Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
William E. Edwards, Jr., Esq. (SBN 237587) Darrel E. Parker, Executive Officer
1 1/25/2022 1:24 PM
WILLIAM EDWARDS LAW By: Madelyn Mercer, Deputy
2 168 H Street
Bakersfield, CA 93304
3 (661) 324-0111
weejlaw@yahoo.com
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5 Attorneys for Plaintiffs
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA
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Gary E. Hauenstein, an individual; Gwen J. _ CASE NUMBER: 20CV03544
12 Hauenstein, an individual, _
_ MEMORANDUM OF POINTS AND
13 AUTHORITIES IN OPPOSITION TO
Plaintiffs,
DEFENDANTS’ BMI GROUP, INC’s
14 MOTION TO STRIKE FIRST AMENDED
vs.
COMPLAINT
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Ara Baljian, an individual; Le Phuque, LLC,
16 [Concurrently filed with Plaintiffs’ Objections to
a business entity; BMI Group Inc, a business
Request for Judicial Notice]
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entity, and Does 1-50, inclusive,
Date: February 08, 2022
18 Defendants.
Time: 8:30 a.m.
19 Dept: SM 2
____________________________________
20 Complaint Filed: 10-27-2020
Trial Date: None
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Plaintiffs Gary E. Hauenstein and Gwen J. Hauenstein (collectively, “Plaintiffs”
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respectfully submit the following Opposition to Defendant BMI Group, Inc.’s (hereinafter
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Plaintiffs’ Opposition to Motion to Strike re BMI Group
1 “Defendant”) Motion to Strike (portions of) Plaintiff’s Complaint. Plaintiffs oppose Defendant’s
2 Motion without limitation on the grounds that the Motion is without merit.
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The Opposition shall be based on this Opposition, the attached and/or included
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Memorandum of Points and Authorities in support hereof, on the complete files and records of
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this action, and on such other and oral and/or documentary evidence as may be presented at
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the hearing on the Motion.
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Dated: January 24, 2022 _____________________________
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William E. Edwards, Jr.
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WILLIAM EDWARDS LAW
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Attorneys for Plaintiffs
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Plaintiffs’ Opposition to Motion to Strike re BMI Group
1 I. INTRODUCTION
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3 This action was commenced by Plaintiffs to essentially lead to quieting title in their
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names alone to the property commonly described as 3333 Avena Road, Lompoc, CA 93436
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(hereinafter, “subject property”), said property that Plaintiffs’ have owned for decades.
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Defendant(s) alleges some rights, title, interest, or estate in the subject property, thus
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requiring judicial intervention to settle the question of rightful ownership. Plaintiffs believe that
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Defendants, and each of them, have intended to swindle these Plaintiffs out of their property
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by and among other things, taking advantage of their advanced ages of eighty (80) plus
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years. Still further, it would make no sense for Plaintiffs to essentially give away their property
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for less than two hundred thousand dollars ($200,000.00), when the property has a present
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value of over one million dollars ($1,000,000.00). This is a scenario that can best be
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described as a land/money grab, orchestrated by the Defendants, and each of them. Given
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that description, it is no wonder that Defendant(s) would like to have this matter resolved at
16 the pleading stage by motion to strike, as opposed to having this matter submitted to a jury or
17 bench officer, for a determination on its merits.
18 Still further, this matter is tied to three (3) other cases, all of which have caused these
19 Plaintiffs to suffer financial harm and jeopardy to their rights to possession, quiet title and
20 peaceful enjoyment of the subject property.
21 The cases/matters are as follows:
22 Sunbelt Rentals, Inc v. Gwen J. Hauenstein, Gary E. Hauenstein, BMI Group, Inc, Ara
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Baljian et al. (SBSC Case Number 18CV04998)
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The People of the State of California v. Karen Hauenstein, Gary E. Hauenstein, Gwen
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Jansen Hauenstein, Jerry Boeff, Golden Phoenix, LLC et al. (SBSC Case Number
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20CV02746)
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Plaintiffs’ Opposition to Motion to Strike re BMI Group
1 Gary E. Hauenstein; Gwen J. Hauenstein v. The Estate of Ricardo Robert Monterrosa,
2 The Monterrosa Firm, Byron McBroom, Golden Phoenix, LLC et al. (SBSC Case Number To
3 Be Assigned).
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Plaintiffs’ former attorney, R. Robert Monterrosa (deceased by suicide), as alleged by
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these Plaintiffs, did commit certain acts and omissions to act that were injurious and harmful
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to these Plaintiffs and without limitation which either encumbered, jeopardized and/or
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compromised Plaintiffs’ possession, ownership, rights, title, and peaceful enjoyment to the
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subject property, by and without limitation wrongfully and/or illegally transferring, or purporting
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to transfer interests to the subject property to himself and/or his law firm, and the same of
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which actions or omissions to act that these moving Defendant(s) in part, rely on to assert
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their interests in the subject property. The actions by the former attorney of these Plaintiffs
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and the reliance in part thereon by this moving Defendant, is enough to establish a real, true
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and viable controversy among these parties as properly pled in Plaintiff’s FAC, sufficient to
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defeat any demurrer, or motion to strike for that matter.
