Aung vs. Rodriguez

OFF CALENDAR 3. Iniguez Vazquez vs. Bui

22-01254112

Motion to Strike or Tax Costs

Plaintiffs Francisco Iniguez Vazquez and Hector Iniguez Vazquez’ motion to strike and/or tax costs is DENIED.

Code Civ. Proc. §1032, subdivision (b) states: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”

Code Civ. Proc. §1033.5 sets forth the specific items of costs which may and may not be recoverable in a civil action. (Code Civ. Proc. § 1033.5(a), (b).) An item not specifically allowable under subdivision (a) or specifically prohibited under subdivision (b) may nevertheless be recoverable in the court’s discretion if “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5(c)(2).)

There are three categories of costs: (1) those specifically enumerated as “allowable” (§ 1033.5, subd. (a)); (2) those specifically enumerated as “not allowable ... except when expressly authorized by law” (§ 1033.5, subd. (b)); and (3) those “not mentioned” in the statutes, which are recoverable “in the court's discretion” (§ 1033.5, subd. (c)(4)). (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.)

Any costs awarded must be “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (§ 1033.5, subds. (c)(2) & (3).) “The opposing party may move to strike or tax costs.” (Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, 892.)

In assessing a motion to tax or strike costs, a burden shifting analysis is used. The cost claimant bears the initial burden of establishing prima facie entitlement to the recovery of costs. The claimant meets its burden if the verified cost bill “‘appears proper on its face.’” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) Once the opposing party makes such a showing, in support of a motion to tax costs, the challenged items are put in issue and the burden shifts back to the party claiming them as costs. (Ibid.) But conclusory assertions alone are not enough to cause this shift to happen. “[I]t is not enough for the losing party to attack submitted costs by arguing that he thinks the costs were not necessary or reasonable. Rather, the losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

Here, Moving Party challenges the following items of costs:

Filing and Motion Fees ($612.25); Jury Fees ($1,045.00); Court Reporter Fees ($8,734.00); Models, Enlargements, and Photocopies of Exhibits ($2,184.58); Fees for Electronic Filing or Service ($1,852.25)

Plaintiffs have not sufficiently shown that the costs sought in items 1, 2, 11, 13, and 14 were not reasonable or necessary such that they have failed to shift the burden to Defendant to justify these costs. Plaintiffs do nothing more than make a conclusory assertion that these costs are not reasonable or substantiated even though the memorandum of costs was accompanied by exhibits showing that they were in fact incurred. Plaintiff makes no showing that any of these claimed costs were not reasonable or unnecessary

Even if Plaintiff’s objections are credited, Defendant has sufficiently substantiated the reasonableness and necessity of these costs and their amount by attaching invoices showing a basis for the claimed costs. Accordingly, the motion is DENIED as to these items of costs.

Other – Expert Fees and Services ($27,913.75)

Item 15 is “Other” expenses and consists entirely of $27913.75 in fees paid to Defendant’s retained experts. Typically, fees of experts retained by the parties are not recoverable costs under Code Civ. Proc. §1033.5. (See Code Civ. Proc. §1033.5, subd. (b)(1) [“(b) The following items are not allowable as costs, except when expressly authorized by law: (1) Fees of experts not ordered by the court.”

However, Code Civ. Proc. §998 provides a modification to the usual manner of determining responsibility for paying costs.

Section §998, subd. (b) provides that a party “may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.”

Pursuant to §998, subd. (c)(1), “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover their post offer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover post offer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” [Emphasis Added]

Here, Defendant made such an offer to Plaintiffs on 9/6/23 (See Memorandum of Costs, Ex. F.) The Offer was not accepted. At trial, the jury returned a verdict for the defense. Accordingly, Plaintiffs did not accept an offer made by Defendant and failed to obtain a more favorable result at trial. Defendant contends that it is thus entitled to recover expert witness fees as costs pursuant to Code Civ. Proc. §998, subd. (c)(1). Plaintiffs do not dispute the validity of the §998 offer, nor do they dispute that they did not accept the offer and failed to obtain a better result at trial. Rather, Plaintiff’s argument consists entirely of vague assertions that the amount of costs sought has not been substantiated, notwithstanding the detailed invoices provided in conjunction with Defendant’s memorandum of costs. Accordingly, the motion is DENIED with respect to this item of costs.

