430.41 et seq. 472(a); California Rule of Court 3.1322(b) and 2.30 et seq., CCP section 177.5; Bennett v. Suncloud (1997) 56 Cal. App. 4% 91, 96-97, fn.1; CCP section 1008 (motion for reconsideration); Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal. App. 3d 257, 265 and Buck v. Morrossis (1952) 114 Cal. App. 3d. 461, 464 [when a motion to strike is used to challenge a demurrer, the motion to strike must be filed at or before the time an opposition to the demurrer is due, i.e., at least 9 court days before the hearing on the demurrer; and it must be set for ii PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. ~~ 19 20 21 25 26 27 28 hearing concurrently with the demurrer [see, Blair, Esq. decl., Exhibit 6 -- California Civil Courtroom Handbook and Desktop Reference, Chapter 13:6 (updated in April 2016)]; CCP sections 436(a) and (b), 435(b)(3) “A notice of motion to strike a demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer.” Id. The Hearing on this Motion for the aforementioned relief shall take place at: Orange County Superior Court, Central Justice Center, located at 700 Civic Center Drive West, Santa Ana, California 92701 on March 13, 2017 at 2:00 p.m. in Dept. C12. The plaintiff’s motion to strike shall be based on this notice of motion, motion, memorandum of points and authorities, Declaration of Evan A. Blair, Esq. with attached exhibits filed concurrently, Defendant’s filed demurrer to the first amended complaint (FAC) filed on or about 10/24/16; defendant’s filed demurrer to the original complaint (OC); the court’s 8/8/16 final minute order and tentative ruling on defendant’s demurrer to OC; plaintiff's OC; Plaintiff's FAC; the plaintiff's May 18, 2016 notice of ruling on defendant’s May 2016 failure to comply with CCP section 430.41 ef seq.; Plaintiffs’ to be filed ex parte application papers to set this motion to strike at the date and time of defendant’s demurrer to plaintiff's first amended complaint and opposition papers, if any; the court file, any opposition papers to this motion, prior court orders, and oral argument or evidence produced at the hearing on this motion. Respectfully submitted, Dated: November 28, 2016 LAW OFFICES OF GENE J. GOLDSMAN Gene J. Goldsnman, Esq. Evan A. Blair, Esq. Attorneys for Plaintiffs, iil PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 20 21 22 23 24 25 26 27 28 Gene J. Goldsman, Esq. - SBN 76554 LAW OFFICES OF GENE J. GOLDSMAN 501 Civic Center Drive West Santa Ana, CA 92701-4059 (714) 541-3333/FAX (714) 541-0456 Attorney for Plaintiffs, MONA ALASERI and MANYAH ALMALKI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE -- CENTRAL JUSTICE CENTER ALASERI, MONA; ALMALKI, MANYAH, Plaintiff, THE AMERICAN DREAM HOME MORTGAGE AND REALTY; HANNA, VIOLA, AND DOES 1 TO 20 DOES 1 TO 20, INCLUSIVE Defendant(s). Case No.: 30-2015-00817912 Assigned: Hon. Nathan Scott Dept.: C-12 PLAINTIFF, MONA ALASERIA AND MANYAH ALMALKI’S MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE AND REALTY’S DEMURRER TO PLAINTIFFS, FIRST AMENDED COMPLAINT FILED IN COMPLETE DISREGARD AND IN VIOLATION OF CODE OF CIVIL PROCEDURE §§ 430.41, 472(a), 1008(a) AND BENNETT V. SUNCLOUD; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT [CCP §§ 435-437; 1008, CCP §§ 177.5; CRC 3.1322(b), 2.30 ET SEQ.; FORBES V. CAMERON PETROLEUMS, INC. (1978) 83 CAL. APP. 3D. 257 AND BUCK V. MORROSSIS (1952) 114 CAL. APP. 3D. 461] [Filed Concurrently with Declaration of Evan A. Blair, Esq. and Attached Exhibits] Date: March 13, 2017 Time: 2:00 p.m. Dept. C12 Complaint Filed : November 2, 2015 Reservation #72488635 iv PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 10 11 15 16 17 18 20 21 22 23 24 25 26 27 28 MEMORANDUM I. INTRODUCTION A. Plaintiff’s Original Complaint and defendant, ADHMR’S April 2016 filed demurrer to plaintiff’s Original Complaint This is a general negligence-personal injury case filed by plaintiff, Mona Alaseri and Manyah Almalki (“plaintiffs”) against defendant The American Dream Home Mortgage and Reality, (“defendant” or “ADHMR?”). Plaintiffs were injured by bugs in their rental home that was either owned, maintained, inspected, repaired and controlled and advertised by defendants and each of them. Plaintiff’s OC alleged a cause of first cause action for “general negligence” and a second claim for “premises liability.” Both causes of action were directed at ADHMR defendant and another co- defendant Viola Hanna (see, Blair, Esq. decl., Exhibit 7 for OC) (who has since been dismissed from this case and Doe 1, Hasib Alkayali now within the allegations of the 8/17/16 filed plaintiff FAC) (see, Exhibit 8). This defendant’s demurrer to OC was originally filed on April 18, 2016 and set for May 19, 2016 hearing (see, Exhibit 1 for court’s own docket for procedural history related to defendant’s filed demurrers). Plaintiffs filed an opposition to demurrer to the OC on May 6, 2016. The court continued the defendant’s demurrer because defendant failed to meet and confer and comply with CCP section 430.41 ef seq. which requires a meet and confer procedure that defendant failed to comply with (See, Blair, Esq. decl., Exhibit 2 - plaintiff's May 18, 2016 notice of ruling regarding defendant’s failure to comply with meet and confer procedure under CCP section 430.41 et seq. ). As the court will notice, no CCP section 430.41, “30 day extension attorney declaration” was ever filed at any time by defendant or defendant counsel, then, under CCP section 430.41 subdvs (a)(2) (“Automatic 30-Day Extension for Failure to Meet and Confer”) (see, Exhibit 5 regarding statutory intent and application of CCP section 430.41 ef seq. requirements implemented on 1/1/2016 to prevent and avoid demurrers as a matter of public policy to avoid court processing burdens). The court requested the parties meet and confer. The defendant’s demurrer to OC was taken off calendar. What is to be noted here at this stage of the case, is that defendant did not file a CCP section 430.41(a)(2) 30 day extension declaration then in March or April 2016 or in May or June 2016...and again, now come September and October 2016 for the 10/24/16 defendant demurrer to FAC (Supra). -1- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 18 19 20 21 22 23 24 25 26 27 28 In that original defendant demurrer to OC, defendant ADHMR demurred on the basis that plaintiffs’ first cause of action for “general negligence” was “uncertain, ambiguous and unintelligible” citing to CCP section 430.10(f) [See, April 2016 and June 2016 filed “amended demurrer” court filed demurrer in court files]. Defendant’s October 2016 demurrer to FAC also demurs on the identical basis once again in violation of CCP section 430.41 including 430.41(b) specifically drafted to prevent this and which codifies Bennett v. Suncloud. (see, demurrer to FAC, pp. 3, In. 4-7; pp. 2, In. 1-3; pp. 7, In. 1-8; pp. 8, In. 1-15) In turn, as discussed in Bennett v. Suncloud, the new defendant demurrer violates CCP section 1008(a). B. Defendant, ADHMR’S June 2016 filed “amended demurrer” to plaintiff’s Original Complaint Defendant then refiled his demurrer to OC, entitled, “amended” demurrer to OC on June 2, 2016 with a hearing date of August 8, 2016. The problem with defendant’s demurrer to OC was that it was a “speaking demurrer” injecting extrinsic facts outside the four corners of the complaint, in violation of California law. Plaintiff filed an opposition to the demurrer to the OC on May 6, 2016. Again, no CCP section 430.41(a)(2) and (a)(3) attorney 30 day extension declaration was filed which shows an indifference to the meet and confer statute and desire to file demurrers. C. The court overrules defendant ADHMR’s demurrer to plaintiff’s first cause of action for general negligence and states that the second cause of action is duplicative of the first cause of action The court issued a tentative ruling on the court’s Internet website (see, Blair, Esq. decl., Exhibit 3). The court also issued an identical minute order (Id. Exhibit 3) The court’s final ruling overruled the demurrer to plaintiff’s first cause of action and sustained as to the second cause of action to the extent that the second cause of action for “premises liability” is redundant or duplicative with the first cause of action for “general negligence” under the first cause of action which incorporated by reference the paragraphs of the second cause of action (Exhibit 7, OC, pp. 4, par 1) The Exhibit 3 court final minute order stated: “Defendant The American Dream Home Mortgage & Realty’s Demurrer is OVERRULED as to the first cause of action but SUSTAINED WITH LEAVE TO AMEND as to the 2™ Cause of Action. -2- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 20 pa 22 23 24 25 26 27 28 1st Cause of Action, negligence. Plaintiffs state sufficiently certain cause of action for negligence (see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4" 666, 673 [elements]; Fenton v. Groveland Community Services Dist. (1982) 135 Cal. App. 3d 797, 809 overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal. 4 300, 328, fn. 30 [certainty]; Compl. [Paragraphs] GN-1(4) -~ GN 1(6).) 2nd Cause of Action, premises liability. This cause of action duplicates the 1% Cause of Action. (see Award Metals, Inc. v. Superior Court (1991) 228 Cal. App. 3d 1128, 1135; Rodriguez v. Campbell Industries (1978) 87 Cal. App. 3d 494, 501.) Plaintiff shall have leave to file an amended complaint no later than 8/19/16. Defendant shall give notice.” (Blair, Esq. decl., Exhibit 3 - court’s final minute order ruling on defendant’s demurrer to OC). Defendant did not file a notice of ruling, which was not an oversight, in retrospect. This was because defendant AMDHR’s demurrer to the first cause of action for negligence was “OVERRULED” but it is defendant’s intent all along to demurrer AGAIN to the same cause of action in a demurrer to the FAC (discussed Infra). D. Plaintiff files a first amended complaint (FAC) which removes defendant ADHMR from the second cause of action for “premises liability”’ leaving only Doe 1, Hasib Alkayali alone in that cause of action, yet defendant ADHMR seeks to demurrer again to the general negligence cause of action in violation of CCP section 430.41 and Bennett v. Suncloud On August 17, 2016, plaintiff filed a first amended complaint (FAC). Plaintiff amended the Complaint, filing an FAC, adding a 3™ and 4" cause of action to the yet-to-answer co-defendant, Hasib Alkayali, only, which had no bearing or impact on defendant, ADHMR. Barton v. Khan (2007) 157 Cal.App.4th 1216; CCP section 472 [party may amend against any party that has yet to file an answer to the complaint]. Plaintiffs’ FAC removed defendant ADHMR from the second cause of action for “premises liability” counts. The allegations in the first cause of action for general negligence and second cause of action for premises liability remained unchanged and identical as in the OC (sce, FAC, Exhibit 8 cf. Exhibit 7- OC) Defendant ADHMR. then attempts to start the CCP section 430.41 et seq. meet and confer process AGAIN in an effort to re-demurrer to the unchanged first cause of action for general negligence np PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 10 11 12 13 14 17 18 19 20 21 22 23 24 25 26 27 28 (see, defendant ADHMR’s demurrer to FAC). This violates CCP section 430.41(b) (see, Exhibit 5 article that addresses section 430.41(b) and its intent to avoid what defendant is now doing at bar). This violates Bennett v. Suncloud (1997) 56 Cal. App. 4" 91, 96-97, fn.1 and CCP section 1008(a), which forbids a party to re-demurrer to a cause of action that was previously demurred to and overruled or could have been previously demurred to, and not done by a moving party. Instead a party must comply with CCP section 1008(a) which requires the moving party to move the court within 10 days of the August 8, 2016, Exhibit 3 final ruling on demurrer to the OC and provide the court new facts, law or circumstances to re-demurrer again. Defendant’s October 17, 2016 signed and filed CCP section 430.41 declaration evidences an intent to meet and confer (without any good faith legal basis based on California law cited herein, and further compounds this wrong by not even attempting to file for a 30 day extension when defendant could not meet and confer after the initial CCP section 430.41 letter was purportedly sent to plaintiff’s counsel (see, defendant’s October 17, 2016 Leonard W. Stitz, Esq., signed, filed and defective meet and confer compliance declaration with no reference or effort to comply with CCP section 430.41(a)(2) and (a)(3) 30 day extension to meet and confer requirements.). Ultimately, the meet and confer process should never have started again for the demurrer to the FAC because there was no legal foundation or basis to demur to the FAC because it would violate California law. Again, CCP section 430.41(b) was designed to defeat a re-demurrer on issues previously decided on an earlier demurrer, which is now the subject of ADHMR’s new demurrer to FAC. II. ARGUMENT A. DEFENDANT ADHMR’S FILED AND TITLED DEMURRER TO FIRST AMENDED COMPLAINT WAS NOT FILED IN CONFORMITY WITH STATUTES, RULES OR COURT ORDERS AND IS SUBJECT TO BE STRICKEN AT BAR A court may strike from an answer any irrelevant, false or improper matter, or all or any part of the answer not drawn or filed in conformity with with the laws of this state or court rule. CCP § 436 et seq; 435 et seq. CCP §§ 435-437; California Rule of Court 3.1322(b). A motion to strike may be used to strike a demurrer or motion under Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App. 3d 257, 265 and Buck v. Morrossis (1952) 114 Cal. App. 3d. 461, 464. 435(b)(3) “A notice of motion to strike a “4 PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 17 18 19 20 21 22 23 24 25 26 27 28 demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer.” CCP section 435(b)(3); CCP section 436(a) & (b), Defendant, attempts to re-demurrer to plaintiff’s first cause of action for “general negligence” when they: a) had their bite at the apple in their original demurrer heard on 8/8/16; and b) were overruled on that demurrer. This violates Bennett v. Suncloud (1997) 56 Cal. App. 4 91, 96-97, fn.1; CCP section 1008 (motions for reconsideration within 10 days of the August 8, 2016 court ruling on demurrer to OC citing to new facts, law or circumstances) and CCP section 430.41(b), that was intended to deny a demurring party the ability to demur again to the same cause of action unless it was amended or to demur to causes of action or defenses that were not amended and not previously attacked on demurrer (Exhibit 5, pp. 2, par. 5, “Of Objection, And Meet And Confer Efforts: Will New Civil Procedure Requirements Make a Measurable Difference to Practitioners Or the Court?” OC Lawyer - February 2016, Kimberly Knill - Orange County Superior Court Research Attorney). Defendant ADHMR has completely disregarded and end-ran the requirements of CCP section 430.41 et seq. and 472(a), 1008(a) and Bennet v. Suncloud. Defendants 3 filings sought to be stricken under CCP section do not comply with those statutes and rules of procedure and are subject to be stricken under Buck, Forbes and other authorities. B. BENNETT V. SUNCLOUD AND CCP SECTION 1008(a) FORBID A PARTY TO RE- DEMURRER ON A CAUSE OF ACTION THAT WAS ALREADY OVERRULED IN A PREVIOUS DEMURRER AND TO DO SO, A MOVING PARTY MUST COMPLY WITH CCP SECTION 1008(a) MOTION FOR RECONSIDERATION REQUIREMENTS, WHICH DEFENDANT DID NOT DO, HENCE THE DEMURRER TO FAC MUST BE STRICKEN Bennett v. Suncloud (1997) 56 Cal. App. 4" 91, 96-97, fn.1 strictly forbids a party to demurrer to a previous cause of action that was overruled. To do so, a party must comply with CCP section 1008(a), which requires a party within 10 days (of the 8/8/16 demurrer to plaintiffs’ OC ruling) to move the court for reconsideration of that prior demurrer to OC ruling and provide the court new facts, law or circumstances as to why reconsideration is sought as a foundation to the motion. A motion for reconsideration is commonly thought to have two stages: First the court must decide whether to grant reconsideration as such; only after answering that question affirmatively would it proceed to actually reexamine the merits of the prior order. Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal. App.4th 868, 890. CCP section 1008 was designed to limit the -5- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 10 11 12 14 15 16 17 20 21 22 23 24 25 26 27 28 ability of parties to file repetitive motions for same or similar relief. CCP section 430.41(b) was designed to carry out this purpose but specifically to demurrers and judgment on the pleadings motions. A court presented with a subsequent motion based on substantially the same grounds and seeking substantially the same relief as denied may: a) Deny it summarily without reconsideration (City & County of San Francisco v. Muller (1960) 177 Cal. App. 2d 600, 603; or b) consider it and denity it (Josephson v. Superior Court (1963) 210 Cal. App. 2" 354, 358); or c) strike the motion by motion of the non-moving party fo strike the dubious motion under CCP section 435-437, 430.41, and under Bennett v. Suncloud (1997) 56 Cal. App. 4" 91, 96-97, fn.1 pursuant to Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App. 3d 257, 265 and Buck v. Morrossis (1952) 114 Cal. App. 3d. 461, 464. CCP section 1008 states: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” CCP section 1008 ef seq. Defendant’s motion has no affidavit of new facts, law or circumstances. There is no compliance with CCP section 1008, related to any foundation including, “....what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” CCP section 1008(a). No foundation as to law, fact or circumstances is presented. This is a defective motion for reconsideration as it is lacking these elements and therefore the demurrer to FAC must be stricken under Forbes v. Cameron Petroleums, -6- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 14 15 16 17 20 21 22 23 24 25 26 27 28 Inc. (1978) 83 Cal.App. 3d 257, 265 and Buck v. Morrossis (1952) 114 Cal. App. 3d. 461, 464 (see, Exhibit 6 - law on motion to strike a demurrer). “The body of Husband's motion provided no indication that the motion was based upon new or different facts, circumstances, or law, as required by Code of Civil Procedure section 1008, subdivision (a). Furthermore, Husband's affidavit in support of the motion failed to articulate any new or different facts, circumstances, or law for the court's consideration. His motion clearly did not satisfy the requirements of section 1008, subdivision (a) and the court had no jurisdiction to consider the defective motion. (Code Civ. Proc., § 1008, subd. (e).) Although this may not be the particular ground upon which the court determined it had no Jurisdiction to rule on his section 1008 motion, we affirm the rulings of the trial court if they are correct on any ground. (Virtanen v. O'Connell (2006) 140 Cal. App.4th 688, 710, 44 Cal.Rptr.3d 702.).” G.R.v. Intelligator (2010) 185 Cal. App. 4™ 606, 622 (emphasis added). A court is without jurisdiction to hear a CCP section 1008 motion for reconsideration brought without a supporting declaration under oath that is not based on “new or different facts, circumstances or law” (CCP section 1008(a)-(b), (e), Gilberdv. AC Transit (1995) 32 Cal. App. 4" 1494, Further, the defendant’s demurer to FAC was filed/served well beyond 3.5 months the 10-day time deadline which began to run on 8/8/16 when both parties “submitted” on the tentative ruling with “Defendant to give notice.” (Exhibit 3, Supra). Defendant decided to ignore its own duty to provide notice of its loss and overruling on demurrer in that the OC’s failure to state a claim on the first cause of action for general negligence was overruled. Defendant is estopped and barred by laches from seeing reconsideration now. The moving party may not add new evidence in their reply papers or it unlawfully violates the non-moving party’s due process rights. San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal App. 5" 308, 316; Zimmerman, Rosenfeld, Gersh v. Larson (2005) 131 Cal. App. 4™ 1466, 1475-1478. San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal App. 5™ 308, 316; Zimmerman, Rosenfeld, Gersh v. Larson (2005) 131 Cal. App. 4™ 1466, 1475-1478. It would be unfair to plaintiffs to consider missing evidence supplied in a reply. See California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1038; Allen v. City of Sacramento (2015) 234 Cal. App.4th 41, 52. Further, Defendants may not add new arguments or theories in their reply brief as it violates plaintiff’s federal and state constitutional procedural and substantive due process rights. