1

Filed 7/5/24 Zhou v. Hotel Winters CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

XINYAO ZHOU,

Plaintiff and Appellant,

v.

HOTEL WINTERS, LLC et al.,

Defendants and Respondents.

C098326

(Super. Ct. No. CV20221963)

Defendant Hotel Winters, LLC, was created to raise funds to build a hotel and to 

distribute the hotel’s profits once it was built. In 2016, plaintiff Xinyao Zhou invested in 

Hotel Winters as a Class B investor, which entitled her to an ownership interest in the 

company, profit sharing, and an annual return on her investment. In 2022, plaintiff filed 

a complaint against Hotel Winters and multiple people involved in the company; the 

complaint generally alleged that other investors in the company conspired to reduce her 
2

ownership interest and profit sharing while enriching themselves. As to Hotel Winters, 

plaintiff alleged causes of action for conspiracy and “unjust enrichment.” 

Hotel Winters demurred to plaintiff’s complaint on the basis that plaintiff failed to 

comply with a mandatory mediation provision in the operating agreement that provided 

the terms of her investment, and individually to the causes of action asserted against it on 

the bases that the complaint failed to allege facts sufficient to state a cause of action. The 

trial court sustained the demurrers without leave to amend, and subsequently granted 

Hotel Winters’s motion for dismissal with prejudice. (Code Civ. Proc., § 581, 

subd. (f)(1).)1 Plaintiff appeals from the judgment of dismissal. We affirm. 

FACTS AND PROCEEDINGS

Plaintiff’s Complaint 

We summarize the allegations in plaintiff’s complaint, which she filed on 

November 10, 2022. 

Hotel Winters was created to raise funds to build a hotel and, upon completion of 

the hotel, to distribute its profits among the company’s members. Hotel Winters had two 

classes of membership, A and B. Class A members were the company’s main operators. 

They were required to contribute $1 million to the company and would be responsible for 

contributing any additional required funds, and were entitled to a 40 percent return on the 

company’s profits. Class B members held 70 percent of the equity in the company, and 

were entitled to a fixed 60 percent profit return and an 8 percent annual return on their 

investment. Class B investment was capped at $2.4 million. 

In July 2016, plaintiff signed an operating agreement and a subscription 

agreement, which provided that in return for her $500,000 investment as a Class B 

member, she would receive 14.07 percent ownership of the company, a fixed 12.5 

percent profit return, and an 8 percent annual preferred return. The operating agreement 

1

 Further undesignated statutory references are to the Code of Civil Procedure. 
3

provided that plaintiff had the right to vote on important issues--including budget 

increases greater than 5 percent--and that increasing investment beyond the $2.4 million 

cap on Class B investment required agreement by all Class B members. Plaintiff signed 

the operating agreement along with manager and Class A member Michael Olivas, and 

Class A members Ashok Patel and Ken Patel. 

Additionally, the operating agreement included an addendum requiring Hotel 

Winters to satisfy the conditions required to establish plaintiff’s eligibility for lawful 

permanent resident status through the EB-5 Immigrant Investor Program. The addendum 

was signed by accountant Mike Guynn on behalf of Hotel Winters.

Class A members initially failed to satisfy their $1 million contribution 

requirement, leading to a request by the bank providing construction loans to contribute 

additional funds. The bank released loan funds after new Class B investors contributed 

$1 million, and construction on the hotel began. Another membership class--Class C--

was created for investment beyond the $2.4 million cap on Class B investment. 

In September 2018, Olivas and Guynn sought the members’ approval to raise an 

additional $2 million, which the members rejected because the proposed changes would 

delay the hotel’s completion date and because a significant portion of the additional funds 

would be allocated to paying Class A members a “ ‘developer’s fee.’ ” 

In September 2019, plaintiff noticed that her equity share in the company had 

decreased to just over 10 percent, but Guynn assured her that a portion of her equity 

dollar balance changed each year. 

In January 2020, plaintiff received an e-mail with an amended operating 

agreement and a request that she sign and return the amended agreement within three 

days. Later that day she received an e-mail from Alan Barmaper, whom she did not 

know, stating that he had been involved in the project since 2018, and that he would give 

the Class B investors a week to sign the updated operating agreement. Plaintiff received 

another e-mail from Ravi Mehta, which introduced him as the company’s legal counsel 
4

and endorsed the amended operating agreement.2 Barmaper and Mehta became 

plaintiff’s points of contact with the company. 

Barmaper told plaintiff that new investors in the project--who had not been 

disclosed to the members--had invested more than $8 million and now owned 70 percent 

of the company. Additionally, the budget of the project had dramatically increased, 

without the approval of the members and in violation of the operating agreement. 

In advance of a November 2020 meeting, David Fischbach, who had become the 

largest investor in the company, proposed eliminating Class B members’ annual return 

because it had become economically burdensome, although he earned a 10 percent annual 

return in violation of the operating agreement. Fischbach also proposed reallocating 

members’ profit sharing to reflect their current equity share, which would have further 

decreased plaintiff’s profit share. Plaintiff raised her concerns about these proposals to 

Barmaper, who advised her to accept the new terms. Plaintiff wrote a letter opposing the 

meeting and questioning the new investors; she did not attend the meeting. According to 

Olivas, the new investors signed a new operating agreement. 

Plaintiff subsequently obtained access to the company’s financial files, which 

demonstrated that Olivas had issued himself, K. Patel, A. Patel, and Guynn more than $2 

million in “sweat equity” and “ ‘developer’s fees.’ ” There were multiple other 

transactions lacking sufficient explanation, including a “ ‘legal fee’ ” and 

“ ‘reimbursement’ ” paid to Barmaper. 

In December 2020, plaintiff wrote to Olivas and “all other original Class A 

members . . . requesting for a mediation of all the disputes according to the operating 

agreement.” “[T]he mediation failed to happen due to non-response from original Class 

A members, and Barmaper and Ravi Mehta refusing a [Z]oom mediation during the 

COVID, and insisting on an in-person meeting, because they have ‘numerous evidence’ 

2

 Mehta represented the defendants at trial, and represents Hotel Winters in this appeal. 
5

that would be inconvenient to show on [Z]oom. They also conveniently voted to change 

a term in a revised proposed [operating agreement] that both parties shall pay the 

mediation fee and the prevailing party would get reimbursed.” 

The complaint named as defendants Hotel Winters, Barmaper, Olivas, Mehta, 

Fischbach, Guynn, K. Patel, A. Patel, and Yolo Hospitality Ventures (an LLC the 

complaint alleged was created by Mehta, Barmaper, and Fischbach to raise money to 

invest in Hotel Winters). It alleged 13 causes of action, including for breach of contract, 

breach of fiduciary duty, intentional and negligent interference with prospective 

advantage, fraud, concealment, conspiracy, unjust enrichment, intentional 

misrepresentation, intentional infliction of emotional distress, and negligent infliction of 

emotional distress. 