Defendant shall provide notice of this ruling.

4. Caton vs. FCA US LLC

23-01361521

Motion for Attorney Fees

Plaintiff Angel R. Caton’s motion for attorney fees, costs, and expenses is GRANTED in the total amount of $37,460.40, consisting of $35,471.50 in attorney fees and $1,988.90 in costs and expenses. (See Civ. Code, § 1794, subd. (d); Shumake Decl. at Ex. 6 [accepted 998 offer]; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096 (PLCM) [lodestar method]; Reynolds v. Ford Motor Company (2020) 47 Cal.App.5th 1105, 1112 [same].)

There is no dispute that plaintiff is entitled to his reasonable attorney fees as the prevailing party in this action. (See Civ. Code, § 1794, subd. (d); Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1259-1264.)

Hourly rates – The court finds the requested hourly rates for attorneys Ary Sarbaz, Carrie Shumake, and Kyle Tracy to be within the reasonable range for partners/senior attorneys/trial attorneys of their respective expertise, skill, and experience. (See Sarbaz Decl. ¶¶ 1, 6, 11-25; see also Shumake Decl. ¶ 1 & Ex. 8; Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 41.)

The court will also allow the requested hourly rate of $125 for support staff Uriel Layos, as her only time entry shows she performed work typically done by a paralegal (updating/compiling factual data) and the Court finds $125 is a reasonable rate for such paralegal work. (See Shumake Decl. at Ex. 8 [7/14/25 entry].)

As for the remaining requested rates for Franchesca Ann, Alejandra Pastor, Yvette Linares, and Carolyne Castillo, the court finds them to be unreasonably high and excessive and has reduced their rates to $60/hour. Despite their titles/positions, all of the work they performed was purely clerical/secretarial. (See Shumake Decl. at Ex. 8.) While necessary support services for attorneys, e.g. secretarial and paralegal services, are includable within an award of attorney fees (Salton Bay Marina, Inc. v.

Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 951), the court may reduce attorney/paralegal rates for purely clerical work as excessive. (See, e.g., Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21 [clerical tasks billed at attorney rates are questionable]; Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1186-1187 [the trial court “could reasonably have determined that billing at partner rates for” “some work that appears ... to be clerical” was “excessive”]; Missouri v.

Jenkins by Agyei (1989) 491 U.S. 274, 288, fn. 10, 109 S.Ct. 2463, 2472, fn. 10 [“Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.”].)

Number of hours – The court finds that all of the hours requested were reasonably incurred in the conduct of this litigation, with the exception of the following: (1) 2.0 hours of Ms. Shumake’s time at $425/hour to review the tentative rulings for plaintiff’s discovery motions and to appear at the hearings on those matters, as fees for this time (i.e., to prepare for and attend these hearings) have already been granted as part of the sanctions awards issued in conjunction with those motions (see ROA Nos. 69, 80 [5/24/24, 11/22/24 minute orders]); (2) a total of 6 hours of Mr.

Tracy’s time at $650/hour to “review case file” (excessive/duplicative entries, padding), “edit” unidentified “pleadings” (that were never filed with the court), discuss case/trial strategy with a paralegal (“Yvette”), and draft unidentified documents (see Shumake Decl. at Ex. 8 [time entries starting 4/1/25–4/22/25]; see also Sarbaz Decl. ¶ 6 [Tracy “only began working on this case in April 2025, when trial preparation began”]); (3) 0.10 hours of Ms. Pastor’s time to email the client asking for a Yelp review (Shumake Decl. at Ex. 8 [7/22/25 entry]); and (4) all of the 7.0 anticipated hours to review the opposition, prepare a reply, and appear at the hearing on this matter at Ms.

