Judge: Armen Tamzarian, Case: 23STCV08552, Date: 2024-01-11 Tentative Ruling
Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.
Case Number: 23STCV08552 Hearing Date: January 11, 2024 Dept: 52
Defendants Post & Beam Invest, LLC and Nicole
Jaffe’s Demurrer
Defendants Post & Beam
Invest, LLC and Nicole Jaffe demur to all five causes of action alleged against
them by plaintiff Sandra R. Carlson.
Summary of Allegations
Plaintiff owned a
condominium in Fullerton, California.
(Comp., ¶ 17.) She arranged for
her nephew, non-party Michael Thornton (¶ 14), to sell her condominium to
defendants (¶¶ 19-20). Defendants allegedly agreed to buy the condominium for
$110,000 and pay off or refinance two loans secured by the property. (¶¶ 20, 25.)
Plaintiff estimates the condominium was worth $480,000. (¶ 26.)
Plaintiff alleges defendants
never “paid off the Small Loan” (Comp., ¶ 31), never “refinanced the Major
Loan” (¶ 32), and never “made any monthly payments on the Major Loan” (¶
33). Plaintiff further alleges
defendants knowingly promised to pay off or satisfy the loans with the intent
to deceive and defraud plaintiff. (¶¶
74-75.) Plaintiff “no longer owns the
Condo.” (¶ 37.) The loans are in default (¶¶ 34-36), which
has harmed plaintiff’s “credit reputation” (¶ 37). Plaintiff alleges that “in an effort to avoid
damage to her credit reputation,” she made multiple “monthly payments on the
Major Loan.” (¶ 34.)
“Vague and Unintelligible”
Defendants’ demurrer argues plaintiff’s first, fourth,
and fifth causes of action are “vague and unintelligible and therefore fail[]
to state facts sufficient to constitute a cause of action.” Assuming defendants demur on the grounds of
uncertainty (CCP § 430.10(f), none of plaintiff’s causes of action are
uncertain. “Demurrers for uncertainty are disfavored, and are granted only if the
pleading is so incomprehensible that a defendant cannot reasonably
respond.” (A.J. Fistes Corp. v. GDL
Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal quotes
and alterations omitted.) The complaint
must sufficiently apprise defendants of the claims against them. (Ibid.) Plaintiff’s complaint meets that standard. It contains detailed factual
allegations. (Comp., ¶¶ 14-44.) It clearly labels each cause of action and
explains the factual basis for them. (¶¶
46-92.)
First Cause of Action: Elder Abuse
Plaintiff alleges sufficient facts for this cause of
action. Elder abuse occurs when someone
“[t]akes, secretes, appropriates, obtains, or retains real or personal
property of an elder ... for a wrongful use or with intent to defraud.” (Welf. & Inst. Code, § 15610.30(a)(1);
accord Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th
639, 656 [the statute “broadly defines financial abuse of an elder”].)
Rather than
addressing the elements of this cause of action, defendants’ demurrer attacks
various specific portions of the complaint.
Defendants also rely in part on extrinsic evidence, which is not proper
on demurrer. On demurrer, the complaint
must be “liberally construed, with a view to substantial justice between the
parties.” (Code Civ. Proc., § 452.) “This
rule of liberal construction means … draw[ing] inferences favorable to the
plaintiff, not the defendant.” (Perez v.
Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)
When liberally
construed and read as a whole, the complaint alleges sufficient facts for
financial elder abuse. The gravamen of
the complaint, as summarized above, is that defendants falsely promised to
satisfy the loans on plaintiff’s property when plaintiff sold it. Plaintiff alleges defendants bought the
condominium for $110,000 but did not satisfy the loans. She alleges defendants’ conduct harmed her
credit reputation and led her to make payments on one of the loans, despite
defendants’ agreement to assume that obligation. These allegations constitute obtaining and
retaining an elder’s real property with the intent to defraud plaintiff.
Second Cause of Action:
Intentional Infliction of Emotional Distress
Plaintiff alleges sufficient
facts for this cause of action. Its
elements are “(1) extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional distress by
the defendant’s outrageous conduct.” (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050.)
Plaintiff alleges
defendants intentionally defrauded her of her property without satisfying the
loans as promised. (Comp., ¶ 55.) She further alleges “suffered serious
emotional distress, including but not limited to, suffering, anguish, fright,
horror, nervousness, anxiety, worry, shock, humiliation, and shame.” (¶ 58.) Finally, she alleges defendants’ conduct
caused the severe emotional distress she suffered. (¶¶ 57-59.)
Third Cause of Action: Negligent Infliction of Emotional
Distress
Plaintiff alleges sufficient
facts for this cause of action. “A claim
of negligent infliction of emotional distress is not an
independent tort but the tort of negligence to which the traditional elements
of duty, breach of duty, causation, and damages apply.” (Wong v. Jing (2010) 189
Cal.App.4th 1354, 1377.)
Defendants’ demurrer
argues, “Plaintiff failed to even plead the fundamental components of
negligence — namely, the existence of a duty, a breach of that duty, causation
linking the breach to the alleged emotional distress, and the resultant
damages.” (Demurrer, p. 9.) Regardless of whether plaintiff alleged those
legal conclusions, she alleges sufficient facts supporting each element.
Plaintiff alleges
sufficient facts for the element of duty.
“The general rule in California is that ‘[e]veryone is
responsible ... for an injury occasioned to another by his or her want of
ordinary care or skill in the management of his or her property or person....’
” (Cabral v. Ralphs Grocery Co. (2011)
51 Cal.4th 764, 771.) “The key
component in determining whether the relationship between plaintiff and
defendant in such cases gives rise to a duty of care is the foreseeability of
the harm suffered by the plaintiff.