Only two causes of action--for conspiracy and unjust enrichment--were alleged 

against Hotel Winters (those two causes of action were asserted against all named 

defendants). The conspiracy claim alleged that Barmaper and Olivas “were part of a 

conspiracy to commit economic tort” because they were aware that later investors would 

agree to amend the operating agreement although they were not members of the 

company, and that Barmaper, Olivas, and the late investors agreed to illegally convert the 

company’s equity. As to the unjust enrichment claim, the complaint alleged that the 

defendants retained the amount of her investment and additional monies owed to her. 

Hotel Winters’s Demurrers

On December 20, 2022, Hotel Winters filed a demurrer to the entire complaint on 

the grounds that plaintiff failed to allege facts sufficient to state a cause of action 

(§ 430.10, subd. (e)) because she did not plead facts sufficient to demonstrate compliance 

with a mandatory mediation provision in the operating agreement. The demurrer 

observed that the operating agreement plaintiff signed required parties to negotiate and 

then “attempt to mediate the Dispute” before bringing lawsuits. 
6

Hotel Winters demurred to the complaint’s conspiracy cause of action. It asserted 

that civil conspiracy is not a separate tort, but rather allows for tort recovery only where 

the alleged tortfeasor is capable of being held liable for an underlying wrong as a matter 

of substantive tort law. Accordingly, a defendant can be held liable for conspiracy only if 

it owes and breaches a legal duty to the plaintiff. The demurrer argued that the complaint 

failed to allege facts to support either the elements of civil conspiracy or an underlying 

tort. With respect to the conspiracy, Hotel Winters argued that Olivas, as the manager of 

the company, was the only person who arguably owed plaintiff a duty, and he could not 

conspire with himself. Additionally, plaintiff waived any duty Olivas owed to her by 

signing the operating agreement, which included an exculpation clause indemnifying him 

from liability or obligation arising out of any act taken in good faith or in a manner 

reasonably believed to be in the company’s best interest. Regarding the underlying tort, 

Hotel Winters argued that the complaint’s allegations were too “uncertain, ambiguous, 

and unintelligible” to constitute an underlying tort giving rise to a conspiracy cause of 

action. 

Hotel Winters demurred to the unjust enrichment cause of action on the basis that 

unjust enrichment does not constitute a cause of action, citing Huskinson & Brown v. 

Wolf (2004) 32 Cal.4th 453 and Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 

1350, 1369. 

Olivas also demurred to the complaint on the basis that plaintiff failed to comply 

with the operating agreement’s mediation provision, and he separately demurred to the 

causes of action asserted against him. Several other named defendants filed a motion to 

quash summons and complaint. 

Plaintiff’s Opposition 

In her opposition to Hotel Winters’s demurrers, plaintiff first argued that she 

complied with the operating agreement’s mediation requirement. Regarding the 

demurrer to the conspiracy cause of action, she responded that both Hotel Winters and 
7

Olivas owed her a fiduciary duty. She pointed to Moiser v. Southern California 

Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048, in which the court 

stated: “We agree . . . that the general rule is that a party who is not personally bound by 

the duty violated may not be held liable for civil conspiracy even though it may have 

participated in the agreement underlying the injury. [Citations.] However, an exception 

to this rule exists when the participant acts in furtherance of its own financial gain.” She 

asserted that the named defendants worked together with the goal of transferring 

ownership of Hotel Winters to themselves, in furtherance of their own financial gain. 

As to the unjust enrichment cause of action, plaintiff acknowledged that unjust 

enrichment “might not be a proper cause of action,” but requested leave to amend her 

complaint. 

Hotel Winters filed a motion to strike portions of plaintiff’s opposition to its 

demurrer and objected to extrinsic evidence offered by plaintiff in support of her 

opposition.3 

Hotel Winters’s Reply 

In its reply to plaintiff’s opposition, Hotel Winters recognized plaintiff’s allegation 

that Olivas and Barmaper conspired to amend the operating agreement, but argued that 

amending an operating agreement is not tortious conduct. Further, it argued that an 

LLC’s members do not violate their duty of care merely because their conduct furthers 

their own interest. (Corp. Code, § 17704.09, subd. (c).) Regarding the unjust enrichment 

3

 In its ruling, the trial court decided it was unnecessary to reach Hotel Winters’s 

objections to plaintiff’s evidence submitted in opposition to the demurrers. On appeal, 

Hotel Winters requests that we strike this evidence. We grant that request. “A demurrer 

can be used only to challenge defects that appear on the face of the pleading under attack 

or from matters outside the pleading that are judicially noticeable. No other extrinsic 

evidence can be considered.” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 

225, 229.) 
8

cause of action, Hotel Winters noted that it was not a member of the company, and the 

complaint did not allege that it was enriched.4 

Trial Court’s Tentative Rulings

On January 24, 2023, the trial court issued tentative rulings sustaining Hotel 

Winters’s demurrers without leave to amend. The first paragraph of the ruling stated: 

“Moving defendant Hotel Winters, LLC’s demurrer to plaintiff’s complaint is 

SUSTAINED WITHOUT LEAVE TO AMEND.”5 (Boldface omitted.) 

The second paragraph of the ruling sustained without leave to amend Hotel

Winters’s demurrer to the conspiracy cause of action pursuant to section 430.10, 

subdivision (e). It reasoned that a conspiracy to commit tortious acts can only be formed 

by parties who are already under a duty to the plaintiff, “the breach of which will support 

a cause of action against them—individually and not as conspirators—in tort,” citing 

Chavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 614. It concluded the complaint 

failed to allege that Hotel Winters or any other defendant owed her a duty that could 

support tort liability, and plaintiff had not shown a reasonable possibility that she could 

amend her complaint to cure the deficiency. 

4

 On January 24, plaintiff filed a surreply to Hotel Winters’s reply. The trial court 

declined to consider plaintiff’s late-filed paperwork under California Rules of Court, rule 

3.1300(d), which provides a trial court with “broad discretion . . . to refuse to consider 

papers served and filed beyond the deadline without a prior court order finding good 

cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) 

Plaintiff does not challenge that ruling on appeal, and therefore we do not consider her 

surreply. Accordingly, we deny Hotel Winters’s request to disregard the surreply as 

moot. 

5

 The parties dispute whether this paragraph was intended to be a ruling sustaining Hotel 

Winters’s demurrer on the basis of plaintiff’s failure to comply with the operating 

agreement’s mediation provision. As we explain in the Discussion, post, we need not and 

do not reach that issue. 
9

The third paragraph of the court’s ruling sustained Hotel Winters’s demurrer to the 

unjust enrichment cause of action without leave to amend, pursuant to section 430.10, 

subdivision (e). The court reasoned that there is no cause of action in California for 

unjust enrichment. 