Shumake’s current hourly rate of $475 (Mtn. P&As at p. 6), as plaintiff has failed to substantiate these fees with a declaration or other evidence, and indeed, the reply papers appear to have been prepared by a different attorney, Ezra Ryu. (See Shumake Decl., in passim; Sarbaz Decl., in passim; Ryu Reply Decl., in passim.) Without any evidence as to who actually drafted and/or prepared the reply papers and who will appear at the hearing and at what rate, the court cannot grant these fees. (See Martino v.

Denevi (1986) 182 Cal.App.3d 553, 558-559.) This results in a total attorney fee award of $35,471.50, calculated as follows:

Total amount of attorney fees requested $44,025.00

2 hours of Shumake’s time at $425/hour to prepare for and attend the hearing on plaintiff’s discovery motions, which were previously granted as discovery sanctions

($850.00)

6 hours of Tracy’s time at $650/hour to “review case file” (excessive/duplicative entries, padding), “edit” unidentified “pleadings” (that were never filed with the court), discuss case/trial strategy with a paralegal (“Yvette”), and draft unidentified documents

($3,900.00)

0.1 hours of Pastor’s time at $150/hour to ask the client for a Yelp review

($15.00)

Difference between Ann’s total time (0.10 hours) at the requested rate of $125/hour ($12.50) versus granted $60/hour ($6.00)

($6.50)

Difference between Pastor’s remaining total time (0.60 hours) at the requested rate of $150/hour ($90.00) versus granted $60/hour ($36.00)

($54.00)

Difference between Linares’s total time (1.7 hours) at the requested rate of $250/hour ($425.00) versus granted $60/hour ($102.00)

($323.00)

Difference between Castillo’s total time (0.2 hours) at the requested rate of $200/hour ($40.00) versus granted $60/hour ($12.00)

($28.00)

Difference between Gonzaludo’s total time (0.8 hours) at the requested rate of $125/hour ($100.00) versus granted $60/hour ($48.00)

($52.00)

Unsubstantiated amount requested to review the opposition, prepare a reply, and appear at the hearing on this fee motion

($3,325) Total amount of attorney fees granted $35,471.50

Plaintiff is also entitled to “costs and expenses” incurred in pursuing his Song-Beverly Act claims and has filed a memorandum of costs seeking $1,988.90. (See Civ. Code, § 1794, subd. (d); see also Sarbaz Decl. ¶ 9; Shumake Decl. at Ex. 9; ROA No. 121 [11/17/25 memorandum of costs].) Defendant has not filed a motion to tax costs to date and has not challenged any of the costs in its opposition to this motion. As such, all $1,988.90 in costs and expenses are granted. (See Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290 [“‘“failure to file a motion to tax costs constitutes a waiver of the right to object”’”].)

Plaintiff shall give notice.

5. The Designers NYC, LLC dba Little Big Brands vs. Brand Models & Talent, Inc.

21-01204721

Motion for Attorney Fees

The motion by plaintiff The Designers NYC, Inc., dba Little Big Brands for attorney fees is DENIED. (Code Civ. Proc., § 1021 [“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties”]; Trope v. Katz (1995) 11 Cal.4th 274, 278 [“California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees”].)

Moving party cites no authority allowing it to recover attorney fees incurred in this action. Moving party did not sue for breach of contract, and cites no authority allowing fees under Civ. Code, § 3300. Further, this Court effectively determined that moving party was 67% at fault for the damages incurred in settling the underlying litigation. (Scheper Decl. in support of motion, ¶ 7 [“the Court found Plaintiff incurred $90,000 in settlement and $28,000 in legal fees and costs, totaling $118,000, of which it awarded $38,940”]; see also Ruling and Statement of Decision [ROA 245], § V “Damages” [apportioning 33% of liability to defendant].)

Thus, moving party has not shown that “the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity.” (Code Civ. Proc., § 1021.6, subd. (c).)

Defendant Brand Models and Talent, Inc. shall give notice.

6. Epstein vs. Hanford Kibou Investments LLC

25-01527519

1. Motion to Disqualify Attorney of Record 2. Motion to Seal 3. Case Management Conference

Defendant Wenqiang Bian’s Motion to Disqualify is GRANTED.

