Superior Court, State of California · 2020-07-27 · SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 21, Honorable THANG NGUYEN BARRETT, Presiding Donna M. O’Hara,

SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 21, Honorable WILLIAM J. MONAHAN, Presiding

(for Hon. Thang N. Barrett)

Donna M. O’Hara, Courtroom Clerk

DATE: 10/13/20 TIME: 9:00 AM

191 North First Street, San Jose, CA 95113

Telephone: 408-882-2330

To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

DEPARTMENT: 21 DATE: October 13, 2020 TIME: 9:00 AM

PREVAILING PARTY SHALL PREPARE THE ORDER, UNLESS OTHERWISE

INDICATED BELOW.

(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY

COUNSEL AND SUBMITTED PER 3.1312(C))

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REMOTELY (NOT IN COURTROOM) AND FORM #CV-5100 IS REQUIRED.

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http://www.courtinfo.ca.gov/rules/index.cfm?title=three&linkid=rule3_1312






DATE: 10/13/20 TIME: 9:00 AM


Telephone: 408-882-2330



LINE # CASE # CASE TITLE RULING

LINE 1 18CV322807 Gary Chow vs. Dan Yuan Chiao, et

al

Click on Line 1 for ruling.

LINE 2 19CV355207 Ali Kalbali vs. Ali Kalbali et al Click on line 2 for ruling.

LINE 3 17CV310881 William Chiocchi, et al vs. Anthony

Dariano, et al


LINE 4 18CV335192 Maria Rogers et al vs. FCA US LLC

et al

Click on line 4 for ruling.

LINE 5 19CV357485 Natasha Doubson vs. Elena

Kozlova et al


LINE 6 19CV357485 Natasha Doubson vs. Elena

Kozlova et al


LINE 7 20CV364020 Zhaohua Meng vs. Silva

Management, Inc. et al


LINE 8 18CV324342 Estates of Johnson & Louise H.

Clark et al vs. Candice Kaufman

Wozniak et al

OFF CALENDAR. Plaintiff’s motion for

reconsideration was already denied by order

filed 8/4/2020.

LINE 9 19CV344241 City of San Jose vs. Steven Baxter APPEAR BY COURT CALL preferred.

However, personal appearance is allowed.

Judge Monahan discloses that City of San Jose’s

attorney Aaron Yu was an intern for Judge

Monahan more than 5 years ago.

LINE 10 19CV344644 Harry Mehta vs. Jose Banuelos OFF CALENDAR AS MOOT. See Substitution

of Attorney filed 9/28/2020. [Defendant Jose

Banuelos substituted himself in pro per.]

LINE 11 19CV354427 Joyce Engberg vs. Peak Physical

Therapy et al

OFF CALENDAR AS MOOT. See dismissal

with prejudice filed 9/21/2020.






DATE: 10/13/20 TIME: 9:00 AM


Telephone: 408-882-2330



LINE 12 20CV368904 CSAA Insurance Exchange vs. Vanessa Tran

APPEAR BY COURT CALL. Please provide authority as to jurisdiction of this court to hear this

motion when the proof of service is on an attorney,

no lawsuit has been filed, and no summons has been served on Vanessa Tran.

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Calendar line 1

Case Name: Gary K. Chow vs Dan Yuan Chiao

Case No. 18CV322807

The following motions came on regularly for hearing on October 13, 2020, at 9:00 a.m.

in Department 21, Honorable William J. Monahan presiding. The matters having been

submitted, it is ordered:

Plaintiff Gary K. Chow (“Plaintiff)’s motion for an order striking Defendant Dan Yuan

Chiao (“Defendant”)’s Answer (terminating sanction) in this action is DENIED without

prejudice. Defendant has willfully failed to comply with the discovery ordered in the court’s

November 14, 2019 order to provide discovery. Defendant shall provide all discovery

ordered in the court’s November 14, 2019 order to Plaintiff within 15 days.

Defendant is advised that the failure to provide this court ordered discovery may result

in his Answer being stricken. It may also result in other sanctions including terminating

sanctions, evidentiary sanctions, issue sanctions, and/or monetary sanctions.

Plaintiff’s motion for additional monetary sanctions against Defendant is GRANTED in

the amount of $1,635. Defendant shall pay this amount to Plaintiff within 90 days.

Plaintiff’s motion to reduce the amounts previously awarded in the court’s November

14, 2019 discovery order and the court’s January 6, 2020 anti-slapp order to a judgment is

DENIED without prejudice. No authority is cited by Plaintiff for this request.

Defendant’s request in his opposition papers that Plaintiff be subject to sanction

payable to the court for bringing this motion is DENIED.

- oo0oo -

Calendar line 2

Case Name: Ali Akbar Kalbali v. Ali Asghar Kalbali, et al.

Case No.: 19-CV-355207

The demurrer by defendant Ali Asghar Kalbali (“Defendant”) to the complaint of

plaintiff Ali Akbar Kalbali (“Plaintiff”) came on for hearing before the Honorable William J.

