Lawzilla Additional Information:
Per the Orange County records plaintiff is represented by attorney Daniel G. Brown

30-2013-00686803

(3) Demurrers to Original Complaint

Defendants challenge the First Amended Complaint filed by Plaintiff CHARLES and VIRGINIA DIXON on 2/10/14.

I. Defendants DANIEL and RENEE BUSHMAN demur to the 1st – 13th causes of action,

II. Defendants DAVID DUNN and SEAN DAUGHERTY demur to the 3rd – 13th causes of action,

III. Defendants CITY WIDE INVESTMENT GROUP LLC and PENSCO TRUST CO. demur to the 3rd – 13th causes of action.

IV. Defendants CITY WIDE and PENSCO move to strike the request for punitive damages as to the 8th, 9th, and 11th causes of action and the prayer for relief.

Within 14 calendar days after the clerk’s service of the minute order, Plaintiffs may file a Second Amended Complaint that cures the defects noted below. All new allegations therein shall be set forth in boldface type.

The court rules as follows:

I. DEMURRER by DANIEL and RENEE BUSHMAN

A. Plaintiff Virginia Dixon Lacks Standing to Sue

SUSTAIN with leave to amend as to the 3rd and 4th causes of action. OVERRULE as to all other causes of action.

Defendants argue that Plaintiff VIRGINIA DIXON lacks standing to sue because it is not alleged that she was party to the written contract with BUSHMAN. This argument is moot as to the 1st and 2nd causes of action because they are directed only at Daniel Bushman, not at Renee Bushman.

This argument is correct as to the 3rd and 4th causes of action, which are contract-based. If Renee Bushman was not a party to the contract and was not promised any payments under the contract, she cannot sue for promissory estoppel or unjust enrichment.

Defendants merely assert that this argument also defeats all the non-contract based claims. However, Defendants fail to carry their burden to explain precisely how this argument defeats the 5th – 13th causes of action, which do not appear to be contract-based.

B. 1st COA: Breach of Contract

(Charles Dixon v. Daniel Bushman)

OVERRULE as to Daniel Bushman.

Plaintiffs argue correctly that the FAC states a claim for breach of contract against Daniel Bushman.

C. 2nd COA: Breach of Implied Covenant of Good Faith and Fair Dealing

(Charles Dixon v. Daniel Bushman)

OVERRULE as to Daniel Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument.

D. 3rd COA: Promissory Estoppel

(Charles Dixon v. all Defendants)

OVERRULE as to Daniel Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument.

OVERRULE as to Renee Bushman.

Plaintiffs adequately plead the elements of promissory estoppel, including the allegation that Renee Bushman ratified the promise that by Daniel Bushman made to Charles Dixon.

E. 4th COA: Restitution based on Unjust Enrichment

(Charles Dixon v. all Defendants)

OVERRULE as to Daniel and Renee Bushman.

Plaintiffs appear to state a proper claim against both Daniel and Renee Bushman.

F. 5th COA: Slander of Title

(Charles and Virginia Dixon v. all Defendants)

OVERRULE as to Daniel Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument.

OVERRULE as to Renee Bushman.

Plaintiffs allege that Renee and Daniel conspired to record and publish false deeds and documents.

G. 6th COA: Cancellation of Instrument

(Charles and Virginia Dixon v. all Defendants)

OVERRULE as to Daniel Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument.

OVERRULE as to Renee Bushman.

Plaintiffs allege that Renee and Daniel conspired to record and publish false deeds and documents.

H. 7th COA: Declaration of Rights

(Charles and Virginia Dixon v. all Defendants)

OVERRULE as to Daniel Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument.

OVERRULE as to Renee Bushman.

Defendants assert that there is no controversy. But the allegations of the Complaint appear to state facts, that if proven true at trial, may entitle Plaintiffs to declaratory relief.

I. 8th COA: Fraud

(Charles Dixon v. all Defendants)

OVERRULE as to Daniel and Renee Bushman.

Plaintiffs have now alleged fraud with sufficient specificity. Daniel Bushman and his co-defendants made certain misrepresentations. And Renee Bushman conspired with Daniel and his co-Defendants to commit fraud.

J. 9th COA: Conversion

(Charles Dixon v. all Defendants)

OVERRULE as to Daniel and Renee Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument. Plaintiffs properly allege that Daniel and Renee conspired to commit fraud, conversion, and other unlawful acts.

K. 10th COA: Unfair Business Practices

(Charles and Virginia Dixon v. all Defendants)

OVERRULE as to Daniel and Renee Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument. Plaintiffs properly allege that Daniel and Renee conspired to commit fraud and other unlawful acts.

L. 11th COA: Conspiracy

SUSTAIN without leave to amend.

On 1/24/14, the court sustained the demurrer to this claim without leave to amend. The claim should simply be stricken. The court did not give Plaintiffs leave to renumber their claims.

