Colombana vs. Colombana

Plaintiff claims $594.74 in costs for e-filing or service. Originally, Onnyx sought to tax these costs in their entirety, but, on reply, Onnyx requests that the Court tax $253.41 and find only $341.33 is recoverable. Plaintiff has not met her burden of showing the e-filing fees are all recoverable. The Court taxes this item, in part, and awards a total of $341.33 in e-filing or e-service fees.

Item no. 15: Other Plaintiff claims $917.54 under “other,” which includes costs for “court reporter transcript fees, document retrieval and subpoena of documents fees.” Plaintiff claims she should be allowed to recover these discretionary costs, because she “ordered transcripts to prepare for closing argument and for post-trial motions”; and “[t]here is no authority for Defendant’s position that transcript fees are not recoverable for post-trial motions.”

The Court taxes $703.84 in transcript fees, because these were not ordered by the court. (Code Civ. Proc., § 1033.5, subd. (b)(5).) However, the Court finds the $213.70 in document retrieval fees should be allowed, because they were reasonably necessary to the litigation. (See Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 578.) Thus, the Court taxes these costs, in part, and awards a total of $213.70 in “other” discretionary costs.

After these deductions are made, Plaintiff is entitled to an award of $9,027.47 in costs against Defendant Onnyx Investments, LLC.

Plaintiff shall give notice of the ruling.

6. 2025-1530331 Defendant Danissa Columbana’s general demurrer to Plaintiff Colombana vs. Brian Columbana’s Complaint is sustained as to the 1 st-3rd, 5th, and Colombana 6th causes of action with 30 days leave to amend. The demurrer is overruled as to the 4th, 7th, and 8th causes of action.

The special demurrer is overruled in its entirety as the allegations in the complaint are not confusing, such that Defendant cannot determine what to respond to. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.)

Defendant’s request for judicial notice (“RJN”) is granted.

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452.

Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)

On demurrer, a complaint must be liberally construed. (CCP § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)

1st cause of action for extrinsic fraud Defendant argues that this, as well as Plaintiff’s other causes of action, are barred by the statute of limitations.

The statute of limitations for fraud is three years pursuant to Code Civ. Proc., § 338(d).

Plaintiff alleges in this cause of action that “Defendant’s false testimony, concealment of income, concealment of cohabitation, and concealment of business accounts intentionally prevented Plaintiff from fully and fairly presenting his case at the December 10, 2021[,] support modification hearing.” (Complaint, ¶ 29.)

These claims are the same that Plaintiff asserted in his application to set aside the child support order filed in family court dated 6/7/22. (See Defendant’s RFJN.) In Plaintiff’s declaration in support of his application he declares that he discovered the facts constituting the alleged fraud and perjury on 12/10/21. (RJN, Ex. A-024.)

These are prior judicial admissions that the Court may take judicial notice of, which contradict Plaintiff’s current allegations. (See Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344 (“the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false.”).)

Plaintiff filed this Complaint on 12/1/25, which is more than three years after 12/10/21 when he states he discovered the facts alleged in this cause of action.

Therefore, the demurrer is sustained as to the first cause of action.

2nd cause of action for intentional misrepresentation Plaintiff similarly alleges in this cause of action that Defendant “knowingly made false statements of material fact, including:... [t]hat she did not cohabit with Dustin Kirkland; [t]hat she had no

other income beyond the amount listed; [t]hat she had no other bank accounts or credit card accounts; [t]hat she had no business interests; and [t]hat she received no financial assistance from others.” (Complaint, ¶ 35.)

The same three-year statute of limitations applies. (Code Civ. Proc., § 338(d).) For the same reasons stated with respect to the first cause of action, the demurrer is also sustained as to this cause of action.

3rd cause of action for negligent misrepresentation Plaintiff’s third cause of action is pled alternatively to the 2nd cause of action; Plaintiff alleges that Defendant made the statements alleged without reasonable grounds to believe they were true. (Complaint, ¶ 40.) The three-year statute in § 338(d) also applies to this cause of action. (See William L. Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1313-1314.)

The demurrer is also sustained, accordingly.

4th cause of action for conversion The elements of conversion are: “(1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) The statute of limitations for conversion is 3 years. (Code Civ. Proc., § 338(c)(1).)