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d. 1002, 1010. “By waiting until its reply brief to raise this _7- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 18 19 20 21 22 23 24 25 26 27 28 contention, plaintiff has waived it.”” Balboa Ins. Co. at 1010; Reichardt v. Hoffman (1997) 52 Cal. App.4th 754, 766. The demurrer must also be stricken under CCP section 430.41(b)’s legislative goals and public policy (See, Exhibit 5) (discussed, Infra). C. DEFENDANT AND ITS COUNSEL MUST COMPLY WITH ALL THE REQUIREMENTS OF NEW CCP SECTION 430.41 AND NOT THOSE ASPECTS OF THE STATUTE THAT DEFENDANT AND THEIR COUNSEL WISH TO FOLLOW IF THE MEET AND CONFER REQUIREMENTS WERE EVEN APPLICABLE TO DEFENDANT’S DEMURRER TO FIRST AMENDED COMPLAINT, AT BAR In 2016 the California Legislature instituted CCP section 430.41. This created a meet and confer requirement between a party that sought to file a demurrer against a complaint. A statutory scheme was set forth in section 430.41 et. seq. and the amended CCP section 472(a) related to the plaintiff’s “one amendment by right” for filing a complaint. The statute requires the parties shall meet and confer under section 430.41 subdvs. (a). That is mandatory. CCP § 430.41. states as follows: “ Meet and confer prior to filing demurrer; conference of parties where leave to amend granted; limit on number of amendments; actions excepted; appeal rights (a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross- complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading. (1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross- complaint, or answer could be amended to cure any legal insufficiency. (2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be -8- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 16 17 18 20 21 22 23 24 ‘25 26 27 28 granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause. (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. (4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (b) A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer. (c) If a court sustains a demurrer to one or more causes of action and grants leave to amend, the court may order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed. If a conference is held, the court shall not preclude a party from filing a demurrer and the time to file a demurrer shall not begin until after the conference has concluded. Nothing in this section prohibits the court from ordering a conference on its own motion at any time or prevents a party from requesting that the court order a conference to be held. (d) This section does not apply to the following civil actions: (I) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution. (2) A proceeding in forcible entry, forcible detainer, or unlawful detainer. (e)(1) In response to a demurrer and prior to the case being at issue, a complaint or cross- complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without -9. PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 10 11 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28 leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed. (2) Nothing in this section affects the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue. (f) Nothing in this section affects appellate review or the rights of a party pursuant to Section 430.80. (g) If a demurrer is overruled as to a cause of action and that cause of action is not further amended, the demurring party preserves its right to appeal after final judgment without filing a further demurrer, (h) This section shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. Credits (Added by Stats.2015, c. 418 (S.B.383), § 1, eff. Jan. 1, 2016.)” The departure came under CCP section 430.4 1(a)(2) where specific time deadlines are set for the meet and confer in person or by telephone. First, the meet and confer process shall occur within 5 days prior to the deadline to file the demurrer (30 days after service) (and any motion to strike must be filed concurrently with the demurrer (CRC. 3.1322(b) which is not relevant at bar as defendant did not file a motion to strike). Section 430.41 (a)(2) sets forth that if a meet and confer process cannot for some reason occur between the parties, then a 30 day extension is granted automatically so this may occur. Defendant must file a declaration of efforts to meet and confer and file this on or before the last day upon which the demurrer would have been filed. This grants the defendant or moving party an additional 30 days to file a demurrer so the parties will have more time to meet and confer (and non- moving party will use that time to either research law, re-draft a complaint if warranted and file an amended pleading). If the parties cannot meet and confer by that time, then a 30 day extension is granted by the demurring party’s filing of a declaration detailing actual or attempted meet and confer efforts which grants a 30 day extension. Section 430.41 subdyvs. (a)(3)(A)’s language envisions efforts to meet and confer in person or by telephone and that a meet and confer actually occurred as to the merits of the demurring party’s letter memorandum related to the pleading at issue (here the plaintiff's OC). -10- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 10 11 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 First, if CCP section 430.41(b) kept defendant from re-demurring to the general negligence cause of action (Exhibit 7 cf. Exhibit 8) along with Bennett v. Suncloud (1997) 56 Cal. App. 4* 91, 96-97, fn.1 and CCP section 1008(a) requirement to file a motion for reconsideration within 10 days, which defendant did NOT do, then why is defendant re-instigating the meet and confer process by letter? And if they are doing this, where is the CCP section 430.41(a)(2) and (a)(3) attorney declaration seeking a 30 day extension? Again, as stated above, section 430.41(b) states: “(b) A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” CCP section 430.41(b) “For example, the new [CCP section 430.41] statute provides that if a demurrer has been sustained to an earlier versio of a pleading, a party shall not demur to any portion of the amended pleading on grounds that could have been raised by demurrer to the earlier version. Id. Section 430.41. This was intended to deny a demurring party the ability to demur again to the same cause of action unless it was amended, or to demur to causes of action or defenses that were not amended or previously attacked on demurrer.” Blair Esq., decl., Exhibit 5, pp. 2, par. 5- OC Lawyer, February 2016 article) At bar, the first cause of action for general negligence directed at defendant in the FAC was not amended, nor were the factual paragraph allegations in the second cause of action. The FAC’s 2" 31 and 4™ causes of action are not directed at moving defendant ADHMR, but at co-defendant. Defendant’s demurrer to the FAC attacks allegations in the “general negligence” first cause of action for uncertainty again. The motives of counsel, who engage in blatant violations of existing California law intended to avoid precisely what defendant has done at bar must be addressed. The blatant disregard of section 403.41, Bennett v. Suncloud and CCP section 1008(a) motion for reconsideration by defendant’s race to cut the meet and confer procedure short (defendant did not file a 30 day extension meet and confer declaration with the court when his demurrer to FAC would have been due by), and quickly file another demurrer motion to the same first cause of action for general negligence in the OC versus FAC must be weighed. The legislature sought to avoid burdens on courts by creating section 430.41 and amending section 472(a) of the CCP. & 17 = PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 17 18 19 20 21 22 23 24 25 26 27 28 Only the court is left to enforce and prevent the legislative public policy goals to minimize presumed legitimate demurrers under new CCP section 430.41 and CCP section 472 (amended in 2016) along with Bennet v. Suncloud and CCP section 1008(a)’s motion for reconsideration requirements. Hence a striking of the defendant’s demurrer to FAC must be done to preserve all of plaintiffs’ rights and the integrity of the statutory procedure and process. The court cannot violate and must follow CCP section 430.41(b), Bennett v. Suncloud and CCP section 1008(a). All three mandate the defendant’s demurrer to FAC be stricken and not considered. Ignorance or mistake of law is not effective for CCP section 473(b) attorney mistake relief. “Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law....” (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 155, p. 749.) Henderson v. Pacific Gas (2010) 187 Cal. App. 4" 215, 229- 230. Pazderka v. Caballeros Dimas Alang, Inc., (1998) 62 Cal. App.4" 658, 671-672; Premium Comm'l Services Corp. v. National Bank of Calif. (1999) 72 Cal.App.4th 1493, 1496-1497; Martin v. Johnson (1979) 88 Cal. App. 3d 595, 606-607. Discretionary § 473(b) relief cannot be based on an error or omission arising out of an attorney's professional services. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th at 258. There is no salvation for the filings and course of action defendant and its counsel chose to take when it wrongfully re-started the meet and confer process by letter, and in doing so, did not even both to file a 30 day extension declaration with the court to meet and confer when a “good faith” demurrer would have due on or about September 16'™, 2016 (30 days from the day plaintiff filed/served their FAC on defendant). | Just because an advocate could file a motion does not mean he/she should exercise the right to file it. Sandpiper Village Condominium Ass'n., Inc. v. Louisiana-Pacific Corp. (2005) 428 F.3d 831, 854- 855 (9™ Circ.). Defendant’s advocacy here does not fall in the realm of “active and aggressive representation of a client” but insead falls within the realm of “dilatory, frivolous and bad faith actions” intended to burden, harass and oppress plaintiffs and plaintiffs’ counsel. Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 648-49. “Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.” Williams v. Superior Court (1996) 46 Cal. App.4th 320, 330. -12- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFES’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 10 11 12 13 16 17 18 9 20 21 22 23 24 25 26 27 D. THE TRIAL COURT MAY NOT DEVIATE FROM PROCEDURAL STATUTES AS WRITTEN BECAUSE THE PARTIES RELY ON THEM AND DEVIATIONS FROM PROCEDURE, RIGHTS, REMEDIES AND DUTIES UNDER PROCEDURAL STATUES EXCEED THE COURT’S POWER AND CANNOT BE ALTERED OR IT VIOLATES PLAINTIFF’S CONSTITUTIONAL DUE PROCESS UNDER STATE AND FEDERAL LAW, THUS CCP SECTION 430.41, 1008 MUST BE FOLLOWED Procedural statues including discovery statutes cannot be modified or altered by a court and must be strictly enforced. A court may not adopt procedures in conflict with procedural statutes under the CCP and will exceed the court’s jurisdiction to deviation from procedural requirements. Hernandez v. Superior Court (2003) 112 Cal.App.4th 285; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287. “[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.” Id. at 290. When a court has fundamental Jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. In re Marriage of Goddard (2004) 33 Cal.4th 49, 55; Conservatorship of O'Connor (1996) 48 Cal. App.4th 1076, 1088. As described in clear terms in Monarch Healthcare v. Superior Court (2000) 78 Cal. App.4th 1282, 1285-1286, courts are not free to ignore the Legislature's procedural requirements for the convenience of the parties: “Notwithstanding the parties’ express or tacit agreement, the court had a responsibility to act in accordance with the statutory procedures set out by the Legislature.” People v. Mendez (1991) 234 Cal.App.3d 1773, 1782-1783] [¢ “waiver of procedural requirements may not be permitted when the allowance of a deviation would lead to confusion in the processing of other cases by other litigants” ’]; People v. Silva (1981) 114 Cal. App.3d 538,549] [ ‘Where a statute requires a court to follow a particular procedure, an act beyond those limits is in excess of the court's jurisdiction.’]. See, also, Holm v. Superior Court (1986) 187 Cal.App.3d 124; University of Southern California v. Superior Court (1996) 45 Cal. App.4th 1283, 1289; Sporich v. Superior Court (2000) 77 Cal. App.4th 422, 427; Volkswagenwerk, etc. v. Superior Court (1981) 123 Cal.App.3d 840, 849; Boler v. Sup.Ct. (Everett) (1987) 201 Cal. App.3d 467, 472; Browne v. Superior Court (1979) 98 Cal.App.3d 610,and Sporich vs. Superior Court (2000) 77 Cal.App.4th 422. This impinges on a litigants and plaintiff’s constitutional due process notice rights to have advanced notice of requirements and procedures that will effect plaintiff’s rights and interests. A court may not adopt procedures in conflict with procedural statutes. Hernandez v. Superior Court (2003) 112 Cal. App. 4% 285. CCP section 430.41, 1008(a) and related case law must be enforced by this court. -13- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLLARATION OF EVAN A. BLAIR, ESQ. 11 12 3 14 17 18 19 20 21 22 23 24 25 26 27 28 E. THE COURT MUST MAKE AN EXAMPLE OF DEFENDANT AND DETER DEFENDANT AND THEIR COUNSEL FROM RACING TO THE COURTHOUSE TO FILE A REDUNDANT, FRIVOLOUS DEMURRER THAT WAS PREVIOUSLY OVERRULED IN AUGUST 2016 AND DETER A COMPLETE DISREGARD OF CCP SECTION 430.41 SO THAT THE STATUTE IS RESPECTED AND ENFORCED TO EFFECTUATE THE PUBLIC POLICY TO UNBURDEN COURT PROCESSING OF MOTIONS AND PROCEDURAL FAIRNESS AND EFFICIENCY The court must enforce CCP section 430.41 and 1008. Otherwise, parties like defendant will disregard and end-run procedural meet and confer statues and thwart the public policy goal to relieve courts of burdening motions that also serve the purpose to burden, harass and oppress opposing counsel like the re-demurrer to the same general negligence first cause of action. Procedure must be enforced, Public policy must be enforced. Judicial fairness must be enforced. All are end-goals of the statutes. Further, without consistent and regular statutory enforcement, some defendants and their counsels will simply ignore the statute in some departments and not in others based on the tendency of the Judge hearing the case to respect CCP section 430.41 et seq., 472(a), 1008, or not respect it or give it some weight but not enough weight to meet the public policy goals behind the statute and compromise within the statute for the pleading party. Again, procedural statues cannot be modified by courts short of a stipulation of the parties. Hernandez v. Superior Court (2003) 112 Cal. App.4th 285; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287 “[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.” Id. at 290 People v. Silva (1981) 114 Cal.App.3d 538,549] [Where a statute requires a court to follow a particular procedure, an act beyond those limits is in excess of the court's jurisdiction.’]. To prevent and deter defendant’s complete disregard of the statute, a complete striking of the defendant’s demurrer to FAC filed in October 2016 must occur as they are not in compliance with California law. III. CONCLUSION For the reasons stated herein the court should strike defendant’s demurrer to the FAC as it is not in conformity with California law under CCP section 435-437, 1008(a), 430.41, Bennett v. Suncloud (1997) 56 Cal. App. 4" 91, 96-97, fn.1; Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal. App. 3d 257, 265 and Buck v. Morrossis (1952) 114 Cal. App. 3d. 461, 464. -14 - PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 20 21 22 23 24 25 26 27 28 Again, the moving party may not add new evidence in their reply papers or it unlawfully violates the non-moving party’s due process rights. San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal App. 5" 308, 316; Zimmerman, Rosenfeld, Gersh v. Larson (2005) 131 Cal. App. 4™ 1466, 1475- 1478. San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal App. 5" 308, 316; Zimmerman, Rosenfeld, Gersh v. Larson (2005) 131 Cal. App. 4™ 1466, 1475-1478. It would be unfair to plaintiffs to consider missing evidence supplied in a reply. See California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1038; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52. Further, Defendants may not add new arguments or theories in their reply brief as it violates plaintiff’s federal and state constitutional procedural and substantive due process rights. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d. 1002, 1010. “By waiting until its reply brief to raise this contention, plaintiff has waived it.” Balboa Ins. Co. at 1010; Reichardt v. Hoffman (1997) 52 Cal. App.4th 754,766. The court must strike the defendant demurrer to FAC. Dated: November 28, 2016 LAW OFFICES OF GENE J. GOLDSMAN = 7 - Gene J. Gold sman , Esq. Evan A. Blair, Esq. Attorney for Plaintiffs = JB PLAINTIFFS® MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 11 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28 Gene J. Goldsman, Esq. - SBN 76554 LAW OFFICES OF GENE J. GOLDSMAN 501 Civic Center Drive West Santa Ana, CA 92701-4059 (714) 541-3333/FAX (714) 541-0456 Attorney for Plaintiffs, MONA ALASERI and MANYAH ALMALKI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ALASERI, MONA; ALMALKI, MANYAH, Plaintiff, THE AMERICAN DREAM HOME MORTGAGE AND REALTY; HANNA, VIOLA, AND DOES 1 TO 20 DOES 1 TO 20, INCLUSIVE Defendant(s). Case No.: 30-2015-00817912 Assigned: Hon. Nathan Scott Dept.: C-12 DECLARATION OF EVAN A. BLAIR, ESQ. AND ATTACHED EXHIBITS IN SUPPORT OF PLAINTIFFS, MONA ALASERI AND MANYAH ALMALKI MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE AND REALTY’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT [Filed Concurrently with Plaintiffs’ Motion To Strike Defendant, American Dream Home Mortgage and Realty’s Demurrer to Plaintiffs’ First Amended Complaint; Memorandum of Points And Authorities In Support] Date: March 13, 2017 Time: 2:00 p.m. Dept. Cl2 Complaint Filed : November 2, 2015 Reservation #72488635 -1- PLAINTIFFS’ MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 11 12 13 15 16 17 20 21 22 23 24 25 26 27 28 DECLARATION OF EVAN A. BLAIR, ESQ. I, Evan A. Blair, Esq. do hereby declare as follows: 1. Tam an attorney licensed to practice law in the State of California. The facts contained herein are from my personal knowledge. If called upon to testify to them, I could and would do so competently. 2. The Law Offices of Gene J. Goldsman represents plaintiffs, Mona Alaseri and Manyah Almalki (“plaintiffs”) in the above entitled case filed against defendant, American Dream Home Mortgage And Realty (“defendant”) along with a co-defendant. Iam an attorney at this law firm. I attend to nearly all of the law and motion matters at this law firm. 3. This is a personal injury- negligence case filed by the plaintiffs related to injuries sustained by plaintiffs, where they were bitten by bugs in their rented home. 4. Attached as Exhibit 1 is a true and correct copy of the court’s docket in the aforementioned, captioned case. 5. Attached as Exhibit 2 is a true and correct copy of defendant’s notice of ruling from May 18, 2016 in which the court continued defendant’s demurrer to the original complaint (OC) because of defendant’s failure to comply with all of the meet and confer requirements of CCP section 430.41 ef seq. 6. Attached as Exhibit 3 is a true and correct copy of the court’s August 8, 2016 minute order on defendant’s demurrer to plaintiff’s OC and tentative ruling posted on the Internet. 7. Attached as Exhibit 4 is a true and correct copy of defendant’s deficient CCP section 430.41(a)(2) and (a)(3) declaration signed on October 17, 2016 and filed on or about October 24, 2016, along with defendant’s demurrer to plaintiffs’ first amended complaint (FAC), which itself has no basis in law to be filed and served on plaintiffs in the first place 8. Attached as Exhibit S is a true and correct copy of an article from OC Lawyer from February 2016 entitled, “Of Objection, And Meet And Confer Efforts: Will New Civil Procedure Requirements Make a Measurable Difference to Practitioners Or the Court?” OC Lawyer - February 2016, Kimberly Knill, Author, - Orange County Superior Court Research Attorney. 0. Attached as Exhibit 6 is a true and correct copy of the California Civil Courtroom Handbook -2- PLAINTIFFS" MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. 20 21 22 23 24 25 26 27 28 and Desktop reference updated in April 2016. I printed this off of www.westlaw.com on November 21, 2016. On or about November 21, 2016 I looked to see if plaintiffs could reserve a date to have plaintiffs’ motion to strike defendant’s demurrer to FAC heard at the same time as defendant’s demurrer to FAC currently set for January 9, 2016. No reservation was permitted for that date with the court. I will have to move ex parte at a future date to advance this motion to strike so that it may be heard at the time of defendant’s demurrer to FAC pursuant to Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal. App. 3d 257, 265 and Buck v. Morrossis (1952) 114 Cal. App. 3d. 461, 464; CCP section 435-437, CCP sections 436(a) and (b), 435(b)(3) 10. Attached as Exhibit 7 is a true and correct copy of plaintiffs’ original complaint (OC). 11. Attached as Exhibit 8 is a true and correct copy of plaintiffs’ first amended complaint (FAC). I declare under penalty of perjury under the State Laws of California that the foregoing is true and correct. Dated: November 28, 2016 = Evan A. Blair, Esq., declarant _3- PLAINTIFFS" MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ. EXHIBIT 1 mm mmm mma Rees W etmw mea. = ----------- mga Case Summary: a rete mm mmm mmm mm mms mas mces peas, Case Id: | 30-2015-00817912-CU-PO-CIC Case Title: | MONA ALASERI VS. THE AMERICAN DREAM HOME MORTGAGE AND REALTY Case Type: | PI/PD/WD - OTHER Filing Dates] 11/02/2015 Category: | CIVIL - UNLIMITED Register Of Actions: ROA Docket Filing Filing - Select Date |Party | : | | EFILING TRANSACTION SHE AURECEIVED ON 11/02/2015 1:02:01 {ooo hy , | COMPLAINT FILED BY ALASERI, MONA; ALMALKL, MANYAHON | ~~ 6 pages 11/02/2015 5 | CIVILCASE COVER SHEET FILED BY ALASERL, MONA; ALMALKL, | ~~ I ees | | MANYAH ON 11/02/2015 | “pas A SUMMONS ISSUED AND FILED FILED BY ALASERI, MONA; - - ALMALKI, MANYAH ON 11/02/2015 | pag PAYMENT RECEIVED BY FOR 194 - COMPLAINT OR OTHER 1ST 5 |PAPER IN THE AMOUNT OF 435.00, TRANSACTION NUMBER 11871522 {11/02/2015 1 pages AND RECEIPT NUMBER 11695719. | CASE ASSIGNED TO JUDICIAL OFFICER NAKAMURA, KIRK ON 6 11/02/2015. 11/02/2015 | 1 pages {0 | CASE MANAGEMENT CONFERENCE SCHEDULED FOR 04/08/2016 AT | 5 canes 09:30:00 AM IN C15 AT CENTRAL JUSTICE CENTER. | “PASS 11 | E-FILING TRANSACTION HS | RECECVED ON 12/24/2015 09:46:36 La2a01s 7 |, | DECLARATION OF DUE DILIGENCE FILED BY ALMALKI, MANYAH; h SA oaos | at ALASERI, MONA ON 12/24/2015 pages [13 DECLARATION OF DUE DILIGENCE FILED BY ALMALKI, MANYAH; [12/24/2015 | caves ALASERI, MONA ON 12/24/2015 | pag [14 [| CASE REASSIGNED TO NATHAN SCOTT EFFECTIVE 02/29/2016. [02/11/2016 2 pages is CASE MANAGEMENT CONFERENCE REASSIGNED TO CI2AT | 0 J. CENTRAL JUSTICE CENTER ON 04/08/2016 AT 09:30:00 AM. : 16 | EFILING TRANSACTION S1362 IRECHED ON 03/07/2016 12:32:19 | po PROOF OF NON-SERVICE FILED BY ALMALKI, MANYAH; ALASER], 117 MONA ON 03/07/2016 03/07/2016 | 1 pages 1g | E-FILING TRANSACTION 131 Ba REGERED ON 03/22/2016 11:05:40 |2 ooo NV lo | CASEMANAGEMENT STATEMENT FILED BY ALMALKI, MANYAH; | 03/22/2016 - ALASERI, MONA ON 03/22/2016 : Bags [ 5 | E-FILING TRANSACTION AZ HCE ON 04/07/2016 11:57:48 |), oom ” [| | APPLICATION AND ORDER FOR PUBLICATION OF SUMMONS OR |, 17 oes | CITATION RECEIVED ON 04/07/2016. pagss PAYMENT RECEIVED BY ONELEGAL FOR 37 - REQUESTS NOT | REQUIRING A HEARING: CONTINUANCE OF HEARING OR CASE | 22 | MANAGEMENT CONFERENCE; STIPULATION AND ORDER; SERVICE [04/08/2016 | 1 pages BY POSTING OR PUBLICATION IN THE AMOUNT OF 20.00, TRANSACTION NUMBER 11948454 AND RECEIPT NUMBER 11772607. »3 | DEFAULT PROVE-UP HEARING SCHEDULED FOR 06/17/2016 AT | ooo - 09:30:00 AM IN C12 AT CENTRAL JUSTICE CENTER. | THE DEFAULT PROVE-UP HEARING IS SCHEDULED FOR 06/17/2016 AT, | 09:30 AM IN DEPARTMENT C12. ~|[PeiesEDl NY MINUTES FINALIZED FOR CASE MANAGEMENT CONFERENCE |» © 04/08/2016 09:30:00 AM. |perosrzote | Bages Po meee mens mmm fee mm mam mma oy mms mms meee mee tm = meme ROA Docket | Filing | Filing Document Select | Co | Date Party ol : 2% APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS |, : SUBMITTED BY ALASERI, MONA REJECTED ON 04/13/2016. | pees a E-FILING TRANSACTION HOES RECEIVED ON 04/13/2016 05:52:59 |, oo po »3 | DEMURRER TO COMPLAINT FILED BY THE AMERICAN DREAM [0,1 [o | HOMEMORTGAGE AND REALTY ON 04/13/2016 eee 29 | PROOF OF SERVICE FILED BY THE AMERICAN DREAMHOME |, 1, MORTGAGE AND REALTY ON 04/13/2016 | + pages | PAYMENT RECEIVED BY ONELEGAL FOR 195 - ANSWER OR OTHER | 30 | 1ST PAPER IN THE AMOUNT OF 435.00, TRANSACTION NUMBER [04/18/2016 I pages | 11953308 AND RECEIPT NUMBER 11777473. | | | DEMURRER TO COMPLAINT SCHEDULED FOR 05/19/2016 AT 02:00:00 | 3 PMINCIZAT., " joans016 NV 2 E-FILING TRANSACTION #543637 RECEIVED ON 05/06/2016 10:30:04 | oo NV | OPPOSITION FILED BY ALMALKI, MANYAH; ALASERI, MONA ON 33 EERIE 05/06/2016 18 pages [34 E-FILING TRANSACTION HATA REEEIVED ON 05/12/2016 05:15:45 [oo [wv 35 | REPLY TO OPPOSITION FILED BY THE AMERICAN DREAM HOME | 0s | 212016 | ; MORTGAGE AND REALTY ON 05/12/2016 | | | Pages + | PROOF OF SERVICE FILED BY THE AMERICAN DREAM HOME | _ I =~ MORTGAGE AND REALTY ON 05/12/2016 | Paes] [ 37 | EFILING TRANSACTION Hs EEC ON 05/19/2016 01:01:06 | = 6 = 2g | NOTICE OF RULING FILED BY THE AMERICAN DREAM HOME osiiom01e [, MORTGAGE AND REALTY ON 05/19/2016 pages 20 | PROOF OF SERVICE FILED BY THE AMERICAN DREAM HOME | _ MORTGAGE AND REALTY ON 05/19/2016 pages MINUTES FINALIZED FOR DEMURRER TO COMPLAINT 05/19/2016 “0 | 02:00:00 PM, | 05/20/2016 | pages 41 | E-FILING TRANSACTION 342054 ! RECHIyHE ON 06/02/2016 02:49:01 [oo 7 4» | DEMURRER TO COMPLAINT FILED BY THE AMERICANDREAM | ’ HOME MORTGAGE AND REALTY ON 06/02/2016 | pages | [43 | DECLARATION - OTHER FILED BY THE AMERICAN DREAM HOME | . | MORTGAGE AND REALTY ON 06/02/2016 : iin: 44 | PROOF OF SERVICE FILED BY THE AMERICAN DREAMHOME | | MORTGAGE AND REALTY ON 06/02/2016 pages | PAYMENT RECEIVED BY ONELEGAL FOR 36 - MOTION OR OTHER 45 | (NOT 1ST) PAPER REQUIRING A HEARING IN THE AMOUNT OF 60.00, [06/07/2016 1 pages TRANSACTION NUMBER 11979323 AND RECEIPT NUMBER 11803445. 46 | PEMURRER TO COMPLAINT SCHEDULED FOR 08/08/2016 AT 02:00:00 | NV PM IN C12 AT CENTRAL JUSTICE CENTER. | [47 | E-FILING TRANSACTION 1525461 | RECEIVED ON 06/02/2016 03:27:16 [| [ Ww 48 | PEMURRER TO COMPLAINT (AMENDED DEMURRER) FILEDBY THE [ ~~ : AMERICAN DREAM HOME MORTGAGE AND REALTY ON 06/02/2016 | | “Pages 49 | DECLARATION - OTHER FILED BY THE AMERICAN DREAM HOME | 0 | MORTGAGE AND REALTY ON 06/02/2016 | 7 pases [50 | PROOF OF SERVICE FILED BY THE AMERICAN DREAMHOME | 0 | MORTGAGE AND REALTY ON 06/02/2016 | | ERS=s 5 | DEFAULT PROVE-UP HEARING SCHEDULED FOR 08/01/2016 AT | a ( 10:00:00 AM IN C12 AT CENTRAL JUSTICE CENTER. ~~~ |"" "| mee mt Mm peer ee etm hmmm ma mm wm mmm pane j Filing |Filing ; ROA oo Hodkeh | | Date |Party {Document Select ORDER TO SHOW CAUSE SCHEDULED FOR 08/01/2016 AT 10:00:00 AM a2 IN C12 AT CENTRAL JUSTICE CENTER. IIHEEaRG Nv DEFAULT PROVE-UP HEARING CONTINUED TO 08/01/2016 AT 10:00 | 93 AM IN THIS DEPARTMENT. Pulzieite H¥ THE ORDER TO SHOW CAUSE IS SCHEDULED FOR 08/01/2016 AT 10:00 a AM IN DEPARTMENT C12. 05) STEN) Lid [| MINUTES FINALIZED FOR DEFAULT PROVE-UP HEARING 06/17/2016 | a j 55 09:30:00 AM. peiz0ns | 1 pages te 56 CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE [06/21/2016 2 pages «7 | EFILING TRANSACTION fais [RECEIVER ON 06/24/2016 10:15:32 [eno NV AMENDMENT TO COMPLAINT FILED BY ALMALKI, MANYAH; 38 ALASERI, MONA ON 06/24/2016 poL24/2016 1 pages so | E-FILING TRANSACTION Ath EERTER ON 07/25/2016 04:04:55 |e - | OPPOSITION FILED BY ALMALKI, MANYAH; ALASERI, MONA ON | 60 015016 07/25/2016 { 17 pages | [6 | EFLING TRANSACTION SAdORC0 REE ON 07/29/2016 05:38:11 foo NV REQUEST FOR DISMISSAL WITHOUT PREJUDICE - PARTY FILED BY | | 63 ALASERI, MONA ON 07/29/2016 rile | sb | 64 | CASE MANAGEMENT CONFERENCE SCHEDULED FOR 107242016 AT | ooo = 10:00:00 AM IN C12 AT CENTRAL JUSTICE CENTER. | THE CASE MANAGEMENT CONFERENCE IS SCHEDULED FOR | © 10/24/2016 AT 10:00 AM IN DEPARTMENT C2. 08/01/2016 NV 66 |MINUTES FINALIZED FOR MULTIPLE EVENTS 08/01/2016 10:00:00 AM. [08/04/2016 1 pages | <7 | E-FILING TRANSACTION RARE IREGEVED ON 08/08/2016 10:30:06 [pg ov | [NOTICE OF RULING FILED BY ALMALKI, MANYAH; ALASER], MONA 68 RRR 08/08/2016 3 pages s9 | EFILING TRANSACTION RAS BCH ON 08/09/2016 11:35:08 [0/0 7 20 | NOTICE OF RULING FILED BY THE AMERICANDREAM HOME | 0 5 cases MORTGAGE AND REALTY ON 08/09/2016 pag a PROOF OF SERVICE FILED BY THE AMERICAN DREAM HOME | ooo | sages MORTGAGE AND REALTY ON 08/09/2016 pag MINUTES FINALIZED FOR DEMURRER TO COMPLAINT 08/08/2016 | 72 02:00:00 PM. [ac1e201e 1 pages 73 | E-FILING TRANSACTION a FEECEGED ON 08/17/2016 12:11:32 | oo 7 AMENDED COMPLAINT (FIRST) FILED BY ALMALKL, MANYAH; | 7 ALASERI, MONA ON 08/17/2016 (PRLLZA0N { 70 pages 75 | E-FILING TRANSACTION 1338926 RECEIVED ON 08/19/2016 04:19:56 | 0 mo J. 26 | SUMMONS ISSUED AND FILED FILED BY ALMALKL, MANYAH; [000 - ALASERI, MONA ON 08/19/2016 | Pages | 47 | E-FILING TRANSACTION aT REGETVED ON 10/03/2016 04:39:07 | 0 J. 7g | PROOF OF SERVICE OF SUMMONS FILED BY ALMALKL, MANYAH; | Nl | ALASERI, MONA ON 10/03/2016 pages 1 ~ [ Jo | EFILING TRANSACTION 4621 53 | RECEIVED ON 10/17/2016 03:52:59 lonrzots a 40 | CASEMANAGEMENT STATEMENT FILED BY ALMALKL MANYAH; | = [6 omes | o ~ ALASERI, MONA ON 10/17/2016 Lm ope] pans mmm pete ee mmm wo mem meme emma mre = tae - I nye rym | ROA Docket Filing | Fillig Documents elect ro Date |Party 1 81 E-FILING TRANSACTION NUMBER 4621875 REJECTED. 10/20/2016 | 1 pages | 22 CASE MANAGEMENT CONFERENCE SCHEDULED FOR 12/12/2016 AT 10/24/2016 NV 10:00:00 AM IN C12 AT CENTRAL JUSTICE CENTER. CASE MANAGEMENT CONFERENCE CONTINUED TO 12/12/2016 AT : 83 ~ 10:00 AM IN THIS DEPARTMENT. a dd "MINUTES FINALIZED FOR CASE MANAGEMENT CONFERENCE 3 10/24/2016 10:00:00 AM. (ieszite peges | 85 E-FILING TRANSACTION 1330575 RECEIVED ON 10/24/2016 11:47:23 10/28/2016 NV | 86 DECLARATION - OTHER (RE MEET AND CONFER) FILED BY THE 10/24/2016 1 9 peiges i | AMERICAN DREAM HOME MORTGAGE AND REALTY ON 10/24/2016 | ~~" °| ~~ | =" 87 DEMURRER TO AMENDED COMPLAINT FILED BY THE AMERICAN 10/24/2016 ; 5 pes DREAM HOME MORTGAGE AND REALTY ON 10/24/2016 38 PROOF OF SERVICE FILED BY THE AMERICAN DREAM HOME | 10/24/2016 Iq BEES MORTGAGE AND REALTY ON 10/24/2016 ; PAYMENT RECEIVED BY ONELEGAL FOR 36 - MOTION OR OTHER | | 89 |(NOT 1ST) PAPER REQUIRING A HEARING IN THE AMOUNT OF 60.00, {10/28/2016 1 pages TRANSACTION NUMBER 12053618 AND RECEIPT NUMBER 11877563. | [90 DEMURRER TO AMENDED COMPLAINT SCHEDULED FOR 01/09/2017 | 10/28/2016 NV AT 02:00:00 PM IN C12 AT CENTRAL JUSTICE CENTER. i 91 E-FILING TRANSACTION 463308 RECEIVED ON 11/09/2016 11:28:11 11/09/2016 NV | 9 PROOF OF SERVICE OF SUMMONS FILED BY ALMALKI, MANYAH; 11/09/2016 2 pages j ALASERI, MONA ON 11/09/2016 Participants: Name Type Assoc | Start Date | End Date [THE AMERICAN DREAM HOME MORTGAGE AND R IDEFENDANT 11/02/2015 MONA ALASERI [PLAINTIFF [11/02/2015 MANYAH ALMALKI PLAINTIFF (11/02/2015 [VIOLA HANNA DEFENDANT 11/02/2015 [LAW OFFICES OF GENE J. GOLDSMAN ATTORNEY 11/02/2015 LAW OFFICES OF LEONARD W. STITZ ATTORNEY 04/18/2016 | HASIB ALKAYALI DEFENDANT 06/28/2016 Hearings: | Description Date Time Department Judge IDEMURRER TO AMENDED COMPLAINT 01/09/2017 02:00 C12 SCOTT CASE MANAGEMENT CONFERENCE 12/12/2016 10:00 [C12 SCOTT Print this page EXHIBIT 2 10 11 12 13 14 15 16 17 18 18 20 21 22 23 24 25 26 27 28 Leonard W, Stitz - SBN 119155 Leonard W. Stitz, P.C. 987 North Enterprise Orange, California 92867 Tel. 714.222.5704 Attorney for Defendant, THE AMERICAN DREAM HOME MORTGAGE AND REALTY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - MONA ALASERI; MANYAH ALMALKI Case No: 30-2015-00817912-CU-PO-CJC Plaintiff, NOTICE OF RULING ON DEFENDANT THE AMERICAN DREAM HOME MORTGAGE AND REALTY’S DEMURRER TO PLAINTIFFS MONA ALASERI AND MANYAH ALMALKI’S COMPLAINT VS. ) ) THE AMERICAN DREAM HOME MORTGAGE AND REALTY; Date: May 19, 2016 Time: 2:00 p.m. Department: ~~ Cl2 J ) ) Defendant. Judge: Hon. Nathan Scott TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD: PLEASE TAKE NOTICE that on May 18, 2016 in Department C-12 of the above entitled court, a ruling to Defendants Demurrer to Plaintiff’s Complaint was issued. i 7 NOTICE OF RULING 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant The American Dream's demurrer is TAKEN OFF CALENDAR for failure to meet and confer. (Code Civ. Proc. § 430.41.) Defendant’s time to respond to the complaint (by demurrer or otherwise) is extended to June 3, 2016. Defendant shall give notice. Dated: May 19,2016 By: Leonard W. Stitz, Esq. Attorney for Defendant NOTICE OF RULING 2 PROOF OF SERVICE State of California ) County of Orange ) I am employed in the County of Orange, State of California. 1am over the age of eighteen years and not a party to the within action. My business address is 987 North Enterprise, Orange, California 92867. On May 19, 20161 served: Notice of Ruling on Defendant The American Dream Home Mortgage and Realty’s Demtyrer to Plaintiffs Mona Alaseri and Manyah Almalki’s Complaint on the interested parties in this action to the address listed below: Counsel for Plaintiffs Gene J. Goldsman, Esq. LAW OFFICES OF GENE J. GOLDSMAN . 501 Civic Center Drive West Santa Ana, California 92701 Telephone: (714) 541-3333 Facsimile: (714) 541-0456 Email: gene@giglaw.com [ 1BY ELECTRONIC MAIL: To the email addresses listed above. [X] By U.S. Mail: Iam readily familiar with the firm’s practice for collection and processing of correspondence for mailing. I know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executediin the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States Post Office at Orange, California Executed on May 19, 2016 at Orange, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. fd) Thalia Jackson [ / EXHIBIT 3 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER DATE: 08/08/2016 TIME: 02:00:00 PM DEPT: C12 JUDICIAL OFFICER PRESIDING: Nathan Scott CLERK: Julia Almazan REPORTER/ERM: None BAILIFF/COURT ATTENDANT: Diana Acosta C CASE INIT.DATE: 11/02/2015 EVENT ID/DOCUMENT ID: 72385246 1-113 M . r to Complaint am d demurrer, 06/02/2016 APPEARANCES No i cal by all parties Defendant The Ameri g e Ann M. v. Pacific opping Center e Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 overruled on other ‘grounds i Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30 [certainty]; Compl. IY GN-1(4) - GN-1(6).) ward Metals, Inc. v. Superior Court Industries (1978) 87 Cal.App.3d 494, 501.) Defendant shall give notice. DATE: 08/08/2016 MINUTE ORDER Page 1 DEPT: €12 Calendar No. TENTATIVE RULINGS Please obey all applicable statutes and court rules, including California Rules of Court, Rules 3.1100-3.1372. See http://www.courts.ca.gov/rules.htm. These are the court's tentative rulings. They will become orders if no one appears at the hearing. If you disagree with the tentative ruling, you may come to the hearing and tell the court. The court might make a different order at the hearing. Consider calling the other side now. Will EVERYONE submit to the tentative ruling? If so, please call the clerk and let us know. We'll save you the trouble of an appearance. Please don't ask the clerk to explain the tentative ruling. That is the court's duty. Note: The court might not grant a continuance after it posts a tentative ruling. Tentative rulings posted Fri., Aug. 5 at 3 pm # CaseName | ~~ Tentative . _ BE {1 Schultz v. Bayview | Defendant Bayview Loan Servicing, LLC's demurrer to the 2nd { | Loan Servicing . Amended Complaint is OVERRULED as to uncertainty and lack of i | standing but otherwise SUSTAINED WITH LEAVE TO AMEND. | 1st Cause of Action, Violation of Civ. Code § 2923.6. This cause | of action fails to allege sufficient facts showing plaintiffs submitted a | “complete” loan modification application. (See Civ. Code § 2923.6, | ~subds. (c), (h).) It also fails to allege sufficient facts showing defendant “record[ed] a notice of default or notice of sale, or conduct[ed] & trustee's sale.” (Civ. Code § 2923.6, subd. (c).) 