Demurrer; Motion for Leave to Amend
Plaintiff is the owner of the Investment Property and is entitled to receive the rental income therefrom. (UMF No. 17.) Defendants misappropriated Plaintiff’s capital and revenue generated by the Investment Property in an amount of no less than $192,714.29, which remains due and owing to Plaintiff. (Pfanner decl., ¶12.) These funds were either transferred to Defendant Anderson, to Defendant EA, and/or to other entities owned or controlled by Defendant Anderson. (Ibid.) Plaintiff has met his burden on this cause of action. Defendants have not filed opposition. Therefore, the motion for summary adjudication of this cause of action is GRANTED.
7. Fifth Cause of Action – Waste Plaintiff alleges that Defendant Anderson has caused waste to the Investment Property by failing to timely and adequately pay Plaintiff’s real property taxes. A claim for failure to pay real property taxes constitutes a cause of action for Waste. (Nippon Credit Bank v. 1333 N. Cal. Blvd. (2001) 86 Cal.App.4th 486, 496.) As established above, Defendant Anderson failed to timely pay taxes own, constituting a waste. Plaintiff has met his burden on this cause of action. Defendants have not filed opposition. Therefore, the motion for summary adjudication of this cause of action is GRANTED.
8. Conclusion and Order Based upon the foregoing, the motion is GRANTED. Plaintiff’s counsel is directed to submit a written order to the court consistent with this ruling.
3. 24CV02971, Maverick Excavating, Inc. v. Dalk
This matter is on calendar for the motion of Cross-Defendants Vincent Herring and Tiffanie Herring (“Cross-Defendants”) demurrer to the entire cross-complaint filed by Cross-Complainant Jason Dalk, and to the second and third cause of action therein. The same day as Cross-Defendants’ demurrer was filed, Cross-Complaint Jason Dalk filed a motion for leave to amend his Cross-Complaint—the Cross-Complaint that is the subject of Cross- Defendants’ demurrer. Both the demurrer and motion for leave to amend are opposed.
Trial in this heavily litigated case has not yet been set. The cross-complaint is clearly in need of amendment to state multiple causes of action. While Cross-Complainant Dalk opposes the demurrer, he also acknowledges the need for amendment through his own motion for leave to amend. Therefore, this court will SUSTAIN Cross-Defendants’ Demurrer. While Cross- Defendants’ conclude that it cannot be remedied with amendment, they show nothing on the face of the pleading that would incline the Court to find amendment would be futile.
The Court need only justify leave to amend after multiple demurrers have been sustained to the same pleading. CCP § 430.41
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
While Cross- Defendants aver that the leave to amend is futile, they point to nothing on the face of the pleading that would otherwise lead the Court to the same conclusion. The underlying merits of the proposed cause of action amendments are not relevant to determining whether amendment is appropriate, as long as they relate to the same general set of facts, as the amended pleadings may be attacked by demurrer, motion for judgment on the pleadings, or other similar proceedings. Kittredge Sports Co. v.
Superior Court (1989) 213 Cal.App.3d 1045, 1048. While Cross-Defendants opine that Cross- 5
Complainant Dalk has delayed in bringing the motion, absent a showing of prejudice, delay alone is not a basis for denial of leave to amend. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563. There is no prejudice, because the pleading is otherwise being amended due to the demurrer. Cross- Complainant Dalk’s motion for leave to amend is GRANTED. He may file his proposed First Amended Cross-Complaint within 10 days of this order. The Court’s minute order shall constitute the order of this court.
4. 24CV04975, Looney v. Amerigo, LLC.
Plaintiff Gary E. Looney dba Collectronics of California (“Plaintiff”) moves for an order appointing Landon McPherson as receiver to take possession of and, if necessary, sell the liquor license of defendant Amerigo, LLC, dba Kirway Xpress (“Judgment Debtor”) in order to carry out the judgment entered in this case in the amount of $16,456.53. Specific statutory procedures are established for enforcement of money judgments. This includes the appointment of a receiver after judgment to carry the judgment into effect. (CCP section 564(b)(3).)
The judgment debtor's interest in an alcoholic beverage license may be applied to the satisfaction of a money judgment. (CCP § 708.630(a).) A trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership. (City & Cty. of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 745.) In making this decision, the court must depend upon competent and admissible evidence submitted by the parties, and not conclusions and hearsay. (McCaslin v.
Kenney (1950) 100 Cal.App.2d 87, 94.) “California rigidly adheres to the principle that the power to appoint a receiver is a delicate one which is to be exercised sparingly and with caution.” (Morand v. Superior Ct. (1974) 38 Cal.App.3d 347, 351.) “It is said by the state's courts that the appointment of a receiver is ‘an extraordinary and harsh,’ and ‘delicate,’ and ‘drastic,’ remedy to be used ‘cautiously and only where less onerous remedies would be inadequate or unavailable...’” (Ibid.) Mere difficulty in trying to collect a debt is not sufficient basis for the court to appoint a receiver. (Medipro Medical Staffing LLC v.
Certified Nursing Registry, Inc. (2021) 60 Cal.App.5th 622, 628-629.) The Medipro Court explained, “Medipro's evidentiary showing demonstrated that it had, at most, encountered some difficulty in its initial efforts to collect on its money judgment. If this was sufficient to constitute the ‘necessity’ required to justify the ‘extraordinary’ remedy of the appointment of a receiver to take over a judgment debtor's business, it is difficult to see how the appointment of receivers would not become a routine part of the collection of judgments—a result at odds with the solid wall of precedent holding to the contrary.”
On December 10, 2024, judgment was entered in this action for the above stated amount. According to Plaintiff’s declaration, Joseph Esmail is the personal guarantor of Judgment Debtor. (Looney decl., ¶3.) Plaintiff states he has attempted to collect on the judgment by attempting to locate a bank or deposit account; mailing a letter requesting payment; serving post-judgment interrogatories and requests for production of documents; and mailing a letter requesting responses to the post-judgment discovery. (Looney decl., ¶¶6-10.)
Based upon a web search, Judgment Debtor’s business is open. (Id., ¶7.) According to Plaintiff, the sheriff’s office will not sell liquor inventory; the installation of a sheriff’s keeper is unavailable or ineffective; the size of the judgment makes it impractical to levy upon equipment, fixtures, or inventory; plus, the value of equipment and fixtures is depressed. Thus, Plaintiff concludes there is no other option but to appoint a receiver to seize and sell the liquor license to satisfy the judgment. 6