SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 10 Honorable Jeffrey B. El-Hajj Blanca Than, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408-882-2210

DATE: May 28, 2026 TIME: 9:00 A.M. / 9:01 A.M. To contest the ruling, call (408) 808-6856 before 4:00 P.M. Make sure to let the other side know before 4:00 P.M. that you plan to contest the ruling. (Cal. Rules of Court, rule 3.1308(a)(1); Local Rule 8.D.)

**Please specify the issue to be contested when calling the Court and counsel**

9:00 A.M. LINE CASE # CASE TITLE RULING # Line 1 25CV464307 Jessica Martinez v. Click LINE 1 or scroll down for ruling. Hyperice Mexico Holdings, LLC et al.

Line 2 24CV433040 Jane Doe v. ROE 2 et By stipulation and order, the matter is CONTINUED to October 8, 2026, al. at 9:00 a.m. in Department 10. The parties are ordered to inform the court no later than August 27, 2026, whether this motion and the motion for summary judgment also set for October 8, 2026, will remain as set. The court will prepare the order.

Line 3 25CV468318 Elizabeth Tan v. Plaintiff’s motion to compel deposition of defendant’s person most Volkswagen Group knowledgeable. Notice is proper and the motion is opposed by defendant. of America, Inc., a Defendant’s opposition indicates the deposition occurred in January 2026, New Jersey meaning the motion is moot. Instead of a reply brief, plaintiff filed a Corporation et al. notice that the matter “has been taken off calendar.” Plaintiff is admonished to withdraw moot motions much earlier in the future so that the court’s limited law and motion reservations can be opened for use by other litigants. The motion is DENIED AS MOOT. The court will prepare the order.

Line 4 23CV427200 Walter Kubon et al vs Click LINE 4 or scroll down for ruling. Rosalie Guancione

Calendar Line 4 Case Name: Walter Kubon et al. v. Rosalie Guancione Case No.: 23CV427200

Defendant Rosalie Guancione’s motion to expunge lis pendens. Notice is proper and the motion is unopposed. Failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).) Failure to oppose a motion leads to the presumption that the non-moving party has no meritorious arguments. (

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Plaintiffs Walter and Vally Kubon filed the original complaint in this action in December 2023, alleging a single cause of action for quiet title against defendant. The court granted plaintiffs’ ex parte application in January 2024 to record a lis pendens on the subject property: 560 Hobie Lane, San Jose, CA 95127, APN: 601-33-077.

Defendant moved for judgment on the pleadings related to the initial complaint, which the court granted with leave to amend. Plaintiffs filed the first amended complaint in December 2024, which impermissibly added another defendant as well as several causes of action that had not been alleged in the initial complaint. Defendant demurred to the first amended complaint, arguing among other things that plaintiffs were judicially estopped from asserting a claim to the real property because they had disclaimed any interest in the property in United States Bankruptcy Court proceedings. The court sustained defendant’s demurrer in May 2025 in a detailed order. As relevant here, the court reasoned:

As Guancione points out, all of the causes of action in the FAC (including those the court has stricken on its own motion) depend upon allegations that Guancione conducted a scheme from 2015 to 2019 to take control of the Kubons’ property, the subject property. (See FAC, ¶¶ 11-59.) This includes allegations that Guancione somehow orchestrated the removal of the Kubons from the subject property by armed federal agents in October 2019 (see FAC, ¶ 53-54), making it impossible for the Kubons to allege that they were unaware of alleged wrongdoing by Guancione after that point in time. “It is well established that in the context of a demurrer, specific allegations control over more general ones.” (Chen v.

PayPal, Inc. (2021) 61 Cal.App.5th 559, 571-572 (Chen).) Yet, when the Kubons filed for bankruptcy in September 2020, they did not disclose the existence of any claims or potential claims against Guancione. They also, in direct contradiction to their current allegations (see FAC, ¶¶ 3 & 12), represented to the bankruptcy court that they did not own any real property, that no one owed them money, that they had no claims against anyone other than the IRS (their counterclaim in the federal tax lawsuit), and that no creditors had claims secured by any property they owned.