2nd Cause of Action, Violation of Civ. Code § 2923,7. This | cause of action fails to allege sufficient facts showing they were not | provided a sir gle point of contact. (Compare 2nd Am. Compl. § 61 | with § 69.) 3rd Cause oi Action, Violation of Bus. & Prof. § 17200. This cause of action fails to allege sufficient facts showing any underlying | fraudulent, urlawful, or unfair business practice. (See Ingels v. i he One Broadcasting Servs. (2005) 129 Cal.App.4th 1050, 1 1060. 4th Cause of Action, Cal. Debt Collection Practices Act. This cause of action fails to allege sufficient facts showing defendant constitutes a “debt collector” or that pre-foreclosure notices | constitute “debt collection.” (Cf. Pfeifer v. Countrywide Home Loans | (2012) 211 Cal.App.4th 1250, 1264 [federal law]; Fonteno v. Wells Fargo Bank (2014) 228 Cal.App.4th 1358, 1377 [same].) 5th Cause of Action, Cal. Consumer Credit Reporting Act. This cause of action falls to allege sufficient facts showing defendant made | a false credit -eport, as it alleges no underlying statutory violation. | 6th Cause of Action, Negligent Misrepresentation. This cause of | ye FE actlon fails tc allege sufficient facts with particularity showing defendant made a false statement of material fact. (See Small v. fritz Co. (2003) 30 Cal.4th 167, 184 [pleading with particularity].) Nor does it sufficiently allege plaintiffs’ reliance on the statement, as plaintiffs had an independent duty to make loan payments. (See seores v. BAC Home Loan Servicing LP (2013) 221 Cal.App.4th 49, 7th Cause of Action, Intentional Misrepresentation. This cause of action fails to allege with particularity facts showing defendant made a false statement of material fact. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [pleading with particularity].) Nor does It sufficiently allege plaintiffs’ reliance on the statement or resulting damages. (See id. at p. 638 [elements].) 8th Cause oi Action, Negligence. This cause of action fails to allege facts showing defendant owed plaintiff a duty of due care. (See Lueras, supra, 221 Cal.App.4th at p. 62.) Defendant’s request for judicial notice is GRANTED as to the 2nd. Am. Compl. but otherwise DENIED. Plaintiff's request for judicial notice is DENIED. Plaintiff shall have leave to file and serve an amended complaint no later than 8/19/16. The case management conference is CONTINUED to 12/12/16 at 10 AM in Dept. C-12, Defendant shall give notice. Campos v. Cluster Defendant Juanita E, Cluster’s demurrer to the Second Amended Complaint is OVERRULED. 1st Cause of Action, negligent infliction of emotional distress, The court already overruled a demurrer to this cause of action, which is essentially unchanged. (See 2/11/16 minute order; Def. Demurrer at 3:23; Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.) Moreover, defendant's new arguments rely on plaintiff's discovery responses. The court deems defendant’s references to those responses as a request for judicial notice of those responses. (See Demurrer at 4-5; Clark Decl, 14 1-5, Exs. 1-4.) The request for judicial notice is DENIED. Defendant has not shown plaintiff's discovery responses contradict the complaint. (See Del E, Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.) "The hearing on demurrer may not be turned into a contested evidentiary hearing” to see whether plaintiff can support his claims with evidence, (Ibid.) In any event, this cause of action adequately states a cause of action for negligent infliction of emotional distress based on exposure to asbestos. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 997; 2nd Am. Compl., 1 28-35.) 4th cause of action, breach of the implied covenant. This cause of action states sufficient facts showing defendant's unfair interference with plaintiff's right to contract benefits, without impermissibly imposing new obligations not contemplated by the parties. (See Racine & Laramie Ltd. v. Dept. of Parks & Rec. (1992) 11 Cal.App.4th 1026, 1031-1034; 2nd Am. Compl. {1 13, 60-63.) 5th cause of action, intentional interference with prospective economic advantage. The court already overruled a demurrer to this cause of action, which is essentially unchanged. (See 2/11/16 Their v. OCTA minute order: Def. Demurrer at 3:23; Bennett v. Suncloud (1997) 56 Cal.App.4th £1, 96-97.) In any event, this cause of action adequately states a claim. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153-1154; 2nd Am. Compl. 1917-22, 69-72) Both parties have waived their procedural objections to each other's briefs by addressing the merits. (See Mann v. Cracchiolo (1985) 38 Cal.3d 18, 27.) Defendant shall file and serve an Answer to the Second Amended Complaint no later than 8/19/16. The case management conference is CONTINUED to 9/19/16 at 10 AM in Dept. C-12. Defendant shall give notice. AVE TO AMEND as to the 2nd Cause of Action. 1st Cause of Action, negligence. Plaintiffs state a sufficiently certain cause of action for negligence. (See Ann M. v. Pacific Plaza Shopping Ceriter (1993) 6 Cal.4th 666, 673 [elements]; Fenton v. Groveland Community Services Dist, (1982) 135 Cal.App.3d 797, 8 overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30 [certainty]; Compl. GN-1(4) - GN-1(6).) 2nd Cause of Action, premises liability. This cause of action duplicates the 1st Cause of Action. (See Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135; Rodrigues v. Campbell Ind istries (1978) 87 Cal.App.3d 494, 501.) Plaintiff shall have leave to file and an amended complaint no later than 8/19/16. Defendant Orange County Transportation Authority's demurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. (See Code Civ. Proc., § 430.10, subd. (e).) 1st & 2nd causes of action, fraudulent inducement and breach of contract. These causes of action are barred for failure to allege timely compliance with the Government Claims Act. (See Gov't Code §8§ 905, 911.2, 945.4; see also Janis v. State Lottery Comm'n (1998) 68 Cal.App.4th 824, 832; Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 355.) Plaintiffs were required to file their government claims no later than one year after their causes of action accrued. (Gov't Code § 911.2, subd. (a); Norgart v. Upjohn (1999) 21 Cal.4th 383, 397.) The 2nd Amended Complaint does not allege the date on which the claims accrued. Instead, it alleges only that defendant breached the contract “[a]s soon as [it] purchased the property” and plaintiffs suffered damages when they ceased equestrian facilities. (2nd Am. Compl., 88 4¢, 52-53.) But the initial complaint and the 1st Amended Complaint fill in the gaps. They a'lege defendant purchased the property in 2011. (Compl., 1 50; 1st Am. Compl., § 53.) They allege plaintiff ceased equestrian facilities in November 2014. (Compl. 11 10, 77; 1st Am. Compl., 919 11, 79.) Plaintiffs have not “explain[ed] the inconsistency” in omitting these prior allegations from the 2nd Amended Complaint. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.) Thus, plaintiffs were required to allege they submitted a government claim no later than November 2015. But plaintiffs instead allege they did so in May 2016. (2nd Am. Compl. 1 24-30, Ex. 8.) Plaintiffs have not met their burden to show how the 2nd Amended Complaint could be amended to state timely claims. (See Blank v. Kirwan (1985) 39 Cai.3d 311, 318.) Furthermore, the 1st cause of action for fraudulent inducement is not alleged with sufficient specificity, including the statutory basis for liability. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) This is plaintiffs’ third attempt to state this cause of action. They have not met their burden to show how they could amend it to state it with specificity. (See Blank, supra, 39 Cal.3d at p. 318.) Defendant’s references to the initial Complaint and 1st Amended Complaint (see, e.g., 6/17/16 Opp. at 1:29-2:2, 9:27-10:3) are deemed a request to take judicial notice of them. The request is GRANTED. (See Owens, supra, 198 Cal.App.3d at p. 384.) 3rd Cause of Action, specific performance. The demurrer to this cause of action is deemed a motion to strike. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193; Code Civ. Proc, § 436.) The motion Is GRANTED WITHOUT LEAVE TO AMEND. Adding this cause of action to the 2nd Amended Complaint exceeded the scope of leave to amend the 1st Amended Complaint, (See People sue Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d , . In the alternative, the demurrer to the 3rd cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ, Proc,, § 430.10(e).) None of the alleged promises (e.g., a revocable license) are sufficiently definite to be capable of specific enforcement. (See Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal. App. 3d 571, 575.) The alleged promise of an irrevocable license or an agreement to buy real property would be barred by the Statute of Frauds. (Civ. Code, § 1624(a)(3).) Plaintiffs have not met their burden to show how they could amend this cause of action to state a viable claim. (See Blank, supra, 39 Cal.3d at p. 318.) Defendant shall give notice. Barbra v. Industrious Motors Defendant Industrious Motors, LLC dba Buena Park Nissan's motion to compel arbitration is GRANTED, (See Code Civ. Proc., § 1281.2.) Defendant has shown the parties entered into a written agreement to arbitrate this dispute. (See Rosenthal v. Great Western Fin’ Securities Corp. (1996) 14 Cal.4th 394, 413; Cal. Rule of Court 3.1330; Def. 6/17/16 Mot, at Geller Decl., § 3 and Ex.) Plaintiff has not opposed the motion. Defendant shall give notice. Beatty v, Catalina Island Yacht Club Motion #1: Sanctions Request Plaintiffs Timothy Beatty and Beatty & Company Computing, Inc.'s motion for monetary sanctions is GRANTED. The Court of Appeal directed this court to “issue a new order (1) granting Beatty's [underlying] motion [to compel]... and (2) veegr ee ee em 4a a mimes mC meee mm = eee em -- awarding Beatty monetary sanctions in an amount to be determined by [the trial] court.” (See Catalina Island Yacht Club v. Superior Court (2015) 242 Cal. App.4th 1116, 1132.) Defendants shall pay $3,090 to plaintiffs no later than 9/15/16. This amount comprises $1,140 incurred in the underlying motion to compel {see 5/14/15 minute order) and $1,950 incurred in this mation. Plaintiffs shall give notice. Motion #2: Motion to Compel (new privilege log) Plaintiffs Timothy Beatty and Beatty & Company Computing, Inc.'s motion to compel production is DENIED. Defendants met thelr initial burden to show the communications were made within an attorney-client relationship. (See Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 441-442; Evid, Code, § 917, subd. (a).) Plaintiffs have not rebutted that showing or met their burden to show the communications were not confidential. Plaintiff has not shown the date of “Commodore” Platt’s “appointment” as “judge advocate” of the club is what began the attorney-client relationship. (Cf. Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61 [creation of relationship].} Plaintiff has not shown the attorney-client privilege was waived because Mr. MacInnis’s email account could be accessed by his wife. (Cf. Holmes v. Petrovich Dev. Co. (2011) 191 Cal,App.4th 1047, 1068-1069 [privilege waived by use of monitored corporate email account].) While the motion is denied, it was not so unjustified as to warrant sanctions. Plaintiffs shall give notice. McCarthy v. McLorie Motion to Seal continued at parties’ request to 10/3/16 at 2 pm in Dept, C-12. Moving party shall give notice, Dauod v. GEICO Ins. Co. Plaintiffs Omar Dauod & Gina Dauod’s Motion to Quash/Limit Subpoenas is DENIED. Plaintiffs failed to file the mandatory separate statement. (See Cal. Rule Ct. 3.1345(a)(5).) And the motion addresses subpoenas that have been superseded. (See Moura Decl., | 6 & Ex. E). All sanctions requests are denied, Plaintiffs shall give notice. Chen v. Pach & Co. Motion #1: Motion to Compel Re Interrogatories Defendant Torn Chou’s Motion to Compel Plaintiff Liang-Ta Chen to Respond to Special Interrogatories and Form Interrogatories Without Objection is GRANTED. (See Code Civ. Proc., § 2030.290(b).) Plaintiff shall serve responses to defendant's Special Interrogatories and Form Interrogatories, without objection, no later than 8/19/16. Plaintiff shall pay $1,060 in sanctions to defendant no later than 9/2/16. Motion #2: Motion to Compe] re RFP Defendant Torn Chou’s Motion to Compel Plaintiff Liang-Ta Chen to Respond to Requests for Production of Documents and Things - Set == One Without Objection is GRANTED. (See Code Civ. Proc, § 2031.300(b).) Plaintiff Chen shall serve responses to defendant’s Requests for oregon and Things (Set One), without objection, no later than 8/19/16. Plaintiff shall pay another $1060 in sanctions to defendant no later than 9/2/16. Motion #3: [Motion to Compel re RFAs Defendant Tern Chou’s Motion for an Order Establishing the Truth of Matters Specified in the Requests for Admission is GRANTED. (See Code Civ. Proz., § 2033.280(b).) The truth of any matters specified in defendant Chou’s requests for admission are deemed admitted. Plaintiff shall pay yet another $1060 in sanctions to defendant no later than 9/2/16, 6/30/16 OSC re Sanctions No tentative ruling. Defendant shall give notice. 10 Hargrove v. Hoangh Defendant Kenneth V. Hoang’s motion for summary judgment is DENIED, Defendant failed to meet his initial burden to show a complete defense - the statute of limitations - as a matter of law. (See Code Civ. Proc. § 437¢, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Specifically, defendant failed to show plaintiff's 12/10/14 letter did not extend the one-year statute of limitations for 90 days beyond 3/4/15, when defendant contends the limitations period otherwise would have expired. (See Code Civ. Proc., §§ 340.5, 364, subd. (d); Def. 5/20/16 Mot. at 1:5-11.) First, defendant failed to show the prior 12/30/13 or 1/11/14 letters constituted effective Section 364 notice letters. (See Def, 5/20/16 SSUF 11 20-35; Def. 5/20/16 Vol. Evid., Exs. E& F.) They did not identify the legal basis of plaintiff's claim, state the alleged loss, state an intention to sue for professional negligence, or even mention Section 364. (See Code Civ. Proc., § 364, subd. (b) [required content]; see also Jones v. Catholic Healthcare West, Inc. (2007) 147 Cal.App.4th 300, 303, 309 [letter not valid Section 364 notice even though it described the accident, asked defendant to “assume financial responsibility,” and asked defendant “to contact [plaintiff's] attorney”].) Second, defendant failed to show the 12/10/14 letter was ineffective notice. Defendant's 5/20/16 printout from the California Dental Board website does not show defendant's registered address as of 12/10/14. (Cf. Derderian v. Dietrick (1997) 56 Cal.App.4th 892, 900.) Defendants statement he “ended his association with Brookhurst Dental on or about August, 2014” also fails to show he did not actually receive mail there. Even if defendant met his Initial burden as to lack of notice, plaintiff raises a triable issue of material fact by stating Brookhurst Dental Group was defendant's listed business address on 12/10/14, which defendant still used as late as April 2015. (PI, 7/13/16 SSUF {4 15-18; 7/12/16 Hargrove Decl, { 8-9 & Ex. A.) Section 364 “provide[s] flexibility in the form of notice and manner of service.” (oy supra, 147 Cal.App.4th at p. 308; cf. Miller v. Bechtel Corp. 1983) 33 Cal.3d 868, 874 [doubts are resolved against granting summary judgment].) Defendant's Evidentiary Objections are IMMATERIAL as to # 1, 2, and 3 (pee Code Civ. Prac., § 437c¢, subd. (q)) and OVERRULED as # 4, 5, and 6. Defendant's Request for Judicial Notice is GRANTED. Defendant shall give notice. 11 Sackett v. Yu Defendant Reginald Yu's Motion for Summary Judgment is DENIED. Defendant failed to meet his initial burden to show plaintiff cannot establish an element of her cause of action ~ defendant’s duty of care - as a matter of law. (See Code Civ. Proc. § 437c, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) The existence and scope of a duty is a legal question for the court, (Lawrence v. La Jolla Beach & Tennis Club (2014) 231 Cal.App.4th 11, 22-23.) “Although the factors to be weighed In determining the scope of a defendant's duty will vary in each case, the two primary considerations are the foreseeability of the harm and the burden on the defendant of protecting against the harm.” (Id. at pp. 23-24.) “Foreseeability may be decided as a question of law only if, under the undisputed facts, there is no room for a reasonable difference of opinion.” (Silva v. Union Pacific Railroad Co. (2000) 85 Cal.App.4th 1024, 1029.) First, defendant failed to show it owed no duty of care on the ground the dangerous condition arose after he leased the property to plaintiff. A landlords owes a duty of care to a tenant to deliver safe premises at the start of the tenancy and to repair dangerous conditions that develop ~ if the landlord knows about and can fix them. (See Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205-1206; Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.) While defendant met his initial burden by presenting evidence he did not know about the defect, plaintiff raised a triable issue about Say knowledge and ability to repair. (See Pl. 7/21/16 SSUF 19 24-30. Second, defendant failed to show the dangerous condition was a trivial defect as a matter of law. (See Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568-570 [reversing summary judgment even though “any gouge mark was ‘about one inch deep’”]; Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 268 [rejecting “a strict tape measure approach;” ¥ inch defect not trivial].) Even if defendant had met its initial burden to do so, plaintiff raised triable issues about the dangerousness of the condition. (See Pl. 7/21/16 SSUF 19 31-38; 7/21/16 Burns Decl. 1{ 7-12, 14-16 & Ex. B.) Defendant's objection are SUSTAINED as to #13 and 14 and otherwise OVERRULED. Defendant shall give notice. EXHIBIT 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1, Le nerd’ W. Stitz - SBN 119155 Leonard W. Stitz, P.C. 987 North Enterprise Orange, California 92867 Tel. 714.222.5704 Attorney for Defendant, THE AMERICAN DREAM HOME MORTGAGE AND REALTY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE MONA ALASERI; MANYAH ALMALKI Case No: 30-2015-00817912-CU-PO-CJC Plaintiff, DECLARATION OF THE AMERICAN ‘ DREAM HOME MORTGAGE AND REALTY’S REGARDING COMPLIANCE vs. i WITH MEET AND CONFER : REQUIRMENTS OF CODE OF CIVIL : PROCEDURE § 430.41 THE AMERICAN DREAM HOME ’ MORTGAGE AND REALTY; Date: December 12, 2016 co Time: 2:00 p.m. © Department: C12 : / Defendant. Judge: Hon. Nathan Scott Action Filed: = November 02, 2015 Court Reservation No.: 72465128 I, LEONARD W. STITZ, declare as follows: 1. 