Monahan on October 13, 2020, at 9:00 a.m. in Department 16. The matter having been

submitted, the Court finds and orders as follows:

Factual and Procedural Background

Plaintiff and Defendant are brothers. (Complaint, ¶¶ 1-2 & 15.) Their siblings include

Mahin Adeeb and Amir Kalbali. (Id. at ¶ 15.) Defendant is a real estate developer and had the

idea to purchase a piece of property and develop a commercial building on it. (Id. at ¶¶ 13-15.)

To that end, Defendant and his siblings formed Rumi Group, LLC (“Rumi”) for the purpose of

purchasing and developing the property.1 (Id. at ¶¶ 3 & 15-16.) Defendant and Plaintiff

entered into an operating agreement, which provided that “[t]he Company will be formed for

the sole purpose of acquiring [certain] property … and developing the Property with a two

story, commercial building suitable for lease to offices and retain businesses, managing the

Property, and selling the Property for a profit.” (Id. at ¶¶ 16 & 45.)

Plaintiff and Mahin Adeeb each contributed $420,000 and acquired a 15 percent

interest in Rumi. (Complaint, ¶ 17.) Amir Kalbali contributed $280,000 and acquired a 10

percent interest in Rumi. (Ibid.) Defendant acquired a 60 percent interest in Rumi. (Ibid.)

Defendant allegedly knew that his siblings did not have had sufficient cash to pay their

respective capital contributions. (Id. at ¶ 18.) Plaintiff borrowed approximately $650,000

against his two houses to generate cash for his own and his siblings’ capital contributions.

(Ibid.)

On February 13, 2004, at Defendant’s insistence, the members of Rumi agreed to cause

Rumi to enter into a design contract with KAL Design Group, Inc. (“KAL Design”), an entity

operated by Defendant, for the development of the property. (Complaint, ¶¶ 13 & 19.)

Between December 2005 and January 2008, Rumi entered into various design, construction,

and management contracts with KAL Design and KAL Construction, Inc. (“KAL

Construction”), an entity operated by Defendant, for the development of the property. (Id. at

¶¶ 13 & 20.) Each contract was signed and approved by Rumi, but Defendant “was the person

actually making the decisions regarding these transactions.” (Id. at ¶ 20.)

Rumi was approximately $1,600,000 short of the money necessary to complete the

development of the property. (Complaint, ¶ 21.) According to Defendant, Rumi could not

raise enough money from traditional sources to finish the development of the property. (Id. at

¶ 22.) Defendant therefore offered to finance the project through KAL Construction, which

would issue Rumi a loan in the amount of $1,620,798.98. (Ibid.) To memorialize the loan,

Rumi signed a promissory note secured by a deed of trust on the property. (Id. at ¶ 23.) With

funding in place, Rumi completed development of the property as a mixed-use retail building

on or about October 3, 2007. (Id. at ¶ 24.)

1 Rumi was allegedly the alter ego of Defendant. (Id. at ¶ 4.)

Although repayment of the note was initially due by July 31, 2008, Defendant extended

the loan several times on behalf of KAL Construction and Rumi, purportedly because Rumi

could not make the payments. (Complaint, ¶ 25.) Defendant “offered to change the interest

rate and loan position if [Rumi] would obtain a bank loan to repay a portion of the KAL

Construction loan. Inasmuch as KAL Construction and [Rumi] were both under [Defendant’s]

control, he dictated all of these terms to [Rumi] and its other members.” (Ibid.)

By August 23, 2011, the KAL Construction loan was past due. (Complaint, ¶ 26.)

Defendant, acting on behalf of KAL Construction, demanded full payment from Rumi. (Ibid.)

When Plaintiff refused to sign loan documents, Defendant caused Rumi to initiate a capital

call, requiring members to contribute cash in order to pay down the loan. (Ibid.) Plaintiff

declined to make a contribution due to Defendant’s conflict of interest regarding the

transaction. (Id. at ¶¶ 26-27.) After KAL Construction made an second demand for payment,

Rumi issued a series of capital calls for the purpose of paying down the KAL Construction

loan. (Id. at ¶¶ 28-30.) Plaintiff and Mahin Adeeb did not participate. (Ibid.)

On April 12, 2013, Rumi sent a letter to all members requesting payment of the

shortfalls of the capital calls by April 19, 2013, and advising that failure to pay the sums would

result in forfeiture of their interests pursuant to the operating agreement. (Complaint, ¶ 32.)

A few months later, Rumi’s counsel sent a letter to Plaintiff advising that Rumi was

exercising its right under the operating agreement to eliminate Plaintiff’s membership for

failing to make the required capital call contributions. (Complaint, ¶ 33.) Shortly thereafter,

Plaintiff demanded arbitration under the operating agreement, but the demand was ignored.

(Id. at ¶¶ 34-35.)

Plaintiff eventually filed a petition to compel arbitration, which Defendant opposed.

