Motion for Disqualification of Counsel
colleagues at Tung & Associates, who testify that McBurney never discussed any strategy with his colleagues, beyond providing an update as to the status of service of the Complaint, the results of the electrical inspection of the subject vehicle, and a summary of his conversations with Plaintiff. (See generally, McBurney Decl, Tung Decl., Yots Decl., Chen Decl., Wang Decl.)
Moving Parties to give notice. 110 Lober v Lober, 2026- Defendants Dona Lee Lober and Lonnie Kocontes 01541707 separately demur to the First Amended Complaint (FAC) of plaintiff John T. Lober Jr. Plaintiff did not file opposition to either demurrer. For the reasons set forth below the demurrer is SUSTAINED with 20 days leave to amend.
Fraud in the Execution The FAC fails to allege what specific representation was made, when or where it was made, how it was communicated, that the person making the statement knew it was false at the time it was made and intended for John to rely upon the statement, or how his reliance was reasonable or justified. It is not clear whether John actually intends to allege a fraud cause of action, making this cause of action uncertain. (See Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 765 [“[f]raud in the execution . . . occurs when ‘ “the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all . . . and it is void.”’”].)
Financial Elder Abuse This cause of action fails because it does not allege Plaintiff was 65 years or older in 1996, when the alleged abuse occurred.
Financial abuse of an action occurs when a person takes or obtains real property of an elder for a wrongful use or with intent to defraud. (Welf. & Inst. Code, § 15610.30(a)(1).) For purposes of the statute, “a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder [] is deprived of any property right[.]” (Id., § 15610.30(c).) “Elder” refers
to any person residing in the state of California who is 65 years of age or older. (Id., § 15610.27.)
The allegation that Dona fraudulently obtained Plaintiff’s signature on a grant deed is sufficient to show the taking of real property.
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Statute of Limitations The FAC alleges that the wrongdoing occurred in 1996 and Plaintiff was on notice of his causes of action when his mother sold the property in 1996 and another family moved into the home. The conclusory allegation that Plaintiff did not discover the fraud until January 20, 2026 does not meet the burden of pleading the delayed discovery rule. Rather, Plaintiff must specifically plead facts showing when and how the discovery occurred and why he could not have discovered it sooner by exercising reasonable diligence.
A plaintiff generally must bring a claim within the limitations period after a cause of action accrues, i.e., when the cause of action is complete with all of its elements. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discovery, the cause of action.” (Id. at p. 807.) “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’” (Ibid.) “Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” (Ibid.)
“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint show son its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Id. at p. 808.) “In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show