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17 The active cases as referenced above are intended to be the subject of a motion to
18 have them deemed “related cases”, to be filed by Plaintiffs.
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22 OPPOSITION TO MOTION TO STRIKE (PORTIONS) OF PLAINTIFFS’ COMPLAINT
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Defendant BMI GROUP, INC. has filed a motion to strike allegations against Plaintiffs’
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First Amended Complaint (“FAC”).
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Plaintiffs’ Opposition to Motion to Strike re BMI Group
1 The motion to strike should be denied. Both the allegations and prayer for relief
2 supported by them are well-founded under California law, especially given California’s policies
3 that a complaint should be liberally construed. (Code of Civil Procedure section 452;
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American Airlines Inc. v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118), and that cases
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should, wherever possible, be decided on their merits. (Smeltzley v. Nicholson Mfg. Co.
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(1977) 18 Cal. 3d 932, 939.)
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I. INTRODUCTION/BACKGROUND
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Defendant attacks Plaintiffs’ Prayer for Relief which seeks without limitation declaratory
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and affirmative relief. In short, Defendant’s Motion to Strike is aimed at eliminating
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declaratory and affirmative relief (i.e. the Fifth and Sixth Causes of Action) (and attorney fees)
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entirely from the scope of relief to which Plaintiff might, if successful, be entitled.
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17 II. LEGAL STANDARD
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19 A motion to strike “can be used to reach defects or objections to pleadings that are not
20 challengeable by demurrer.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial
21 (The Rutter Group 2006) para. 7:156, p. 7-59 [emphasis in original].) Thus, it is typically used
22 to attack individual or groups of allegations, rather than an entire cause of action. (See, e.g.
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Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App. 4th 365, 385.) However,
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because it does not attack an entire cause of action, “[M]atter that is essential to a cause of
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action should not be struck and it is error to do so.” (Ferraro v. Camarlinghi (2008) 161 Cal.
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App. 4th 509, 528.)
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Plaintiffs’ Opposition to Motion to Strike re BMI Group
1 Defendant’s Motion to Strike attempts to dismiss the entire Fifth and Sixth Causes of
2 Action, and does so improperly and in opposite of the spirit of the law. (Venice Town Council,
3 supra 47 Cal.App 4th at 1562; Qualified Patients Assn. supra.)
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CONCLUSION
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Defendant’s Motion to Strike, attempts to sidestep the central issues here—whether
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the Plaintiffs are entitled to quiet title in their favor, and exclusive use and enjoyment of the
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subject property. These important issues deserve to have their day in court. Defendant’s
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Motion to Strike should be denied in its entirety so that this case can move forward to
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resolution on its merits.
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Dated: January 24, 2022 ___________________________
16 BY: William E. Edwards, Jr.
17 WILLIAM EDWARDS LAW
18 Attorneys for Plaintiffs
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Plaintiffs’ Opposition to Motion to Strike re BMI Group
PROOF OF SERVICE
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CASE NO. 20CV03544
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Gary E. Hauenstein, et al. vs. Ara Baljian, LePhuque, BMI Group Inc, et al.
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5 I am employed within the County of Kern, State of California. I am over the age of 18
6 and not a party to the action herein. My business address is 168 H Street, Bakersfield, CA
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93304.
The foregoing document described as Memorandum of Points and Authorities in Opposition
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to Defendants’ BMI Group, Inc.’s Motion to Strike First Amended Complaint will be
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served on the interested parties in this action as follows:
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[x] (BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the
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United States mail at Bakersfield, California. I am readily familiar with the practice and
13 collection and processing of correspondence for mailing within the United States Postal Service
14 pursuant to which practice the Correspondence will be deposited with the U.S. Postal Service
15 this same day in the ordinary course of business.
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Address:
FAY PUGH, ESQ.
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11835 W. Olympic Blvd., Ste. 415E
19 Los Angeles, CA 90064
20 [x] (State) I declare under penalty of perjury under the laws of the State of California the
21 foregoing is true and correct.
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23 Date: January 25, 2022 at Bakersfield, California.
