MOTION FOR AN ORDER TO SHOW CAUSE RE: APPOINTMENT OF GUARDIAN AD LITEM FOR PLAINTIFF AND CROSS-DEFENDANT BERTHA WONG BY BRUCE AUERBACH
1. CASE # CASE NAME HEARING NAME HEARING RE: MOTION FOR AN ORDER TO SHOW CAUSE RE: APPOINTMENT OF GUARDIAN AD CVPS2402052 WONG VS AUERBACH LITEM FOR PLAINTIFF AND CROSS- DEFENDANT BERTHA WONG BY BRUCE AUERBACH Tentative Ruling: No tentative ruling, a hearing shall be conducted.
OSC re proof of service calendared for 7.02.26 is vacated
2. CASE # CASE NAME HEARING NAME DEMURRER ON 3RD AMENDED CROSS-COMPLAINT OF BRUCE AUERBACH BY CROSS-DEFENDANTS DEBBIE CHAMBERLAIN, RODNEY CVPS2402052 WONG VS AUERBACH CHAMBERLAIN, AND WONG FARMS, LLC JOINDER OF CROSS-DEFENDANTS WONG AND WEINGARTEN Tentative Ruling: A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v.
Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
Direct claims of Desert Hydroponics: Cross-Complainants do not dispute that the claims alleged in the Third Amended Cross-Complaint are direct claims purportedly brought by Desert Hydroponics, LP, by itself and not derivative claims brought by Bruce Auerbach. As explained by Cross- Defendants, they could not be, because the Third Amended Cross-Complaint must be filed in the name of the partner and name of the partnership itself as a cross-defendant to properly allege derivative claims, neither of which was done here. (See Everest Investors 8 v.
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McNeil Partners (2003) 114 Cal.App.4th 411, 425.) Accordingly, the Third Amended Cross-Complaint only includes direct claims alleged against Cross-Defendants, and any arguments that apply to derivative claims rather than direct claims are inapposite and are disregarded. Cross-Complainants contend that the direct claims alleged in the Third Amended Cross-Complaint by Desert Hydroponics should be permitted because “the Third
Cross-Complainants’ argument that the statute of limitations did not begin to run until August 25, 2022, when Desert Hydroponics obtained formal title to the property, is incorrect as a matter of law. Both claims for ejectment and claims for wrongful possession are based upon possessory interests in real property, not title. (See Craviotto v. All Persons (1928) 93 Cal.App. 346, 352 (“Generally speaking, the action of ejectment is merely a possessory action, and is confined to those cases where the claimant has a possessory title; that is to say, a right of entry upon the land.”); Lightner Mining Co. v.
Lane (1911) 161 Cal. 689, 694-95 (“It is a well-settled proposition that the proper party plaintiff in an action for trespass to real property is the person in actual possession. No averment of title in plaintiff is necessary.”). Accordingly, the date upon which title actually passed to Desert Hydroponics is irrelevant for purposes of calculating the statute of limitations, and the statute of limitations for these possessory claims began running in 2005.
2nd Accounting, 3rd Unjust Enrichment and 4th Declaratory Relief Causes of Action: Cross-Complainants contend that these claims raise factual and equitable issues unsuitable for demurrer. However, these claims (which are alleged by Desert Hydroponics) are dependent upon a finding that Desert Hydroponics was authorized to bring them in the first place. As discussed, this is not the case here.
Cross-Defendants’ Requests for Judicial Notice GRANTED. The court takes judicial notice of the following: 1. Second Amended Cross-Complaint and attached exhibits CVPS 2402052 2. This Court’s ruling on 2.24.26 regarding the demurrer to the Second Amended Cross-Complaint CVPS 2402052 Cross-Defendants Bertha Wong and Irene Weingarten Demurrer via Joinder; as to the 2nd, 3rd and 4th Causes of Action, the Demurrer is SUSTAINED without leave to amend. Cross-Defendants Debbie Chamberlain, Rodney Chamberlain and Wong Farms, LLC Demurrer as to the 2nd, 3rd, 4th, 5th and 6th Causes of Action, SUSTAINED, without leave to amend.
*The court notes that the motion by Cross-Defendants Debbie and Rodney Chamberlain and Wong Farms LLC was a demurrer for the 2nd-6th causes of action and ruled on those causes, despite the proposed order only requesting the 2 nd-5th causes of action.
3. CASE # CASE NAME HEARING NAME DEMURRER ON 3RD AMENDED CROSS-COMPLAINT OF BRUCE CVPS2402052 WONG VS AUERBACH AUERBACH BY CROSS-DEFENDANTS BERTHA WONG AND IRENE WEINGARTEN Tentative Ruling: Statute of Limitations: Paragraph 18 of The Cross-Complaint and Paragraph 19 of the First Amended Cross- Complaint and the Second Amended Cross-Complaint state the same allegation:
operated after execution of the Partnership Agreement, and that but for the Incorrect Legal Description the Corp. Grant Deed would have conveyed the true and correct lot, specifically the Property, to Plaintiff.”
Here, in present Third Amended Cross-Complaint, there is nothing requiring the correction of title to the property to imbue Bruce Auerbach with formerly missing standing to bring the first cause of action for breach of fiduciary duty.
Capacity of Bertha Wong: The capacity of Bertha Wong is not relevant to the present demurrer or motion to strike. The defect(s) at issue in these motions are on the face of the third amended cross-complaint. Bertha Wong is not submitting declarations, testifying or otherwise submitting evidence at this hearing.
Cross-Defendants’ Requests for Judicial Notice GRANTED. The court takes judicial notice of the following:
1. Cross-Complaint CVPS 2402052 2. First Amended Cross-Complaint CVPS 2402052 3. Second Amended Cross-Complaint CVPS 2402052 3. Third Amended Cross-Complaint CVPS 2402052 4. This Court’s ruling on 2.24.26 regarding the demurrer to the Second Amended Cross-Complaint CVPS 2402052 5. Verified Complaint from CVPS 2105040
Cross-Defendants Bertha Wong and Irene Weingarten Demurrer to the 1st Cause of Action of the Third Amended Cross-Complaint SUSTAINED without leave to amend.
4. CASE # CASE NAME HEARING NAME MOTION TO STRIKE 3RD AMENDED CROSS-COMPLAINT OF BRUCE CVPS2402052 WONG VS AUERBACH AUERBACH BY CROSS-DEFENDANTS BERTHA WONG AND IRENE WEINGARTEN Tentative Ruling: No tentative ruling. Motion is MOOT in light of the court’s ruling as to the demurrers of Cross-Defendants Bertha Wong and Irene Weingarten.
5. CASE # CASE NAME HEARING NAME MOTION TO DETERMINE GOOD FAITH SETTLEMENT ON COMPLAINT OF CVPS2405849 HOLMES VS HERRIN DONNA HOLMES BY AVONDALE GOLF CLUB Tentative Ruling: No tentative ruling. A hearing shall be conducted.