1am an attorney duly admitted to practice law before the courts of the State of California and the attorney of record for THE AMERICAN DREAM HOME MORTGAGE AND REALTY in the above captioned action, now pending before the Orange County Superior Court, as case number 30-2015-00817912-CU-PO-CJC. DEFENDANT’S MEET AND CONFER DECLARATION 1 10 11 10 13 14 15 16 17 18 19 20 21 ‘22 23 24 25 26 27 28 2. Thave personal firsthand knowledge of the facts set forth herein and if called on as a witness I could and would testify competen:ly to the truth of the facts set forth in this declaration. 3. I make this declaration regarding my compliance with the new meet and confer requirements imposed by Code of Civil Procedure § 430.41 before any demurrer may be filed with this court. 4. In October, at least five days before any responsive pleading was due, I attempted to reach the - for the party that filed the pleading, namely the First Amended Complaint, to determine whether an agreement could be reached that would resolve the objections to be raised in the demurrer that Defendant wanted to file as to the Negligence Cause of Action. 5. In that I did not receive any response to my phone messages, I sent an email requesting a time to have a'meet and confer telephone conversation. As of today’s date neither my phone messages nor my emails have been responded to. I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct, and that this declaration is executed on October 17, 2016 at Santa Ana, California. Z Bard W. Stitz, Esq. DEFENDANT'S MEET AND CONFER DECLARATION 2 10 11 12 13 14 i5 16 17 18 19 20 21 22 23 24 25 26 27 28 Leonard W. Stitz - SBN 119155 bor Leonard W. Stitz, P.C. 987 North Enterprise Orange, California 92867 Tel. 714.222.5704 Attorney for Defendant, THE AMERICAN DREAM HOME MORTGAGE AND REALTY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE MONA ALASERI; MANYAH ALMALKI Case No: 30-2015-00817912-CU-PO-CJC Plaintiff, DEFENDANT THE AMERICAN DREAM 2 HOME MORTGAGE AND REALTY’S NOTICE OF DEMURRER AND Vs. DEMURRER TO PLAINTIFFS MONA ALASERI AND MANYAH ALMALXI’S FIRST AMENDED COMPLAINT; THE AMERICAN DREAM HOME MEMORANDUM OF POINTS AND MORTGAGE AND REALTY; AUTHORITIES IN SUPPORT THEREOF Date: December 12, 2016 Time: 2:00 p.m. Department: C12 Judge: Hon. Nathan Scott Action Filed: November 02, 2015 Defendant. Court Reservation No.: 72465128 TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD: PLEASE TAKE NOTICE THAT on December 12, 2016, at 2:00 p.m. in Department C12 of the Superior Court of California, County of Orange, located at 700 Civic Center Drive West, Santa Ana 92701, or at such other time or in such other department as this matter may be assigned, Defendants, The American Dream Home Mortgage and Realty, will and hereby does demur to the First Amended Complaint filed by Plaintiffs Mona Alaseri and Manyah Almalki, DEFENDANT’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursuant to Code of Civil Procedure § 430.10, on the grounds that First cause of action fails to state facts sufficient to constitute a cause of action and is uncertain, ambiguous, and unintelligible. This Demurrer is and will be based on this Notice of Demurrer and Demurrer, the Memorandum of Points and Authorities attached hereto, all pleadings and papers filed in this action and which may be filed in advance of the hearing on this Demurrer, all argument that is made at or prior to the hearing on this Demurrer, matters of which the Court may take judicial notice and such other evidence as the court may allow. Dated: October 17, 2016 Respectfully Submitted, By: Leorfdrd W. Stitz, Esq. Attorney for Defendant DEFENDANT'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO COMPLAINT Defendant demurs to the First Cause of Action of Plaintiffs’ Complaint on the following grounds: DEMURRER TQ FIRST CAUSE OF ACTION (For General Negligence) 1. The First Cause of Action is uncertain, ambiguous and unintelligible pursuant to Code of Civil Procedure § 430.10(). WHEREFORE, Defendant, THE AMERICAN DREAM HOME MORTGAGE AND ROYALTY prays: 1. That the Demurrer be sustained as to all causes of action asserted against Defendant in Plaintiffs’ Complaint without leave to amend; 2. That the matter be dismissed with prejudice; 3. For their costs and fees incurred in this action; and 4. For such other relief as the Court may deem just and appropriate. Dated: October 17,2016 Respectfully Submitte By: Leonard W. Stitz, Esq. Attorney for Defendant DEFENDANT’S DEMURRER TC PLAINTIFFS’ FIRST AMENDED COMPLAINT 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNCERTAIN, IV. CONCLUSION I. FACTUAL AND PROCEDURAL BACKGROUND II. LEGAL STANDARD ON DEMURRER ...ocovevveeeerersrerneon, II. ARGUMENT..... A. THE FIRST CAUSE OF ACTION FOR GENERAL NEGLIGENCE IS TABLE OF CONTENTS ETT EAN P EEN bY RRR Tes Bereta) aRTElNN IN RTs TITIITTIATE PEs AEN Ne Ea eh Rass Ia 0 sur TREES (evra TT eh Tr asi aaa Ran er Ee ioohtse Fierro r esesinesIo Er IRseysTOIOVThotosatesttonca AMBIGUOUS, AND UNINTELLIGIBLE vesveeRibASaN are I aIaBaTaTRICRERRTIIIBaanR0Y Ped a NEE aaa eas RR E Nae N err he Pee R Paes Teed ( IAAL eNaears al (RN IaEs ee aar I eEETsIrariaTrtnItartontitsasssnss DEFENDANT'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES I. Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal. App.3d 531, 537 II. Franz v. Blackwell (1987) 189 Cal. ADD.BA FLA ..cocsminssininsmamsmsiinnensesesansryapsipiasiatannapensessnionsssisasnionds f Fsvsasaisine 7 III. Serrano v. Priest (1971).5 Cal, 3d 584, 59) cvurmssmenmmmommmrmsenmensmessemenmpomarssenssmmsmmrmsesaernssssrissssessoessss 7 IV. Goodman v. Kennedy (1976) 18 Cal. 3d 349 V. Droz v. Pacific National Insurance Co. (1982) 138 Cal. App.3d 181, 187 VI. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rpti.2d 309, 911 P.2d 496] ....ccovverrevrivimmnrersarassessenmannes VII. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. APP. 4M 592, 608 ...vveuemmnvrreveesensosesesecsemesmssessssesesesrsosenssesesesesesssesssesssmssessseesessoes VIIL Williams v. Beachnut Nutrition Corp. (1986) 185 Cal. App. 3d 135, 139 Ba Nea TE ru rar Naas N PIR ar sada eo stl iasrorretassreesaredisatincrnsartaotonatsisenivee STATUTES I. Code of Civil Procedure § 430.10(e) LE RE ER ER ER RT RN PRT PE PP SP PPP II. Code of Civil Procedure § 430.10(f) Ee A EE EE NANI PITT heat TATE URIS Erle ren Ee PERT FYI NNN RAEN Ne AANA POaNE DEFENDANT'S DEMURRER TO "LAINTIFFS’ FIRST AMENDED COMPLAINT 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L FACTUAL AND " PROCEDURAL BACKGROUND On or about January 16, 2015, Plaintiffs Mona Alaseri and Manyah Almalki entered into a lease agreement with landlords Nehad Amed and Hasib Alkayali, to rent the property located at 2001 Nantucket, Tustin, California, 92780. Defendant, The American Dream Home Mortgage! and Realty, acted solely as the listing agent for the transaction between the above-mentioned parties. This action arises out of a Complaint that was filed by Plaintiffs Mona Alaseri and Manyah Almalki on November 2, 2015, in regards to the condition of the above-mentioned rental property. In that Complaint, Plaintiffs alleged that the building they once resided in had a Hpresence of bugs” and caused them injury. Plaintiffs erroneously alleged that Defendant “maintained, inspected, controlled, repaired, managed and/or operated” the above-mentioned property, as such, was responsible for Plaintiffs’ injuries. Plaintiff’s further alleged that the unit was “inadequately lit” but again failed to make any connection between such lighting and the Defendant’s actions or resulting damages. The Summons and Complaint were served on Defendant on March 29, 2016, and contained two causes of action, including: (1) General Negligence; and (2) Premises Liability. Defendant subsequently filed a demurrer to Plaintiffs’ complaint. Plaintiffs then served upon Defendant an opposition to the demurrer on May 10, 2016. The Court then ruled on the Defendant’s demurrer overruling as to the 1* cause of action and sustaining with leave to amend as to the 2" cause of action. Consequently, Plaintiffs served on Defendant a First Amended Complaint on August 17, 2016. This demurrer follows. i Hn mn mn iH DEFENDANT'S DEMURRER TO *LAINTIFFS’ FIRST AMENDED COMPLAINT 6 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 IL LEGAL STANDARD ON DEMURRER Pursuant to Code of Civil Procedure § 430.10: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . (€) The pleading does not state facts sufficient to constitute a cause of action and/or (f) Th e pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintell igible. Mere “recitals, references to, or allegations of material facts, which are left to surmise are subject to special Demurrer for uncertainty.” Ankeny v. Lockheed Missiles & Space Co., (1979 ) 88 Cal.App.3d 531, 537. Tn ruling on a demurrer, the Court looks to the face of the compla int, and upon matters of which the Court may take judicial notice. Franz v. Blackwell, (19 87) 189 Cal. App.3d 91,94. For purposes of a demurrer, all allegations of the complaint are deemed t o be true. Moore v. Conliffe, (1994) 7 Cal.4th 634, 638. However, th is presumption may be rebutted or contradicted by attached documents or facts of which the Court ma y take judicial notice. Code of Civil Procedure § 430.10(a). Additionally, although the alleg ations are presumed to be true, the Court oss not accept bare legal conclusions as true for purposes of ruling on a demurrer. Serrano v. Priest, (1971) 5 Cal. 3d 584, 591. Tt is not up to the judge to determine how the complaint can be amended to state a cause of action. The burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal affect of the plead ing, Goodman v. Kennedy, (1976) 18 Cal. 3d 349. Furthermore, a demurrer should be sustained with out leave to amend if the conduct complained of is not actionable as a matter of law. See, e.g., D roz v. Pacific National Insurance Co., (1982) 138 Cal.App.3d 181, 187 (affirming grant of de murrer without leave to amend where “the allegations of the complaint impose no liability under substantive law”). i I 1 1 DEFENDANT'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 7 10 11 12 13 14 15 le 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT The Court should sustain Defendant’s demurrer to Plaintiff's First Amended Complaint because (A) The First Cause of Action is uncertain, ambiguous and unintelligible. A. THE FIRST CAUSE OF ACTION FOR GENERAL NEGLIGENCE IS UNCERTAIN, AMBIGUOUS AND UNINTELLIGIBLE A complaint is subject to a demurrer when the pleading is uncertain, ambiguous, or unintelligible. Civil Code § 430.10(f). Moreover, a Plaintiff must allege the essential facts with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source, and extent of his causes of action. Ludgate Ins. Co. v. Lockheed Martin Corp., (2000) 82 Cal. App. 4" 592, 608. A demurrer based on uncertainty goes to a doubt as to what the plaintiff means by the facts alleged. 5 Witkin, California Procedure 4th, Pleading § 928 (1997). Additionally, a demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing that defendant cannot tell what he or she is supposed to respond to. Williams v. Beachnut Nutrition Corp., (1986) 185 Cal. App. 3d 135, 139. Here, Plaintiff's first cause of action is entirely pled in generalities and legal conclusions. For example, paragraph 3 of the first cause of action reads “... Defendants and each of them, were the principals, officers, directors, employers, joint venturers, co-conspirators, partners, alter egos, alternate entities, affiliated entity, successors in interest, predecessors in interest, parents, guardians, employees, contractors, servants, delagatees, delegators and/or agents of each and every other defendant...” (Page 5, 3). 1tis clear, by the use of this vague and over-burdensome language, that the Plaintiffs themselves are not even sure as to the role that the Defendant plays in this cause of action, if any role at all. Indeed, buried amongst the complaint’s numerous legal conclusions is an admission that the complaint itself lacks sufficient facts to constitute a negligence cause of action when Plaintiffs’ state “[blased on such, Defendants and each of them, are directly, vicariously or under some other theory liable for the acts, omissions, failures to act and representations of each and every other defendant under respondeat superior, agency, partnership, agreement or through DEFENDANT'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 8 10 dd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or under some other legal fact or theory” (Page 5, § 3). Plaintiffs’ clearly acknowledge that they are completely unaware of what cause of action can be brought, if any, based on the Defendant’s ambiguously alleged conduct and lack of information. It is also clear then, that Plaintiffs’ have carelessly added Defendant %o the complaint simply for “good measure” without so much as conducting research on whether Defendant was in fact involved. There are absolutely too many superfluous and gratuitous factual allegations pled in the complaint to possibly understand what it is precisely that Plaintiffs’ believe Defendant did to cause their alleged injuries or what role Defendant played in relation to the injuries, if any. Consequently, Defendant cannot reasonably respond to, nor reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them. Plaintiffs have simply thrown out legal terms in their complaint to see what will stick without so much as knowing what cause of action exists against Defendant, if at all, let alone whether Defendant even owed a duty to begin with. Better yet, there are insufficient facts pled to actually support the Plaintiffs various theories of liability. As such, because the complaint is so ambiguous and unintelligible to even prompt a response under a general negligence cause of action, the demurrer should be sustained for that reason. IV, CONCLUSION In light of the insufficiency of the plcadings, Defendant respectfully requests that the Court sustain its Demurrers without leave to amend as to each cause of action in the Plaintiffs’ Complaint, Dated: October 17, 2016 Respectfully Submit By: Leqfatd W. Stitz, Esq. Attorney for Defendant DEFENDANT'S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT 9 PROOF OF SERVICE State of California ) County of Orange ) I am employed in the County of Orange, State of California. Tam over the age of eighteen years and not a party to the within action. My business address is 987 North Enterprise, Orange, California 92867. On October 17, 2016 I served: Defendant The American Dream Home Mortgage and Realty’s Notice of Demurrer and Demurrer to Plaintiffs Mona Alaseri and Manyah Almalki’s Complaint; Memorandum of Points and Authorities in Support Thereof and Declaration Regarding Meet and Confer on the interested parties in this action to the address listed below: Counsel for Plaintiffs LAW OFFICES OF GENE J. GOLDSMAN . 501 Civic Center Drive West Santa Ana, California 92701 Telephone: (714) 541-3333 Facsimile: (714) 541-0456 Email: gene@giglaw.com [1BY ELECTRONIC MAIL: To the email addresses listed above. [X] By U.S. Mail: Iam readily familiar with the firm’s practice for collection and processing of correspondence for mailing. [know that the correspondence was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States Post Office at Orange, California Executed on October 17, 2016 at Orange, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. wn Nt Thalia Jacks on // EXHIBIT 5 Change Language: Choose English Common Law emerged after the Norman Conquest in 1066, and during that time, a plaintiff could initiate a lawsuit only by obtaining a writ from the king or the king's chancellor. Fifty years shy of a thousand years later, we now utilize fact pleading in California, which requires that the complaint contain facts constituting a cause of action. Cal. Civ. Proc. Code § 425.10 (West 2014) . But for state court civil practitioners, new changes in the law, effective January 1, 2016, might have altered the modern day legal battlefield. After reviewing the new changes, particularly those related to demurrers, a case might be made for returning to the king's writ. The legislature made moderate changes to Code of Civil Procedure section 437c governing motions for summary judgment and summary adjudication, added a new section 430. 