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Sharae Johnson
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PROOF OF SERVICE
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara William E. Edwards, Jr., Esq. (SBN 237587) Darrel E. Parker, Executive Officer 1 1/25/2022 1:24 PM WILLIAM EDWARDS LAW By: Madelyn Mercer, Deputy 2 168 H Street Bakersfield, CA 93304 3 (661) 324-0111 weejlaw@yahoo.com 4 5 Attorneys for Plaintiffs 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA 10 11 Gary E. Hauenstein, an individual; Gwen J. _ CASE NUMBER: 20CV03544 12 Hauenstein, an individual, _ _ MEMORANDUM OF POINTS AND 13 AUTHORITIES IN OPPOSITION TO Plaintiffs, DEFENDANTS’ BMI GROUP, INC’s 14 MOTION TO STRIKE FIRST AMENDED vs. COMPLAINT 15 Ara Baljian, an individual; Le Phuque, LLC, 16 [Concurrently filed with Plaintiffs’ Objections to a business entity; BMI Group Inc, a business Request for Judicial Notice] 17 entity, and Does 1-50, inclusive, Date: February 08, 2022 18 Defendants. Time: 8:30 a.m. 19 Dept: SM 2 ____________________________________ 20 Complaint Filed: 10-27-2020 Trial Date: None 21 22 23 24 Plaintiffs Gary E. Hauenstein and Gwen J. Hauenstein (collectively, “Plaintiffs” 25 respectfully submit the following Opposition to Defendant BMI Group, Inc.’s (hereinafter 26 27 28 1 Plaintiffs’ Opposition to Motion to Strike re BMI Group 1 “Defendant”) Motion to Strike (portions of) Plaintiff’s Complaint. Plaintiffs oppose Defendant’s 2 Motion without limitation on the grounds that the Motion is without merit. 3 4 The Opposition shall be based on this Opposition, the attached and/or included 5 Memorandum of Points and Authorities in support hereof, on the complete files and records of 6 this action, and on such other and oral and/or documentary evidence as may be presented at 7 the hearing on the Motion. 8 9 Dated: January 24, 2022 _____________________________ 10 William E. Edwards, Jr. 11 WILLIAM EDWARDS LAW 12 Attorneys for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiffs’ Opposition to Motion to Strike re BMI Group 1 I. INTRODUCTION 2 3 This action was commenced by Plaintiffs to essentially lead to quieting title in their 4 names alone to the property commonly described as 3333 Avena Road, Lompoc, CA 93436 5 (hereinafter, “subject property”), said property that Plaintiffs’ have owned for decades. 6 Defendant(s) alleges some rights, title, interest, or estate in the subject property, thus 7 requiring judicial intervention to settle the question of rightful ownership. Plaintiffs believe that 8 Defendants, and each of them, have intended to swindle these Plaintiffs out of their property 9 by and among other things, taking advantage of their advanced ages of eighty (80) plus 10 years. Still further, it would make no sense for Plaintiffs to essentially give away their property 11 for less than two hundred thousand dollars ($200,000.00), when the property has a present 12 value of over one million dollars ($1,000,000.00). This is a scenario that can best be 13 described as a land/money grab, orchestrated by the Defendants, and each of them. Given 14 15 that description, it is no wonder that Defendant(s) would like to have this matter resolved at 16 the pleading stage by motion to strike, as opposed to having this matter submitted to a jury or 17 bench officer, for a determination on its merits. 18 Still further, this matter is tied to three (3) other cases, all of which have caused these 19 Plaintiffs to suffer financial harm and jeopardy to their rights to possession, quiet title and 20 peaceful enjoyment of the subject property. 21 The cases/matters are as follows: 22 Sunbelt Rentals, Inc v. Gwen J. Hauenstein, Gary E. Hauenstein, BMI Group, Inc, Ara 23 Baljian et al. (SBSC Case Number 18CV04998) 24 The People of the State of California v. Karen Hauenstein, Gary E. Hauenstein, Gwen 25 Jansen Hauenstein, Jerry Boeff, Golden Phoenix, LLC et al. (SBSC Case Number 26 20CV02746) 27 28 3 Plaintiffs’ Opposition to Motion to Strike re BMI Group 1 Gary E. Hauenstein; Gwen J. Hauenstein v. The Estate of Ricardo Robert Monterrosa, 2 The Monterrosa Firm, Byron McBroom, Golden Phoenix, LLC et al. (SBSC Case Number To 3 Be Assigned). 4 Plaintiffs’ former attorney, R. Robert Monterrosa (deceased by suicide), as alleged by 5 these Plaintiffs, did commit certain acts and omissions to act that were injurious and harmful 6 to these Plaintiffs and without limitation which either encumbered, jeopardized and/or 7 compromised Plaintiffs’ possession, ownership, rights, title, and peaceful enjoyment to the 8 subject property, by and without limitation wrongfully and/or illegally transferring, or purporting 9 to transfer interests to the subject property to himself and/or his law firm, and the same of 10 which actions or omissions to act that these moving Defendant(s) in part, rely on to assert 11 their interests in the subject property. The actions by the former attorney of these Plaintiffs 12 and the reliance in part thereon by this moving Defendant, is enough to establish a real, true 13 and viable controversy among these parties as properly pled in Plaintiff’s FAC, sufficient to 14 15 defeat any demurrer, or motion to strike for that matter. 