Judge: Barbara M. Scheper, Case: 22STCV07767, Date: 2022-12-07 Tentative Ruling
Case Number: 22STCV07767 Hearing Date: December 7, 2022 Dept: 30
Dept. 30
Calendar No.
Payton vs. Lumier,
LLC, et. al., Case No. 22STCV07767
Tentative Ruling
re: Defendants’ Demurrer to Complaint;
Motion to Strike
Defendants Lumier, LLC and Liudmila
Viktorovna Kirsanova (collectively, Defendants) demur to and move to strike the
Complaint of Plaintiff Sallyanne Payton (Plaintiff). The demurrer is sustained,
with ten (10) days leave to amend, as to the first through fifth causes of
action. The motion to strike is denied as moot.
In reviewing the legal sufficiency of a complaint against a demurrer, a
court will treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co.
v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court
(1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a
complaint is tested against a general demurrer are well settled. We not only
treat the demurrer as admitting all material facts properly pleaded, but also
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Guclimane Co.
v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes
omitted).) For purposes of ruling on a demurrer, the complaint must be
construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78
Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s
allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any
other extrinsic evidence or judge the credibility of the allegations plead or
the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint,
liberally construed, fails to state facts sufficient to constitute any cause of
action. (Kramer v. Intuit Inc. (2004)
121 Cal.App.4th 574, 578.)
Plaintiff’s claims arise from a
dispute over the ownership of real property located at 1256 W. 22nd Street, Los
Angeles, California (the Property). (Comp. ¶ 11.) Plaintiff alleges that
Defendants made fraudulent misrepresentations in connection with a Grant Deed
signed by Plaintiff on September 12, 2021, which transferred the Property to
Defendant Lumier, LLC (Lumier). (Comp. ¶ 16.)
First Cause of Action for Fraud
The elements of fraud are:
(1) misrepresentation (false representation, concealment, or nondisclosure);
(2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance;
(4) justifiable reliance; and (5) damages. (See Civil Code §1709.) Fraud
actions are subject to strict requirements of particularity in pleading. (Committee
on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.)
The liberal construction of pleadings does not apply to a
fraud claim. Instead, a fraud claim must be pled with specificity. (Tenet
Healthsystem Desert, Inc. v. Blue Cross of California¿(2016) 245
Cal.App.4th 821, 837.) “The particularity requirement demands that a plaintiff
plead facts which show how, when, where, to whom, and by what means the
representations were tendered.” (Cansino v. Bank of America (2014) 224
Cal.App.4th 1462, 1469.)
The Court agrees with Defendants
that Plaintiff has failed to plead fraud with the requisite specificity. Regarding
Defendants’ misrepresentations, the Complaint only states that “[o]n and
about September 12, 2021, Plaintiff was deceived by Defendants regarding the
[Grant Deed and Deeds of Trust] by misrepresentations regarding meaning and
effect of the deeds, and in other respects subject to proof at trial. In
addition, Defendants conspired with other persons to deceive and use undue
influence to conceal the true facts regarding the transaction . . .” (Comp. ¶ 15.)
Plaintiff has not pled specific facts indicating what
representations were made by Defendants, or how, where, and by what means the
representations were tendered. Accordingly, the demurrer is sustained as to the
first cause of action.
Second
Cause of Action for Financial Elder Abuse (Welf. & Inst. Code § 15610.30)
“Section
15610.30, subdivision (a), provides that financial abuse of an elder or
dependent adult occurs where a person takes or assists in taking real or
personal property of such an adult to a wrongful use or with an intent to defraud,
or both.” (Wood v. Santa Monica Escrow
Co. (2007) 151 Cal.App.4th 1186, 1189; see Welf. & Inst. Code, § 15610.30.)
Elder Abuse must be alleged with specificity.
(Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198
Cal.App.4th 396, 410.) The Elder Abuse Act protects “any person residing in
this state, 65 years of age or older” at the time of the alleged wrongful
conduct. (Welf. & Inst. Code,
§ 15610.27.) Financial Elder Abuse must be
alleged with specificity. (Covenant
Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)
To state the
cause of action, “[a]s a general matter, a plaintiff must demonstrate that a
defendant: (1) subjected an elder to statutorily-defined . . . financial abuse;
and (2) acted with recklessness, malice, oppression, or fraud in the commission
of the abuse.” (Davenport v. Litton Loan Servicing, LP (N.D. Cal. 2010)
725 F.Supp.2d 862, 879.) “Financial abuse” of an elder occurs when a person or
entity does any of the following:
(1) Takes,
secretes, appropriates, obtains, or retains real or personal property of an
elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting,
appropriating, obtaining, or retaining real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating, obtaining,
or retaining, real or personal property of an elder or dependent adult by undue
influence, as defined in Section 15610.70.