The trial court sustained Olivas’s demurrer in part. The tentative ruling included 

an introductory first paragraph stating: “Moving defendant Michael Olivas’ demurrer is 

SUSTAINED IN PART.” (Boldface omitted.) In the next paragraph, the court sustained 

with leave to amend Olivas’s demurrer to all the causes of action asserted against him on 

the ground that plaintiff failed to allege compliance with the operating agreement’s 

mandatory mediation provision. The court sustained Olivas’s demurrer to the conspiracy 

and unjust enrichment causes of action without leave to amend for the same reasons it 

had sustained Hotel Winters’s demurrers to those causes of action. 

Hearing and Order 

On January 25, plaintiff and Mehta appeared for a hearing, the transcript of which 

does not appear in the record.6 The minute order from the hearing reflects that the court 

modified its tentative ruling to sustain Olivas’s demurrer to the conspiracy cause of 

action with leave to amend. It adopted its tentative ruling as modified. 

6

 In her reply brief, plaintiff requests that we obtain a video of the hearing from the trial 

court. We decline to do so; it is the appellant’s duty to proceed diligently to procure and 

file the record on appeal. (Sweet v. Markwart (1953) 115 Cal.App.2d 735, 741.) 

 The parties dispute which demurrers were argued in the hearing. Plaintiff attached 

exhibits in support of her position, along with other exhibits, to her reply brief. Hotel 

Winters moves to strike the exhibits and references thereto in her reply brief. In 

opposition to the motion to strike, plaintiff asserts that the “majority of the exhibits were 

previously filed with the lower court, making them eligible for judicial notice.” But 

plaintiff did not file a request for judicial notice as to the documents, and she does not 

state which of the documents were filed in the trial court. We note that one exhibit 

appears to be a court order from a different case, but it is not clear that the exhibit 

includes the entire order. Accordingly, we grant Hotel Winters’s motion to strike the 

exhibits attached to plaintiff’s reply brief and any references thereto. 
10

Motion to Reconsider

On January 30, plaintiff lodged a motion to reconsider in the trial court. The 

motion requested that the court reconsider its ruling as to Hotel Winters’s demurrer to the 

conspiracy cause of action. Plaintiff acknowledged in the motion that when the trial 

court asked her at the hearing to set forth her issues with the tentative ruling, she had 

argued only against the rulings as to the motions to quash and Olivas’s demurrer to the 

conspiracy cause of action. She asserted, however, that “in [her] reasoning, [she] 

specified that both defendants Hotel Winters, LLC and [Olivas] owes/owed [her] a duty.” 

Thus, while she acknowledged that she understood that the court granted her leave to 

amend her cause of action only as to the cause of action asserted against Olivas, she 

“somehow jumped to the conclusion that this ruling applie[d] to both defendants Hotel 

Winters, LLC and [Olivas].” Recognizing that her misunderstanding was “totally [her] 

fault,” plaintiff requested that the court change its ruling and sustain Hotel Winters’s 

demurrer to the conspiracy count with leave to amend. 

The record does not reflect that this motion was ever scheduled for a hearing or 

considered by the court. In a subsequent motion to set aside the judgment, which we 

discuss post, plaintiff characterized her motion to reconsider as “a mistake made by the 

Plaintiff due to her limited time doing legal research.” In her motion for leave to amend, 

which we also discuss post, plaintiff stated that she recognized after lodging her motion 

to reconsider “that the proper procedure may have been to file a ‘Motion to Set Aside’ or 

‘Motion to Vacate.’ ”

7

 

Amended Complaint 

On February 3, plaintiff filed an amended complaint, which asserted new causes of 

action against Hotel Winters for breach of contract and fraud. The amended complaint 

7

 Mehta later declared that plaintiff advised the court during a hearing on February 15, 

2023, that she had filed a motion for reconsideration but withdrew it. 
11

asserted a cause of action for conspiracy, but not against Hotel Winters, and did not assert 

a cause of action for unjust enrichment. 

Hotel Winters’s Motion to Dismiss 

On February 15, Hotel Winters filed an ex parte motion to dismiss the complaint 

with prejudice pursuant to section 581, subdivision (f)(1) and (2), and for an entry of 

judgment in its favor.8 It argued that good cause existed to consider the motion ex parte 

because the amended complaint asserted new causes of action against it despite the trial 

court’s order sustaining its demurrer without leave to amend, and it would be required to 

answer the amended complaint unless the court heard the motion to dismiss before it was 

required to do so. 

In opposition, plaintiff reiterated that she had misunderstood the trial court’s ruling 

sustaining Hotel Winters’s demurrers, and that dismissal was inappropriate because Hotel 

Winters had participated in a conspiracy, and her amended complaint asserted new causes 

of action against it. 

On February 15, following a hearing, the trial court granted Hotel Winters’s 

motion to dismiss with prejudice pursuant to section 581, subdivision (f)(1). The court 

reasoned that it sustained without leave to amend Hotel Winters’s demurrer to “plaintiff’s 

complaint, inclusive of the ninth and tenth causes of action (conspiracy and unjust 

enrichment),” and there were “no remaining causes of action against Hotel Winters.” 

The court signed the order of judgment in favor of Hotel Winters in open court. 

8

 Section 581 provides in relevant part: “(f) The court may dismiss the complaint as to 

that defendant when: [¶] (1) . . . after a demurrer to the complaint is sustained without 

leave to amend and either party moves for dismissal. [¶] (2) . . . [A]fter a demurrer to the 

complaint is sustained with leave to amend, the plaintiff fails to amend it within the time 

allowed by the court and either party moves for dismissal.”
12

Plaintiff’s Applications to Set Aside the Judgment and for Leave to Amend 

On February 24, plaintiff filed an ex parte application to set aside the judgment, 

arguing that the judgment was based on her misunderstanding. (§ 473, subd. (b) [court 

may relieve a party from a judgment “taken against him or her through his or her mistake, 

inadvertence, surprise, or excusable neglect”].) She argued good cause existed to hear 

the motion ex parte because she “need[ed] to fix any ‘misunderstanding’ and 

‘mistakes.’ ” 

Plaintiff also alleged misconduct on the part of Mehta and the trial court. She 

contended Mehta was aware of the “misunderstanding” but moved to dismiss Hotel 

Winters anyway, provided her with only minimal notice, and did not inform her that he 

sought dismissal with prejudice such that she could not assert new causes of action 

against Hotel Winters. 