16 17 The active cases as referenced above are intended to be the subject of a motion to 18 have them deemed “related cases”, to be filed by Plaintiffs. 19 20 21 22 OPPOSITION TO MOTION TO STRIKE (PORTIONS) OF PLAINTIFFS’ COMPLAINT 23 24 Defendant BMI GROUP, INC. has filed a motion to strike allegations against Plaintiffs’ 25 First Amended Complaint (“FAC”). 26 27 28 4 Plaintiffs’ Opposition to Motion to Strike re BMI Group 1 The motion to strike should be denied. Both the allegations and prayer for relief 2 supported by them are well-founded under California law, especially given California’s policies 3 that a complaint should be liberally construed. (Code of Civil Procedure section 452; 4 American Airlines Inc. v. County of San Mateo (1996) 12 Cal. 4th 1110, 1118), and that cases 5 should, wherever possible, be decided on their merits. (Smeltzley v. Nicholson Mfg. Co. 6 (1977) 18 Cal. 3d 932, 939.) 7 8 I. INTRODUCTION/BACKGROUND 9 10 Defendant attacks Plaintiffs’ Prayer for Relief which seeks without limitation declaratory 11 and affirmative relief. In short, Defendant’s Motion to Strike is aimed at eliminating 12 declaratory and affirmative relief (i.e. the Fifth and Sixth Causes of Action) (and attorney fees) 13 entirely from the scope of relief to which Plaintiff might, if successful, be entitled. 14 15 16 17 II. LEGAL STANDARD 18 19 A motion to strike “can be used to reach defects or objections to pleadings that are not 20 challengeable by demurrer.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 21 (The Rutter Group 2006) para. 7:156, p. 7-59 [emphasis in original].) Thus, it is typically used 22 to attack individual or groups of allegations, rather than an entire cause of action. (See, e.g. 23 Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App. 4th 365, 385.) However, 24 because it does not attack an entire cause of action, “[M]atter that is essential to a cause of 25 action should not be struck and it is error to do so.” (Ferraro v. Camarlinghi (2008) 161 Cal. 26 App. 4th 509, 528.) 27 28 5 Plaintiffs’ Opposition to Motion to Strike re BMI Group 1 Defendant’s Motion to Strike attempts to dismiss the entire Fifth and Sixth Causes of 2 Action, and does so improperly and in opposite of the spirit of the law. (Venice Town Council, 3 supra 47 Cal.App 4th at 1562; Qualified Patients Assn. supra.) 4 5 CONCLUSION 6 7 Defendant’s Motion to Strike, attempts to sidestep the central issues here—whether 8 the Plaintiffs are entitled to quiet title in their favor, and exclusive use and enjoyment of the 9 subject property. These important issues deserve to have their day in court. Defendant’s 10 Motion to Strike should be denied in its entirety so that this case can move forward to 11 resolution on its merits. 12 13 14 15 Dated: January 24, 2022 ___________________________ 16 BY: William E. Edwards, Jr. 17 WILLIAM EDWARDS LAW 18 Attorneys for Plaintiffs 19 20 21 22 23 24 25 26 27 28 6 Plaintiffs’ Opposition to Motion to Strike re BMI Group PROOF OF SERVICE 1 CASE NO. 20CV03544 2 3 Gary E. Hauenstein, et al. vs. Ara Baljian, LePhuque, BMI Group Inc, et al. 4 5 I am employed within the County of Kern, State of California. I am over the age of 18 6 and not a party to the action herein. My business address is 168 H Street, Bakersfield, CA 7 93304. The foregoing document described as Memorandum of Points and Authorities in Opposition 8 to Defendants’ BMI Group, Inc.’s Motion to Strike First Amended Complaint will be 9 served on the interested parties in this action as follows: 10 11 [x] (BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the 12 United States mail at Bakersfield, California. I am readily familiar with the practice and 13 collection and processing of correspondence for mailing within the United States Postal Service 14 pursuant to which practice the Correspondence will be deposited with the U.S. Postal Service 15 this same day in the ordinary course of business. 16 17 Address: FAY PUGH, ESQ. 18 11835 W. Olympic Blvd., Ste. 415E 19 Los Angeles, CA 90064 20 [x] (State) I declare under penalty of perjury under the laws of the State of California the 21 foregoing is true and correct. 22 23 Date: January 25, 2022 at Bakersfield, California. 24 25 Sharae Johnson 26 27 28 PROOF OF SERVICE