Defendant Bian brings this motion to disqualify Kristopher Diulio and the Diulio Law Firm PC from representing Plaintiffs in this action.

“To protect the confidentiality of the attorney-client relationship, the California Rules of Professional Conduct bar an attorney from accepting ‘employment adverse to a client or former client where, by reason of the representation of the client or former client, the [attorney] has obtained confidential information material to the employment except with the informed written consent of the client or former client.’” (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 587; Rule 1.9 Rules of Prof. Conduct.) “For these reasons, an attorney will be disqualified from representing a client against a former client when there is a substantial relationship between the two representations. Id. When a substantial relationship exists, the courts presume the attorney possesses confidential information of the former client material to the present representation.” (Id.)

A “standing” requirement is implicit in disqualification motions. (Coldren v. Hart, King & Coldren, Inc. (2015) 239 Cal.App.4th 237, 247.) Generally, before disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney. The burden is on the party seeking disqualification to establish the attorney-client relationship. (Id.)

Attorney-client relationship

A prior attorney-client relationship exists between Kristopher P. Diulio of The Diulio Firm PC and defendant Bian. Diulio previously represented defendant Bian in a prior action known as the Cashera Lawsuit.

On May 20, 2019, a lawsuit entitled Khodadad v. Banuelos, et. al, Case No. 19C0195 (the “Cashera Lawsuit”), was filed in Kings County Superior Court by plaintiffs Tony Khodadad and Cashera Plaza, LLC (the “Cashera Claimants”) against Bian, Bian’s wife, their family trust, and Rene “Ray” Francis LaTreill (“LaTreill”), Bian’s real estate broker (the “Cashera Respondents”). In that case, LaTreill arranged a loan for Bian to make to the Cashera Claimants, as borrowers. When the borrowers failed to repay the loan, LaTreill handled the foreclosure process against the property securing the loan. The Cashera Claimants filed the Cashera Lawsuit claiming Bain, LaTreill and others failed to fund the loan and wrongfully foreclosed on real property.

LaTreill and John David Thomas arranged for joint legal representation of Bain, his wife, their trust, and La Treill by Diulio and the law firm of Ford & Diulio PC, who continued to represent them in the Cashera Lawsuit for three years. Plaintiff David Epstein was also co-counsel to the defendants.

In this action, plaintiff Epstein and Thomas allegedly approached Bian through LaTreill about lending them $487,000 to be used as a construction loan for a property located on Shadylane in Laguna Beach.

A deed of trust securing the $487,000 loan was recorded against the Shadylane property in Laguna Beach. When Shadylane failed to repay the loan, Bian commenced foreclosure proceedings against the property securing the loan. Shadylane filed bankruptcy to avoid foreclosure, but on November 7, 2025, Bian obtained an order from the Bankruptcy Court granting relief from automatic stay and allowing the foreclosure proceeding to move forward. In late November of 2025, Shadylane borrowed funds from another source and paid off Bian’s loan. Bian then executed a reconveyance of his deed of trust against the Shadylane property, which was recorded on December 18, 2025.

On November 19, 2025, Shadylane and Epstein filed the complaint in the instant lawsuit asserting claims for cancellation of Bian’s loan instruments and foreclosure documents with Shadylane and for financial elder abuse. Plaintiffs are represented by Diulio and his law firm in this action.

Based on the foregoing, there is no dispute that Diulio directly represented Bian in a prior action. Bian also states he has not waived the conflict of interest created by Diulio’s prior representation of him and has not consented to Diulio’s representation of Plaintiffs in this case. Therefore, the next issue to be addressed is whether the Cashera Lawsuit was “substantially related” to the present action.

“Substantially Related”

In assessing whether there is a “substantial relationship” between two matters, courts should focus on the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney’s involvement with the cases. (Acacia Patent Acquisition, LLC, supra, 234 Cal.App.4th at 1097-1098 (internal quotation marks omitted).)

