Toner vs. Aurora Heights, LLC

Deceit is defined by Civil Code section 1710 to include the “suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” (Civ. Code, § 1710, subd. (3).) “Judicial interpretations of section 1710, subdivision 3 state that to support a cause of action for fraud by concealment a plaintiff must show (1) concealment of a material fact by the defendant; (2) the defendant had a duty to disclose that fact to the plaintiff; (3) the defendant concealed the fact with an intent to induce reliance by the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he or she did with knowledge of the concealed fact; and (5) the plaintiff suffered injury.” (Doe v. Superior Court (2015) 237 Cal.App.4th 239, 244.)

Defendants contend that Plaintiff cannot meet his burden of showing Dr. Peifer had knowledge of the dental implant being placed in Plaintiff’s nerve canal, because Dr. Peifer testified (at deposition and in his declaration) that, each time he represented to Plaintiff the implant at tooth #30 was close to the inferior alveolar nerve canal, Dr. Peifer never knew the implant was inside the inferior alveolar nerve canal. (See Disputed Fact no. 24.) However, this fact is disputed by the testimony of Plaintiff’s expert witness, Dr.

Wyatt, who opines that a “hypothetical oral surgeon with the same level of training in viewing cone beam CT scans as Dr. Peifer and the same professional experience with viewing ‘approximately 1,000’ cone beam CT scans as Dr. Peifer would have been aware– from a review of the pre-operative cone beam CT scan of Mr. Katich and any of the five (5) post-operative cone beam CT scans of Mr. Katich–that the surgical drilling process to create the osteotomy (hole) in Mr. Katich’s lower jawbone had extended significantly beyond the intended depth, through the inferior alveolar nerve canal, and into the inferior cortical border of the right inferior alveolar nerve canal, causing nerve damage.” (ROA 170 [Wyatt Decl. at ¶ 11].)

Additionally, Plaintiff’s other expert, Dr. Husain, also testifies to that effect. (ROA 176 [Husain Decl. at ¶ 19].)

Based on the evidence presented, the Court cannot adjudicate this question of fact as a matter of law. Accordingly, the motion is granted as to the negligent and intentional misrepresentation claims and denied as to the concealment claims.

Defendants shall give notice of the ruling.

6. 2025-1514475 The Court overrules Defendants Aurora Heights, LLC, JJT Toner vs. Properties, LLC, IBILTIT, Inc., and Bandera Land Company, Inc.’s Aurora Demurrer to Plaintiffs Matthew Toner, Lawrence G. Toner, Willian Heights, LLC J. Toner, Pauline Toner, as Trustee (derivatively on behalf of

Nominal Defendant Casa Del Rey, Ltd.) and Kneebumps Inc.’s Complaint.

Moving Defendants shall answer the Complaint within 20 days.

RJN The unopposed Request for Judicial Notice in support of the Demurrer is granted.

Merits This is a partition case seeking to split several properties:

1. a mobile home park located at 327 East Ash Street, Brea, California, 92821, zoned with a multi-family residential zoning designation of R-3 2. two multi-family buildings located at 1633 & 1639 West Ball Road, Anaheim, California, 92802, zoned with a multi-family residential zoning designation of RM-4 3. a multi-family building located at 8252 California Street, Buena Park, California, 90621, zoned with a multi-family residential zoning designation of RM-20 4. a multi-family building located at 11111 Barclay Drive, Garden Grove, California, 92841, zoned with a multi-family residential zoning designation of R-3

(Compl., ¶¶1-5.)

Plaintiffs Matthew Toner, Lawrence G. Toner, Willian J. Toner, Pauline Toner, as Trustee (derivatively on behalf of Nominal Defendant Casa Del Rey, Ltd.) and Kneebumps Inc. sue Defendants for:

1. Partition of the Ash Street Property 2. Partition of the Ball Road Property 3. Partition of California Street Property 4. Declaratory Relief as to CDR Partnership 5. Judicial Dissolution of CDR Partnership 6. Quiet Title to Barclay Drive Property 7. Partition of Barclay Drive Property

First, Moving Defendants argue that Plaintiffs may not file one suit involving four properties owned by different owners. Each suit must only name the owners of each property and no one else citing Middlecoff v. Cronise (1909) 155 Cal. 185, 188.