They also stated that they transferred the subject property in August 2019, affirming the validity of the “Deed-in-Lieu of Foreclosure.” (See Request for Judicial Notice (“RJN”), Ex. B.) The Kubons received a discharge from bankruptcy based on these representations. (See Memorandum, pp. 2:4-4:22 and RJN, Exhibits A-G and J- M.)

The documents of which the court has taken judicial notice indicate that by filing this lawsuit, the Kubons have done precisely what the foregoing cited authorities do not permit, and this is sufficient to sustain the demurrer to all remaining causes of action in the FAC (the first, second, fourth, fifth, and sixth) on the basis of judicial estoppel. It is also sufficient to sustain the demurrer to all of the causes of action that the court has already stricken.

(Order re: Demurrer to First Amended Complaint, filed May 13, 2025, at pp. 10:23–11:20.) The court granted 10 days’ leave to amend.

It does not appear a second amended complaint was ever successfully filed, although defendant did demur to a second amended complaint. By minute order dated January 15, 2026, the court instructed plaintiffs to re-file a proposed third amended complaint along with a stipulation and order. The clerk has since rejected two filings for not following the court’s instructions. There is presently no operative pleading on file.

“A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged.” (Code Civ. Proc., § 405.20; unspecified references are to the Code of Civil Procedure.) That notice is also referred to as a lis pendens. “ ‘Real property claim’ means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.” (§ 405.4.)

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice.” (§ 405.30.) A lis pendens clouds title, effectively preventing transfer of the property until the litigation is resolved. (BGJ Associates LLC v. Superior Court (1999) 75 Cal.App.4th 952, 966-67.) “Unlike most other motions, when a motion to expunge is brought, the burden is on the party opposing the motion to show the existence of a real property claim.” (Kirkeby v.

Superior Court (2004) 33 Cal.4th 642, 647, citing § 405.30.) The motion may be based on the substantive grounds that the underlying action does not involve a real property claim (§ 405.31), or that the real property claim lacks probable validity (§ 405.32). (J&A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 16.) “[T]he court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.” (§ 405.32.) “Probable validity” means “more likely than not that the claimant will obtain a judgment against the defendant on the claim.” (Mix v.

Superior Court (2004) 124 Cal.App.4th 987, 993, citing § 405.3.) “Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice.” (§ 405.30.)

Judicial estoppel is an equitable doctrine that “prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) The doctrine applies when “(1) the same party has taken two positions; (2) the positions were taken 9 in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the first position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Id. at p. 183.)

As already discussed, there is technically no operative pleading for the court to consider. Plaintiffs have still not filed a third amended complaint. Because there is no presently operative pleading, the court could arguably expunge the lis pendens because there are no claims of any kind pending, much less a real property claim.

Even assuming a third amended complaint will eventually be filed consistent with the narrow leave to amend provided in the order sustaining the demurrer to the first amended complaint, plaintiffs have not established by a preponderance of the evidence the probable validity of their real property claims. Judge Chung’s order sustaining the demurrer to the first amended complaint described in detail why judicial estoppel appears to bar plaintiffs’ action. The court takes judicial notice of that order on its own motion (Evid.

Code, § 452, subd. (d)), and incorporates its reasoning here. Many of the same documents that order judicially noticed were also included as exhibits to the instant motion, including plaintiffs’ “Official Form 106A/B” from the bankruptcy proceedings where plaintiffs indicated they did not own or have any legal or equitable interest in any property as of October 2020. (Henshaw dec., filed 12/16/25, exh. A, p. 1.) Plaintiffs claim to an interest in real property in this action is contrary to their position in the bankruptcy proceedings (where they declared they had no real property interests); the bankruptcy court accepted plaintiffs’ position; the two positions are totally inconsistent; and plaintiffs have not shown that the position they took in the bankruptcy court was taken as the result of ignorance, fraud, or mistake.

The motion to expunge lis pendens is GRANTED. The court will prepare the order.