“If the relationship between the attorney and the former client is shown to have been direct—that is, where the lawyer was personally involved in providing legal advice and services to the former client— then it must be presumed that confidential information has passed to the attorney and there cannot be any delving into the specifics of the communications between the attorney and the former client in an effort to show that the attorney did or did not receive confidential information during the course of that relationship. As a result, disqualification will depend upon the strength of the similarities between the legal problem involved in the former representation and the legal problem involved in the current representation.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 709.)

A “substantial relationship” exists whenever the “subjects” of the prior and current representations are linked in some rational manner. (Id. at 711.) The “subjects” of a representation includes information material to the evaluation, prosecution, settlement or accomplishment of the litigation or transaction given its specific legal and factual issues. “Thus, successive representations will be “substantially related” when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues.” (Id. at 713.)

In this case, it is apparent there is a “substantial relationship” between Diulio and his firm’s representation of Bian in the Cashera Lawsuit and this action. The subject of the prior and current representation involve the issue of Plaintiff’s real estate lending practices, foreclosure of the loans made by Bian, and loans arranged by LaTreill. Such information is material to the factual and legal issues in this case.

Plaintiff argues the cases are not related because the Cashera Lawsuit concerned a different borrower, a different property, different instruments, and different alleged misconduct, namely whether the borrower received the loan proceeds and whether the foreclosure was properly noticed. Whereas this case involves the accuracy of the default figures in the foreclosure notices and whether Defendants obstructed a refinance by refusing to provide payoff information in response to a beneficiary demand, which also constitutes elder abuse. (Complaint, ¶¶ 10-27.) But the facts and issues are not required to be the same to be considered “substantially related.” Both cases involve loans made by Bian and allegations of wrongful foreclosure. Bian’s lending and foreclosure practices were material to the Cashera Lawsuit and are material to the evaluation, prosecution, and settlement of this action.

Once it has been established that there is a “substantial relationship” between the Cashera Lawsuit and this action, it is presumed that Diulio and his firm possess confidential information. Contrary to Plaintiffs’ argument, the Court takes the position Bian does not need to identify the specific confidential information that was exchanged during the prior representation.

Accordingly, the motion to disqualify Diulio and The Diulio Firm as to their representation of Plaintiffs in this action is GRANTED.

MOTION TO SEAL

Defendant Wenqiang Bian’s Motion to Seal is GRANTED.

Defendant seeks to seal the order issued by the arbitrator, the Hon. Judith Ryan, ret., in JAMS Case No. 5240002186, on Bian’s motion to disqualify attorney Kristopher Diulio from representing the respondents in that proceeding adverse to Bian. (See ROA 46.)

The motion is unopposed and Bian has identified an overriding interest in maintaining the confidentiality of the arbitration proceedings. (Cal. Rules of Court, rule 2.550(d).)

Accordingly, the motion to seal is GRANTED.

The Clerk is ordered to seal the document identified herein and consistent with the Court’s order.

The Case Management Conference is CONTINUED to December 3, 2026, at 9:30 a.m. in Department C12.

Moving Party Defendant shall give notice of all of the above.

7. Pantoja vs. Collins

23-01370879

Demurrer to Amended Complaint

CONTINUED TO JUNE 12, 2026. See ROA 598 8. Claytor vs. Honeycomb Insurance Company

25-01520393

1. Demurrer to Complaint 2. Case Management Conference

Request for Judicial Notice

Defendant Honeycomb Programs, Inc.’s request for judicial notice is DENIED. An insurance policy for Woods Cove Owners Association issued by Accredited Surety and Casualty Company Inc. is not a proper subject of judicial notice.

Demurrer to Complaint

Defendant Honeycomb Programs, Inc.’s demurrer to Plaintiffs Rex K. Claytor and Bridget Lockwood’s Complaint is SUSTAINED. (Code Civ. Proc. §430.10, subd. (e).) The Complaint fails to sufficiently allege an underlying agreement between Plaintiffs and Defendant to provide insurance to Plaintiffs. Accordingly, each of Plaintiffs’ five causes of action fail to allege facts sufficient to constitute a cause of action.

Meet and Confer

Defendant has sufficiently complied with Code Civ. Proc. §430.41, subd. (a)(1). Defendant’s counsel declares that on December 23, 2025, the parties met and conferred via telephone and were unable to resolve the issues raised in the demurrer. (See Teitcher Decl. at ¶ 9.)