In response, Plaintiffs argue that California partition law falls under the statutes first adopted in 1976, well after the holding in Middlecoff - a 1909 case. (Code of Civil Procedure §§ 872.010-

874.323.) As present-day partitions must follow these statutory requirements, case law which contradicts, or does not even reference, the modern partition statutes (like Middlecoff) has little relevance or persuasive value whatsoever.

Code of Civil Procedure section 872.250 states:

“(a) Immediately upon filing the complaint, the plaintiff shall record a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located. (b) If, thereafter, partition of other real property is sought in the same action, the plaintiff or other person seeking such relief shall immediately record a supplemental notice.”

(CCP § 872.250(a-b) (Emphasis added).)

Here, the primary ownership interests across the four Properties involve the same Parties, and all of Plaintiffs’ causes of action are derived from a common pool of facts and events.

There is no reply filed and thus it appears that Moving Defendants have abandoned this argument.

Second, Moving Defendants also argue that as to two named decedents, (the Martins) who before their deaths owned a tenancy in common interest in one of the parcels (Ash Street), their estate representatives must be named, or if none exist, the probate court must appoint a special administrator. (Probate Code § 8402).

But the recently filed Doe Amendment resolves this issue. “The testate and intestate successors of Gertrude Irene Martin, deceased, and all persons claiming by, through, or under said decedent” was added as Doe 2. (ROA 451.)

Next, as to the Barclay Property, Moving Defendants argue that title to that property is in a California limited partnership and Plaintiffs are purported successors to the original limited partners. Limited partners have no standing to seek partition of partnership property, nor can they seek to quiet title as they are not owners. Defendants contend that this disposes of the 6th and 7th claims.

But in opposition, Plaintiffs cite to Code of Civil Procedure section 872.730, which permits this court of action:

“To the extent that the court determines that the provisions of this title [concerning partition actions] are a suitable remedy, such provisions may be applied in a proceeding for

partnership accounting and dissolution, or in an action for partition of partnership property, where the rights of unsecured creditors of the partnership will not be prejudiced.”

(CCP § 872.730.)

A partition action may be raised against real property owned by a partnership, by interest holders in the partnership who may additionally or otherwise be able to raise an action for dissolution— as Plaintiffs have done here.

As the court explained in Logoluso, “[W]e note that an action to dissolve a partnership is an equitable proceeding, and so is an action in partition. Both kinds of cases present similar problems as to whether jointly-owned property should be divided or sold. Because the circumstances surrounding the two kinds of action in equity are parallel, we apply the long established rules of partition to the property division aspects of a partnership dissolution action. Equity, by its very nature, requires that like principles be applied to like cases.” (Logoluso v. Logoluso (1965) 233 Cal.App.2d 523, 530.)

Finally, Moving Defendants argue that a partnership dissolution complaint that admits the Plaintiffs do not know all the partner names (as exists here) is defective on its face.

Per Plaintiffs’ Complaint Paragraph 68 (verified, and not stated on information and belief), for the CDR Partnership: (1) Plaintiffs are alleged to collectively hold a 27.5% ownership interest; (2) of the Defendants, JJT Properties is alleged to hold a 27.5% ownership interest, and Aurora Heights is alleged to hold a 40% ownership interest (or 67.5% between them collectively); and (3) the individuals Luann Coleman, Carol Meng, Robert Botkin (sued erroneously as “Boltkin”), and Suzanne Shook are alleged to each hold a 1.25% interest respectively (or 5% between them collectively). The Court accepts this as true for purposes of Demurrer.

Thus, the Demurrer is overruled.

Moving Defendants are ordered to serve notice.

7. 2025-1495388 The general demurrer by Defendants Tustin Law Group, APC, Sirott vs. formerly known as Giammichele Law, APC, and Steven Andrew Giammichele Giammichele (collectively, “Defendant’s) to the sole cause of action Law, APC for legal malpractice alleged in the First Amended Complaint (“FAC”) filed by Plaintiff Adrienne Sirott (“Plaintiff”), personally and in her capacity as a personal representative of the Estate of Stanley A. Sirott, is continued.