On September 11, 2019 a
Order
was filed
involving a dispute between
David Gard,
Robert Townsend,
and
All Persons Unknown Claiming Any Legal Or Equitable Right,
David Gard,
Stephanie Gard,
The City Of Colfax,
for Civil-Roseville
in the District Court of Placer County.
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FIL
HB
Superior Court of
NY
County of Placer ornla
JUN 11 202
W
KR
Jake Cha
Executive Office j
By: M. Taylor,
OT
WD
AN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
Oo
10
11 ROBERT TOWNSEND, CASE NO.: SCV 43684
12 Plaintiff, Ruling on Defendants’ Demurrer to
the Complaint
13 vs.
14 DAVID GARD, et al.,
15 Defendants.
16
17 The hearing on the demurrer of defendants David C. Gard and
18 Stephanie D. Gard came on for hearing on June 11, 2020. The court issued
19 a tentative ruling on June 10, 2020 and the parties requested oral argument.
20 Attorney John Fairbrook appeared telephonically for plaintiff Robert
21 Townsend. Attorney David Frank appeared telephonically for demurring
22 defendants Gard. The court has read and considered the moving and
23 opposing papers on file and heard the oral arguments of counsel. The court
24 rules as follows:
25 Defendants’ demurrer to the complaint is sustained in part. In the
26 current demurrer, defendants challenge the first, second, and seventh
27 causes of action. A demurrer tests the legal sufficiency of the pleadings, not
28 the truth of the plaintiff’s allegations or accuracy of the described conduct.
(Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in
the pleadings are deemed to be true no matter how improbable the
WN
allegations may seem. (De/ E. Webb Corp. v. Structural Materials Co.
(1981) 123 Cal.App.3d 593, 604.) The court
KR
reviews the claims with these
principles in mind.
DN
As to the first cause of action as to defendant Stephanie Gard, plaintiff
has not alleged that Ms. Gard breached the alleged contract. The allegations
AN
as to breach of contract are directed to defendant David Gard only.
Therefore, on that basis, the court overrules the demurrer as to the first
Oo
cause of action against Ms. Gard.
OS
Er
As to the second cause of action, plaintiff has essentially commingled
FY
several claims, including an allegation that “defendant Stephanie Gard
RE
NY
provided substantial assistance and aided and abetted David Gard in
RE
KRW
breaching his fiduciary duties.” (Complaint, 421.) However, as presently
RE
pleaded the allegations within the complaint appear insufficient to support
WN
RR
the breach of fiduciary duty cause of action against Mrs. Gard. There are no
BD
RH
allegations that Ms. Gard was a partner. To the contrary, the complaint
RR
WAN
expressly alleges the partners to the partnership agreement were Mr.
BR
Townsend and Mr. Gard. (Complaint 95.) The demurrer is sustained
UO
FR
without leave to amend as to the second cause of action against Ms. Gard.
NO
DO
Plaintiff is afforded leave to amend the complaint to allege a separate cause
FP
NN
of action for aiding and abetting breach of fiduciary duty against Mrs. Gard.
YN
N
A review of the allegations within the complaint, when read as a
NN
RW
whole, are sufficient to support the first and second causes of action against
NN
defendant David Gard. The demurrer is overruled as to the first and second
NO
DOM
causes of action against Mr. Gard.
NO
Turning to the seventh cause of action, the complaint sufficiently
NO
On
alleges a claim for prescriptive easement by quiet title when those
NO
allegations are read as a whole. The demurrer is overruled as to the
seventh cause of action.
HB
Plaintiff may file and serve the first amended complaint by June 29,
KRW
2020.
DH
DATED: ¢[1«[z0 Mbnk ease
Hon. Charles D. Wachob
Judge of the Superior Court
ON
OoOnes
ee ee
souoaumukRoneroewoatwtausbk
NO NY NY NY NY NY NY NO RR RR RE OE
RE
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
CLERK’S CERTIFICATE OF MAILING (C.C.P. §1013a(4))
Case No.: S-CV-0043684
Case Name: Townsend, Robert D. vs. Gard, David C. et al
I, the undersigned, certify that I am the clerk of the Superior Court of California, County of
Placer, and I am not a party to this case.
I mailed copies of the documents(s) indicated below:
Order: Ruling on Submitted Matter
True copies of the documents were mailed following standard court practices in a sealed
envelope with postage fully prepaid, addressed as follows:
David Frank John Fairbrook
1517 Lincoln Way 980 Fulton Avenue
Auburn, CA 95603 Sacramento, CA 95825
I am readily familiar with the court’s business practices for collecting and processing
correspondence for mailing; pursuant to those practices, these documents are delivered to
[Xx]the US Postal Service
_] UPS
[_] FedEx
[_] Interoffice mail
[_] Other:
on in Placer County, California.