41 governing demurrers, and amended other demurrer provisions in sections 472 and 472a. The common thread to these changes is an attempt to lighten the burden on trial courts in the face of catastrophic budget cuts that required closing and consolidating courtrooms and courthouses throughout the state over recent years. Summary Judgment and Summary Adjudication: Courts Need Only Rule on Material Evidentiary Objections Senate Bill 470, co-sponsored by the Judicial Council of California and the California Judges Association, amended subdivision (q) of Code of Civil Procedure section 437c in only one substantive way. S. Res., Bill 470: Civil Actions: Summary Judgment and Summary Adjudication, § 1 (Cal. 2015). The Code now provides: In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review. Id. Minor changes were also made to terminology throughout, so it is advisable to consult the new version of section 437c before relying on quoted language in previously filed motions. The new provision is designed to address the large number of objections often made in summary judgment papers. See, e.g., Reid v. Google, Inc., 50 Cal. 4th 512, 532 (2010) ("recogniz[ing] that it has become common practice for litigants to flood trial courts with inconsequential written evidentiary objections, without focusing on those that are critical[, . . . And that t]rial courts are often faced with ‘innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become"). In Reid, the high court found evidentiary objections made at a summary judgment hearing were not waived, even if the trial court failed to rule on them expressly. Id. At 527. The new subdivision (q) codifies the outcome reached in Reid. See Cal. Sen. Jud. Comm., 3d reading analysis of Sen. Bill 470 (2015-2016 Reg. Sess.) As amended July 9, 2015. From a practitioner's standpoint, it is now abundantly clear objections not ruled upon by the trial court are never waived, so there is no need to fear adverse consequences on appeal. That said, the practitioner should always take care to laser-focus objections, limiting them to material evidence that is truly objectionable. From the court's standpoint, the legislature has now echoed the California Supreme Court in relieving judges from ruling on all of the often overwhelming objections to even basic background facts. Summary judgment motions have become one of the most time-consuming pretrial matters handled by trial courts. This change should reduce the burden on adjudicators and save time for research attorneys and judicial officers without compromising the litigants’ ability to make a record for appeal. As the senate committee noted: This bill is helpful to judicial economy because pretrial hearing on motions for summary judgment . . . Will be significantly shorter in duration because judges are no longer required to rule on every evidentiary objection that has been presented in the moving papers. Trial courts will have more time to hear cases and handle other matters that are currently backlogged in the courts. Cal. Sen. Jud. Comm., 3d reading analysis of Sen. Bill 470, 6. * Demurrers: New Meet-and-Confer Requirements and Several Appurienant Modifications Several new procedures governing demurrers were added by Senate Bill 383, reflecting the fruits of extended negotiation between the Consumer Attorneys, California Defense Counsel, and the California Judges Association. Cal. Sen. Jud. Comm., 3d reading analysis of Sen. Bill No. 383 (2015-2016 Reg. Sess.) As amended September 2, 2015, 3. According to the bill's author, delays resulting from overburdened courts have affected litigation disproportionately, and demurrers often present complicated issues involving multiple and sometimes overlapping causes of action. Id. The bill was designed to help courts deal with overloaded dockets in the wake of budget cuts by shifting, to the parties, the burden of working through perceived pleading deficiencies. Id.; see also, Cal. Sen. Rules Comm., Off. Of Sen. Floor Analyses, Analysis of Sen. Bill 383 (2015-2016 Reg. Sess.) As amended September 2, 2015, 8. Newly enacted Code of Civil Procedure section 430.41 squarely tasks practitioners with several requirements. Subdivision (a) mandates a demurring party meet and confer in person or by telephone before demurring to determine whether an agreement can be reached that would resolve the objections to the pleading. If an amended complaint is filed, another meet and confer is required. The parties are required to provide legal support for their respective positions before arguing the matter in court. Cal. Civ. Proc. Code § 430.41(a)(1) (West 2016 Supp.). The meet and confer is to be accomplished at least five days before the responsive pleading's due date, and if the parties are unable to meet the deadline, the demurring party is granted an automatic thirty-day extension within which to file a responsive pleading. Id. § 430.41(a) (2) . The demurring party must nevertheless file and serve a declaration prior to the original due date explaining the meet-and-confer efforts or inability to complete the meet and confer before the filing deadline. Id. If a demurrer is ultimately filed, the demurring party must concurrently file a declaration outlining the parties' meet-and-confer efforts. Id. § 430.41(a)(3). It remains to be seen whether the meet-and-confer provisions will have any measurable impact on the courts. While the meet-and-confer requirement utilized in the discovery process often resolves minor issues-and sometimes major ones-the demurrer meet-and-confer requirement may not accomplish a similar result, standing alone, because the process governing discovery differs substantially from the new demurrer statute. Most significantly, in the discovery context, a court may impose sanctions against a party who refuses to meet and confer in good faith. See, e.g., Cal. Civ. Proc. Code §§ 2023.010(i), 2023.020 (West 2014) (failing to make a reasonable and good faith attempt to resolve issues informally before motion to compel is filed constitutes misuse of discovery process, and monetary sanctions can be imposed against whichever party is at fault). By contrast, the demurrer statute has no sanction provision. Further, any determination by the court that the meet-and-confer process was insufficient shall not be grounds to sustain or overrule the demurrer. Cal. Civ. Proc. Code § 430.41(a)(4) (West 2016 Supp.). Consequently, while it is hoped the new demurrer statute has sufficient teeth to motivate practitioners to informally resolve disputes over the legal adequacy of pleadings, the statute denies the court any express enforcement procedure through the use of sanctions like in discovery abuses, or the ability to sustain or overrule a demurrer based on a party's apathetic meet-and-confer efforts. To best exploit the meet-and-confer process, parties can and should accede that a plaintiff who agrees to drop a cause of action is not prevented from seeking leave to amend to add it back in later should facts develop in discovery to support the claim. In this spirit, plaintiffs’ attorneys can benefit from understanding the facts of their cases early, and reviewing all pertinent jury instructions before drafting their pleadings. Finally, the new statute may yield greater results on rarely-filed demurrers to answers, which were often sustained under the previous statutory scheme. See Cal. Civ. Proc. Code § 430.20 (West 2014) (grounds for demurrer to answer). Other provisions within section 430.41 may result in less need for court intervention at the early pleading stage, and coupled with the meet-and-confer requirement, the new procedures have the potential to positively impact all involved. Cal. Civ. Proc. Code § 430.41 (West 2016 Supp.). For example, the new statute provides that if a demurrer has been sustained to an earlier version of a pleading, a party shall not demur to any portion of the amended pleading on grounds that could have been raised by demurrer to the earlier version. Id. § 430.41(b). This was intended to deny a demurring party the ability to demur again to the same cause of action unless it was amended, or to demur to causes of action or defenses that were not amended and not previously attacked on demurrer. See, Cal. Sen. Jud. Comm., 3d reading analysis of Sen. Bill No. 383 (2015-2016 Reg. Sess.) As amended September 2, 2015, 4. Additionally, if the court sustains a demurrer with leave to amend, the court may order a conference of the parties before an amended pleading or further demurrer may be filed. Cal. Civ. Proc. Code § 430.41(c) (West 2016 Supp.). This provision appears separate from the meet-and-confer requirement, which also applies to any new demurrer, and there is no limitation on the court's ability to require the conference be held in person, as opposed to the meet-and-confer effort which may be handled by telephone. See id. § 430.41(a)(1). The statute also permits the court to order a conference on its own motion at any time and permits a party to request a conference. Id. § 430.41(c). This was intended to allow a court to order a continuance of the hearing before making a ruling, forcing the parties to a conference to attempt to work out their differences. See Cal. Sen. Jud. Comm., 3d reading analysis of Sen. Bill No. 383 (2015-2016 Reg. Sess.) As amended September 2, 2015, 4. o v-- meee mmm m4 mm memes mma mime The new statute also provides in response to a demurrer and prior to the case being at issue, a complaint or cross- complaint shall not be amended more than three times absent an offer to the trial court as to additional facts to be pleaded. Cal. Civ. Proc. Code § 430.41(e)(1) (West 2016 Supp.). This limit does not include an amendment made without leave of court pursuant to section 472. Id. Section 472, however, was amended and now provides a party may amend its pleading once without leave of court any time before the answer or demurrer is filed, but if a demurrer is filed, the amended pleading must be filed no later than the date for filing an opposition to the demurrer or, if after that date, only upon stipulation of the parties. Cal. Civ. Proc. Code § 472(a) {West 2014). According to proponents of the change, this provision is intended to prevent attorneys from waiting until right before the demurrer hearing to file an amended pleading that moots the hearing and wastes court and attorney resources. Cal. Sen. Jud. Comm., 3d reading analysis of Sen. Bill No. 383 (2015- 2016 Reg. Sess.) As amended September 2, 2015, 4. However, the three-amendment limit does not affect the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue. Cal. Civ. Proc. Code § 430.41(e)(2) (West 2016 Supp.). Finally, the new statute does not apply to civil actions in which an unrepresented party is incarcerated, for actions involving forcible entry, forcible detainer or unlawful detainer, does not affect appellate review, and remains in effect until January 1, 2021. Id. § 430. 41(d)(1)-(2), (f), (9), (h). There were additional changes to section 472a, but they were not substantive. Left untouched were procedures governing motions for judgment on the pleadings under Code of Civil Procedure section 438, which may be made at any time prior to trial or at trial itself, and, in some cases, even if the court has previously acted on a demurrer, or if the party never filed a demurrer in the first place. See Cal. Civ. Proc. Code § 438(g) (West 2014). Amendments as a Message to Practitioners The new motion for summary judgment and summary adjudication and demurrer procedures provide counsel and the court with a number of tools to streamline the process for propelling civil cases to completion. Whether making objections on the next motion for summary judgment or weighing the pros and cons of challenging pleadings in the initia! stages of litigation, the legislature, Judicial Council, and California Judges Association are clearly signaling their expectation that counsel engage in a more thoughtful, deliberate, and attentive effort at making strategic choices on law and motion matters requiring judicial intervention short of trial. Apart from returning to English Common Law, we should all embrace the changes with vigor, leaving for another day the next conquest in pleading history. Kimberly A. Knill is a Legal Research Attorney for the Orange County Superior Court and current Chair of the Commission on Judicial Nominees Evaluation (JNE) of the State Bar of California. She can be reached at kknill@ occourts.org. The views expressed herein are those of the author. They do not necessarily represent the views of the Orange County Superior Court or the State Bar of California. All legal issues must be independently researched. VIEW ALL ARTICLES eee bam meae te ee ees ee ceeemmaml ee me gem mm cm maa mime EXHIBIT 6 § 13:6.Generally, Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 13:6 (2016 ed.) Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 13:6 (2016 ed.) Expert Series California Civil Courtroom Handbook And Desktop Reference April 2016 Update Michael Paul Thomas Chapter 13. Challenging The Answer (Or Cross-Complaint) I. Challenges To The Answer B. Motion To Strike Answer § 13:6. Generally West’s Key Number Digest West's Key Number Digest, Pleading #=362(1) A.L.R. Library West's A.L.R. Digest, Pleading #=362(1) Legal Encyclopedias Am. Jur. 2d, Pleading § 499 A motion to strike may be used to challenge all or part of an answer. (CCP § 435; see Younger on Cal Motions (West 2013), § 14.8) Practice Note A motion to strike may also be used to challenge a demurrer. (CCP § 435; see also Forbes v. Petroleums, Inc., 83 Cal. App. 3d 257, 265, 147 Cal. Rptr. 766 (2d Dist. 1978); Buck v. Morrossis, 114 Cal. App. 2d 461, 464, 250 P.2d 270 (1st Dist. 1952) [untimely demurrer subject to motion to strike]) When used to challenge a demurrer, the motion to strike must be filed at or before the time an opposition to the demurrer is due, i.e., at least 9 court days before the hearing on the demurrer; and it must be set for hearing concurrently with the demurrer. (CCP §§ 435(b), 1005; see also CRC, Rule 3.1322(b); Weil & Brown, Cal Prac Guide: Civ Proc Before Trial (TRG 2015), § 7:166) As with complaints, a court may strike from an answer any irrelevant, false or improper matter, or all or any part of the answer not drawn or filed in conformity with statutes, rules, or court orders. (CCP § 436) Generally, the grounds for a motion to strike all or part of an answer must appear on the face of the answer or from any matter of which the court may take judicial notice. (CCP § 437) A motion to strike is traditionally used to reach certain kinds of defects in a pleading that are not the subject of demurrer. It cannot be used in the place of a special demurrer or to challenge the sufficiency WESTLAW 207¢ Thoms 1 Rei N QI UJ) (3 ern \/ } § 13:6.Generally, Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 13:6 (2016 ed.) of allegations supporting a claim or defense. (See 5 Witkin, Cal Proc (5th ed 2008), Pleading §§ 1008, 1011 to 1113) The objection that an answer is not verified when required must be raised by a motion to strike and not by demurrer. (Lapique v. Kelley, 82 Cal. App. 586, 592, 256 P. 229 (2d Dist. 1927); see also, e.g., People v. $400, 17 Cal. App. 4th 1615, 1618, 22 Cal. Rptr. 2d 161 (5th Dist. 1993)) Similarly, a defendant’s lack of capacity to defend an action must be raised by a motion to strike and not by demurrer. (See Mediterranean Exports, Inc. v. Superior Court, 119 Cal. App. 3d 605, 609-613, 174 Cal. Rptr. 169 (1st Dist. 1981); see also Garamendi v. Golden Eagle Ins. Co., 116 Cal. App. 4th 694, 10 Cal. Rptr. 3d 724 (1st Dist. 2004)) Westlaw. © 2016 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 2016 Thomson Reuters. No claim to original U.S. Government Works EXHIBIT 7 OC.) ATTORNEY OR PARTY WITHOUT ATTORNEY (Name. State Bar number, and address) Nr COURT USE ONLY Gene J. Goldsman, Esq. SBN: 76554 Law Offices of Gene J. Goldsman | The -- 501 Civic Center Drive West Santa Ana, CA 92701 ELECTRONICALLY FILED TELEPHONE NO: (714) 541-3333 FAX NO. (Optional: (714) 541-0456 Superior Court of California, E-MAIL ADDRESS (Optional gene@gjglaw.com Cou nge ATTORNEY FOR (Namef Mona Alsari | SUPERIOR COURT OF CALIFORNIA, COUNTY OF Clerk of the Superior Court sTReeT ADDRESS 700 Civic Center Drive West By Rita Strom, Deputy Clark wAILING ADDRESS: 700 Civic Center Drive West CITY AND ZIP CODE:Santa Ana, 92701 BRAN :Central Justice Center DOES 1 TO 20 COMPLAINT-Personal Injury, Property Damage, Wrongful Death [1 AMENDED (Number): Type (check all that apply): [J] MOTOR VEHICLE Property Damage rongful Death Personal Injury [1] Other Damages (specify): Jurisdiction {check all that apply): CASE NUMBER: [7] ACTION IS A LIMITED CIVIL CASE Amount demanded [__| does not exceed $10,000 ws | [1] exceeds $10,000, but does not exceed $25,000 ACTION 1S AN UNLIMITED CIVIL CASE (exceeds $25,000) Judge Kirk Makamura [1 ACTION IS RECLASSIFIED by this amended complaint [1 from limited to unlimited [7] from unlimited to limited 1. Plaintiff (name or names): Mona Alaseri; Manyah Almalki alleges causes of aclion against defendant (name or names): The American Dream Home Mortgage and Realty; Viola Hanna; Does 1 to 20 2. This pleading, including attachments and exhibits, consists of the following number of pages: 3. Each plaintiff named above is a competent adult a. [_] except plaintiff (name): (1) [7] a corporation qualified to do business ir California (2) [J an unincorporated entity (describe): (3) [[_] a public entity (describe): (4) [J aminor [__] an adult (a) [J for whom a guardian or cons:rvator of the estate or a guardian ad litem has been appointed (b) [1 other (specify): (5) [_] other (specify): b. [| except plaintiff (name): (1) [7] a corporation qualified to do business ii: California (2) [1 an unincorporated entity (describe): (3) [1 a public entity (describe): (4) [J aminor [__] an adult (a) [1 for whom a guardian or conscrvator of the estate or a guardian ad litem has been appointed (b) [1 other (specify): (5) [__] other (specify): [Information about additional plaintiffs who are not cornpetent adults is shown in Attachment 3. PE Form Approved for Optional Use COMPLAINT--Personal Injury, Property Coda of Civil Procedure, § 425 12 Judicial Council of Califomea va courtinfo ca gov PLD-PI-G01 [Rev. January 1, 2007] Damage, Wrongful Death Westlaw Doc & Form Builder PLD-P1-001 al. SHORT TITLE: Alaseri et al. v. The American Dream Home Morigage and Realty et CASE NUMBER; 4. [1 Plaintiff (name): is doing business under the fictitious name (specify): and has complied with the fictitious business name laws. 5. Each defendant named above is a natural person a, except defendant (mame): The American Dream Home {1) [CJ a business organization, form unknown 2) a corporation (3) J an'unincomorated entily (describe): {4) [1 a public entity (describe): (5) 1 other (specify): b. [1 except defendant (name): (1) [J a business organization. form unknown {2) [1 a corporation (3) TJ an'unincorporated entity (describe); (4) [J a public entity (describe): 5) other (specify): ¢. [_] except defendant (name): (1) [__] a business arganization, form unknown (2) [J a corporation (3) [J an unincorporated entity (describe): (4) [J a public entity (describe): (5) [__] other (specify): d. [_] except defendant {name}: (1) [J a business organization, form unknown (2) [_] a corporation (3) [J an unincorporated entity (describ): {4) [7] a public entity (describe): (8) [_] other (specify): [7] Information about additional defendants who are not natural persons is contained in Attachment 5. 6. The true names of defendants sued as Does are unknown to plaintiff. a. Doe defendants (specify Doe numbers):] 10 20 were the agents or employees of other named defendants and acted within the scope of that agency or employment. b. Doe defendants (specify Doe numbers): 1 10 20 plaintiff. are persons whose capacities are unknown to 7. [7] Defendants who are joined under Cade of Civil Procedure section 382 are (names): B. This courtis the proper court because a. [__] al least one defendant now resides in its jurisdictional area. b. | the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area. c. injury fo person or damage to personal property occurred in its jurisdictional area. d. [] other (specify): 9. [1 Plaintiff is required to comply with a claims statute, and a. [1 has complied with applicable claims statutes, or b. [_] is excused from complying because (specify): PLD-PELOOt [Rev. Janurry 1, 2007) © COMPLAINT-Personal Injury, Property Page 2 of 3 Damage, Wrongful Death PLD-Pi-001 SHORT TITLE: Alaseri ct al. v. The American Dream: Home Mortgage and Realty et CASE NUMBER: al. 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): a. [__] Motor Vehicle b. General Negligence . [1 Intentional Tort . [_] Products Liability . [X] Premises Liability [1 Other (spacify): oo 0 0 11. Plaintiff has suffered wage loss! loss of use of property hospital and medical expenses general damage property damage loss of earning capacity other damage (specify): Costs of transportation to and from all medical providers; costs of suit; pre and post Judgment interest: any such further relief as the Court deems just and proper. © p o p p e 12. [__] The damages claimed for wronglul death and the rzlationships of plaintiff to the deceased are a. [1 listed in Attachment 12. b. [1] as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. 