COA 1: Breach of Contract

To plead a cause of action for breach of contract, Plaintiffs must allege (1) the existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff. (See Oasis West Realty LLC v. Goldman (2011) 51 Cal.4th 811, 821.) To survive a demurrer, Plaintiffs must at least plead the legal effect of an insurance agreement. (See Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) Here, Plaintiffs have not alleged the legal effect of the policy, nor have they alleged that Defendant is a party to such an agreement. Accordingly, the demurrer to the First Cause of Action is SUSTAINED.

COA 2: Breach of Implied Covenant of Good Faith and Fair Dealing and COA 3: Bad Faith Denial of Insurance Claim

Plaintiffs’ Third and Fourth Causes of Action are essentially duplicative of one another. The elements of a cause of action for breach of the implied covenant of good faith and fair dealing are: (1) withholding of benefits due under an insurance policy; and (2) the reason for withholding the benefits was unreasonable or without proper cause. (See Grebow v. Mercury Ins. Co. (2015) 241 Cal.App.4th 564, 581.) Since, as discussed above, the Complaint has failed to sufficiently allege the existence of any insurance agreement, Plaintiffs have not sufficiently alleged the withholding of any benefit due under any insurance policy. Accordingly, the demurrers to the Second and Third Causes of Action are SUSTAINED.

COA 4: Constructive Fraud

“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship. [Citation.] [¶] [A]s a general principle constructive 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. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary’s motives or the principal’s decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud.

Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.’” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.) Here, the Complaint has failed to sufficiently allege that Defendant was in a fiduciary or confidential relationship with Plaintiffs because the Complaint does not sufficiently allege the existence of a contract of insurance. Accordingly, the demurrer to the Fourth Cause of Action is SUSTAINED.

COA 5: Declaratory Relief

To sufficiently plead a claim for declaratory relief, Plaintiffs must allege “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.) Here, Plaintiffs have failed to allege an actual controversy because the terms of the underlying insurance policy giving rise to the alleged controversy are not sufficiently alleged in the Complaint, as discussed above. Accordingly, the demurrer to Plaintiffs’ Fifth Cause of Action is SUSTAINED.

Plaintiffs shall have 30 days leave to amend and to file a First Amended Complaint. The Case Management Conference is CONTINUED to December 3, 2026, at 9:30 a.m. in Department C12.

Defendant shall provide notice.

9. Seacoast Capital Partners IV L.P. vs. Martin

25-01473117

1. Demurrer to Amended Cross-Complaint 2. Case Management Conference

DEMURRER AND CMC CONTINUED TO MAY 29, 2026. See ROA 155 10. Hogbin vs. Sengstock

25-01457519

1. Motion to Quash Service of Summons 2. Motion to Strike 3. Case Management Conference

Motion to Quash Service of Summons and Complaint

Defendant Sheila Sengstock’s motion to quash service of summons and complaint is DENIED. (Code Civ. Proc. §418.10.) The relevant period during which “minimum contacts” must have existed is when the alleged cause of action arose, and not when the action was commenced. (See Boaz v. Boyle & Co. (1995) 40 Cal.App.4th 700, 717.) By Defendant’s own admission, there is a sufficient basis for specific personal jurisdiction over her for the claims alleged in this lawsuit. Defendant admits that she had ample contacts with California at the time the alleged causes of action accrued because she admits that she was a resident of California when Plaintiff allegedly loaned her the funds at issue in the First Amended Complaint.

Defendant’s motion argues that she has a lack of contact with Orange County, but for purposes of establishing personal jurisdiction, the relevant inquiry is the nonresident defendant’s contacts with the forum state.

Since there is no reasonable dispute that Defendant had sufficient contact with the state of California such that exercise of personal jurisdiction over Defendant is reasonable, there is no basis to grant Defendant’s motion.