Plaintiff asserted that the trial court committed misconduct by granting Hotel 

Winters’s motion to dismiss, and by stating there were no remaining causes of action 

against it despite being aware of the amended complaint. She further alleged that when 

she asked the court “if there was any chance to reverse the situation,” the court referred 

her to the court’s self-help center, but she was turned away from the self-help center due 

to its limited scope. 

Also on February 24, plaintiff filed an ex parte application for leave to amend the 

complaint pursuant to section 473, subdivision (a)(1).9

9

 Section 473, subdivision (a)(1) provides in relevant part: “The court may, in 

furtherance of justice, and on any terms as may be proper, allow a party to amend any 

pleading or proceeding by adding or striking out the name of any party, or by correcting a 

mistake in the name of a party, or a mistake in any other respect; and may, upon like 

terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, 

after notice to the adverse party, allow, upon any terms as may be just, an amendment to 

any pleading or proceeding in other particulars; and may upon like terms allow an answer 

to be made after the time limited by this code.”
13

On March 2, plaintiff refiled her applications to set aside the judgment and for 

leave to amend. She noted that she was refiling the motions because the trial court 

determined in a hearing on February 24 that her motions were not properly filed ex parte. 

That ruling does not appear in the record. 

On March 17, Hotel Winters opposed plaintiff’s application to set aside the 

judgment. It argued that the trial court had properly exercised its discretion by 

dismissing the complaint against Hotel Winters pursuant to section 581, subdivision

(f)(1), and plaintiff’s misunderstanding of the law was not a basis for vacating the 

judgment under section 473, subdivision (b). 

On March 23, plaintiff filed her reply. 

Plaintiff’s Motion to Recuse the Trial Judge

On March 13, plaintiff filed a motion to recuse the assigned trial judge--Judge 

Timothy Fall--pursuant to sections 170.3 and 170.6, among other sections.10 On that 

same day, Judge Fall ordered plaintiff’s statement of disqualification against him 

pursuant to section 170.3, subdivision (c) stricken on the basis that it disclosed no legal 

grounds for disqualification. (§ 170.4, subd. (b) [“if a statement of disqualification . . . on 

its face . . . discloses no legal grounds for disqualification, the trial judge against whom it 

was filed may order it stricken”].) However, Judge Fall concluded that plaintiff’s 

peremptory disqualification under section 170.6 was timely and effective, and he referred 

the case to the court’s calendaring authority for reassignment.

10

 Section 170.3, subdivision (c) authorizes a party to file a written verified statement 

objecting to a hearing or trial before a judge and setting forth the facts constituting the 

grounds for disqualification. Section 170.6 “ ‘permits a party to obtain the 

disqualification of a judge for prejudice, based solely upon a sworn statement, without 

being required to establish prejudice as a matter of fact to the satisfaction of the court.’ 

[Citation.] ‘When a litigant has met the requirements of section 170.6, disqualification of 

the judge is mandatory, without any requirement of proof of facts showing that the judge 

is actually prejudiced.’ ” (Mendoza v. Superior Court (2021) 65 Cal.App.5th 988, 995.) 
14

On March 28, the trial court, on its own motion, continued the hearings scheduled 

for March 30 on plaintiff’s applications to set aside the judgment and for leave to amend, 

rescheduling them for May 4. 

On April 14, plaintiff filed an amended notice of appeal from the judgment of 

dismissal. Pursuant to her appeal, the trial court stayed all proceedings in that court. The 

case was fully briefed and assigned to the current panel in February 2024. 

DISCUSSION

I

Standard of Review

A demurrer tests the sufficiency of the complaint as a matter of law, and it raises 

only questions of law. (§ 589, subd. (a).) “ ‘ “ ‘We treat the demurrer as admitting all 

material facts properly pleaded, but not contentions, deductions or conclusions of fact or 

law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] 

Further, we give the [complaint] a reasonable interpretation, reading it as a whole and its 

parts in their context.” ’ ” (Finch Aerospace Corp. v. City of San Diego (2017) 8 

Cal.App.5th 1248, 1251-1252.) “[T]he complaint must be liberally construed and 

survives a general demurrer insofar as it states, however inartfully, facts disclosing some 

right to relief.” (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22; see also 

Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1162 [we decide 

“whether a cause of action has been stated under any legal theory when the allegations 

are liberally construed”], disapproved of on another ground in Sheen v. Wells Fargo 

Bank, N.A. (2022) 12 Cal.5th 905, 948, fn. 12.) “In reviewing an order sustaining a 

demurrer, we examine the operative complaint de novo to determine whether it alleges 

facts sufficient to state a cause of action under any legal theory.” (T.H. v. Novartis 

Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) We affirm the judgment if it is 

correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons. 

(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) 
15

“Where the demurrer was sustained without leave to amend, we consider whether 

the plaintiff could cure the defect by an amendment. The plaintiff bears the burden of 

proving an amendment could cure the defect.” (T.H. v. Novartis Pharmaceuticals Corp., 

supra, 4 Cal.5th at p. 162.) “[I]t is an abuse of discretion to sustain a demurrer without 

leave to amend if the plaintiff shows there is a reasonable possibility any defect identified 

by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist., supra, 

2 Cal.4th at p. 967.) “To satisfy that burden on appeal, a plaintiff ‘must show in what 

manner [s]he can amend [her] complaint and how that amendment will change the legal 

effect of [her] pleading.’ [Citation.] The assertion of an abstract right to amend does not 

satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the 

‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the 

elements of the cause of action and authority for it. Further, plaintiff must set forth 

factual allegations that sufficiently state all required elements of that cause of action. 

[Citations.] Allegations must be factual and specific, not vague or conclusionary.” 

(Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44

(Rakestraw).) “ ‘[S]uch a showing need not be made in the trial court so long as it is 

made to the reviewing court.’ ” (Governing Board v. Haar (1994) 28 Cal.App.4th 369, 

375.) 

It is a fundamental rule of appellate review that we presume the judgment to be 

correct and indulge all intendments and presumptions to support it regarding matters as to 

which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is 

plaintiff’s burden to provide reasoned argument and citations to relevant legal authority 

to support that argument. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.) Plaintiff bears 

this burden of rebutting the presumption of correctness accorded to the trial court’s 

decision, regardless of the applicable standard of review. (See Los Angeles Unified 

School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492 [noting that 
16

these principles apply to “ ‘ “an appeal from any judgment” ’ ”].) “[C]onclusory claims 

of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) 

These “same rules apply to a party appearing in propria persona as to any other 

party.” (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 

199, 205.) Indeed, self-represented litigants are held to the same standards as attorneys 

and must comply with the rules of procedure. (See Rappleyea v. Campbell (1994) 8 

Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) 

This is not intended to penalize self-represented litigants; instead, it is necessary to 

maintain stability in appellate proceedings, requiring adherence to the forms and 

procedures that govern appeals.