14. Plaintiff prays for judgment for costs of suit; for such reiief as is fair, just, and equitable; and for a. (1 compensatory damages (2) [J punitive damages The amount of damages is (in cases for personal injury or wrongful death. you must check (1)): 1) according to proof (2) [_] in the amount of: $ 15. [__] The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers): Date: \O [70 [l = re | Golden, Ea > ) { (TYPE OR PRINT NAME) PLD-P100T [Rev January 1, 2007) COMPLAINT-Personal Injury, Property Page3af3 Damage, Wrongful Death {SIGNATURE OF FLAITIFF OR ATTORNEY) PLD-PI-001(2) SHORT TITLE: Alaseri et al. v. The American Dream Home Mortgage and Realty GASE NUMBER: et al. (number) ATTACHMENT TO Complaint [_] Cross - Complaint (Use a separate cause of action form for each cause of action.) GN-1. Plaintiff (name): Mona Alaseri; Man d Realty; Viola Hanna Does ] to 20 was the legal (proximate) cause of damages to plaintiff, By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on (date): or about February 17, 2015 at (place): or near 2001 Nantucket Place, Tustin, CA 92780 (description of reasons for liability): 1. Plaintiff(s) reallege all prior and subsequent: paragraphs of this complaint by incorporation by reference, as if fully set forth in full herein. 2. The true names or capacities, whether individual, associate, corporate, or otherwise of those Defendants sued herein as Does 1-20, inclusive, and each of them, are unknown to Plaintiff(s), and Plaintiff(s) are ignorant of their true names and identity of Does 1-20, inclusive, and/or facts to implicate the fictitious Doe defendants, who therefore sue said Doe Defendants by such fictitious names. Plaintiffs will ask or seek leave of cour! to amend this complaint to show such true names and capacities when they have ascertained or identified. Plaintiffs arc informed and believe, and based thereon allege, that each of the Doe Defendants are and were in some manner strictly liable, negligent, reckless, careless or unreasonable and/or proximately responsible “or the events, happenings and wrongful acts, failure to act, representations and omissions alleged throughout this complaint and/or committed such, and are liable to Plaintiff(s) as herein alleged either individually or collectively are, in some manner responsible for the actions, happenings or events as well as the acts, representations and omissions described herein and are in some manner responsible and liable to plaintiff(s) for them. Additionally, Fictitious defendants, Does 1-20, inclusive are sued herein pursuant to California Code of Civil Procedure section 474. CONTINUED ON ADDITIONAL PAGE Page 1of 1 " de of Cuil Py 25.12 Form Approved for Optonal Use CAUSE OF ACTION-General Negligence ri Judicial Council of Galferma PLD-PI-001(2) {Rev. January 1, 2007] Westlaw Doc & Form Builder SHORT TITLE: Alaseri etal. v. The American Dream Home Mortgage and Realty CASE NUMBER: l.ctal 1 [13. Plaintiff(s) arc informed and believe and thereon allege that Defendants and cach of them, were the principals, officers, directors 2 3 EN a [oe ] 10 11 i2 13 ” 15 16 17 18 19 20 21 22 23 24 25 26 27 2 cmployers, joint venturers, co-conspirators, partners, alter egos, alternate entities, affiliated entity, successors in interest, predecessors in interest, parents, guardians, employees, contractors, servants, delagatees, delegators and/or agents of each and every other Defendant and that each and every act, omission, failure to act and representation alleged or discovered to have been performed by any one Defendant was done with the authority, permission or knowledge of each of the other Defendants, or alternatively that each act, failure to act or omission alleged to be attributable to any Defendant herein was ratified by each of the remaining Defendants. Defendants, in engaging in the acts, omissions and representations referenced throughout this complaint and/or through discovery. All delegations, acts, failures to act, omissions of Defendants and each of them, were done within the course and scope of employment, agency, conspiracy, agreement, partnership or through some other type of relationship or theory, as between each defendant and every other defendant identified specifically or generally throughout this complaint. Based on suc Defendants, and cach of them, are directly, vicariously or under some other theory, liable for the acts, omissions, failures to act and representations of each and every other Defendant under respondeat superior, agency, partnership, agreement or through or undei some other legal fact or theory. Each and every act, omission, failure (o act and representation of each defendant was done for the benefit of and/or in furtherance of a relationship between any one defendant and each other defendant identified within the complaint. - 4. At all times relevant hereto Defendants and each of them, jointly or severally, including their agents, employees, servants, and contractors acting within the course, scope, and purpose of employment, owned, maintained, inspecied, controlled, repaired, managed, and/or operated the premises at or near 200] Nantucket Place, Tustin, CA 92780, and the surrounding and adjacent areas. Defendants had a duty of care towards all foreseeable plaintiffs, including present Plaintiff, to keep them free from foreseeable rss of harm, including but not limited to a duty adequately, properly, and safely maintain and inspect the property. i 5. Defendants and each of them were negligent, reckless, careless, and unreasonable in and among other things, prior to and at the time of Plaintiff's injury, in constricting, erecting, building, maintaining, inspecting, improving, repairing, modifying, controlling or creating an unsafe, dangerous, and hazardous condition at the aforementioned. The dangerous condition consisted of an inadequately maintained home, including but not limited to the presence of bugs ou the aforementioned premises. The defendants could have corrected the condition prior and avoided Plaintiff's injury because the condition existed prior to the time of injury and Defendant had sufficient time to remedy the condition or provide warning/notice. Further, Defendants and each of them failed and were negligent in provided inadequate lighting. 6. Defendants and each of them offered no adequate instructions, directions, or warnings regarding this dangerous condition. As a direct and proximate result of the aforementioned negligent, reckless, careless, and unreasonable acts by Defendants and each of them, along with their employees, agents, servants, contractors, acting within the course, scope, and purpose of eniployment, Plaintiff, a foreseeable user of the premises and property, while living inside the home, made contact with the aforementioned dangerous condition, was bitten hundreds of times, sustaining serious bodily injuries. {Required far verified pleading) The items on this page stated on information and belief are (specify item numbers, not line numbers): This page may be used with any Judicial Council farm or any other paper filed with the court. Page 5 Form Approved by the ADDITIONAL PAGE Westlaw De k Form Builder dudiclal Council of Galitomia Attach to Judicial Council Form or Other Court Paper CRG 201. 501 MC-020 [News January 1. 1887) . PLD-PI-001(4) SHORT TITLE: Alaseri et al. v. The American Dream Home Mortgage and Realty CASE NUMBER; et al. (number) ATTACHMENT TO Complaint ~~ [_] Cross - Complaint (Use a separate cause of action form for each cause of action.) Prem.L-1. Plaintiff (name): Mona Alaseri; Manyah Almalki alleges the acts of defendants were the legal (proximate) cause of damages to plaintiff. On (date): or about February 17, 2015 plaintiff was injured on the following premises in the following fashion (description of premises and circumstances of injury): At all times relevant hereto, Defendants, and each of them owned, controlled, operated, designed. managed, inspected and maintained, improved and repaired the premises at or near 2001 Nantucket Place, Tustin. CA 92780. Defendants, and each of them, created and/ or maintained a dangerous condition on the aforementioned premises consisting of an inadequately maintained home, including but not limited to the presence of bugs on the aforementioned premises. Plaintiff came in contact with this dangerous cond tion while inside the home, and as a direct and proximate result thereof, was bit multiple times, sustaining serious injuries. Prem.L-2. Count One-Negligence The de endants who negli intai anaged and operated the described premises ‘were (names): Viola Hanna Does 1 to 20 Prem.L-3. [J count Two-Willful Failure to Warn [Civil Code section 846] The defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity were (names): J Does to Plaintiff, a recreational user, was [| an invited guest [__] a paying guest. PremL-4. [1 Count Three-Dangerous Condition of Public Property The defendants who owned public property on which a dangerous condition existed were (names): [poes to a. [1 The defendant pubic entity had [J actual [J constructive notice of the existence of the dangerous condition in suificient time prior to the injury to have corrected it. b. [__] The condition was created by employees of the defendant public entity. Prem.L-5. a. Allegations about Other Defencants The defendants who were the agent ‘Vortgage and Rest: vis withir the scope of the agency were (names): iola Hanna Does 1 to 20 b. The defendants who are liable to slaintiffs for other reasons and the re ir liability are [J described in attachment Prem.L-5.b as follows (names): Viola Har na; Does | to 20; according to proof Page 1 of 1 Form Approved fot Optional Use JL i i i Code of Civil Procedure, § 425.12 Judieral Council of Califorma CAUSE OF ACTIC N Premises Liability Y ic Gov FLD-P1001(4) [Rev. January 1.2007] Westlaw Doc & Form Builder- EXHIBIT 8 PL.D-PI-001 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Stale Bar number, and address): FOR COURT USE ONLY Gene J. Goldsman, Esq. SBN: 76554 Law Offices of Gene J. Goldsman 501 Civic Center Drive West Santa Ana, CA 92701 TELEPHONE No: (714) 541-3333 FAX NO. (Cationaly: (714) 541-0456 0 Pi E-MAIL ADDRESS (Optional): gene(@gj glaw.com Clerk of the Superior Court ATTORNEY FOR (Name):Mona Alsari By Danielle Jurado, Deputy Clerk SUPERIOR COURT OF CALIFORNIA, COUNTY OFORANGE STREET ADDRESS: 700 Civic Center Drive West MAILING ADDRESS: 700} Civic Center Drive West CITY AND ZIP CODE:Santa Ana, 92701 BRANCH NAME: Ce! usti PLAINTIFF: Alkayali DOES 1 TO 100 CO sonal Inj amage, Wrongful Death Type (check all that apply): [C1 MOTOR VEHICLE OTHER (specify):Negli Property Damage [| Personal Injury 1 ; . Jurisdiction (check all that apply): [1 ACTION IS A LIMITED CIVIL CASE Amount demanded [__] does not exceed $10,000 [] exceeds $10,000, but does not exceed $25,000 [_X] ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) [C1 ACTION IS RECLASSIFIED by this amended con plaint [J from limited to unlimited [1 from unlimited to limited 2. This pleading, including attachments and exhibits, consists of the following number of pages: 3. Each plaintiff named above is a competent aduit a. [| except plaintiff (name): (1) [1 a corporation qualified to do business in California (2) [CZ] an unincorporated entity (describe): (3) [1 a public entity (describe): (4) [J aminor [__] an adult (8) [_] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) [J other (specify): (5) [1 other (specify): b. [__] except plaintiff (name): (1) [1 a corporation qualified to do business in California (2) [_] an unincorporated entity (describe): (3) [__] a public entity (describe): (4) (J aminor [| an adult (a) [__] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) [1 other (specify): (5) [_] other (specify): [J Information about additional plaintiffs who are not competent adults is shown in Attachment 3. re Form Approved for Optional Use 8 i Code of Civil Procedure, § 425.12 Judicial Council of California com PLAI NT-Personal Inju IY, Pro pe rty www. courtinfo,ca.gov PLD-PI001 [Rev. January 1, 2007} Danage, Wrongful Death Westlaw Doc & Form Bullder PLD-PI-001 SHORT TITLE: Alaseri et al. v. The American Dream Hom ¢ Mortgage and Realty et CASE NUMBER: al. 30-2015-00817912 4. [_] Plaintiff (name): is doing business under the fictitious name (specif): and has complied with the fictitious business name laws. 5. Eadl c. [1 except defendant (name): (1) [1] a business organization, form unknown (2) [_] a corporation (1) ganization, form unknovn an unincorporated entity (describe): (3) [C1] an unincorporated entity (describe): (4) [1 a public entity (describe): (4) [1 a public entity (describe): (5) [_] other (specify): v (5) [_] other (specify): b. [__] except defendant (name): d. [| except defendant (name): (1) [__] a business organization, form unknown (1) [1 a business organization, form unknown (2) [1 a corporation (2) [1 a corporation (3) [J an unincorporated entity (describe): (3) [__] an unincorporated entity (describe): (4) [] a public entity (describe): (4) [_] a public entity (describe): (5) [_] other (specify): (5) [J other (specify): [1 information about additional defendants who are not natural persons is contained in Attachment 5. 6. The true names of defendants sued as Does are unkrown to plaintiff, a. Doe defendants (specify Doe numbers): 1 to 20 were lhe agents or employees of other named defendants and acled within the scope of that agency or employment. b. Doe defendants (specify Doe numbers): 1 to 20 are persons whose capacities are unknown to plaintiff. 7. [[] Defendants who are joined under Code of Civil I’rocedure section 382 are (names): 8. This court is the proper court because a. [__] atleast one defendant now resides in its jurisdictional area. . [] the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area. A injury to person or damage to personal proparty occurred in its jurisdictional area. . [7] other (specify): oT oo 0 9. [1 Plaintiff is required to comply with a claims state, and a. [___] has complied with applicable claims statutes, or b. [J is excused from complying because (specify): PLD-P1-001 [Rev. January 1, 2007) COMPLAINT -Personal Injury, Property Pago 2 f 3 Damage, Wrongful Death PLD-PI-001 SHORT TITLE: Alaseri etal. v. The American Dream Hone Mortgage and Realty ct CASE NUMBER: al. 30-2015-00817912 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): [1 Motor Vehicle [X] General Negligence [7 Intentional Tort [1 Products Liability Premises Liability Other (specify): Breach of Implied Warranty of Habitability, Negligence/Tort Per Se mp o 0 T o D 11. Plaintiff has suffered wage loss loss of use of property hospital and medical expenses general damage property damage loss of earning capacity other damage (specify). Costs of transportation to and from all medical providers; costs of suit; pre and post judgment interest; any such further relief as the Court deems just and proper. @ * p a p 0 oo 12. [___] The damages claimed for wrongful death and th 2 relationships of plaintiff to the deceased are a. [_] listed in Attachment 12. b. [_] as follows: 13. The relief sought in this complaint is within the jurisdic tion of this court. 14. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. (1) compensatory damages The amount fn is (in cases for personal ‘njury or oily , you must check (1)): 1 according to proof (2) [] inthe amount of: $ 15: The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers): All paragraphs Gene I Galdsman, Esq p S05 (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) PLD-PI-001 [Rev. January 1, 2007) COMPLAIN" -Personal Injury, Property Page3of3 Damage, Wrongful Death PLD-PI-001(2) SHORT TITLE: Alaseri et al. v. The American Dream Home Mortgage and Realty SOREINBER: etal. 30-2015-00817912 mber) ATTACHMENT TO Complaint [___] Cross - Complaint {Use a separate cause of action form for each caus of action.) GN-1. Plaintiff (name): Mona Alaseri; Manyah Almalki alleges that defendant ram The Americ Dram Home Morgan Res; Hoi Alkayali Does 1 to 100 was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff on (date). or about February 17, 2015 at (place): or near 2001 Nantucket Place, Tustin, CA 92780 (description of reasons for liability): 1. Plaintiff(s) reallege all prior and subsequent paragraphs of this complaint by incorporation by reference, as if fully set forth in full herein. 