Demurrer
Defendants? Request For judicial Notice is GRANTED. Notice is limited to the existence of, filing of, and legal effect of the pleadings, and not as to the truth of any disputed factual matter therein.
The general demurrers by Defendants Erin Ward and West Coast Enterprises, LLC to the First to Ninth Causes of Action in Plaintiff?s Third Amended Complaint (?3rdAC?) are each SUSTAINED with leave to amend. Because the cause of action for civil conspiracy failed to survive the general demurrer (see below), the Third Amended Complaint (?3rdAC?) does not allege adequate facts as to liability of these Defendants. Their liability if any, is based upon vicarious liability for the acts and omissions of Defendant Patrick Ward.
The general demurrers by defendant Patrick Ward to the First through Fifth Causes of Action in Plaintiff?s 3rdAC are each OVERRULED.
While application of the sham pleading doctrine shows that Plaintiff has omitted harmful admissions in prior pleadings as to discovery of facts constituting wrongdoing in 2009 involving four of the disputed properties without adequate explanation, the 3rdAC involves many more investment properties than just these four. As this is a general demurrer, if the statute of limitations is not shown to bar each claim as to? each piece of partnership property, the causes of action still state a claim, and the 3rdAC does not show on its face or via judicial notice that each claims is barred.?Quelimane Co., Inc. v. Stewart Title Guar. Co.?(1998) 19 Cal.4th 26, 38-39; Adelman v. Associated Int’l Ins. Co.?(2001) 90 Cal.App.4th 352, 359.
The demurrers by defendant Patrick Ward to the Sixth and Eighth Causes of Action are SUSTAINED with leave to amend, on the basis that the 3rdAc fails to allege a specific sum of money converted and the subject of the common count.
The demurrer by Patrick Ward to the Seventh Cause of Action For Constructive Fraud is SUSTAINED with leave to amend on the basis that the 3rdAC fails to adequately allege facts showing Plaintiff?s reliance.
The Demurrer by Patrick Ward to the Ninth Cause of Action for Civil Conspiracy is SUSTAINED with leave to amend, on the basis that the formation of the conspiracy is not alleged.
Plaintiff to file and serve an amended complaint within ten days. Absent extraordinary and unforeseen/unforeseeable circumstances, this is Final leave to amend.
Moving parties to give notice.
Code Civ. Proc? ? 128.7 Sanctions Request
Plaintiff?s objections to the Declaration of Patrick Ward are overruled. The Court takes judicial notice of the fact that Declaration of Patrick Ward was filed electronically, and per Code. Civ. Proc. ? 1010.6(b)(2)(B), & Cal. Rules Court, Rule? 2.257(a)(2), the copy of an electronically filed declaration filed with the court need not be signed.
Plaintiff?s Motion For Issuance of Code Civ. Proc. ? 128.7 Sanctions is DENIED, without prejudice.
Plaintiff has failed to establish that the Claim to Surplus Sales Proceeds submitted in OCSC Case No. 30-2017-00902279 by Defendant Patrick W. Ward, as Trustee of the Patrick W. Ward Living Trust is lacking in legal grounds for the claim; that the Claim is lacking an evidentiary showing; and that the Claim was unreasonably delayed. ?If the pleading or motion is otherwise meritorious, the fact that one of the supporting arguments is frivolous does not justify sanctions.?Golden Eagle Distributing Corp. v. Burroughs Corp.?(9th Cir. 1986) 801 F2d 1531, 1540-41. As there is directly conflicting evidence as to entitlement to the surplus sale proceeds, and a concession by Plaintiff that Patrick Ward may be entitled to?some?portion of the surplus sales proceeds, the Court finds that the issuance of sanctions pursuant to Code Civ. Proc? ? 128.7 is not appropriately determinable on the current record.
Moving party to give notice.