The 11th cause of action was stricken and should be shown as such in the Second Amended Complaint. Renumbering the claims may lead to unnecessary confusion.

If the same IIED claim is numbered differently in each pleading — as the 12th cause of action in the Original Complaint, as the 11th cause of action in the FAC, and as the 10th cause of action in the SAC, the parties and the court may have difficulty tracking the various claims.

M. 12th COA: Intentional Infliction of Emotional Distress

OVERRULE as to Daniel and Renee Bushman.

The court previously overruled the demurrer on 1/24/14 and Defendants fail to explain why they are entitled to renew this argument. Plaintiffs properly allege that Daniel and Renee Bushman and the other Defendants conspired to commit various torts.

N. 13th COA: Adverse Possession

SUSTAIN without leave to amend.

The court did not give Plaintiffs leave to add a new cause of action. If Plaintiffs wish to add a new claim, they must bring a noticed motion seeking leave to amend and explaining precisely what new allegations they wish to add and why.

Any new allegations in the proposed pleading should be set forth in boldface type so that the court and the opposing parties can easily distinguish the new language.

O. New Language in Boldface Type

In its 1/24/14 minute order, this court directed Plaintiffs to set forth any new language in their First Amended Complaint in boldface type. The purpose of this order was to make it easier for the court and the opposing parties to identify new language in the amended pleading.

Plaintiffs do not appear to have complied with this prior order. The court states once again that Plaintiffs shall set forth any and all new language in their Second Amended Complaint in boldface type. Failure to comply with this order hereinafter will result in monetary sanctions against counsel.

II. DEMURRER by DUNN and DAUGHTERTY

Defendants demur to the 3rd – 13th causes of action on the same or similar grounds raised by the Bushman Defendants. The court issues the same rulings as to items A and D – O.

III. DEMURRER by CITY WIDE and PENSCO

A. Plaintiff Failed to Perform

OVERRULE.

Defendants argue that Plaintiff cannot enforce the contract because he breached it by failing to perform. This argument fails because Plaintiff does not clearly and unequivocally admit in the FAC that he failed to perform. The court cannot assume the truth of Defendants’ factual assertion.

D. 3rd COA: Promissory Estoppel

(Charles Dixon v. all Defendants)

OVERRULE.

A cause of action for promissory estoppel requires: (1) a promise clear and unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) the reliance must be reasonable and foreseeable, and (4) the party asserting estoppel must be injured by his reliance.

Plaintiffs adequately plead the elements of promissory estoppel. In particular, they allege that all of the Defendants ratified the promises that Bushman made to Dixon. On a demurrer, the court must accept as true the allegations of the complaint, no matter how unlikely or improbable. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) At the pleading stage, the only question before the court is whether the allegations state a valid cause of action in theory, not whether they are actually true in fact. (Ibid.)

E. 4th COA: Restitution based on Unjust Enrichment

(Charles Dixon v. all Defendants)

OVERRULE.

Plaintiff has adequately pled the elements of this claim – the receipt of a benefit and the unjust retention of theatbenefit at the expense of another. (Lectrodyer v. SeoulBank (2000) 77 Cal.App.4th 723, 726; First Nationwide Savings v. Perry (2000) 11 Cal.App.4th 1657, 1662-1663.)

F. 5th COA: Slander of Title

(Charles and Virginia Dixon v. all Defendants)

OVERRULE.

Plaintiff has adequately pled the elements of this claim – an unprivileged publication of a false statement which disparages title to property and causes pecuniary loss. (Stalberg v. W. Title Ins. Co. (1994) 27 Cal.App.4th 925, 930; Seeley v. Seymour (1987) 190 Cal.App.3d 844, 858.)

Defendants assert that the allegations are untrue. The court must assume them to be true at the pleading stage. The court may not consider evidence on matters reasonably subject to dispute, except on a motion for summary judgment or at trial.

G. 6th COA: Cancellation of Instrument

(Charles and Virginia Dixon v. all Defendants)

OVERRULE.

Defendants assert that Plaintiffs have no valid interest in the property. Plaintiffs set forth allegations to the contrary which the court must accept as true.

H. 7th COA: Declaration of Rights

(Charles and Virginia Dixon v. all Defendants)

OVERRULE.

Defendants merely assert that Plaintiffs have no valid interest in the property. Plaintiffs allege facts to the contrary. This raises triable issues of fact and mixed questions of law and fact that the court cannot resolve without considering evidence at trial or on a motion for summary judgment.

I. 8th COA: Fraud

(Charles Dixon v. all Defendants)

OVERRULE.

Plaintiffs have now alleged fraud with sufficient specificity. Daniel Bushman and his co-defendants made certain misrepresentations including that the co-Defendants conspired with Daniel and with one another to commit fraud.