Motion to Change Venue to Superior Court of Riverside County

In the alternative, Defendant moves to challenge Plaintiff’s designation of Orange County Superior Court as venue for this action. Code Civ. Proc. §395, subd. (a) governs venue and provides in relevant part: “), “the superior court where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action ... If none of the defendants reside in the state or if they reside in the state and the county where they reside is unknown to the plaintiff, the action may be tried in the superior court in any county that the plaintiff may designate in his or her complaint, and, if the defendant is about to depart from the state, the action may be tried in the superior court in any county where either of the parties reside or service is made.” (Code Civ. Proc. §395, subd. (a).)

Here, Defendant has submitted evidence in support of her motion that shows that she was a resident of Colorado at the commencement of this action. (See ROA 36, “Exhibit A” [Colorado Driver’s License for Defendant issued on 9/9/24; Utility Bill for Colorado Address in Defendant’s name, dated 6/28/24; Turn-off Request for Utility bill in Riverside County dated 6/18/24.].) Accordingly, venue is proper “in any county that the plaintiff may designate in his or her complaint.”

Motion to Strike Portions of First Amended Complaint

Defendant’s motion to strike portions of the First Amended Complaint is DENIED. (Code Civ. Proc. §§435, 435.5, 436; Cal. Rules of Court, Rule 3.1322, subd. (a).) As an initial matter, Defendant has failed to comply with the meet and confer requirement set forth in Code Civ. Proc. §435.5. Defendant’s counsel has failed to submit a declaration asserting that the parties met and conferred in person, by telephone or by video conference at least 5 days prior to the date the Motion to Strike was due to be filed.

Even if this defect is overlooked, the Motion to Strike is procedurally defective and substantively meritless. Cal. Rules of Court, Rule 3.1322, subd. (a) provides ““[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” Here, the notice of motion lists general categories of allegations that Defendant seeks to strike. This does not comply with the procedural requirements for a motion to strike.

Even if the Court does consider the merits of Defendant’s motion, there is no basis to strike any portion of the First Amended Complaint.

Venue/jurisdiction allegations – The issue of venue and jurisdiction is addressed in Defendant’s motion to quash. As discussed above, the Court finds Defendant’s arguments regarding venue and jurisdiction to be meritless. The Court declines to consider Defendant’s declaration averring that she was formerly a resident of Riverside County rather than Orange County. Such material are not appropriate for consideration in assessing a challenge to the pleadings.

Alter Ego allegations – Defendant moves to strike what she describes as “conclusory” allegations of alter ego liability. The FAC contains sufficiently pleaded allegations of alter ego liability for purposes of a challenge to the pleadings. (See, e.g., Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-236 [“Defendants argue that Rutherford failed to allege specific facts to support an alter ego theory, but Rutherford was required to allege only ‘ultimate rather than evidentiary facts.’”].) Accordingly, the FAC sufficiently alleges the ultimate facts sufficient to plead alter ego liability. The motion is DENIED as to alter ego allegations.

Punitive Damages and Emotional Distress Allegations/Prayer – Defendant argues that facts warranting imposition of punitive damages have not been adequately alleged. The FAC sufficiently alleges causes of action for false promises and fraud, which are sufficient predicate causes of action for imposition of punitive damages and emotional distress damages. No demurrer has been filed challenging the sufficiency of the fraud causes of action. Accordingly, the motion is DENIED as to punitive damages and emotional distress damages allegations.

Duplicative/Irrelevant Allegations – The motion is DENIED as to any purportedly duplicative and conclusory allegations. As an initial matter, it is impossible to ascertain what material Defendant seeks to strike from the FAC based upon the notice of motion. Moreover, the motion is essentially an improper attempt to use Code Civ. Proc. §436 as a “line-item veto”. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)

Defendant shall file an Answer to the First Amended Complaint within 30 days of notice of this ruling.

The Case Management Conference is CONTINUED to August 20, 2026, at 9:30 a.m. in Department C12.

Plaintiff shall provide notice.

11. Stewart Title Guaranty Company vs. Wilbourn

25-01516717

1. Demurrer to Complaint (x3) 2. Motion to Strike Portions of Complaint (x3) 3. Case Management Conference

OFF CALENDAR