(Complaint, ¶¶ 36-37.) The trial court initially denied Plaintiff’s petition. (Id. at ¶ 38.)

Following Plaintiff’s appeal of that decision, the matter was remanded for a determination of

whether Plaintiff waived his right to compel arbitration. (Id. at ¶ 39.)

On or about June 12, 2017, Defendant caused Rumi to convey his undivided 87 percent

interest in the property to Nadder Group, LLC and Green Lotus, LLC. (Complaint, ¶¶ 5-6 &

8.) Immediately thereafter, Defendant conveyed his remaining 13 percent interest in the

property to his trust. (Id. at ¶ 8.)

On July 2, 2019, the trial court again denied Plaintiff’s petition to compel arbitration,

finding that Plaintiff waived his right to arbitration. (Complaint, ¶ 40.)

Based on the foregoing allegations, Plaintiff filed a complaint against Defendant on

September 17, 2019, alleging causes of action for: (1) breach of contract; (2) breach of the

implied covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) constructive

fraud; (5) negligence; and (6) fraudulent transfer.

On July 15, 2020, Defendant filed the instant demurrer to the complaint. Plaintiff filed

an opposition to the demurrer on September 30, 2020.2 On October 5, 2020, Defendant filed a

reply.

Discussion

Defendant demurs to each and every cause of action of the complaint on the ground of

failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10,

subd. (e).)

I. Request for Judicial Notice

A. Defendant’s Request

In connection with his moving papers, Defendant asks the Court to take judicial notice

of: (1) documents filed in the case of Ali Akbar Kalbali v. Ali Asghar Kalbali (Santa Clara

County Superior Court, Case No. 2014-1-CV-271602); and (2) the Sixth District Court of

Appeal opinion in Kalbali v. Kalbali (Cal. Ct. App., Oct. 20, 2016, No. H042111) 2016 WL

6123928.

These documents are generally proper subjects of judicial notice as they are court

records relevant to issues raised in the pending demurrer. (See Evid. Code, § 452, subd. (d)

[permitting judicial notice of court records]; see also ZF Micro Devices, Inc. v. TAT Capital

Partners, Ltd. (2016) 5 Cal.App.5th 69, 73, fn. 3 (ZF Micro) [taking judicial notice of

procedural matters and background facts in prior unpublished opinion].)

Accordingly, Defendant’s request for judicial notice is GRANTED.

B. Plaintiff’s Request

In connection with his opposition, Plaintiff asks the Court to take judicial notice of: (1)

a court order entered in the case of Ali Akbar Kalbali v. Ali Asghar Kalbali (Santa Clara

County Superior Court, Case No. 2014-1-CV-271602); and (2) the Sixth District Court of

Appeal opinion in Kalbali v. Kalbali (Cal. Ct. App., Oct. 20, 2016, No. H042111) 2016 WL

6123928.

These documents are generally proper subjects of judicial notice as they are court

records relevant to issues raised in the pending demurrer. (See Evid. Code, § 452, subd. (d)

[permitting judicial notice of court records]; see also ZF Micro, supra, 5 Cal.App.5th at p. 73,

fn. 3 [taking judicial notice of procedural matters and background facts in prior unpublished

opinion].)

Accordingly, Plaintiff’s request for judicial notice is GRANTED.

2 As Defendant points out, Plaintiff’s opposition was filed one day late. (See Code Civ. Proc., § 1005, subd. (b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least

nine court days … before the hearing.”].) Although the Court, in its discretion, may refuse to consider Plaintiff’s

opposition due to its tardiness (see Cal. Rules of Ct., rule 3.1300(d)), the Court declines to do so here. Defendant

was not prejudiced by the brief delay as he filed a substantive reply addressing the arguments raised in Plaintiff’s

opposition. Consequently, the Court will consider the opposition.

II. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of

Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617,

621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such

matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop

Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; Code Civ. Proc., § 430.30, subd. (a).)

“ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the

challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s

conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true,

however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran

(2009) 179 Cal.App.4th 949, 958.)

III. First and Second Causes of Action

Defendant argues, among other things, the first cause of action for breach of contract

and the second cause of action for breach of the implied covenant of good faith and fair dealing

fail to allege facts sufficient to constitute a cause of action because Plaintiff does not plead the

terms of the operating agreement and, therefore, there is no way to determine whether his

alleged conduct amounted to a breach of the parties’ contract.

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s

performance or excuse for failure to perform, defendant’s breach and damage to plaintiff

resulting therefrom.” (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1489

(McKell).) The existence of a contract is an essential element of a claim for breach of contract.

(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “A written contract may be

pleaded either by its terms—set out verbatim in the complaint or a copy of the contract

attached to the complaint and incorporated therein by reference—or by its legal effect.”