Although fraud allegations against a corporate defendant typically require more information about the employee who made the misrepresentations, there is an exception where the precise identity and position of the employee are more likely to be within the knowledge of the defendant. Therefore, the parties may further clarify these allegations by serving discovery.

J. 9th COA: Conversion

(Charles Dixon v. all Defendants)

OVERRULE.

Plaintiffs adequately plead that Defendants converted his money. The elements of a conversion are the plaintiff’s ownership or right to possession of property at the time of conversion, the defendant’s conversion by a wrongful act or disposition of property rights, and damages. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451.)

Defendants argue that Plaintiffs were obligated by contract to make the payments so that at the time of payment Plaintiffs had no right to the funds. This misses the point, that Defendant and his co-conspirators allegedly kept the money and didn’t turn over the property as promised, so that at the time of taking the money belonged to Plaintiffs.

K. 10th COA: Unfair Business Practices

(Charles and Virginia Dixon v. all Defendants)

OVERRULE.

Plaintiffs have properly pled several unlawful, unfair, or fraudulent acts that give rise to a UCL claim.

L. 11th COA: Conspiracy

SUSTAIN without leave to amend.

M. 12th COA: Intentional Infliction of Emotional Distress

OVERRULE.

The elements of the tort are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

Plaintiff alleges that Defendants conspired to wrongfully take his money and to wrongfully record false documents that deprived him of his property. If proven to be true at trial, this states a claim for IIED.

N. 13th COA: Adverse Possession

SUSTAIN without leave to amend.

The court did not give Plaintiffs leave to add a new cause of action. If Plaintiffs wish to add a new claim, they must bring a noticed motion seeking leave to amend and explaining precisely what new allegations they wish to add and why.

O. New Language in Boldface Type

P. Request for Judicial Notice

The court GRANTS the request by PENSCO and CITY WIDE to take judicial notice that Exhibits 1-3 were recorded with the Orange County Recorder. The court may not take judicial notice of facts alleged therein that may reasonably be subject to dispute.

“A court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank N.A. (2011) 198 Cal.App.4th 256, 265.) But a court may not take judicial notice of the truth of factual representations, made in the recorded document, that are reasonably open to dispute. (Ibid.; See also Evid. Code 451 (e), (f); Evid. Code 452 (g), (h).)

IV. MOTION TO STRIKE by CITY WIDE and PENSCO

DENY.

Plaintiffs have adequately alleged claims for fraud, conversion, and IIED and have adequately alleged intentional, malicious, oppressive, and/or fraudulent misconduct.

Finally, the Court reminds counsel for defendants that a demurrer to causes of action to which a demurrer has previously been overruled is improper and will subject you to monetary sanctions in future.

(6) UNOPPOSED Motions to Compel

Initial Discovery Responses and

request for monetary sanctions

The court GRANTS the motion of Defendants DANIEL and RENEE BUSHMAN to compel Plaintiff CHARLES DIXON to serve verified initial discovery responses, without objection, within 14 calendar days after the clerk’s service of the minute order, to:

DANIEL’s:

5. form interrogatories

6.1–6.7, 7.1-7.3, 9.1-9.2, 10.1-10.3, 11.1-11.2, 12.1- 12.7, 13.1-13.2, 14.1-14.2, 17.1, and 50.1-50.6

6. special interrogatories 1-33

7. requests for admissions 1-22

RENEE’s:

8. form interrogatories

6.1–6.7, 7.1-7.3, 9.1-9.2, 10.1-10.3, 11.1-11.2, 12.1- 12.7, 13.1-13.2, 14.1-14.2, 17.1, and 50.1-50.6

9. special interrogatories 1-27

10. requests for admissions 1-22

Defendants make a prima facie showing that they mail-served discovery requests, but that Plaintiff failed to timely serve verified responses. Accordingly, all objections are waived, except that, if applicable, Plaintiff may invoke the work product or attorney-client privilege as to specific documents by timely producing a privilege log.

The privilege log must be consistent with the requirements set forth in CCP 2031.240 (b) and (c). The information in the privilege log must be sufficiently specific to enable the court to determine whether each withheld document is truly privileged from disclosure under the attorney-client and/or work product privileges. (Wellpoint Health Network Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 130; BP Alaska Exploration Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1249.)

The court GRANTS the request for monetary sanctions, but awards reduced sanctions because it was not necessary for counsel to prepare separate statements. Each notice of motion provided that Defendants were moving to compel initial discovery responses, not further responses. Since Plaintiff failed to timely serve verified responses these were tantamount to no responses at all and it would have been premature to bring a motion to compel further responses. (CCP 2030.290; 2033.280; 2023.010.)

Plaintiff Charles Dixon shall pay $2160 to Defendants, through Defendants’ counsel of record.