Shomari McLemore v. Covenant Living Communities and Services

Case Number

Case Type Civil Law & Motion Hearing Date / Time Wed, 05/20/2026 - 10:00 Nature of Proceedings 1. Demurrer; 2. Motion to Strike Tentative Ruling For Plaintiff Shomari McLemore: Christine M. Adams, Adams Law For Defendant Covenant Living Communities and Services: Hugh S. Spackman, Maureen E. Clark, Clinkenbeard, Ramsey, Spackman & Clark, LLP

(1) For all reasons stated herein, the demurrer of Defendant Covenant Living Communities and Services is sustained with leave to amend as to the second, eleventh, twelfth, and thirteenth causes of action. Plaintiff may file a second amended complaint on or before June 4, 2026. (2) For all reasons stated herein, the motion to strike of Defendant Covenant Living Communities and Services is

actual, personal knowledge of the relevant facts, rather than the ultimate facts commonly found in pleadings, and such evidence must be admissible and not objectionable." (Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 944 (Lydig).)

The application also states that the Traina declaration sets forth the facts showing Plaintiff is entitled to a judgment on the claim upon which the attachment is based. (Application, P. 7(c).)

In their opposition to the application, Shambala asserts that there exists a threshold evidentiary problem in regard to the authenticity of the Invoices, hearsay contained within the Traina declaration, whether Traina may properly authenticate those records under Evidence Code section 1271, and whether the payment or other records of Herbl were complete or accurate considering that Herbl was insolvent or approaching insolvency. Shambala further asserts that neither Distro nor the receiver in the Receivership Action could vouch for the accuracy of Herbl's records.

"All documentary evidence ... must be presented in admissible form, generally requiring proper identification and authentication, and admissibility as nonhearsay evidence or under one or more of the exceptions to the hearsay rule, such as the business records exception." (Lydig, supra, 234 Cal.App.4th at p. 944.)

"Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, Sec. 1400.)

"Authentication of a writing is required before it may be received in evidence. [P.] Authentication of a writing is required before secondary evidence of its content may be received in evidence." (Evid. Code, Sec. 1401.)

Further, the proponent of a writing "ha[s] the burden of showing their authenticity, including the absence of any material alteration." (J&A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 19 (J&A Mash).)

The Traina declaration does not describe or explain the manner, custom, or practice by which Herbl created or otherwise processed the Invoices, including those purportedly submitted to Shambala, or any payment or nonpayment of any of the Invoices. (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1571.)

Traina also does not state whether they "saw the [Invoices] made or executed[]" or include information or evidence showing why Shambala has "at any time admitted" the authenticity of the Invoices or "acted upon" the Invoices "as authentic...." (Evid. Code, Sec.Sec. 1413 &1414, subd. (a)-(b).)

The application also does not show why Traina is "familiar with the procedures followed" by Herbl in preparing the Invoices. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322 (Jazayeri).)

In addition to the method by which the Invoices were prepared by Herbl, the application also includes no information or evidence showing why the Invoices were "made in the regular course" of Herbl's business, "at or near the time of the act, condition, or event[.]" (Evid. Code, Sec. 1271, subds. (a)-(d).)

For these and all reasons further discussed above, the application fails to show why the copies of the Invoices attached to the Traina declaration are complete, genuine, or trustworthy. (J&A Mash, supra, 74 Cal.App.5th at pp. 19-20 [general discussion].)

Alternatively, "[t]he fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility." (Jazayeri, supra, 174 Cal.App.4th at p. 321.)

To the extent the application is sufficient to show that the Invoices were made in the regular course of Herbl's business, Shambala has raised in its opposition questions and disputes from which conflicting inferences may be drawn regarding the authenticity of those documents.

For these and all further reasons discussed above, under the circumstances present here, the Invoices are not sufficiently weighty to show a "probable validity of the claim upon which the attachment is based." (Code Civ. Proc., Sec. 484.090, subd. (a)(2); Sec. 482.040; see also Kemp, supra, 146 Cal.App.4th at pp. 1481-1482 [the Court must "assess the sufficiency" of the evidence to determine the probable validity of claim].)

" '[A]ttachment is a harsh remedy at best in that an alleged debtor loses control of his property before the claim against him is adjudicated. This being so, the provisions relating thereto should be strictly construed.' " [Citation.]" (J.C. Peacock, Inc. v. Hasko (1961) 196 Cal.App.2d 363, 365.)

For all reasons discussed above, Plaintiff has failed to meet their burden to establish the probable validity of the claim upon which the attachment is based. Therefore, the Court will deny the application.

Tentative Ruling: Shomari McLemore v. Covenant Living Communities and Services Tentative Ruling: Shomari McLemore v. Covenant Living Communities and Services

Case Number

Case Type Civil Law & Motion Hearing Date / Time Wed, 04/08/2026 - 10:00 Nature of Proceedings 1) Demurrer of Defendant to Complaint; 2) Motion of Defendant to Strike Portions of Complaint Tentative Ruling For Plaintiff Shomari McLemore: Christine M. Adams, Adams Law For Defendant Covenant Living Communities and Services: Hugh S. Spackman, Maureen E. Clark, Clinkenbeard, Ramsey, Spackman & Clark, LLP RULING For the reasons set forth herein, the demurrer and motion to strike are ordered off calendar. Defendant Covenant Living Communities and Services shall file and serve its responsive pleading on or before April 23, 2026.

Analysis

On September 19, 2025, Plaintiff Shomari McLemore filed the original complaint in this action against Defendant Covenant Living Communities and Services (Covenant Living).

On December 8, 2025, without any response having been filed to the original complaint, McLemore filed a first amended complaint (FAC).

On January 15, 2026, Covenant Living filed a demurrer and motion to strike as to the FAC.

"The demurring party shall file and serve with the demurrer a declaration stating either of the following: "(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. "(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith." (Code Civ. Proc., Sec. 430.41, subd. (a)(3); accord, Sec. 435.5, subd. (a)(3) [motion to strike].)

Covenant Living has failed to file and serve a declaration with either the demurrer or motion to strike attesting to the meet and confer requirement of sections 430.41 and 435.5.

Instead, the notice of motion in both cases contains the unsworn statement that "Defense counsel met and conferred with Plaintiff's counsel on January 13, 2026 regarding the issues set forth in this demurrer prior to filing this demurrer. In response, Plaintiff's counsel indicated that Plaintiff would be standing on the first amended complaint and had no intent to amend. As a result, this demurrer followed." (Demurrer Notice, at p. 2; accord, Motion to Strike Notice, at p. 2.)

Putting aside the fact that the statement does not comply with the requirements of sections 430.41, subdivision (a)(3)(A), and 435.5, subdivision (a)(3)(A) in failing to state the means of the meet and confer, the statement is not in the form of a declaration.

A declaration requires a certification under penalty of perjury to be effective. (Code Civ. Proc., Sec. 2015.5; see Safieddine v. MBC FZ, LLC (2024) 103 Cal.App.5th 1086, 1094 ["A declaration not signed under penalty of perjury under the laws of California has 'no evidentiary value' and can be disregarded."].)

The Court will therefore order the hearing on the demurrer and motion to strike off calendar for failing to comply with the requirements of sections 430.41 and 435.5.

Tentative Ruling: Mechanics Bank v. California Organic Fertilizers, Inc., et al. Tentative Ruling: Mechanics Bank v. California Organic Fertilizers, Inc., et al.