Motion to Strike Portions of the Fifth Amended Complaint; Demurrer
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52. Castro v. Defendant Coldwell Banker Realty’s Motion for Undertaking is Cies Family DENIED as it has been dismissed from this action with Trust prejudice. (See ROA 340)
2023- Defendant The Cies Family Trust’s Joinder in the Motion is also 01322100 DENIED.
Pursuant to Code of Civil Procedure § 1030, Defendant Coldwell Banker Realty initially moved for order requiring Plaintiff to post an undertaking in the amount of $69,135.87. The motion was joined by defendant The Cies Family Trust (“CFT”). CFT seeks an undertaking in the amount of $90,000.
Under Section 1030(a), an undertaking must be in an amount sufficient as security for “costs and attorney’s fees which may be awarded in the action.”
Here, CFT has provided no persuasive evidence for the $90,000 undertaking it seeks. CFT’s counsel states it has incurred approximately $3,793.60 in costs, but does not provide a sufficient basis for the additional $86,000+ in costs it seeks. Therefore, even assuming CFT has met all the statutory requirements of Section 1030(a), the Court has no basis to require Plaintiff to post a $90,000 undertaking.
Additionally, in the opposition, Plaintiff has created a factual dispute regarding Defendant’s knowledge of a water leak which sufficiently challenges whether there is a reasonable possibility that Defendant will prevail. On reply CFT argues for the first time that Plaintiff failed to name Leslie Cies and Dr. Cies as trustees of the Cies Family Trust, as a trust is not a separate legal entity capable of being sued. It requests the Court to consider this issue in ruling on the motion.
“It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.) Because CFT failed to raise this issue in its Joinder, the Court will not consider the argument.
For the foregoing reasons, the motion is also DENIED as to defendant CFT.
Defendant The Cies Family Trust shall give notice of this ruling.
53. Daichendt v. Defendants Aviation Consultants, Inc., William Aviation Borgsmiller, Freeman Holdings of CenCA LLC and Consultants, Nathan Ross’ Motion to Strike Portions of the Fifth Inc. Amended Complaint
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The request to strike the entirety of the Fifth Amended Complaint is DENIED.
The ACI defendants move to strike the 3rd cause of action that alleges a derivative claim for breach of fiduciary duty on the ground that this amendment exceeds the scope of leave to amend provided by the court in its ruling on the demurrer to the Fourth Amended Complaint. The court permitted Plaintiff to amend his cause of action for Fraudulent Concealment as follows: “Plaintiff shall have one final opportunity to amend the pleading to allege with factual particularity a theory of fraudulent concealment involving misconduct and injury that could support an individual claim, or otherwise plead a viable cause of action, as well as the demurring defendants’ role in aiding and abetting.” (ROA 1330 [3/26/26 Minute Order].)
Nowhere in the court’s order is Plaintiff given leave to insert an entirely new derivative cause of action based upon a different legal theory of alleged wrongdoing committed against ACIOC. Since this newly added cause of action exceeds the scope of the court’s order granting Plaintiff one final opportunity to amend his Complaint to state facts supporting a claim for fraudulent concealment, this cause of action is not “Drawn or filed in conformity with ... an order of the court” and is thus subject to a motion to strike. The 3rd cause of action for breach of fiduciary duty (derivatively) is ordered STRICKEN.
The ACI defendants also move to strike certain other portions of the Fifth Amended Complaint that reflect changes made that were not addressed in the court’s order concerning the demurrer to the Fourth Amended Complaint. In response, Plaintiff essentially argues that the changes were immaterial
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to the overall format of the pleading, and were taken to refine the operative complaint.
As this is the Fifth Amended Complaint, any word-smithing changes are beyond the leave granted by the court to address issues raised by the prior demurrer.
The ACI defendants have sufficiently identified the additional edits made that are subject to being stricken. (See Decl. of Klein, ¶ 8; Exh. 1). The court orders STRICKEN all modifications that appear in the Fifth Amended Complaint that did not exist in the Fourth Amended Complaint.
Plaintiff is granted leave to file an amended complaint that (1) omits the third cause of action; and (2) that restores the verbiage from the Fourth Amended Complaint.
The amended complaint shall be filed within 5 days.
The case management conference is continued to December 7, 2026 at 9:00 a.m. in Department C28.
The ACI defendants’ demurrer to the Fifth Amended Complaint is DENIED as moot, as the challenged cause of action has been stricken.
Defendant ACI Jet Orange County, LLC’s Motion to Strike Portions of the Fifth Amended Complaint
Defendant ACI Jet Orange County, LLC’s (“ACIOC”) Motion to Strike Fifth Amended Complaint is GRANTED in part. (Code Civ. Proc. §436, subd. (b) [court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court tule, or an order of the court.”]; see also Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [plaintiff may amend complaint only as authorized by and within the scope of the order granting leave to amend].)
ACIOC moves to strike the Fifth, Sixth, and Seventh Causes of Action for declaratory relief in the Fifth Amended Complaint and against ACIOC. ACIOC successfully obtained summary adjudication of these claims in its favor. (ROA 1097 [11/18/25 Minute Order].) Plaintiff has explained how these causes of actions appeared in the Fifth Amended Complaint, and agrees that Plaintiff is not seeking to recover against ACIOC as to these claims.
Accordingly, the Motion to Strike is GRANTED.
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Based on the court’s ruling on the ACI defendants’ motion to strike, ACIOC’s motion to strike the 3rd cause of action is DENIED as moot.
ACIOC’s demurrer to the Fifth Amended Complaint is DENIED as moot, as the challenged causes of action have been stricken.
ACIOC shall give notice of this ruling.
54. G&D Defendant Green Zahn and Associates’ Demurrer to the First Scarbrough Amended Complaint (“FAC”) is SUSTAINED. Family Defendant demurrers to the second through fifth causes of Limited action of the FAC. Partnership, LLP v. Green Second and Third Causes of Action – Breach of Fiduciary Zahn and Duty and Constructive Fraud Associates “The elements of a cause of action for breach of fiduciary duty 2025- are the existence of a fiduciary relationship, its breach and 01507294 damage proximately caused by that breach.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395.)
The elements for a claim of constructive fraud are “(1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive; and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.)
Both causes of action are based on Plaintiff’s allegation that Defendant was a fiduciary of the G&D Scarbrough Family Limited Partnership (“G&D”).
The FAC now alleges that Green Zahn and Associates’ (“GZA”) signature on the returns constituted an agreement to represent G&D as an agent before the IRS such that there was an agency relationship. But there is no allegation that GZA represented G&D before the IRS, and Plaintiff does not explain how Defendant’s agreement to prepare and file its tax returns obligates Defendant to represent it before the IRS.
Moreover, Plaintiff’s claims against Defendant do not arise out of any representation of it before the IRS. Thus, any limited agency that might have existed between the parties is not relevant to the claims asserted herein.
“[B]reach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) As with the prior Complaint, the relationship between Plaintiff and Defendant is based upon allegations that Defendant provided