Dated:06/12/2020 JAKE CHATTERS
Clerk of the Supefior Court
by:
M. Taylor ,Deputy Clerk
Document Filed Date
June 12, 2020
Case Filing Date
September 11, 2019
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FIL HB Superior Court of NY County of Placer ornla JUN 11 202 W KR Jake Cha Executive Office j By: M. Taylor, OT WD AN SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER Oo 10 11 ROBERT TOWNSEND, CASE NO.: SCV 43684 12 Plaintiff, Ruling on Defendants’ Demurrer to the Complaint 13 vs. 14 DAVID GARD, et al., 15 Defendants. 16 17 The hearing on the demurrer of defendants David C. Gard and 18 Stephanie D. Gard came on for hearing on June 11, 2020. The court issued 19 a tentative ruling on June 10, 2020 and the parties requested oral argument. 20 Attorney John Fairbrook appeared telephonically for plaintiff Robert 21 Townsend. Attorney David Frank appeared telephonically for demurring 22 defendants Gard. The court has read and considered the moving and 23 opposing papers on file and heard the oral arguments of counsel. The court 24 rules as follows: 25 Defendants’ demurrer to the complaint is sustained in part. In the 26 current demurrer, defendants challenge the first, second, and seventh 27 causes of action. A demurrer tests the legal sufficiency of the pleadings, not 28 the truth of the plaintiff’s allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the WN allegations may seem. (De/ E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court KR reviews the claims with these principles in mind. DN As to the first cause of action as to defendant Stephanie Gard, plaintiff has not alleged that Ms. Gard breached the alleged contract. The allegations AN as to breach of contract are directed to defendant David Gard only. Therefore, on that basis, the court overrules the demurrer as to the first Oo cause of action against Ms. Gard. OS Er As to the second cause of action, plaintiff has essentially commingled FY several claims, including an allegation that “defendant Stephanie Gard RE NY provided substantial assistance and aided and abetted David Gard in RE KRW breaching his fiduciary duties.” (Complaint, 421.) However, as presently RE pleaded the allegations within the complaint appear insufficient to support WN RR the breach of fiduciary duty cause of action against Mrs. Gard. There are no BD RH allegations that Ms. Gard was a partner. To the contrary, the complaint RR WAN expressly alleges the partners to the partnership agreement were Mr. BR Townsend and Mr. Gard. (Complaint 95.) The demurrer is sustained UO FR without leave to amend as to the second cause of action against Ms. Gard. NO DO Plaintiff is afforded leave to amend the complaint to allege a separate cause FP NN of action for aiding and abetting breach of fiduciary duty against Mrs. Gard. YN N A review of the allegations within the complaint, when read as a NN RW whole, are sufficient to support the first and second causes of action against NN defendant David Gard. The demurrer is overruled as to the first and second NO DOM causes of action against Mr. Gard. NO Turning to the seventh cause of action, the complaint sufficiently NO On alleges a claim for prescriptive easement by quiet title when those NO allegations are read as a whole. The demurrer is overruled as to the seventh cause of action. HB Plaintiff may file and serve the first amended complaint by June 29, KRW 2020. DH DATED: ¢[1«[z0 Mbnk ease Hon. Charles D. Wachob Judge of the Superior Court ON OoOnes ee ee souoaumukRoneroewoatwtausbk NO NY NY NY NY NY NY NO RR RR RE OE RE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER CLERK’S CERTIFICATE OF MAILING (C.C.P. §1013a(4)) Case No.: S-CV-0043684 Case Name: Townsend, Robert D. vs. Gard, David C. et al I, the undersigned, certify that I am the clerk of the Superior Court of California, County of Placer, and I am not a party to this case. I mailed copies of the documents(s) indicated below: Order: Ruling on Submitted Matter True copies of the documents were mailed following standard court practices in a sealed envelope with postage fully prepaid, addressed as follows: David Frank John Fairbrook 1517 Lincoln Way 980 Fulton Avenue Auburn, CA 95603 Sacramento, CA 95825 I am readily familiar with the court’s business practices for collecting and processing correspondence for mailing; pursuant to those practices, these documents are delivered to [Xx]the US Postal Service _] UPS [_] FedEx [_] Interoffice mail [_] Other: on in Placer County, California. Dated:06/12/2020 JAKE CHATTERS Clerk of the Supefior Court by: M. Taylor ,Deputy Clerk