(McKell, supra, 142 Cal.App.4th at p. 1489; accord Miles v. Deutsche Bank Nat. Trust

Co. (2015) 236 Cal.App.4th 394, 401-402.) “In order to plead a contract by its legal effect, [a]

plaintiff must ‘allege the substance of its relevant terms.’ [Citation.]” (McKell, supra, 142

Cal.App.4th at p. 1489.)

Furthermore, “[t]here is an implied covenant of good faith and fair dealing in every

contract that neither party will do anything which will injure the right of the other to receive

the benefits of the agreement.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d

654, 658.) “The implied covenant of good faith and fair dealing rests upon the existence of

some specific contractual obligation.” (Racine & Laramie, Ltd. v. Department of Parks &

Recreation (1992) 11 Cal.App.4th 1026, 1031.) “ ‘In essence, the covenant is implied as a

supplement to the express contractual covenants, to prevent a contracting party from engaging

in conduct which (while not technically transgressing the express covenants) frustrates the

other party’s rights to the benefits of the contract.” (Id. at pp. 1031-32, italics omitted.) The

implied covenant of good faith and fair dealing “cannot be endowed with an existence

independent of its contractual underpinnings. It cannot impose substantive duties or limits on

the contracting parties beyond those incorporated in the specific terms of their agreement.”

(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350, internal citation and quotations

omitted.) In order to state a claim for breach of the implied covenant, a plaintiff must plead the

existence of an agreement between the parties, his performance under that agreement, and that

the defendant engaged in conduct separate and apart from the performance of obligations under

the agreement without good cause and for the purpose of depriving the plaintiff of rights and

benefits under the agreement. (CACI No. 325; Careau & Co. v. Security Pacific Business

Credit, Inc. (1990) 222 Cal.App.3d 1371.)

Here, as Defendant persuasively argues, Plaintiff fails to plead any facts regarding the

material terms of the operating agreement.3 Plaintiff simply alleges the operating agreement

provided that “[t]he Company will be formed for the sole purpose of acquiring [certain]

property … and developing the Property with a two story, commercial building suitable for

lease to offices and retain businesses, managing the Property, and selling the Property for a

profit.” (Id. at ¶¶ 16 & 45.) This allegation does not identify the parties’ obligations under the

alleged contract and there is no way for the Court to determine whether the agreed to

obligations have been breached as a result of Defendant’s alleged conduct. Thus, Plaintiff fails

to state a claim for breach of contract or breach of the implied covenant of good faith and fair

dealing.

Accordingly, Defendant’s demurrer to the first and second causes of action on the

ground of failure to allege sufficient facts to constitute a cause of action is SUSTAINED, with

10 days’ leave to amend.

IV. Third Cause of Action

Defendant argues the third cause of action for breach of fiduciary duty is time-barred

by the four-year statute of limitations set forth in Code of Civil Procedure section 343.

Defendant contends Plaintiff filed his complaint after the applicable statute of limitations

expired because Plaintiff had knowledge of his alleged wrongdoing approximately 6 to 13

years before the complaint was filed.

In opposition, Plaintiff argues that his claim is timely because he was not damaged by

Defendant’s alleged conduct until Defendant stripped him of his interest in Rumi.

“Statute of limitations is the collective term applied to acts or parts of acts that

prescribe the periods beyond which a plaintiff may not bring a cause of action.” (V.C. v. Los

Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509.) “A plaintiff must bring a

claim within the limitations period after accrual of the cause of action. In other words, statutes

of limitation do not begin to run until a cause of action accrues. Generally speaking, a cause of

action accrues at the time when the cause of action is complete with all of its elements.” (Id. at

pp. 509-510, internal citations and quotation marks omitted.)

A court may sustain a demurrer on the ground of failure to state sufficient facts if “the

complaint shows on its face the statute [of limitations] bars the action.” (E-Fab, Inc. v.

Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) A demurrer is not sustainable

if there is only a possibility the cause of action is time-barred; the statute of limitations defense

must be clearly and affirmatively apparent from the allegations in the pleading. (Id. at pp.

1315-16.) “In assessing whether claims are time-barred, two basis questions drive [the]

analysis: (a) [w]hat statutes of limitations govern the plaintiff’s claims? (b) [w]hen did the

plaintiff’s causes of action accrue?” (Id. at p. 1316.)

3 Because this argument is dispositive, the Court need not reach Defendant’s additional argument based on the

statute of limitations.

The statute of limitations for breach of fiduciary duty is three years or four years,

depending on whether the breach is fraudulent or non-fraudulent. (See Fuller v. First Franklin

Financial Corp. (2013) 216 Cal.App.4th 955, 963 [“limitations period is three years … for a

cause of action for breach of fiduciary duty where the gravamen of the claim is deceit, rather

than the catchall four-year limitations period that would otherwise apply”]; Williams L. Lyon &

Associates, Inc. v. Super. Ct. (2012) 204 Cal.App.4th 1294, 1312 [“[b]reach of fiduciary duty

not amounting to fraud or constructive fraud is subject to the four-year ‘catch-all statute’ of

Code of Civil Procedure section 343”]; City of Vista v. Robert Thomas Securities, Inc. (2000)

84 Cal.App.4th 882, 889 [four-year statute of limitations applies to breach of fiduciary duty,

unless the gravamen of the claim is actual or constructive fraud, in which case

the statute of limitations is three years].)

