Randy Ryan Agno et al vs. James L Gould, IV. et al

Therefore, the evidence is such that the Fleming Defendants neither intended to harm Plaintiff, nor can any failure to warn be equated, even arguably, with despicable conduct or conscious disregard.

Therefore, Fleming Defendants’ motion for summary adjudication as to the prayer for punitive damages is granted.

Conclusion

Accordingly and for the reasons set forth above, the Fleming Defendants’ motion for summary adjudication is GRANTED in its entirety.

6. CU0001681 Randy Ryan Agno et al vs. James L Gould, IV. et al

Demurrer / Motion to Strike Cross-Complainants’ Second Amended Cross-Complaint

Plaintiffs’/Cross-Defendants’ (“Plaintiffs”) demurrer to the second amended cross-complaint (“2ACC”) is OVERRULED in part and SUSTAINED WITH LEAVE TO AMEND as to counts five, six, seven, and eight. Cross-Complainants are granted leave to amend. Any amended pleading shall be filed and served no later than May 21, 2026. Plaintiffs’ motion to strike is denied without prejudice.

Request for Judicial Notice

Plaintiffs’ request for judicial notice of the Court’s December 19, 2025 Ruling on Plaintiffs’ request for preliminary injunction (“Ruling”) is granted.

“The trial court shall take judicial notice of any matter specified in [Evidence Code] Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” Evid. Code § 453. Plaintiffs’ request for judicial notice is included as part of their moving papers rather than a separate request. While not procedurally proper, the Court finds the request gives Cross-Complainants’ sufficient notice of the request and sufficient information for the Court to enable it to take judicial notice of the document.

Judicial notice is limited to the fact that the documents were filed, but not of the truth of their contents. Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7. “We may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments. Ibid. However, even if Plaintiffs expressly requested the court to take judicial notice of any particularly identified fact in the Ruling, judicial notice can “not properly be taken of the truth of the factual findings” of the trial judge.

Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1563. A finding of fact made after hearing cannot “be indisputably deemed to have been a correct finding,” because, ““[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.” (1 Witkin Cal. Evidence (3d ed. 1986) § 80.) Taking judicial notice of the truth of a judge's factual finding 8

would appear to us to be tantamount to taking judicial notice that the judge's factual finding must necessarily have been correct and that the judge is therefore infallible.” Id. at 1568.

Legal Standard

On demurrer, a court's function is limited to testing the legal sufficiency of the complaint. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 883. A court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.

Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103. A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.

Contentions, deductions and conclusions of law, however, are not presumed as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967. A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co., 148 Cal.App.4th at 113-114.

“If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted.” Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6

First and Second Causes of Action: Unpaid Rent - OVERRULED

Plaintiffs argue the first and second causes of action fail to plead facts establishing Cross- Complainants possess any legally cognizable ownership interest in the cabins sufficient to maintain a cause of action for unpaid rent. The Court disagrees.

The first and second causes of action seek unpaid rent for the cabins’ occupation on Cross- Complainants’ property. Such is sufficient to state causes of action for unpaid rent. The demurrer as to the first and second causes of action is overruled.

Third and Fourth Causes of Action: Cancellation of Instruments and Quiet Title - OVERRULED

Plaintiffs argue the third cause of action fails because it fails to plead facts showing a legally cognizable ownership interest in the cabins. Again, the Court disagrees.

“‘To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud, and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alternation of one's position.’” Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193–1194.

The 2ACC pleads cancellation of the quitclaim deeds to Cabins 7 and 9, alleging crosscomplainants “had become and were the owners of” the cabins, and if the quitclaims remained outstanding cross-complainants would be damaged by clouded title and ownership. 2ACC, ¶¶ 37-39. Based on these alleged facts, the Court concludes the third and fourth causes of action adequately state a claim for relief, and overrules the demurrer as to these causes of action.

Fifth Cause of Action: Constructive Trust– SUSTAINED WITH LEAVE TO AMEND

“A constructive trust is an equitable remedy that compels a wrongdoer—one who has property or proceeds to which he is not justly entitled—to transfer same to its rightful owner.” Shoker v. Superior Court of Alameda County (2022) 81 Cal.App.5th 271, 278. “[W]hen legal title has been acquired through fraud any number of remedies are available and appropriate,” including making the legal title holder a constructive trustee for benefit of defrauded equitable titleholder. Warren v. Merrill (2006) 143 Cal.App.4th 96, 114.

The elements of a quasi-contract unjust enrichment claim are: “receipt of a benefit and [the] unjust retention of the benefit at the expense of another.” Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593. However, “mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.” Ibid. In the absence of allegations of the “actionable wrong, there is no basis for [unjust enrichment] relief." Hill v. Roll Intl Corp. (2011) 195 Cal. App. 4th 1295, 1307.