II

Sustaining the Demurrers Without Leave to Amend

Plaintiff challenges the trial court’s ruling sustaining Hotel Winters’s demurrers 

without leave to amend. We conclude plaintiff’s conclusory arguments are insufficient to 

satisfy her burden of demonstrating error on appeal. 

A. Conspiracy Cause of Action 

Plaintiff contends her original complaint, opposition to Hotel Winters’s demurrer, 

and amended complaint “collectively lay out a substantial factual groundwork to allege 

‘Conspiracy’ against [Hotel Winters].” She adds: “The central contested issue concerns 

the existence of a duty owed by the respondent to the appellant [citation to the trial 

court’s tentative ruling]. This was conclusively addressed during the January 25 hearing, 

where it was established that both manager Defendant Olivas [citation to the court’s 

tentative ruling on Olivas’s demurrer] and Respondent Hotel Winters, LLC owe a duty to 

their members, including [plaintiff]. The court’s failure to amend the tentative ruling in 

light of this critical finding represents a noteworthy lapse.” 

At the outset, plaintiff does not appear to contest the trial court’s ruling sustaining 

the demurrer. Indeed, she argues only that her original complaint, combined with her 
17

opposition to Hotel Winters’s demurrer and her amended complaint, collectively allege 

facts sufficient to constitute a cause of action. That argument implicitly acknowledges 

that the allegations in the original complaint, standing alone, do not state a cause of 

action. Therefore, the issue before us is whether plaintiff satisfied her burden to 

demonstrate a reasonable possibility that she could amend her complaint to cure its 

deficiency. 

We conclude plaintiff has failed to satisfy her burden of proving an amendment 

could cure the defect. As we set forth ante, plaintiff raises two arguments. The first--

that her complaint, amended complaint, and opposition to Hotel Winters’s demurrer 

collectively allege facts sufficient to state a cause of action--is the type of “vague or 

conclusionary” argument insufficient to satisfy her burden. (See Rakestraw, supra, 81 

Cal.App.4th at p. 44.) She fails to “clearly and specifically set forth the ‘applicable 

substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the 

cause of action and authority for it,” nor has she “set forth factual allegations that 

sufficiently state all required elements of that cause of action.” (Id. at p. 43.) Indeed, 

even were we to consider plaintiff’s amended complaint, that complaint did not allege 

conspiracy against Hotel Winters. 

Plaintiff’s second argument--that she established Hotel Winters’s duty to her at the 

January 25 hearing--fares no better. The transcript from that hearing does not appear in 

the record, and plaintiff merely asserts that she established Hotel Winters’s duty to her at 

the hearing without providing any reasoned argument or citations to relevant legal 

authority to support her argument. (See Lee v. Kim, supra, 41 Cal.App.5th at p. 721.) 

Plaintiff has failed to demonstrate that the trial court erred when it sustained Hotel 

Winters’s demurrer to her conspiracy cause of action, or that the court abused its 

discretion when it refused to grant her leave to amend. (See Denham v. Superior Court, 

supra, 2 Cal.3d at p. 564; see Flores v. Department of Corrections & Rehabilitation, 

supra, 224 Cal.App.4th at p. 205 [these rules apply to self-represented litigants].) 
18

B. Unjust Enrichment Cause of Action

Plaintiff contends her complaint set forth the basis for a cause of action “against 

those currently controlling Hotel Winters, LLC, who are not legitimate members of the 

LLC.” Plaintiff acknowledges that there is no cause of action for unjust enrichment (see 

McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490), but argues she 

should be granted leave to amend. 

“[U]njust enrichment is a basis for obtaining restitution based on quasi-contract or 

imposition of a constructive trust.” (McKell v. Washington Mutual, Inc., supra, 

142 Cal.App.4th at p. 1490.) In reviewing a judgment of dismissal following the 

sustaining of a general demurrer, we ignore “ ‘[e]rroneous or confusing labels’ ” and can 

construe a “purported cause of action for unjust enrichment as an attempt to plead a cause 

of action giving rise to a right to restitution.” (McBride v. Boughten (2004) 123 

Cal.App.4th 379, 387-388.) “Under the law of restitution, an individual may be required 

to make restitution if he is unjustly enriched at the expense of another. [Citation.] A 

person is enriched if he receives a benefit at another’s expense. [Citation.] The term 

‘benefit’ ‘denotes any form of advantage.’ [Citation.] Thus, a benefit is conferred not 

only when one adds to the property of another, but also when one saves the other from 

expense or loss. Even when a person has received a benefit from another, he is required 

to make restitution ‘only if the circumstances of its receipt or retention are such that, as 

between the two persons, it is unjust for him to retain it.’ ” (Ghirardo v. Antonioli (1996) 

14 Cal.4th 39, 51, italics added.) 

Plaintiff again fails to satisfy her burden to affirmatively demonstrate an abuse of 

discretion. She argues that the complaint “effectively sets forth the basis for an ‘Unjust 

Enrichment’ claim against those currently controlling Hotel Winters, LLC, who are not 

legitimate members of the LLC,” and that “given the detailed facts supporting 

respondent’s potential liability under the substantive law, denying the opportunity to 

amend the complaint, particularly to clarify causes of action like ‘Unjust Enrichment’, 
19

would be contrary to the principles of justice and fairness in legal proceedings.” But 

while plaintiff argues her complaint alleges facts sufficient to state a cause of action 

against those currently controlling Hotel Winters, she does not argue that she has alleged 

facts sufficient to state a claim against Hotel Winters. Moreover, as we have discussed, 

plaintiff has not shown that Hotel Winters is potentially liable under substantive law. 

Plaintiff’s arguments are vague and conclusory and fail to specify in what manner she can 

amend her complaint to change its legal effect. (Rakestraw, supra, 81 Cal.App.4th at p. 

43.) 

C. Amended Complaint and Emotional Distress Claims

Plaintiff contends she demonstrated a reasonable possibility that amendment could 

cure the complaint’s defects by filing the amended complaint, which asserted new causes 

of action against Hotel Winters. She also contends she may assert claims for negligent 

and intentional emotional distress arising in part from the defendants’ conduct occurring 

after the hearing on the demurrers. We disagree. Pleading new matter is not amending a 

prior complaint, but rather is a different or supplemental complaint. (O’Keefe v. 