Here, the third cause of action for breach of fiduciary duty is primarily based on non-

fraudulent breaches involving Defendant’s alleged self-dealing. Consequently, the four-year

statute of limitations of Code of Civil Procedure section 343 appears to apply to this claim.

However, as explained below, even if the shorter three-year statute limitations applied here,

Defendant has not shown that the cause of action is time-barred.

Turning to the issue of when Plaintiff’s claim accrued, as Defendant points out, the

third cause of action is based on numerous alleged breaches of fiduciary duty. For example,

the claim is based, in part, on allegations that Defendant routinely failed to account for profits

to Rumi and its members. (Complaint, ¶ 57.) There are no allegations in the complaint

regarding when the accounting to Rumi and its members was demanded and/or due. Notably,

Plaintiff’s cause of action based on this alleged misconduct only accrued when Defendant

failed to provide the required accounting. Because this date is not apparent from the

allegations of the complaint, Defendant fails to demonstrate that that the claim, in its entirety,

is necessarily time-barred by the applicable statute of limitations. (See PHII, Inc. v. Super.

Ct. (1995) 33 Cal.App.4th 1680, 1682 (PHII) [a demurrer cannot be granted as to only a

portion of a claim].)

Accordingly, Defendant’s demurrer to the third cause of action on the ground of failure

to allege sufficient facts to constitute a cause of action is OVERRULED.

V. Fourth Cause of Action

Defendant argues, among other things, the fourth cause of action for constructive fraud

fails to allege facts sufficient to constitute a cause of action because the elements of the cause

of action are not pleaded with the requisite specificity.

In opposition, Plaintiff contends he is not required to plead his claim for constructive

fraud with the heightened particularity usually required of fraud claims.

Constructive fraud “is a unique species of fraud applicable only to a fiduciary or

confidential relationship.” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399,

41, internal quotation marks and citations omitted.) “[C]onstructive fraud comprises any act,

omission or concealment involving a breach of legal or equitable duty, trust or confidence

which results in damage to another even though the conduct is not otherwise fraudulent.”

(Ibid.) To plead a claim for constructive fraud, a plaintiff must allege: “(1) [a] fiduciary

relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance

and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517, fn.

14.) As with any other type of fraud claim, constructive fraud must be pleaded with

specificity. (Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal.App.4th 949, 960–

961.)

Here, as Defendant persuasively argues, Plaintiff fails to plead the elements of

constructive fraud with the requisite specificity.4 For many of the alleged instances of fraud,

Plaintiff does not plead fails showing how, when, where, and by what means the fraud was

perpetrated. Moreover, nowhere in the claim does Plaintiff allege that Defendant acted with

the intent to deceive. Thus, Plaintiff fails to state a claim for constructive fraud.

Accordingly, Defendant’s demurrer to the fourth cause of action on the ground of

failure to allege sufficient facts to constitute a cause of action is SUSTAINED, with 10 days’

leave amend.

VI. Fifth Cause of Action

Defendant argues the fifth cause of action for negligence is time-barred by either a two

or four-year statute of limitations. Defendant contends Plaintiff filed his complaint after the

applicable statute of limitations expired because the alleged wrongful acts occurred

approximately 6 to 13 years before the complaint was filed.

In opposition, Plaintiff argues that his claim is timely because he was not damaged by

Defendant’s alleged conduct until Defendant stripped him of his interest in Rumi.

Defendant’s statute of limitations argument is not well-taken for multiple reasons. As a

preliminary matter, Defendant does not identify the statute that provides the applicable

limitations period for the fifth cause of action. Moreover, Defendant fails to establish that the

cause of action is time-barred. The fifth cause of action is based on numerous alleged breaches

of the duty of care. For example, the claim is based, in part, on allegations that Defendant

routinely failed to account for profits to Rumi and its members. (Complaint, ¶ 70.) There are

no allegations in the complaint regarding when the accounting to Rumi and its members was

demanded and/or due. Notably, Plaintiff’s cause of action based on this alleged misconduct

only accrued when Defendant failed to provide the required accounting. Because this date is

not apparent from the allegations of the complaint, Defendant fails to demonstrate that that the

claim, in its entirety, is necessarily time-barred by the applicable statute of limitations.

(See PHII, supra, 33 Cal.App.4th at p. 1682 [a demurrer cannot be granted as to only a portion

of a claim].)

Accordingly, Defendant’s demurrer to the fifth cause of action on the ground of failure

to allege sufficient facts to constitute a cause of action is OVERRULED.