Foreseeability is generally measured by the closeness of the connection
or nexus between the defendant’s conduct and risk of injury to the
plaintiff—that is, whether the defendant had ‘entered into any relationship or
undertaken any activity where negligence on his part was reasonably likely to
affect plaintiff adversely.’ ” (LiMandri
v. Judkins (1997) 52 Cal.App.4th 326, 349, citations omitted.)
Plaintiff alleges
her nephew acted on her behalf in entering an agreement to sell plaintiff’s
real property to defendants. It was
foreseeable that defendants’ failure to exercise ordinary care in this
transaction could harm plaintiff, who owned the subject real property. These allegations suffice to establish a duty
to plaintiff.
Plaintiff further alleges
defendants breached their duty by failing to abide by their agreement to
satisfy the loans secured by the property.
Plaintiff alleges defendants’ failure to do so caused her to “suffer[]
humiliation, mental anguish, and emotional and physical distress” (Comp., ¶ 67)
and “anguish, fright, horror, nervousness, anxiety, worry, shock, humiliation,
and shame” (¶ 68). When read as a whole, the complaint alleges
sufficient facts for negligent infliction of emotional distress against defendants.
Fourth Cause of Action: Fraud
Plaintiff alleges sufficient
facts for promissory fraud. “The elements of promissory fraud (i.e., of
fraud or deceit based on a promise made without any intention of performing it)
are: (1) a promise made regarding a material fact without any intention of
performing it; (2) the existence of the intent not to perform at the time the
promise was made; (3) intent to deceive or induce the promisee to enter into a
transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the
party making the promise; and (6) resulting damage to the promisee.” (Behnke v. State Farm General Ins. Co.
(2011) 196 Cal.App.4th 1443, 1453.)
Plaintiff alleges defendants knowingly made
false representations (Comp., ¶ 75) that they would pay off the loans secured
by the subject property (¶ 74(a)), would “make monthly payments on the Major
Loan during the time period it took them to promptly refinance it” (¶ 74(b)),
and “pay the real property taxes associated with the Condo” (¶ 74(c)). Plaintiff further alleges defendants “made
these representations with the intention to deceive and defraud the Plaintiff
and to induce the Plaintiff to act in reliance on” them by transferring title
to the condominium. (¶ 75.) Plaintiff alleges she believed defendants’
promises were true (¶ 76) and relied on them in “transferring ownership of the
Condo to” defendants (¶ 77). Finally,
plaintiff alleges that, because of her reliance on defendants’ false promise,
she suffered “damage to her credit reputation” and had “her personal savings
depleted by … making the monthly payments due on the Major Loan.” (¶ 79.)
Fifth Cause of Action: Penal
Code § 496
Plaintiff alleges sufficient
facts for this cause of action. “[T]he elements required to show
a violation of [Penal Code] section 496(a) are simply that (i) property was
stolen or obtained in a manner constituting theft, (ii) the defendant knew the
property was so stolen or obtained, and (iii) the defendant received or had
possession of the stolen property.” (Switzer
v. Wood (2019) 35 Cal.App.5th 116, 126 (Switzer).)
Defendants contend this
statute does not apply to real property.
It does. “[A]nything that could
be the subject of a theft can also be property under Penal Code section 496.” (People v. Norwood (1972) 26
Cal.App.3d 148, 157.) Penal Code section
484(a) defines the crime of “theft.” It
provides, “Every person… who shall knowingly and designedly, by any false or
fraudulent representation or pretense, defraud any other person of money, labor
or real or personal property … is guilty of theft.” (Accord Callan v. Superior Court In and
For San Mateo County (1962) 204 Cal.App.2d 652, 668 [“real property as well
as personal property may be the subject of theft by false pretenses”].)
Similarly, the Penal Code defines “grand
theft” to include “[w]hen the money labor, real property, or personal
property taken is of a value exceeding” $950.
(Pen. Code, § 487(a); accord People v. Sanders (1998) 67
Cal.App.4th 1403, 1411 [“to constitute grand theft, (1) there must be a
theft of real property and (2) that theft must be of the requisite value”].)
Defendants also argue the
property could not be “stolen” because defendants paid for it and plaintiff
conveyed it. (Demurrer, p. 12.) The statute “extends to property ‘that has
been obtained in any manner constituting theft.’ Penal Code section 484 describes acts
constituting theft,” including “theft by false pretense.” (Bell v. Feibush (2013) 212
Cal.App.4th 1041, 1048; accord Switzer, supra, 35 Cal.App.5th at p.
126.) Penal Code section 484(a) defines
theft to include “fraudulently appropriat[ing] property which has been
entrusted to” the defendant or “knowingly and designedly, by any false or
fraudulent representation or pretense, defraud[ing] any other person of money,
labor or real or personal property.”
Plaintiff alleges sufficient
facts to establish that defendants fraudulently acquired the property by false
representation or pretense. The
complaint alleges defendants agreed to buy plaintiff’s condominium for $110,000
and to pay off two loans secured by the property. (Comp., ¶¶ 20, 25.) But defendants never “paid off the Small
Loan” (¶ 31), never “refinanced the Major Loan” (¶ 32), and never “made any
monthly payments on the Major Loan” (¶ 33).
Plaintiff further alleges defendants intentionally made this agreement “without
the intent of performing, in other words, without paying off the Major and
Minor Loans, without making the monthly payments on the Major Loan, or
paying the real property taxes, or the monthly payments on the Major Loan.” (¶ 86.a.) That constitutes acquiring the property via
fraudulent representation or pretense.
Disposition
Defendants Post & Beam
LLC and Nicole Jaffe’s demurrer is overruled. Defendants shall answer plaintiff’s complaint
within 15 days.