Atascadero County Sanitation Dist. (1971) 21 Cal.App.3d 719, 731, fn. 15 [alleging facts 

occurring after petition was filed “would not ‘amend’ the complaint, but rather would 

constitute a ‘supplemental’ or different complaint in substitution of the original”].) When 

a plaintiff is granted leave to amend, “the scope of the grant of leave is ordinarily a 

limited one. It gives the pleader an opportunity to cure the defects in the particular 

causes of action to which the demurrer was sustained, but that is all.” (Community Water 

Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 

1317, 1329.) Accordingly, plaintiff’s amended complaint failed to demonstrate a 

reasonable possibility that amendment could cure the complaint’s defects because the 

new causes of action asserted against Hotel Winters are outside the scope of the causes of 

action to which the demurrer was sustained. 
20

To assert multiple new causes of action against Hotel Winters, plaintiff was 

required to obtain permission from the trial court. (See Community Water Coalition v. 

Santa Cruz County Local Agency Formation Com., supra, 200 Cal.App.4th at p. 1329.) 

Because she did not do so, the issue of whether the trial court properly exercised its 

discretion by granting leave to amend to add new causes of action against Hotel Winters 

is not before us. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 

237, 245.) 

Because the amended complaint did not seek to amend the claims asserted against 

Hotel Winters, but rather sought to add multiple new claims against it without seeking 

leave to do so, plaintiff is now precluded from asserting that the trial court abused its 

discretion in not granting leave to amend by, in effect, adding an entirely new 

complaint.11

D. Stating a Cause of Action Under Any Legal Theory

Finally, plaintiff contends the trial court failed to determine whether the complaint 

could state a cause of action under any legal theory. (See Gutierrez v. Carmax Auto 

Superstores California (2018) 19 Cal.App.5th 1234, 1244 [“The Supreme Court has 

repeatedly stated that appellate courts reviewing a general demurrer make a de novo 

determination of whether the complaint alleges ‘facts sufficient to state a cause of action 

under any possible legal theory’ ”].) However, it is not up to the judge to figure out how 

the complaint can be amended to state a cause of action. Rather, as we have discussed, 

the burden is on plaintiff to show in what manner she can amend the complaint, and how

11

 Plaintiff argues that she had the right to propose an amended complaint through a 

motion for reconsideration. But as we will discuss in greater detail post, plaintiff neither 

filed a motion for reconsideration that could be considered by the court, nor did she 

attach the amended complaint to the motion for reconsideration that she lodged in the 

trial court.
21

that amendment will change its legal effect. (Moore v. Centrelake Medical Group, Inc.

(2022) 83 Cal.App.5th 515, 537.) “Although ‘such showing may be made in the first 

instance to the appellate court,’ the plaintiff-appellant ‘must still offer details on how the 

amendment would cure the defects.’ ” (Ibid.) 

Plaintiff points to the trial court’s decision to overrule, or sustain with leave to 

amend, Olivas’s demurrers to several of the causes of action plaintiff asserted against 

him, and she contends those rulings demonstrate the potential for viable causes of action 

against Hotel Winters. But merely asserting without reasoned argument that there may be

potentially viable causes of action based on the court’s rulings on demurrers by another 

party to other causes of action is not sufficient to satisfy plaintiff’s burden to specifically 

demonstrate how she could amend her complaint to allege facts sufficient to state causes 

of action against Hotel Winters.12

III

Order Dismissing Hotel Winters with Prejudice

Plaintiff challenges the order granting Hotel Winters’s motion to dismiss and order 

of judgment in its favor. Her claims lack merit. 

A. Legal Background

1. Section 581

Section 581, subdivision (f)(1) provides: “The court may dismiss the complaint as 

to that defendant . . . [¶] . . . after a demurrer to the complaint is sustained without leave 

to amend and either party moves for dismissal.” The statutory requirement that a party 

move for dismissal simply means the court cannot dismiss the action without the request 

12

 Plaintiff additionally argues that Hotel Winters did not demur to the entire complaint, 

and that the trial court did not specify the grounds for sustaining the demurrer. These 

arguments appear to be directed at the first paragraph of the court’s tentative ruling, 

which Hotel Winters contends was a ruling sustaining its demurrer based on its mediation 

argument. We need not and do not address these arguments because we have affirmed 

the court’s ruling on other grounds, as we have discussed. 
22

of a party. (Oppenheimer v. Deutchman (1955) 132 Cal.App.2d Supp. 875, 879

(Oppenheimer).) “Ordinarily, in the absence of a request for reconsideration, after a 

demurrer is sustained without leave to amend, . . . no formal motion to dismiss the action 

is necessary. The entry of a judgment of dismissal follows as a matter of course.” 

(Berri v. Superior Court of San Francisco (1955) 43 Cal.2d 856, 860; accord, Michaels v. 

Mulholland (1953) 115 Cal.App.2d 563, 564.) 

Additionally, when a party chooses to move for dismissal following the sustaining 

of a demurrer without leave to amend, no notice is necessary. Generally, a noticed 

motion is required when the order requested may affect the rights of an adverse litigant. 

(Oppenheimer, supra, 132 Cal.App.2d at p. Supp. 879.) When a demurrer is sustained 

without leave to amend, “[t]he judgment of dismissal . . . does not affect the right of 

adverse litigants because the losing party has already had [her] hearing. The statute itself 

[citation] does not require notice.” (Ibid.) 

Section 581, subdivision (f)(2) authorizes dismissal when either party moves for 

dismissal after a demurrer is sustained with leave to amend, and the plaintiff fails to 

timely amend.

2. Motions for Reconsideration

Section 1008, subdivision (a), permits motions for reconsideration of an interim 

ruling provided that the motion “is based upon an alleged ‘different state of facts’ than 

the original motion.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 943.) Such 

motions do not require that the different facts “to be new or newly discovered.” (Ibid.) 

However, while the different facts need not be new or newly discovered, the party 

seeking reconsideration must show that the different facts, circumstances, or law could 

not, with reasonable diligence, have been discovered and produced at the time of the prior 

motion. (§ 1008, subd. (a); see Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1467.) A 

motion for reconsideration will be denied absent a strong showing of diligence. 

(Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; New York Times Co. v. Superior 
23

Court, supra, 135 Cal.App.4th at p. 212; In re Marriage of Herr (2009) 174 Cal.App.4th 

1463, 1468.) 

Section 1008, subdivision (a) also requires the party moving for reconsideration to 

“state by affidavit what application was made before, when and to what judge, what order 

or decisions were made, and what new or different facts, circumstances, or law are 

claimed to be shown.” The statute is jurisdictional. (§ 1008, subd. (e).) If the moving 

party does not present new or different facts, circumstances, or law, then the court lacks 

jurisdiction to entertain reconsideration. If the statutory requirements are not met, then 

the motion will be denied. The trial court’s ruling on a motion for reconsideration is 

reviewed for abuse of discretion. (New York Times Co. v. Superior Court (2005) 135 

Cal.App.4th 206, 212.)