VII. Sixth Cause of Action

Defendant argues the sixth cause of action for fraudulent transfer fails to allege facts

sufficient to constitute a cause of action because Plaintiff fails to allege that he transferred

4 Because this argument is dispositive, the Court need not reach Defendant’s additional argument based on the

statute of limitations.

anything to another person or entity. Defendant asserts the claim is deficient because Rumi

allegedly transferred the subject asset, not him. Defendant also argues the claim fails to allege

facts sufficient to constitute a cause of action because Plaintiff does not allege that the transfer

rendered him insolvent; rather, Plaintiff alleges the transfer made Rumi insolvent.

Conversely, Plaintiff contends those allegations are sufficient to state a claim for

fraudulent transfer.

A fraudulent conveyance under the Uniform Fraudulent Transfer Act (“UFTA”) is a

conveyance that involves “a transfer by the debtor of property to a third person undertaken

with the intent to prevent a creditor from reaching that interest to satisfy its claim.” (Kirkeby v.

Super. Ct. (2004) 33 Cal.App.4th 642, 648.) The person or entity who has fraudulently

transferred assets is referred to as the “debtor” or “transferor,” while the party to whom the

assets are transferred may be referred to as the “third party” or “transferee.”

There are two forms of constructive fraud under the UFTA. (Mejia v. Reed (2003) 31

Cal.4th 657, 669.) Under Civil Code section 3439.04, “[a] transfer of assets made by a debtor

is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer, if

the debtor made the transfer (1) with an actual intent to hinder, delay or defraud any creditor,

or (2) without receiving reasonably equivalent value in return, and either (a) was engaged in or

about to engage in a business or transaction for which the debtor’s assets were unreasonably

small, or (b) intended to, or reasonably believed, or reasonably should have believed, that he or

she would incur debts beyond his or her ability to pay as they became due.” (Cortez v.

Vogt (1997) 52 Cal.App.4th 917, 928, citing Civ. Code, § 3439.04.) Under Civil Code section

3439.05, “[a] transfer by a debtor is fraudulent as to creditors whose claims arose before the

transfer if the debtor made the transfer (1) without receiving reasonably equivalent value in

exchange, and (2) either (a) was insolvent at the time of the transfer, or (b) became insolvent as

a result of the transfer. (Ibid., citing Civ. Code, § 3439.05.) “A creditor who is damaged by a

transfer described in either section 3439.04 or section 3439.05 can set the transfer aside or seek

other appropriate relief under section 3439.07.” (Ibid.)

Only the form of constructive fraud defined in Civil Code section 3439.05 is at issue

here.

In the sixth cause of action, Plaintiff alleges that he has “a right to payment from

[Defendant].” (Complaint, ¶ 73.) In other words, Plaintiff alleges that Defendant is the debtor.

However, Plaintiff does not allege that Defendant made the subject transfer. Instead, Plaintiff

merely alleges that Defendant caused Rumi to make the transfer. (Id. at ¶ 74.) Similarly,

Plaintiff does not allege that Defendant was insolvent at the time of the transfer or became

insolvent as a result of the transfer. Instead, Plaintiff alleges that Rumi was insolvent or

became in insolvent as a result of the transfer. (Id. at ¶ 78.) For these reasons, Plaintiff fails to

plead sufficient facts to state a claim for fraudulent transfer.

Accordingly, Defendant’s demurrer to the sixth cause of action on the ground of failure

to allege sufficient facts to constitute a cause of action is SUSTAINED, with 10 days’ leave

amend.

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Case Name: William and Adriana Chiocchi v. Anthony Dariano, et al.

Case No.: 17CV310881

The Motion for Summary Adjudication by Defendant/Cross-Complainant Anthony

Dariano came on for hearing before the Honorable William J. Monahan on October 13, 2020,

at 9:00 a.m. in Department 21. The matter having been submitted, the Court orders as follows:

This is an action brought by Plaintiffs William Chiocchi and Adriana Chiocchi as

Trustees of the William and Adriana Chiocchi Living Trust dated April 12, 2000 (collectively,

“Plaintiffs” or “Sellers”) against Mark Von Kaenel, Dianna von Kaenel (erroneously sued as

Dianne Von Kaenel), Kenneth Robinson, Bonnie Robinson (collectively, “Buyers”), Anthony

Dariano, and Alexa Andrea Ingram-Cuachi as Trustee of the Old Santa Cruz Revocable Trust

dated January 13, 2015 arises from Sellers attempts to build an access road.

Plaintiffs/Sellers filed their initial complaint on May 24, 2017 to quiet title and prevent

interference with an access easement that runs from their property (“Sellers’ Property”)

through land they recently sold (“Buyers’ Property”). Several cross-complaints have been

filed. Buyers filed a cross-complaint (“Buyers’ Cross-Complaint”) against Sellers, alleging

among other things that Sellers failed to disclose the easement at the time of sale.

Subsequently, Sellers filed a cross-complaint (“Sellers’ Cross-Complaint”) against Mark Von

Kaenel and TCGLG Inc. dba KW Bay Area Estates (“KW Bay Area”) (collectively, “Buyers’

Brokers”).