(Welf. & Inst. Code, § 15610.30, subd. (a).)
“A wrongful use is defined as taking,
secreting, appropriating, or retaining property in bad faith. Bad faith occurs
where the person or entity knew or should have known that the elder had the
right to have the property transferred or made readily available to the elder
or to his or her representative.” (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 174; Welf. & Inst.
Code, § 15610.30, subd. (b).)
Plaintiff’s
allegations under this cause of action are conclusory. The Complaint merely recites
the elements of the cause of action as stated in Section 15610.30, while
failing to allege any specific facts regarding the nature of Defendants’
misconduct, or how Defendants acted with bad faith or intent to defraud. (Comp.
¶¶ 24-26.) The demurrer is therefore sustained as to the second cause of
action.
Third Cause of Action for Quiet Title;
Fourth Cause of Action for Cancellation of Deeds
Code of Civil Procedure section 760.020,
subdivision (a) permits a party to bring an action “to establish title against
adverse claims” to real property. The plaintiff must file a verified complaint
that includes certain allegations, including “[a] description of the
property that is the subject of the action,” “[t]he title of the plaintiff as
to which a determination under this chapter is sought and the basis of the
title,” and “[t]he date as of which the determination is sought.” (Code Civ.
Proc. § 761.020, subd. (c); Deutsche Bank National Trust Co. v. McGurk
(2012) 206 Cal.App.4th 201, 210-11.) “Where the cause of action [to quiet
title] depends upon the proof of fraud, the facts constituting the fraud must
be averred.” (Maison v. Puntenney (1931) 212 Cal. 134, 137–138.)
The fourth cause of action for Cancellation of
Deeds is brought pursuant to Civ. Code § 3412, which provides that “[a] written
instrument, in respect to which there is a reasonable apprehension that if left
outstanding it may cause serious injury to a person against whom it is void or
voidable, may, upon his application, be so adjudged, and ordered to be
delivered up or canceled.”
“Where a complaint seeks to quiet title to
real property and cancel an instrument and both claims are based on the same
facts, it is said that the cancellation claim is incidental to the claim to
quiet title such that the action asserts only one claim.” (Deutsche Bank
National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 523.)
Because
Plaintiff has not adequately pled fraud by Defendants, Plaintiff has also
failed to allege sufficient facts to state the causes of action to quiet title
and for cancellation of debts based on that fraud. Accordingly, the demurrer is
sustained as to the third and fourth causes of action.
Fifth Cause of Action for Declaratory
Relief
“Any person interested ... under a contract ...
may, in cases of actual controversy relating to the legal rights and duties of
the respective parties, bring an original action ... in the superior court for
a declaration of his or her rights and duties ... including a determination of
any question of construction or validity arising under the ... contract.”
(Code Civ. Proc. § 1060.) To qualify for declaratory relief, a plaintiff must
present “two essential elements: ‘(1) a proper subject of declaratory relief,
and (2) an actual controversy involving justiciable questions relating to the
rights or obligations of a party.’ ” (Lee v. Silveira (2016) 6
Cal.App.5th 527, 546.) “A declaration of rights or duties with respect to
property may be a proper subject of declaratory relief.” (Wilson &
Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.)
Plaintiff
seeks “a judicial determination of her rights and duties and a declaration as
to the validity and/or existence of any legal or
equitable rights, titles, estates, liens or interest in the Property in favor
of Defendants and/or adverse to Plaintiff’s title and
interests with respect to the Property.” (Comp. ¶ 41.) Defendants
demur to the cause of action for declaratory relief on the basis that Plaintiff
has not adequately alleged fraud. The Court agrees. It appears that there is only a dispute as to
the parties’ rights and duties related to the property because Plaintiff claims
she was defrauded. In the absence of adequate allegations of fraud, there are
no grounds for declaratory relief. Accordingly, the demurrer is sustained as to
the fifth cause of action.
Defendants
also move to strike Plaintiff’s prayer for punitive damages pursuant to the
causes of action for fraud and financial elder abuse. (Comp. pp. 9-10.) Because the demurrer is sustained as to those causes of action, the
motion to strike is denied as moot.