Here, Plaintiff alleges that “Defendants wrongfully exercised dominion and control over Plaintiff’s property, including ... Plaintiff’s checks stolen from his mail and deposited after forging his signature; Plaintiff’s inheritance account information, which she unlawfully accessed and altered; and [t]he attempted withdrawal of $5,335.” (Complaint, ¶ 44.)

Plaintiff is not alleging the same facts as he alleged in the prior family law action regarding his child support obligations.

Earlier in the Complaint, Plaintiff alleges that he was unaware of Defendant’s alleged wrongdoing until 2024 when he attempted to access his account and learned it had been frozen because of Defendant’s forgery and attempted theft. (Complaint, ¶ 27.)

Plaintiff has stated a claim for conversion. Therefore, Defendant’s demurrer based on the statute of limitations is overruled to the 4 th cause of action.

5th cause of action for identity theft Civ. Code, § 1798.93(a) states: “A person may bring an action against a claimant to establish that the person is a victim of

identity theft in connection with the claimant’s claim against that person. If the claimant has brought an action to recover on its claim against the person, the person may file a cross-complaint to establish that the person is a victim of identity theft in connection with the claimant’s claim.” (Bold added.)

Plaintiff does not allege that Defendant is a claimant or creditor asserting a claim against him arising from identity theft. Rather, he alleges Defendant herself used his identifying information to obtain or attempt to obtain his property. Thus, the facts presently alleged do not state a cause of action against Defendant under Civil Code § 1798.93. The demurrer is sustained to the 5th cause of action with leave to amend.

6th cause of action for negligence per se - violation of Penal Code § 530.5 “Negligence may be presumed if (1) the defendant violated a statute; (2) the violation proximately caused injury to the plaintiff; (3) the injury resulted from an occurrence which the statute was designed to prevent; and (4) the plaintiff was one of the class of persons for whose protection the statute was adopted.” (Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1441.)

The records judicially noticed do not establish that Plaintiff was aware in 2021 or 2022 of the theft, forgery, alteration of account information, and attempted withdrawal alleged in this count. Thus, Defendant’s statute-of-limitations argument does not establish that this claim is untimely.

However, negligence per se does not itself supply an independent negligence cause of action. Plaintiff’s opposition acknowledges that Evidence Code § 669 may provide a negligence-per-se presumption only within an otherwise viable negligence claim and requests leave to amend to plead an appropriate civil theory based on the same conduct. Accordingly, the demurrer is sustained to the 6 th cause of action with leave to amend.

7th cause of action for constructive trust Defendant argues that this cause of action is based on the first, second and fourth causes of action for fraud and conversion, and because those causes of action are time-barred, this cause of action fails as well.

As noted above, the 4th cause of action is not time-barred as it is not based on what was previously alleged by Plaintiff in the family law matter.

Thus, this cause of action is not subject to the statute of limitations to the extent Plaintiff seeks to impose a constructive trust on funds allegedly converted by Defendant per the claims in the 4th cause of action. The demurrer is likewise overruled as to the 7th cause of action.

8th cause of action for accounting Plaintiff alleges that the “parties’ finances became intertwined through Defendant’s wrongful use of joint or diverted assets,” and that “Defendants [sic] alone possess knowledge of the true amounts Defendant Danissa Colombana took or concealed.” (Complaint, ¶¶ 62, 63.)

The Statute of Limitations for an accounting claim is also three (3) years given that the gravamen of the claim is a taking of Plaintiff’s property. (§ 338(c).)

The demurrer to this cause of action is also overruled as it is based on the same alleged facts as the conversion claim.

Collateral Estoppel and Res Judicata Defendant’s arguments that collateral estoppel and res judicata bar Plaintiff’s Complaint are unavailing.

Pursuant to the documents subject to the request for judicial notice, Plaintiff’s allegations in the family law proceeding were not adjudicated on their merits. (See Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1326.) The court denied Plaintiff’s application because it was untimely.

Thus, these doctrines do not apply.

If Plaintiff decides not to amend his Complaint and move forward with the 4th, 7th, and 8th causes of action, he shall notify Defendant and this Court within 15 days, and Defendant shall have 15 days thereafter to file an Answer.

The clerk will give notice.

8. 2025-1501960 Iron Mountain No tentative. The Court has questions for counsel. Holdings Inc. vs. Coastline Community Development Group, Inc.