Plaintiffs’ operative Second Amended Complaint (“SAC”) filed February 28, 2018

states six causes of action: 1) Quiet Title to easement pursuant to Civil Code §809 (against

Defendant Dariano); 2) Quiet Title to easement by implication (against all Defendants); 3)

Quiet Title to easement by necessity (against all Defendants); 4) Private Nuisance (against

Defendants Dariano, Von Kaenel, Kenneth Robinson and Bonnie Robinson), and; 5)

Declaratory Relief (against all Defendants, seeking a determination of the parties’ “respective

rights and obligations with respect to the Access Road, the easements and the location of a

portion of Defendant Ingram’s fence, in order that the parties may ascertain their respective

rights, interest and obligations . . .” (SAC at ¶56.)

Defendant Anthony Dariano (“Dariano”) also filed a Cross-Complaint on September

25, 2018 stating cross-claims against Plaintiffs for: 1) Fraud; 2) Negligent Misrepresentation;

3) Negligence; 4) Conversion; 5) Quiet Title, and; 6) Declaratory Relief (seeking, at ¶66, a

determination “of the parties’ respective rights and duties to one another, and specifically that

Cross-Defendants interfered with the Access Road”).

Currently before the Court is a motion for summary adjudication only by

Defendant/Cross-Complainant Dariano.

Motion for Summary Adjudication

The pleadings limit the issues presented for summary judgment/adjudication and such a

motion may not be granted or denied based on issues not raised by the pleadings. (See

Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of

Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health

Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a

summary judgment motion.”].)

The moving party bears the initial burden of production to make a prima facie showing

that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely

disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

(See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947,

975 [“If a cause of action is not shown to be barred in its entirety, no order for summary

judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners

Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general

“issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133

Cal.App.4th 1120, 1136.)

On a motion for summary judgment or adjudication the moving party’s declarations

and evidence will be strictly construed in determining whether they negate or disprove an

essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or

ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc.

(2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern

both, the opposition declarations are liberally construed while the moving party’s evidence is

strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The

evidence must be liberally construed in support of the opposing party, resolving any doubts in

favor of that party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

“Summary judgment is properly granted when no triable issue of material fact exists

and the moving party is entitled to judgment as a matter of law. A defendant moving for

summary judgment bears the initial burden of showing that a cause of action has no merit by

showing that one or more of its elements cannot be established or that there is a complete

defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show

that a triable issue of one or more material facts exists as to that cause of action or a defense

thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in

accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165

Cal.App.4th 1267, 1272 [internal citations omitted].)

“When seeking summary judgment on a claim for declaratory relief, the defendant must

show that the plaintiff is not entitled to a declaration in its favor by establishing ‘(1) the sought-

after declaration is legally incorrect; (2) [the] undisputed facts do not support the premise for

the sought-after declaration; or (3) the issue is otherwise not one that is appropriate for

declaratory relief.’ If this is accomplished, the burden shifts to the plaintiff to prove, by

producing evidence of, specific facts creating a triable issue of material fact as to the cause of

action or the defense.” (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th

1302, 1307-1308, citing Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388,

1402.)

Defendant Dariano’s motion for Summary Adjudication is DENIED for failure to meet

the initial burden. The motion suffers from several defects, many of which are highlighted by

Plaintiffs’ opposition. These defects, including failures to comply with mandatory

requirements applicable to motions for both summary judgment and adjudication, are severe

enough that it is unclear to the Court precisely what relief the motion is seeking.

Rule of Court 3.1350(b) states in pertinent part that “If summary adjudication is sought

. . . the specific cause of action . . . must be specifically stated in the notice of motion and be

repeated, verbatim, in the separate statement . . .” (Court’s emphasis.) The current motion fails

to comply with this requirement. The Notice of Motion fails to specifically identify any cause

of action or issue of duty for adjudication, instead stating simply in pertinent part that “moving

party will be seeking a summary adjudication based upon the points and authorities, the

evidence submitted, declarations, the court file and any and all additional evidence and

arguments that may be presented.”

The separate statement does not have any subheadings for any specific causes of action

or issues of duty. Instead, it has a single subheading stating “Plaintiffs Have No Legal Right to

change the Location of the Recorded Easement, and to change the terms of Dariano's Deed of

Trust Without Dariano's Consent.” Under this are listed eight undisputed material facts. The

introductory language of the statement states that it is submitted in support of Dariano’s motion

“motion for summary adjudication with respect to Plaintiff‘s First Cause of Action in the

Second Amended Complaint (“SAC”).”