At bar, the 2ACC alleges “Cabins 6, 7, and 9 occupy Cross-Defendants’ Property under oral rental agreements entered into at various times in the past between the Agnos, The Johnsons and Carol, and Patricia or their predecessors in interest as Tenants on one hand and Cross- Complainants or Cross Complainants’ predecessors in interest as Landlord on the other hand, whereby the owners of Cabins 6, 7, and 9 were permitted to place and maintain their respective cabins on Cross Complainants’ Property in exchange for rent and other consideration.” 2ACC, ¶ 18.

The 2ACC goes on to allege past due rent payments for the cabins’ occupation of crosscomplainants’ property. 2ACC, ¶ 19. The 2ACC further alleges an agreement for crosscomplainants to pay past and future property taxes on Cabin 7 which then relinquished possession of Cabin 7 to cross-complainants, as well as the relinquishment of Cabin 9 to crosscomplainants. 2ACC, ¶¶ 20-28. The 2ACC fails to allege any actionable wrong. Therefore, the demurrer as to the fifth cause of action is sustained. Perhaps, Cross-Complainants can cure this defect via amendment.

Accordingly, leave to amend is granted.

Sixth Cause of Action: Slander of Title – SUSTAINED WITH LEAVE TO AMEND

“Slander of title is effected by one who without privilege publishes untrue and disparaging statements with respect to the property of another under such circumstances as would lead a reasonable person to foresee that a prospective purchaser or lessee thereof might abandon his intentions. It is an invasion of the interest in the vendibility of property. . . . Damages usually consist of loss of a prospective purchaser.” Phillips v. Glazer (1949) 94 Cal.App.2d 673, 677 (citations omitted). Such a cause of action requires (1) proof of a publication (2) that was without privilege or justification, (3) made either with knowledge the publication was false or without regard for its truthfulness and that (4) causes direct and immediate pecuniary loss. Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263–264. 10

At bar, the 2ACC alleges the recordation of quitclaim deeds in which Plaintiffs claimed to be the owners of Cabins 7 and 9, such deeds disparaged cross-complainants’ ownership and/or right to possession and use of the cabins, and the statements were false. 2ACC, ¶ 50-52. Such is insufficient to state a claim for slander of title. The 2ACC fails to allege Plaintiffs recorded the quitclaim deeds with knowledge of their falsity or without regard for their truthfulness. Therefore, the demurrer as to the sixth cause of action is sustained. Because there is possibility the defect can be cured, leave to amend is granted.

Seventh and Eight Causes of Action: Intentional / Negligent Interference with Prospective Economic Advantage – SUSTAINED WITH LEAVE TO AMEND

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.

“The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant’s failure to act with reasonable care; (5) actual disruption of the relationship; (6) and economic harm proximately caused by the defendant’s negligence.” Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1005.

At bar, the 2ACC fails to plead the existence of a relationship with a third party. Therefore, the 2ACC fails to plead any of the elements of either cause of action, because they all require the existence of a relationship with a third party. Thus, the demurrer as to the seventh and eight causes of action is sustained. Because there is the potential the defect can be cured on amendment, leave to amend is granted.

Ninth Cause of Action: Fraud - OVERRULED

Cross-Complainants argue because the moving plaintiffs are not named in this cause of action, they have no standing to object to it. The Court agrees. Accordingly, the demurrer as to the ninth cause of action is overruled.

Tenth Cause of Action: Declaratory Relief - OVERRULED

“To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.’ ” Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909 (citation omitted).

The 2ACC asks for declaratory relief as to the respective rights and duties as to the ownership of the cabins. Such is a proper subject of declaratory relief, and an actual controversy between the parties clearly exists. Therefore, the demurrer as to this cause of action is overruled.

Eleventh COA: Ejectment - OVERRULED

Ejectment is a possessory action used to recover possession of land or a piece of real property to a plaintiff in possession who has been wrongfully ousted from the property by the defendant. Fuller v. Fuller (1917) 176 Cal. 637, 638. Under Code of Civil Procedure § 3375, a party who is entitled to specific real property may recover by a judgment for its possession or an order requiring a defendant to deliver possession of the property. Code Civ. Proc. § 3375. At bar, the 2ACC alleges Cross-Complainants own the real property on which the cabins sit, and seeks removal of the cabins in the event Cross-Complainants do not own them to return possession of the land to Cross-Complainants. The cause of action for ejectment is properly pled. The demurrer as to the eleventh cause of action is overruled.

Motion to Strike

Since the motion to strike is dependent on the demurrer being sustained without leave to amend, the Court denies the motion to strike without prejudice at this time.

Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses

Plaintiffs/Cross-Defendants’ (“Plaintiffs”) motion to strike Defendants’ affirmative defenses is denied.

Request for Judicial Notice

Plaintiffs’ request for judicial notice of court documents is granted as requested.

“The trial court shall take judicial notice of any matter specified in [Evidence Code] Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” Evid. Code § 453. Plaintiffs’ request for judicial notice is included as part of their moving papers rather than a separate request. While not procedurally proper, the Court finds the request gives Cross-Complainants’ sufficient notice of the request and sufficient information for the Court to enable it to take judicial notice of the document.

Judicial notice is limited to the fact that the documents were filed, but not of the truth of their contents. Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7. “We may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments. Ibid. However, even if Plaintiffs expressly requested the court to take judicial notice of any particularly identified fact in the Ruling, judicial notice can “not properly be taken of the truth of the factual findings” of the trial judge. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1563. A 12

finding of fact made after hearing cannot “be indisputably deemed to have been a correct finding,” because, ““[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.” (1 Witkin Cal. Evidence (3d ed. 1986) § 80.) Taking judicial notice of the truth of a judge's factual finding would appear to us to be tantamount to taking judicial notice that the judge's factual finding must necessarily have been correct and that the judge is therefore infallible.” Id. at 1568.

Legal Standard

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e) [motions to strike after failure to amend following judgment on the pleadings]." Code Civ. Proc. § 435(b)(1).

The grounds for a motion to strike are found in Code Civ. Proc. § 436, as follows:

"The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." Code Civ. Proc. § 436.

Analysis

Plaintiffs move to strike Defendants’ eleven affirmative defenses, arguing they are unsupported by factual allegations and are contrary to California law. The Court disagrees. Plaintiffs arguments depend on the Court taking judicial notice of its findings during the evidentiary proceedings and ruling on plaintiffs’ request for preliminary injunction. As discussed above, judicial notice is appropriate in stating the court made a particular ruling; however, judicial notice of the truth of a factual finding made by a judge sitting as a trier of fact is not appropriate. Sosinsky, supra, 6 Cal.App.4th at 1563 fn.

8.

It is the consequence of judicial notice that the “fact” noticed is, in effect, treated as true for purposes of proof. “Under the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required. Judicial notice is thus a substitute for formal proof. [Citation.]” (1 Witkin Cal. Evidence (3d ed.1986) § 80, p. 74.) Therefore, a finding of fact that was judicially noticed would be removed as a subject of dispute and would be accepted for evidentiary purposes as true. The effect would be that without resort to concepts of collateral estoppel or res judicata that would litigate whether the issue was fully addressed and resolved, a finding of fact would be removed from dispute in the other action in which it was judicially noticed. Id. at 1564.

Therefore, because it would be inappropriate for the court to take judicial notice of its findings during the evidentiary proceedings and previous ruling, Defendants’ affirmative defenses asserting ownership rights are not unsupported by factual allegations or contrary 13

to California law. Therefore, Plaintiffs’ motion to strike Defendants’ affirmative defenses is denied.

7. CU0002183 Adventure Resort Marketing, LLC, (ARM) et al vs. B & W Resorts, Inc., dba Harmony Ridge Resort et al

Plaintiffs’ motion to consolidate Case CU0002183 with Case CU0002221 is DENIED.

Procedural Standard

(a) Requirements of motion (1) A notice of motion to consolidate must: (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and (C) Be filed in each case sought to be consolidated. (2) The motion to consolidate: (A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case; (B) Must be served on all attorneys of record and all non-represented parties in all of the cases sought to be consolidated; and (C) Must have a proof of service filed as part of the motion. (b) Lead case Unless otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case is the lead case. (c) Order An order granting or denying all or part of a motion to consolidate must be filed in each case sought to be consolidated.

If the motion is granted for all purposes including trial, any subsequent document must be filed only in the lead case. (d) Caption and case number All documents filed in the consolidated case must include the caption and case number of the lead case, followed by the case numbers of all of the other consolidated cases. Cal. Rules Ct., rule 3.350.

At bar, Plaintiffs failed to file a notice of motion in the later filed case and failed to serve all attorneys of record (only serving Defendants’ attorney of record and not Plaintiffs’ counsel in the later filed case). The remainder of the motion was otherwise properly filed in the lead case. Given counsel for Plaintiff in CU0002183 submitted a declaration in support of the motion, the Court finds the technical rule violation does not prejudice this Plaintiff. Defendants oppose the motion.

Legal Standard

When cases involving a common question of law or fact are pending in the same superior court, i.e., in the same county, the cases can be consolidated on a party’s motion or on the Court’s own 14