B. Analysis

Plaintiff contends the trial court erred by not considering her motion to reconsider 

before dismissing Hotel Winters. However, that motion failed to comply with the 

statute’s affidavit requirement, which is jurisdictional. (§ 1008, subd. (e).) Accordingly, 

the trial court was not authorized to consider it. Additionally, plaintiff’s motion was not 

based on new or different facts, circumstances, or law.13 Instead, the motion requested 

that the court change its ruling sustaining Hotel Winters’s demurrers without leave to 

amend because she misunderstood the ruling, although she recognized that she had failed 

to contest the court’s tentative ruling as to Hotel Winters’s demurrer at the hearing. 

Furthermore, her motion did not include a notice of hearing or a proposed date and time 

for the hearing, and therefore was procedurally defective, and there is no indication in the 

13

 In her declaration in support of her motion to recuse Judge Fall, plaintiff asserted that 

she filed motions to vacate, not a motion for reconsideration, because “there is no ‘new 

fact’ and [plaintiff] [was] trying to correct a misunderstanding and mistake, so ‘motion to 

vacate’ is more appropriate.” 
24

record that the court scheduled a hearing on the motion. The trial court did not err by not 

considering plaintiff’s motion to reconsider.14 

Next, we disagree with plaintiff’s arguments that dismissal under section 581, 

subdivision (f)(1) and (f)(2) was inappropriate. As to section 581, subdivision (f)(1), 

plaintiff asserts that dismissal was inappropriate because the validity of the order 

sustaining Hotel Winters’s demurrers “is not beyond dispute.” As we concluded ante, 

plaintiff fails to demonstrate either error in sustaining the demurrers or abuse of 

discretion in not granting leave to amend.15 

As to section 581, subdivision (f)(2), plaintiff argues dismissal was inappropriate 

because the amended complaint alleged additional causes of action against Hotel Winters, 

demonstrating “the potential for additional, relevant causes of action.” (AOB 28[quote]-

29) But while Hotel Winters moved for dismissal under subdivisions (f)(1) and (f)(2) of 

section 581, the trial court granted the motion under subdivision (f)(1) on the basis that 

Hotel Winters’s demurrers were sustained without leave to amend. Accordingly, whether 

dismissal would have been inappropriate under subdivision (f)(2) is irrelevant. Similarly, 

plaintiff argues that Hotel Winters’s motion to dismiss was not properly brought ex parte 

because California Rules of Court, rule 3.1320(h) only authorizes ex parte applications to 

dismiss under section 581, subdivision (f)(2) after the expiration of the time to amend 

14

 In her reply brief, plaintiff asserts that she was confused by the trial court’s 

“acceptance” of her motion to reconsider “despite its procedural flaws,” and argues that 

she would have conducted additional research had the court clerk rejected the motion. 

But this argument does not address the other issues with the motion or her 

acknowledgement that “there is no ‘new fact’ and [plaintiff] [was] trying to correct a 

misunderstanding and mistake, so ‘motion to vacate’ is more appropriate.” 

15

 Plaintiff also argues that section 472d required the court to explicitly state the grounds 

for its decision on demurrer. That argument is meritless. The trial court sustained Hotel 

Winters’s demurrers to the conspiracy and unjust enrichment causes of action on the 

grounds that plaintiff failed to allege facts sufficient to state a cause of action. (§ 430.10, 

subd. (e).) 
25

following the sustaining of a demurrer. But neither rule 3.1320(h) nor any other rule 

prohibits ex parte applications where demurrers are sustained without leave to amend. As 

we set forth ante, in such circumstances dismissal ordinarily follows as a matter of 

course, and no noticed motion is required. (Oppenheimer, supra, 132 Cal.App.2d at p. 

Supp. 879.) 

Plaintiff next observes that she did not receive a signed order sustaining Hotel 

Winters’s demurrer, but she does not explain how this could constitute reversible error. 

An order sustaining a demurrer without leave to amend is not directly appealable. 

(Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 651.) Instead, plaintiff 

appeals the judgment of dismissal entered following the sustaining of the demurrer, 

which is the appealable order. (Berri v. Superior Court of San Francisco, supra, 43 

Cal.2d at p. 861.) Accordingly, even if the court were required to issue a signed written 

order, which we need not and do not decide, that would have no effect on the trial court’s 

decision or her ability to pursue her appeal. 

Finally, plaintiff fails to support her argument that the trial court did not consider 

her opposition to Hotel Winters’s motion to dismiss. Beyond the mere fact that the trial 

court granted the motion, nothing in the record suggests the court did not consider her 

opposition. 

Because the sustaining of a demurrer without leave to amend signaled the end of 

the adjudication of the matter and entitled Hotel Winters to a dismissal judgment, no 

noticed motion to dismiss was required following the court’s sustaining of the demurrer 

without leave to amend, and the trial court did not err by granting the motion to dismiss 

or by entering judgment in favor of Hotel Winters. 
26

IV

Misconduct Allegations

Plaintiff raises various claims of misconduct against Judge Fall--the trial judge 

who oversaw the case until he granted plaintiff’s peremptory challenge--and opposing 

counsel. She fails to establish misconduct. 

A. Claims Against Judge Fall 

Plaintiff contends Judge Fall’s decision to grant her peremptory challenge 

(§ 170.6) on March 13, 2023, nearly one month after dismissing Hotel Winters from the 

case, rendered his prior orders in the case voidable. We disagree. Initially, section 170.6 

requires motions in a civil case to be made within 15 days after notice of the judge’s 

assignment for all purposes, or if the party has not yet appeared, within 15 days after the 

appearance. (§ 170.6, subd. (a)(2).) In other words, peremptory challenges must be 

brought at the beginning of a case. The statute “ ‘permits a party to obtain the 

disqualification of a judge for prejudice, based solely upon a sworn statement, without 

being required to establish prejudice as a matter of fact to the satisfaction of the court.’ 

[Citation.] ‘When a litigant has met the requirements of section 170.6, disqualification of 

the judge is mandatory, without any requirement of proof of facts showing that the judge 

is actually prejudiced.’ ” (Mendoza v. Superior Court (2021) 65 Cal.App.5th 988, 995.) 

“When a [peremptory] challenge is timely and properly made, the challenged judge 

immediately loses jurisdiction and must recuse himself. If he does not, his subsequent

orders and judgments are void.” (Ziesmer v. Superior Court (2003) 107 Cal.App.4th 360, 

363-364, italics added.) Nothing in section 170.6 indicates that granting a peremptory 

challenge renders a judge’s prior rulings void or voidable. Indeed, here Judge Fall struck 

plaintiff’s statement of disqualification as disclosing on its face no legal grounds for 

disqualification. (§ 170.4, sub. (b).) The peremptory challenge Judge Fall granted under 

section 170.6 required no proof that Judge Fall was actually prejudiced, and there is 
27

nothing to suggest that there were grounds to disqualify Judge Fall, such that his prior 

rulings could have been void or voidable.

