FORTUNE v. SOBAYO

DEPARTMENT THREE JUDGE STEPHEN GIZZI 707-207-7303 TENTATIVE RULINGS SCHEDULED FOR FRIDAY, SEPTEMBER 4, 2026

The parties may appear via Zoom with the exception of trials, trial management conferences, order for examinations and mandatory settlement conferences. The information for the Zoom meeting is set forth below.

The tentative ruling shall become the ruling of the court unless a party desiring to be heard contacts the judicial assistant of the department hearing the matter by 4:30 p.m. on the court day preceding the hearing, and further advises that such party has notified the other side of its intention to request a hearing. A party requesting a hearing must notify all parties of the request to be heard by 4:30.

FORTUNE v. SOBAYO Case No. Cu24-10241

Motion by Plaintiff for Summary Judgment or In the Alternative, for Summary Adjudication

TENTATIVE RULING

While a party moving for summary judgment may alternatively also seek summary adjudication of a cause or causes of action, affirmative defense or defenses, issue or issues of duty, or claim or claims for damages, both the notice of motion and separate statement must specifically identify those matters. CRC 3.1350(b) [“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts”]; CRC 3.1350(d) [spelling out requirements for separate statement]; CRC 3.1350(h) [providing examples of a supporting statement for a motion for summary adjudication].

The notice of motion filed with the court is missing page 2, and the remainder does not comply with CRC 3.1350, nor does the separate statement.

Thus, the court could consider this only as a motion for summary judgment.

A plaintiff filing a motion for summary judgment must present evidence sufficient to establish each element of every cause of action, or to negate an affirmative defense as to each cause of action. C.C.P. §437c(p)(1).

Even if the plaintiff presents such evidence, a defendant opposing summary judgment need only present evidence sufficient to create a triable issue of material fact as to any necessary element or affirmative defense. C.C.P. §437c(c).

Plaintiff failed to present evidence sufficient to establish the elements of all of her causes of action, or in fact, any of them.

In the complicated array of facts alleged by Plaintiff in the complaint, she admits that she willingly transferred title of the subject property to Defendant in 2008 [Complaint, ¶14]; and while claiming that 2008 transfer was for purposes other than sale, admits entering into an agreement in 2016 to confirm that transfer of title in exchange for $100,000 from Defendant and his promise to refinance the mortgage and assume full financial responsibility [Complaint, ¶15]. She also admitted to receiving from Defendant about $70,000 [Complaint, ¶15].

Nothing in the declaration Plaintiff filed in support of this motion contradicts those allegations, although Plaintiff further claimed that she had made some payments of the mortgage after that time, and entitlement to some rents paid by tenants or underpayment of rents during the time Defendant remained in possession [Plaintiff’s declaration, ¶14].

Rescission would require Plaintiff to return the net value she received, directly or indirectly, from Defendant from the deal.

[Civil Code] section 1691 requires the party seeking rescission to give notice to the other party “as to whom he rescinds,” and to restore all consideration or “everything of value which he has received” under the contract. The statute's language is clear. With certain exceptions discussed below, it generally requires that the rescinding party return any consideration received as a condition of rescission before judgment in the rescission action. Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913, 921-922.

See also Montgomery v. Meyerstein (1921) 186 Cal. 459, 464-465, which states:

When the owner of an estate contracts with a purchaser for the immediate sale of it, the ownership of the estate is, in equity, transferred by that contract. . . . Every portion of the purchase money paid in pursuance of that contract, is a part performance and execution of the contract, and, to the extent of the purchase money so paid, does, in equity, finally transfer to the purchaser the ownership of a corresponding portion of the estate. . . . In conformity, therefore, with every principle, the purchaser paying the money acquired an interest in the estate by force of the contract and of that part performance of the contract, namely, the payment of that portion of the purchase money." And thereupon the court

adjudged that the vendee was entitled to a lien upon the property for the purchase money paid. (See, also, 2 Sugden on Vendors [672].) The doctrine is also stated as follows: "If the contract fails, or is avoided, because of the inability or refusal of the vendor to make a proper title, or because of fraud or misrepresentation in the contract, or for any other reason chargeable to the vendor and which is not due to the default of the vendee, he is given a lien upon the land as security for the repayment of what he has paid in performance of the contract." (29 Am. & Eng. Ency. of Law, 730; 39 Cyc. 2032.) The italics are ours. "The lien also exists to secure the vendee any amount to which he is entitled for having erected improvements upon the land." (29 Am. & Eng. Ency. of Law, 730; 39 Cyc. 2037.) It also extends to expenditures for taxes and insurance. (2 Black on Rescission, sec. 694.)

To the extent this motion seeks rescission of that agreement, and/or to quiet title for the subject property such that Plaintiff’s prior executed and recorded conveyance deed is rescinded, a specific accounting, not provided by the motion, would be required to establish what net amount Defendant paid during the time after the parties entered into the 2016 agreement, that would have to be returned to Defendant as a condition of completing rescission of that 2016 agreement.

Likewise, to the extent Plaintiff’s complaint sought damages rather than rescission/reinstatement of Plaintiff’s claim to title, an accounting of rents and other payments incurred by both parties after the 2016 agreement was entered would be necessary, and was not provided with this motion.

The court therefore denies this motion in its entirety.

McGHEE v. FCA US LLC, ET AL. Case No. CU25-05615

Demurrer; Motion to Strike

TENTATIVE RULING

Demurrer

Defendant FCA US, LLC’s demurrer to Plaintiff’s first amended complaint is sustained without leave to amend.

Plaintiff’s first four causes of action are barred pursuant to Code of Civil Procedure section 871.21(b). Plaintiff alleged that the vehicle was purchased on October 30, 2017, almost eight years prior to the filing of the action on June 17, 2025. (FAC, ¶¶ 7, 9.) All of these causes of action seek restitution or replacement of a motor vehicle pursuant to subdivision (b) or (d) of Section 1793.2 or Section 1794 of the Civil Code or for civil penalties pursuant to subdivision (c) of Section 1794 of the Civil Code. (Code