McPherson vs. Donald & Lynn Southard, LLC

The parties are ordered to meet and confer regarding any reasonable accommodations that can be made, including the possibility of conducting the deposition at Plaintiff’s residence.

Defendants’ request for sanctions against Plaintiff is granted in the amount of $447.00 to be paid within 30 days. (Code Civ. Proc., § 2025.450(g)(1).) A finding of willfulness is not a prerequisite to imposing sanctions. There is no evidence before the Court that supports that Plaintiff acted with substantial justification here. As stated above, Defendants have noticed the deposition on seven different occasions, beginning almost a year ago. They have no doubt incurred significantly more in costs (e.g., court reporter nonappearance fees) than they request.

Defendants shall give notice.

9 McPherson vs. Donald & Lynn Southard, LLC

2025-01494975 Demurrer to Complaint

The Court overrules Defendant Donald & Lynn Southard LLC’s Demurrer to Plaintiff Bonita M. McPherson on behalf of Western Tap Manufacturing Company, Inc.’s Complaint. Defendant shall answer the Complaint within 15 days.

RJN The Request for judicial notice is granted.

However, the Court may not take judicial notice of the truth of the matter stated in the documents. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) Judicial notice of other court records and files is limited to matters that are indisputably true. This generally means judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.) The court cannot accept as true the contents of pleadings or exhibits in the other action just because they are part of the court record or file. Such documents are inadmissible hearsay. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)

Further, the Court may take judicial notice of documents recorded with the County Recorder’s Office; however, that does not mean it may take judicial notice of factual matters stated therein. (Poseidon Development, Inc. v. Woodland Lane States, LLC (2007) 152 Cal.App.4th 1106, 1117.) Courts may also take judicial notice of a

variety of matters that can be deduced from the documents, such as the parties, dates, and legal consequences of a series of recorded documents relating to a real estate transaction. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)

Merits Defendant argues that the statute of limitations has run on the three claims for:

1. Aiding and abetting breach of fiduciary duty 2. Unlawful fraudulent transfer 3. Aiding and abetting fraudulent transfer

“In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

The statute of limitations for breach of fiduciary duty is three years or four years, depending on whether the breach is fraudulent or nonfraudulent. (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 ...”]; William L. Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, [“[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”.)

The statute of limitations for aiding and abetting a breach of fiduciary duty is the same as the statute of limitations for breach of fiduciary duty. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.)

The statute of limitations on a fraudulent transfer claim is four years from the time transfer was made or the obligation was incurred. (Civ. Code § 3439.09(a), (b).) In cases involving actual fraud, the four-year statute is extended until one year after the transfer or obligation was or reasonably could have been discovered (subject to the maximum 7 year limit). (Civ. Code § 3439.09(a); Potter v. Alliance United Ins. Co. (2019) 37 Cal.App.5th 894, 905-906.)

The statute of limitations runs from the date of judgment, not the date of transfer. (Potter, supra, at pp. 905-906 citing Cortez v. Vogt (1997) 52 CA4th 917, 937)—alleged fraudulent transfer occurred during pending lawsuit preceding entry of judgment.)

Any claim challenging a fraudulent transfer or obligation is extinguished if no action is brought or levy made within seven years after the transfer was made or the obligation was incurred. (Civ. Code § 3439.09(c).)

Here, Defendant argues that the 2016 Quitclaim Deed transfer to Southard LLC was in January of 2016 – almost ten years before the Complaint in this action was filed and acknowledged by Plaintiff in 1/2/18. The Complaint in this case was filed on 7/7/25. (ROA 2)

But Defendant ignores the allegations in this Complaint. The alleged bad act is the transfer that took place on July 6, 2022, after Judgment was entered in Plaintiff’s favor and while appeal was pending. (Compl., ¶46.)

Further, the Court of Appeal issued remittitur and the final Judgment in the underling case was not issued until 10/8/2024. The statute of limitations runs from the date of judgment, not the date of transfer. (Potter v. Alliance United Ins. Co. (2019) 37 CA5th 894, 905-906 (citing Cortez v. Vogt (1997) 52 Cal.App.4th 917, 937—alleged fraudulent transfer occurred during pending lawsuit preceding entry of judgment.)

On Reply, Defendant argues that the original Judgment (ordered that title to the property be "turned over" to Western Tap and named the LLC as a party to the case. Those portions of the Judgment were found to be erroneous and were ordered stricken by the Court of Appeal. (Compare 3/30/2021 Judgment After Trial, Case No. 30- 2018-00964601-CU-BT-CJC, ROA 564 with 10/8/2024 Judgment After Trial and Post-Appeal, ROA 941.)

This appears to be a different argument, not involving the statute of limitations.

Regardless, the 2024 Judgment says that within 45 days after the parties produce financial records associated with Western Tap:

...the parties are ordered to meet and confer and attempt to come to an agreement on the amounts that Defendants Don and Lynn Southard and Rob McPherson are to reimburse Western Tap for unauthorized distributions of money and unauthorized payments of their personal expenses. If the parties cannot come to an agreement on what amounts should be reimbursed, then this Court shall appoint a receiver under California Code of Civil Procedure section 564 to address a

determination regarding the amow1ts that Defendants Don and Lynn Southard and Rob McPherson are to reimburse Western Tap for unauthorized distributions of money and unauthorized payments of their personal expenses. Any such monies should be deducted from distributions payable to any of the Defendants, including from proceeds from the sale of the Dale Street Property

(October 8, 2024 Judgment, emphasis added.)

Moreover, prior to the conveyance, “pending the decision of the Court of appeal... ..counsel for Plaintiff in the Lawsuit advised counsel for the Southards that....no alienation of the property should occur before the Plaintiff’s appeal was resolved.” (Compl. ¶ 46.)

Thus, whether the original Judgment or the Judgment after Trial and Post-Appeal was in effect, both contemplated a lien on the property.

Defendant has not shown that the statute of limitations has run on any of the claims on demurrer. Thus, the Motion is overruled.

10 Mohan vs. USC Developers LLC

2026-01562032 Motion to Expunge Mechanics Lien

Off Calendar 11 Nguyen vs. Gonzales

2024-01374578 Demurrer to Amended Complaint

Defendant Gallagher Bassett Services, Inc.’s demurrer to Plaintiff Peter Nguyen’s Second Amended Complaint is sustained.

The Court takes judicial notice of Plaintiff’s First Amended Complaint (ROA 13) on its own motion. (See Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447–1448.)

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and