The actual Motion for Summary Adjudication (filed separately from both the Notice of

Motion and the Memorandum of Points and Authorities) contradicts the introductory language

in the Statement and states that Dariano “moves the court for summary adjudication and

Declaratory Relief under the Plaintiffs Second Amended Complaint and under the Cross-

Complaint of Dariano in causes five and six and seeks orders from the Court that . .” It then

goes on to list three numbered paragraphs that appear to be issues/facts Dariano wants the

Court to declare/adjudicate. Again, summary adjudication of general “issues” or of facts is not

permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

The arguments in the Memorandum of Points and Authorities are not directed at

specific causes of action in either Plaintiffs’ SAC or Dariano’s cross-complaint. At the end of

the Memorandum (at pp. 11:22-12:1), Dariano argues that he “is entitled to an Order and

Declaration granting summary adjudication on the first cause of action of the SAC in his favor.

. . . Further, summary adjudication should be granted on Cross-Complainant Anthony

Dariano's Fifth and Sixth causes . . . and declare that Dariano has a permanent easement right

contained in his Grant Deed.”

On August 28, 2020 (more than a month after the MSA was filed) Dariano filed a

“supplemental” memorandum making additional arguments. This has not been considered by

the Court for two reasons. First, no party may file supplemental briefing without prior leave of

Court. Second, in the context of summary judgment and adjudication, CCP §437c(a)(2)

requires all supporting papers to be served at least 75 days before the hearing date. August 28

is only 46 days before the October 13 hearing date. This is a jurisdictional issue and a court

cannot cure insufficient notice by continuing the motion for the missing number of days. (See

Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.)

The Court notes that Plaintiffs have submitted objections with their opposition to some

of the evidence supporting the motion. As the Court denies Dariano’s motion for failure to

meet the initial burden it is not necessary for the Court to consider these objections. “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.” (CCP §437c(q).)

Going forward the parties are reminded that CCP §437c(f)(2) states in pertinent part

that: “A party shall not move for summary judgment based on issues asserted in a prior motion

for summary adjudication and denied by the court unless that party establishes, to the

satisfaction of the court, newly discovered facts or circumstances or a change of law supporting

the issues reasserted in the summary judgment motion.”

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Case Name: Maria Rogers et al. vs FCA US LLC, et al.

Case No. 18CV335192




Plaintiffs Maria Rogers and Charles Rogers (“Plaintiffs”) motion for order compelling

further discovery responses to Plaintiffs’ Second Set of Request for Production of Documents

(“RPD”) and FCA US LLC (“Defendant”), and for monetary sanctions against Defendant and

its attorneys of record, Luis Brisbios Bisgaard & Smith LLP.

Good cause appearing, Plaintiff’s motion to compel further responses to RPD is

GRANTED IN PART. It’s GRANTED as to RPD Nos. 94-117, 122-125, 133-134, 136-137,

and 143-149. It’s DENIED as to RPD Nos. 118-121 and 152-153.

Defendant shall provide verified code-compliant further responses, without objections

(except for privilege), to RPD Nos. 94-117, 122-125, 133-134, 136-137, and 143-149 within 30

days of this order.

Plaintiff’s motion for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions is DENIED.

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Case Name: Natasha Doubson v. Elena Sozlova, et al.

Case No. 19CV357485




Defendant Elena Kozlova (“Defendant”)’s motions to quash plaintiff Natasha

Doubson (Plaintiff)’s subpoenas for (1) production of education records from CALIFORNIA

INSTITUTE OF INTEGRAL STUDIES and (2) internship records from ACT FOR MENTAL

HEALTH and THE PROCESS THERAPY INSTITUTE INCORPORATED is GRANTED.

The deponents shall NOT produce any of the records subpoenaed by Plaintiff.

Balancing Defendant’s privacy interest in her education records, as well as the

privacy of her former patients [and supervisors] in the internships, against Plaintiff’s need for

the records purportedly for punitive damages or credibility, leads to the conclusion the motions

to quash should be granted.

Defendant’s alternative requests for protective order is MOOT.

Defendant’s request to strike Plaintiff’s untimely opposition papers is DENIED. The

court exercised its discretion to consider the opposition papers and decided the motions on

their merits.

Defendant’s motions for monetary sanctions is DENIED.

Plaintiff’s requests for monetary sanctions is DENIED.

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Case Name: Zshaohua Meng vs. Silva Management, et al.

Case No. 20CV364020




Defendant Silva Management, Inc. (“Defendant Silva”)’s motion for order compelling

responses, without objections, by Plaintiff Zshaohua Ming (“Plaintiff”) to Defendant Silva’s

first set of special interrogatories, form interrogatory, and demand for production of documents

pursuant to Code of Civil Procedure sections 2030.290 and 2031.300 is UNOPPOSED and

GRANTED.

Plaintiff shall provide code-compliant verified discovery responses, without objections,

to Defendant Silva s first set of special interrogatories, form interrogatory, and demand for

production of documents pursuant to Code of Civil Procedure sections 2030.290 and 2031.300,

within 15 days of this order.

Defendant Silva’s motion for monetary sanctions is unopposed and GRANTED in the

reasonable amount of $1,400. Plaintiff shall pay this amount to Defendant Silva within 15

days of this order.

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