LINE: 5 18-CIV-06912 J. ROBERT TAYLOR VS. MARK MIGDAL, ET AL.

J. ROBERT TAYLOR MARK MIGDAL
STEPHEN D. PAHL

MARK MIGDAL’S MOTION TO STRIKE PORTIONS OF COMPLANT TENTATIVE RULING:

Defendant’s Motion to Strike Portions of Complaint is GRANTED pursuant to Code of Civ. Proc. Sections 431.10(b), and 436.

The Fourth Cause of Action for Injunctive relief is alleged “(Against Defendant Grand Century Secured Investments, LLC. Peak Foreclosure Services, Inc. and DOES 1-50),” and not specifically against Defendant Migdal. However, paragraphs 55-57 specifically refer to Defendant Migdal, and make allegations against him. Additionally, Plaintiff’s prayer for relief requests relief against all Defendants, including Migdal, as to all causes of action. Also, as Defendants have pointed out, Plaintiff has alleged that Defendant Migdal is Defendant Grand Century. Therefore, on the face of the pleading, Defendant Migdal has standing to contest the Fourth Cause of Action. Given the tentative ruling that Def’s demurrer to the Fourth Cause of Action in the Complaint be sustained without leave to amend, the cause of action is appropriately stricken.

Plaintiff correctly points out that the prayer for attorney’s fees in the Complaint requests fees “pursuant to the terms of the agreements executed by Migdal.” Defendant argues that the prayer for relief is not a statement of facts, and because an agreement with an attorney fee provision is not elsewhere alleged, the statement in the prayer for relief should be disregarded. Reading the pleading liberally, the prayer for relief implies the existence of a contract. However, when a written contract provides the basis for a claim, it must be quoted in the complaint, or attached an incorporated by reference. Byrne v. Harvey (1962) 211 Cal. App.2d 92, 103. The Complaint does not quote any contract language, or attach any contract, so no basis exists on the face of the complaint for a request for attorney’s fees.

The allegations of Defendants criminal conduct and related pleadings are only relevant under Code of Civil Procedure section 431.10(b) if they are essential to the statement of a claim, or pertinent to or supported by an otherwise sufficient claim. Past conviction for fraud is not essential to claims for declaratory relief, intentional misrepresentation, concealment, or injunctive relief, so the allegations are subject to a motion to strike pursuant to Code of Civ. Proc. Section 436 unless they are pertinent to an otherwise supported claim. Plaintiff argues that a past conviction is pertinent to a claim for intentional misrepresentation because it shows how the fraud was discovered, but have not articulated how the method of discovery supports their claim.

McCarthy v. McColgan (1929) 99 Cal.App.492 is an analogous situation, in which an allegation in the complaint of misrepresentation by the defendant which did not support a cause of action in the complaint was properly stricken.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

LINE: 6 18-CIV-06912 J. ROBERT TAYLOR VS. MARK MIGDAL, ET AL.

J. ROBERT TAYLOR MARK MIGDAL
STEPHEN D. PAHL

MARK MIGDAL DEMURRER TO COMPLAINT TENTATIVE RULING:

Defendant’s Request for Judicial Notice is GRANTED pursuant to Evidence Code Section 452(c),(d), and (h).

Defendant’s Demurrer to the Fourth Cause of Action for Injunctive Relief is SUSTAINED without leave to amend pursuant to Code of Civ. Proc. Section 430.10(e).

The Fourth Cause of Action for Injunctive relief is alleged “(Against Defendant Grand Century Secured Investments, LLC. Peak Foreclosure Services, Inc. and DOES 1-50),” and not specifically against Defendant Migdal. However, paragraphs 55-57 specifically refer to Defendant Migdal, and make allegations against him. Additionally, Plaintiff’s prayer for relief requests relief against all Defendants, including Migdal, as to all causes of action. Also, as Defendants have pointed out, Plaintiff has alleged that Defendant Migdal is Defendant Grand Century. Therefore, on the face of the pleading, Defendant Migdal has standing to demur to Plaintiff’s Fourth Cause of Action.

The uncontested evidence before the Court establishes that the sale which Plaintiff sought to halt via the preliminary injunction in the Fourth Cause of Action for Injunctive relief has already been made, after the requested TRO was denied. Taking the allegations of the Complaint as true, this still renders the core issue of the cause of action moot, so amendment could not change the result, and the demurrer should be sustained without leave to amend. City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459-60

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.