2. The true names or capacities, whether individual, associate, corporate, or otherwise of those Defendants sued herein as Does 1-100, inclusive, and each of them, arc unknown to Plaintiff(s), and Plaintiff(s) are ignorant of their true names and identity of Docs 1-100, inclusive, and/or facts to implicate the fictitious Doe defendants, who therefore sue said Doe Defendants by such fictitious names. Plainiiffs will ask or seek leave of court to amend this complaint to show such true names and capacities when they have ascertained or identified. Plaintiffs are informed and believe, and based thereon allege, that cach of the Doc Defendants are and were in some manner strictly liable, negligent, reckless, careless or unreasonable and/or proximately responsib!c for the events, happenings and wrongful acts, failure to act, representations and omissions alleged throughout this com»laint and/or committed such, and are liable to Plaintiff(s) as herein alleged either individually or collectively are, in some manner responsible for the actions, happenings or events as well as the acts, representations and omissions described herein and are in some manner responsible and liable to plaintiff(s) for them. Additionally, Fictitious defendants, Does 1-100, inclusive are sucd herein pursuant to California Code of Civil Procedure section 474. CONTINUED ON ADDITIONAL PAGE Page 1 of 1 Form Approved for Optional Use - G . Code of Civil Procedure 425.12 Judicial Council of California CAUSE OF ACTION eneral Negligence www.courtinfo.ca.gov PLD-P1-001(2) (Rev. Jaauary 1, 2007] Westlaw Doc & Form Builder~ | SHORT TITLE: Alaseri et al. v. The American Dream Home Mortgage and Realty 30.2015 00817912 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3. Plaintiff(s) are informed and believe and thereon allege that Defendants and each of them, were the principals, officers, directors employers, joint venturers, co-conspirators, partners, alter egos, alternate entitics, affiliated entity, successors in interest, predecessors in interest, parents, guardians, employees, contractors, servants, delagatees, delegators and/or agents of each and evely other Defendant and that each and every act, omission, failure to act and representation alleged or discovered to have been performed by any one Defendant was done with the authority, permission or knowledge of each of the other Defendants, or alternatively that each act, failure to act or omission alleged to be atiributable to any Defendant herein was ratified by each of the remaining Defendants. Defendants, in engaging in the acts, omissions and representations referenced throughout this complaint and/or through discovery. All delegations, acts, failurcs to act, omissions of Defendants and each of them, were done within the course and scope of employment, agency, conspiracy, agreement, partnership or through some other type of relationship or theory] as between each defendant and every other defendant identified specifically or generally throughout this complaint. Based on suc Defendants, and each of them, are directly, vicariously or under some other theory, liable for the acts, omissions, failures to act anf representations of each and every other Defendant under respondeat superior, agency, partnership, agreement or through or under some other legal fact or theory. At all times Defendants and each of them marketed, rented and leased the premises. Each and every act, omission, failure to act and representation of each defendant was done for the benefit of and/or in furtherance of a relationship between any one defendant and each other defendant identified within the complaint. m = 4. At all times relevant hereto Defendants and each of them, jointly or severally, including their agents, employees, servants, and contractors acting within the course, scope, and purpose of employment, owned, maintained, inspected, controlled, repaired, managed, made representations about, marketed, and/or operated the resident, premises at or near 200! Nantucket Place, Tustin, CA. 927890, and the surrounding and adjacent areas. Defendants had 2 duty of care towards all foreseeable plaintiffs, including present Plaintiff, to keep them free from foreseeable risks of harm, including but not limited to a duty adequately, properly, and safcly maintain and inspect the property. At all times Defendants had actual or constructive notice or knew or should have known of the premises conditions. Defendants and cach of them had constructive notice of the existence of the dangerous condition in sufficent time prior to the injury to have corrected it. 5. Defendants and each of them were negligent, reckless, careless, and unrcasonable in and among other things, prior to and at the time of Plaintiff's injury, in constructing, erecting, building, maintaining, inspecting, improving, repairing, modifying, work performed at, provision of goods, labor and services at, controlling, or creating an unsafe, dangerous, and hazardous condition at the aforementioned. The dangerous condition consisted of an inadequately maintained residential home, including but not limited to the presence of bugs on the aforementioned premises. The defendants could have corrected the condition prior and avoided Plaintiff's injury because the condition existed prior to the time of injury and Defendant had sufficient time to remedy the condition or provitle warning/motice. Plaintiff reasonably and justifiably relied on the fitness and habitability of the Defendant's residential premises. Further, Defendants and each of them failed and were negligent in provided inadequate lighting, 6. Defendants and each of them offered no adequate instructions, directions, or warnings regarding this dangerous condition. As a direct and proximate result of the aforementioned negligent, reckless, careless, and unreasonable acts by Defendants and each of (them, along with their employees, agents, servants, contractors, acting within the course, scope, and purpose of employment, Plaintiffs, foreseeable users of the premises and property, while living inside the home, made contact with the aforementioned dangerous condition and were bitten hundreds of times, sustaining serious bodily injuries, damages, costs losses and expenses. {Required for verified pleading) The items on this page stated on information and belief are (specify item numbers, not line numbers). This page may be used with any Judicial Council form or any other paper filed with the court. Page 5 Form Approved by he ADDITIONAL PAGE Westlaw Dock Form Bide Judiciat Council of California Attach to Judicial Council Form or Other Court Paper CRG 201,501 MC-G20 {New Janvary 1, 1987) PLD-PI-001(4) SHORT TITLE: Alaseri et al. v. The American Dream Hore Mortgage and Realty LASE NUMBER; etal. 30-2015-00817912 (number) ATTACHMENT TO Complaint ~~ [__] Cross - Complaint (Use a separate cause of action form for each cause of action.) Prem.L-1. Plaintiff (name): Mona Alaseri; Manyah Almalki alleges the acts of defendants were the ‘egal (proximate) cause of damages to plaintiff. On (date): or about February 17, 2015 plaintiff was injured on the following premises in the following fashion (description of premises and circumstances of injury): At all times relevant hereto, Defendants, and each of them owned, controlled, operated, designed, managed, inspected and maintained, improved and repaired the premises at or near 2001 Nantucket Place, Tustin, CA 92780. Defendants, and each of them, created and/ or maintained a dangerous condition on the aforementioned premises consisting of an inadequately maintained home, including but not limited to the presence of bugs on the aforementioned premises. Plaintiff came in contact with this dangerous condition while inside the home, and as a direct and proximate result thereof, was bit multiple times, sustaining serious injuries. Prem.L-2. Count One-Negligence The defendants who negligently owned, maintained, managed and operated the described premises were (names Does 1 to 100 Prem.L-3. [1 Count Two-Willful Failure tc Warn [Civil Code section 846) The defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity were (names): [1 Does to Plaintiff, a recreational user, wes [1] aninvited guest [Ja paying guest. Prem.L-4. [1 count Three-Dangerous Condition of Public Property The defendants who owned public property on which a dangerous condition existed were (names): [Ipoes to a. [1 The defendant public 2ntity had [J actual [J constructive notice of the existence of the dangerous condition in sufficient time prior to the injury to have corrected it. b. [J The condition was created by employees of the defendant public entity. Prem.L-5. a. Allegations about Other Defendants The defendants who were the agents and aya of the other defendants and acted within the scope of the agency were (name. Does 1 to 100 1; The defendants who are liable to plaintiffs for other reasons and the rea [CJ described in attachment *rem.L-5.b as follows (name according to proof. Plaintiff{(s) reallege all prior and subsequent paragraphs of this complaint by incorporation by reference, as if fully set forth in full herein. Page 1 of 1 Form Approved for Oplional Use = a i i iii Gode of Cml Pi , § 425.1 a ar CAUSE OF ACTION-Premises Liability A a PLD-PI-001(4) (Rev. January 1, 2007] Westlaw Doc & Form Builder (Breach of Implied Warranty of Habitability against Hasib Alkayali and Does 1t0 100 we A. Common Law Breach of Implied Warranty of Habitability Le Plaintiffs also incorporate by referznce all subsequent facts and paragraphs as alleged hereafter as if set forth in full herein. 2, At the time Plaintiffs rented and/or occupied the aforementioned residential premises from the Defendants, and at all times thercafter, the Premises was unfit for human occupation in that it, among other things, substantially failed to comply with those applicable California Building and Housing codes that material 'y affect an individual’s health & safety. The warranty of habitability was breached, by among other things, defective maintenance, construction and/or repair of the premises that caused the resulting bites. 3 The tenants of the premises where the bugs were located notified Defendants and Does 1 through 100, and each of them, of the defzctive and dangerous issues with the premises that caused the subject incident and requested that Defendants have the premises repaired multiple times. At all times defendants had actual knowledge and knew or should have known the bug condition was dangerous and posed fores:eable risks of harm to residential tenants at, on and near the premises where plaintiffs lived and leased/rented. Defendants failed to repair the defective and dangerous premises within a reasonable time or at all. Accordingly, Plaintiffs are informed and believe and thereon allege that Defendants had actual and/or constructive knowledge of the defective and dangerous conditions, but failed to warn plaintiffs, remedy or make safe. 4. As a result of the Defendants’ breach of the implied warranty of habitability, Green v. Superior Court, (1974) 10 Cal. 3d 616, C/vil Code Section 1914.1 et seq. and their failure to repair the defective and dangerous condition on the premises or have them repaired within a reasonable time or manner whatsoever, or at all, pursuant to Civil Code sections 1941, 1941.1 and 1942.4, Plaintiffs sustained general damages, special damages, consequential losses, emotional distress, physical personal injury, mental anguish, anxiety, worry, discomfort, economic losses and substantial reduction in habitability existed. 5. As a proximate result of defendants’ acts and omissions, plaintiffs were severely injured by hundreds of bug bites, rendering the dwellings uninhabitable forcing Plaintiffs to find replacement dwellings to live. 6. As a further proximate result of Defendants’ breach of implied warranty of habitability and their failure to adequately repair the defective and dangerous condition or have this dangerous condition repaired properly and within a reasonable time or at all, Plaintiffs sustained economic loss, property damage, personal injury and other incidental and consequential damages, all to Plaintiffs’ further damage in the sum in excess of the minimum jurisdiction of this Court. B. Statutory Breach of Implied Warranty of Habitability 7. Plaintiffs also incorporate by refersnce all subsequent facts and paragraphs as alleged hereafter as if set forth in full herein. 8. Defendants and each of them, have violated statutes, including, inter alia, but not limited to: Civil Code § 1941.1(a) ef seq. including but not limited to, subvs. (1) and (6), which provides that a premises is untenable if it lacks: (1) Effective waterproof and weather protection of roof and exterior walls, including unbroken windows and doors... (6) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin... 0. Defendants failed to adequately repair, remedy, warn and refused to repair these dangerous and defective conditions on their residential premises within a reasonable time or at all. Plaintiffs paid Defendants rent durirg the time they occupied the premises. 10. The Premises” defective and dangerous condition was not caused by the acts or omissions of Plaintiffs. 11. As a proximate result of the Defendants’ breach of statutory duty of implied warranty of habitability and their failure to adequately maintain, inspect, repair and correct the defective and dangerous condition or have the defective and dangerous condition repaired within a reasonable time or at all, Plaintiffs sustained general damages, economic loss, a discomfort, worry, anxiety, annoyance, personal injury and serious and severe emotional distress as set forth elsewhere in this Complaint. FOURTE CAUSE OF ACTION NEGLIGENCE/TORT PER SE (STATUTORY VIOLA ION) ro it etm I Plaintiffs incorporate by reference all subsequent facts and paragraphs as alleged hereafter as if set forth in full herein. 2. Plaintiffs were at pertinent times herein tenants of Defendants at the Property. 2s At pertinent times herein, Defendznts demanded and/or collected rent from Plaintiffs. At the time Defendants demanded and/or collected rent from Plaintiffs, the Property substantially lacked the affirmative standard characteristics listed in Civil Code § 1941.1. 4. A public officer or employee whose job is the enforcement of housing laws, notified Defendants in a written notice issued afte inspection of the premises, informing Defendant of Defendant's obligations to abate the nuisance or repair the substandard conditions. 5; The conditions had existed and hac not been abated 35 days beyond the date of the issuance of the notice, and the delay was without good cause; and the conditions were not caused by an act or omission of plaintiff in violation of Civil Code sections 1929 or 1941.2. 6. By reason of Defendants’ unlawful conduct, Plaintiffs have sustained general and special damages in an amount to be proven at trial. Plaintiffs are entitled to recover special damages of not less than $100 nor more than $5,000 pursuant to Civil Code section 1942.4. Defendants and each of them have breacl ed their statutory duty toward plaintiffs. Te By reason of Defendants’ unlawful conduct, Plaintiffs are entitled to reasonable attorney's fees and costs of suit, pursuant to Civil Code section 1942.4. 10 SUM-100 yd - CIEE NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): YOU ARE BEING SUED BY PLAINTIFF: Mona Alaseri Manyah Almalki (LO ESTA DEMANDANDO EL DEMANDANTE): NOTICE! You have been sued. The court may decide against you \ithout your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal pz pers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your respons. You can find these court forms and more information at the California Courts Online Self-Help Center (www. courtinfo.ca.gov/selfhelp), your coun'y law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligibl:: for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (wvw.lawhelpcalifomia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in i: civil case. The court's lien must be paid before the court will dismiss the case. jAVISO! Lo han demandado. Sino responde dentro de 30 dlas, ia corte puede decidir en su contra sin escuchar su versién. Lea la informacién a continuacién. Tiene 30 DIAS DE CALENDARIO después de que le entreguen «sta citacién y papeles legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carta o una llamada telefénica no lo protegen. Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corte y més informacién er el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la biblioteca de leyes de su condado o en la corte que le quede mds carca. Si no puede pagar la cuota de presentacién, pida al secretario de la corte que le dé un formulario de exencién de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podré quitar su sueldo, dinero y bienes sin mds advertencia. Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Sino conoce a un abogado, puede llamar a un servicio de remisién a abogados. Si no puede pagar a un abogado, es posible jue cumpla con los requisitos para obtener servicios legales gratuitos de un programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (www lawhelpcalifornia.org), en e/ Centro de Ayuda de las Cortes d> California, (www.sucorte.ca.gov) o poniéndose en contacto con la corte o el colegio de abogados locales. AVISO: Por ley, Ja corte tiene derechc a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperacién de $10,000 6 més de valor recibida medianiz un acuerdo o una concesién de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desecher el caso. The name and address of the court is: CASE NUMBER: es (El nombre y direccién de la corte es): Judge Mathan Scott iw dois 30-201500817912- CU-FO-GJ0 Superior Court of California, County of Orange 700 Civic Center Drive West Santa Ana, California 92701 The name, address, and telephone number of plaintiff's attorr ey, or plaintiff without an attorney, is: Gene J. Goldsman, Esq. (El nombre, la direccién y el numero de teléfono del abogado del demandante, o del demandante que no tiene abogado, es): Law Offices of Gene J. Goldsman 501 Civic Center Drive West, Santa Ana, CA 92701 (714) 541-3333 DATE: pengiote ALAN CARLSON, Clerk of the Court Clerk, by Lyne Thy y egal (Fecha) (Secretario) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citation use el formulario Proof of Service of Summons, (P0OS-010)). NOTICE TO THE PERSON SERVED: You are served 1. [_] as an individual def:ndant. 2. [7] asthe person sued under the fictitious name of (specify): HMecander hiorgan 3. [1 on behalf of (specify): under: C1 CCP 416.1) (corporation) [] CCP 416.60 (minor) [7] ccP 416.27 (defunct corporation) [] CCP 416.70 (conservatee) [J] CCP 416.40 (association or partnership) [__] CCP 416.90 (authorized person) [J other (specify): 4. [7] by personal delivery on (date): Page 10f1 Form Adopted for Mandatory Use 5 Code of Civil Procedure §§ 412 20, 465 Judicial Council of California SUMMONS www.courtinfo.ca.goy SUM-100 [Rev July 1, 2009) Westlaw Doc & Form Bullder- 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and am not a party to the within action. My business address is 501 W. Civic Center Drive, Santa Ana, CA 92701. On November 28, 2016, I served the within document(s) described as: PLAINTIFF, MONA ALASERIA AND MANYAH ALMALKI’S NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE AND REALTY’S DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FILED IN COMPLETE DISREGARD AND IN VIOLATION OF CODE OF CIVIL PROCEDURE §§ 430.41, 472(a), 1008(a) AND BENNETT v. SUNCLOUD; MEMORANDUM OF POINTS & AUTHORITIES [CCP §§ 435-437; 1008, CCP §§ 177.5; CRC 3.1322(b), 2.30 ET SEQ.; FORBES v. CAMERON PETROLEUMS, INC. (1978) 83 CAL. APP. 3d. 257 AND BUCK v. HARON (1952) 114 CAL. APP. 3d. 461] on the interested parties in this action addressed as ollows: Leonard W. Stitz, Esq. Adina T. Stern, Esq. Law Office of Leonard W. Stitz Adina T. Stern APC 987 N. Enterprise 30021 Tomas St., #300 Orange, CA 92867 Rancho Santa Margarita, CA 92688 x By Mail - Iam “readily familiar” with the firm office’s business practice and procedures of collection and processing correspondence for mailing. Under the practice it would be deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I deposited such envelope containing the document(s) in the mail at Santa Ana, California pursuant to this law office’s business practices and procedures. To the best of my knowledge I have followed these regular mail practices and rocedures on the date herein. The envelope was mailed with postage thereon fully prepaid. PF By Overnight Courier - I caused such envelope to be deposited in the courier dropbox at Santa Ana, California. The envelope was delivered with postage thereon fully prepaid. [] By Personal Service - I delivered said envelope corresponding to the above party(s) names by hand on the date specified above. x State - I certify (or declare) under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. ] Federal - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made, and I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on November 28, 2016, at Santa Ana, California. Jon B. Enriquez ( b ig Print Name [si gnattl re a Lo PLAINTIFFS" MOTION TO STRIKE DEFENDANT, AMERICAN DREAM HOME MORTGAGE DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; AND DECLARATION OF EVAN A. BLAIR, ESQ.