Plaintiff next argues that Judge Fall committed misconduct in the context of her 

application to set aside the judgment and for leave to amend. She observes that Judge 

Fall rescheduled the hearing on the motion from February 22 to February 24, 2023, due 

to his unavailability. She further asserts that during the hearing, Judge Fall “indicated his 

intention to deviate from his normal procedure by prioritizing ex parte hearings,” and 

then “abruptly dismissed [her] [ex parte motion to set aside the judgment] after she took 

her seat, advising her to file a regular motion instead.” Plaintiff has not provided this 

court with a reporter’s transcript of the ex parte hearing, which is indispensable to 

support any claim of misconduct here. (See, e.g., Southern California Gas Co. v. 

Flannery (2016) 5 Cal.App.5th 476, 483 [appellant’s burden to provide reporter’s 

transcript if she intends to raise an issue that requires consideration of the oral 

proceedings in the superior court].) But even if she had provided a transcript, trial courts 

generally retain broad discretion to control their courtrooms and to efficiently dispose of 

matters before them (People v. Virgil (2011) 51 Cal.4th 1210, 1237) and plaintiff fails to 

establish that the court’s decision to continue the hearing, or its conduct in denying the 

motion, constituted misconduct. 

Plaintiff contends Judge Fall provided various forms of “misleading guidance” 

throughout the case. She notes that Judge Fall “questioned her choice of a ‘motion to 

vacate,’ ” and instead suggested that she file a motion to reconsider, which she argues 

“add[ed] complexity” for her. Additionally, after Judge Fall entered the order dismissing 

Hotel Winters from the case, she asked him if that order could be reversed. According to 

plaintiff, Judge Fall responded that he was not her attorney, and she should do her own 

research. The trial judge was under no duty to perform legal research or to provide legal 

advice to plaintiff (Martinez v. Court of Appeal (2000) 528 U.S. 152, 162), and plaintiff 

provides no support for the proposition that a judge commits misconduct by asking a 
28

litigant a question about her choice to file one motion and not another. Plaintiff also 

generally asserts that she “recalls instances where she perceives that Judge Fall provided 

misleading guidance,” citing to multiple pages from her declaration in support of her 

motion to recuse Judge Fall. However, the pages in the record to which she cites do not 

include instances of the court providing misleading legal advice that would have any 

bearing on the issues in this case.16

Finally, plaintiff argues that Judge Fall’s decision to continue the hearing on her 

application to set aside the judgment (filed on March 2) from its original hearing date of 

March 30 to its rescheduled date of May 4 “might have been influenced by respondent’s 

attorney’s interests” and “rais[ed] concerns about the procedural propriety of this action.” 

Plaintiff’s speculative and unsupported “concerns” do not demonstrate misconduct. 

Additionally, the record indicates that the ruling occurred after Judge Fall granted 

plaintiff’s (untimely) peremptory challenge, and therefore there is no reason to conclude 

that Judge Fall issued the continuance.17 Moreover, because the continuance was issued 

soon after plaintiff’s peremptory challenge, it is reasonable to infer that a newly assigned 

judge needed time to become familiar with the case before hearing plaintiff’s motions. 

B. Claims Against Opposing Counsel

Plaintiff contends the introduction of Hotel Winters’s demurrer constructed a 

narrative that deviated from the facts in the complaint, which she contends “may have 

influenced the court’s decision to dismiss the respondent with prejudice.” But while we 

recognize that plaintiff disputes many of the statements Hotel Winters made in its 

16

 Plaintiff also argues that Judge Fall’s instructions and rulings “seemingly overlooked 

the facts alleged in the complaint and were based on a judicial error.” That argument 

neither alleges nor demonstrates misconduct. 

17

 Plaintiff acknowledges the record reflects that the continuance was ordered by 

temporary Judge Thomas A. Smith but claims that Judge Fall actually ordered the 

continuance. She does not provide any citation to the record to support this assertion. 
29

summary of the case as stated in the introduction to its demurrers, she has not established 

that they were factual misrepresentations intended to mislead the court. There have been 

no factual findings in this case. Further, as plaintiff recognizes, a trial court ruling on a 

demurrer accepts the complaint’s properly alleged facts as true and determines whether 

those facts are sufficient to state a cause of action. Nothing suggests the court failed to 

adhere to the proper procedure for ruling on a demurrer.

Next plaintiff contends Hotel Winters failed to submit a proposed order with any 

responses from plaintiff regarding the court’s decision to sustain its demurrers, as 

required by California Rules of Court, rule 3.1312(a). Similarly, she claims that Hotel 

Winters failed to serve her with the trial court’s order sustaining the demurrers as 

required by section 472b, which provides in relevant part: “When a demurrer to any 

pleading is sustained or overruled, and time to amend or answer is given, the time so 

given runs from the service of notice of the decision or order, unless the notice is waived 

in open court, and the waiver entered in the minutes.” 

These arguments are meritless. Section 472b is inapplicable here because “time to 

amend or answer” was not granted. Hotel Winters was not required to submit a proposed 

order because plaintiff--as she acknowledges--did not request a hearing on the tentative 

ruling regarding Hotel Winters’s demurrers, and the trial court’s tentative ruling 

provided: “If no hearing is requested, . . . this tentative ruling is effective immediately. 

No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is 

required.” 

Plaintiff argues Hotel Winters filed for dismissal despite knowing it would cause a 

miscarriage of justice. But plaintiff has failed to establish that the trial court erred when 

it sustained the demurrers or that it abused its discretion when it denied leave to amend, 

and as we have discussed, dismissal followed as a matter of course from that order. 
30

Finally, plaintiff contends Hotel Winters filed a frivolous lawsuit against her, 

which exerted undue pressure on her. We decline to opine on the merits of lawsuits not 

at issue in this appeal.18

DISPOSITION

The judgment is affirmed. Hotel Winters shall recover its costs on appeal. (Cal. 

Rules of Court, rule 8.278(a).)

 /s/ 

Duarte, Acting P. J.

We concur:

 /s/ 

Mesiwala, J.

 /s/ 

Wiseman, J.*

18

 Plaintiff raises other allegations of misconduct for the first time on reply. Several of 

them concern the merits of plaintiff’s lawsuit, the facts of which have not been 

determined. She also contends that Mehta committed misconduct by billing at excessive 

rates, and by seeking attorney fees related to this lawsuit. This conduct does not 

constitute misconduct. Finally, she claims Mehta sought to unnecessarily extend the 

duration of this case. We disagree; Hotel Winters timely demurred to plaintiff’s 

complaint and moved to dismiss itself from the case after its demurrers were sustained 

without leave to amend. 

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.