Judge Bruce G. Iwasaki, Case Number: 23STCV08956, Date: 2023-11-02 Tentative Ruling

Tentative Ruling: The Demurrer to the second cause of action in the First Amended Complaint is sustained without leave to amend. The Motion to Strike is moot.

Plaintiff Jacqueline Martinez (Plaintiff) alleges that she rented the real property commonly known as 1318 N. Applewood Lane La Puente California (Property) from Defendant Marina Flores. In 2018, Flores offered to sell the Property to Plaintiff contingent on her improving her credit and on her making monthly payments on the mortgage of the Property; if the Property sold at any time, Defendant Marina Flores agreed that Plaintiff would be entitled to all equity from the Property after the sale costs. In February 2022, Defendant Flores informed Plaintiff that she had sold the Property to Defendant Hernan Hernandez.

On or about December 2022, Defendant Hernan Hernandez filed and served an unlawful detainer action against Plaintiff.

Plaintiff alleges that Defendant Flores breached her agreement with Plaintiff by making a fraudulent claim that she sold the Property to Defendant Hernandez and refused to pay Plaintiff her rightful share of the sale. She also alleges that Defendant Hernandez used fraudulent documents generated by Defendant Marina Flores and her escrow company to deceive the trial court to evict Plaintiff.

On April 21, 202, Plaintiff filed a Complaint. On July 12, 2023, Plaintiff filed a First Amended Complaint, alleging causes of action for (1.) breach of oral agreement, (2.) fraud and conspiracy to commit fraud, and (3.) quiet title.

Defendant Hernan Hernandez now demurs to the second cause of action in the First Amended Complaint. Defendant Hernandez also moves to strike the request for punitive damages. No opposition was filed.

The Court sustains the demurrer to the second cause of action without leave to amend. The motion to strike is moot.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Defendant Hernandez demurs to the second cause of action in the FAC on the grounds that Plaintiff has failed to state a claim.

“To establish a claim for fraudulent misrepresentation, the plaintiff must prove: ‘(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.’ ” (Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4th 429, 434.)

Here, the FAC alleges that Defendant Flores falsely told Plaintiff that she had sold the house to Defendant Hernandez. (FAC ¶ 2.) However, the Complaint avers, Defendant Hernandez never owned the house and, therefore, did not have the right to evict Plaintiff. (FAC ¶ 3.) According to the FAC, Defendant Hernandez “used the forged documents . . . in order to commit fraud on the Los Angeles Superior Court and on Plaintiff and obtain a fraudulent judgment of eviction and actually evicting Plaintiff from her house.” (FAC ¶ 3.)

These allegations are insufficient to show fraud by Defendant Hernandez. “[F]raud actions are subject to strict requirements of particularity in pleading. Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually, and specifically) and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268; Hall v. Dept. of Adoptions (1975) 47 Cal.App.3d 898, 904.) Here, the FAC does not allege any specific representation made by Defendant Hernandez to Plaintiff that was relied upon by Plaintiff. Thus, the Complaint fails to alleges a cause of action for intentional misrepresentation.

Further, Plaintiff has also failed to allege a conspiracy to commit fraud, as well.

As a preliminary matter, “[c]onspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511.) Here, the underlying tort is common law fraud allegedly perpetuated by Defendant Marina Flores.

To support a conspiracy claim, a plaintiff must allege the following elements: “(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581; see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at p. 511.)

It is well settled that “ ‘[b]are’ allegations and ‘rank’ conjecture do not suffice for civil conspiracy.” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.) A party seeking to establish a civil conspiracy “must show that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it. [Citation.] It is not enough that the [conspirators] knew of an intended wrongful act, they must agree—expressly or tacitly—to achieve it.” (Ibid.)

Her, the FAC is devoid of allegations showing a conspiracy between Defendant Flores and Defendant Hernandez. Moreover, the only wrongful overt conduct alleged by Defendant Hernandez was the filing of the unlawful detainer complaint, which – as argued by Defendant Hernandez – is privileged conduct under Civil Code section 47, subdivision (b). (Civ. Code, § 47, subd. (b) [“A privileged publication or broadcast is one made: . . . (b) [i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law . . ..”].) As such, the filing of the unlawful detainer complaint cannot constitute the “wrongful conduct in furtherance of the conspiracy. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1132 [“The policy of encouraging free access to the courts is so important that the litigation privilege extends beyond claims of defamation to claims of abuse of process, intentional infliction of emotional distress, negligent misrepresentation, invasion of privacy, fraud, and to the torts alleged here: interference with contract and prospective economic advantage.”].)

The demurrer to the second cause of action for fraud alleged against Defendant Hernandez is sustained. As Plaintiff has failed to oppose the demurrer, Plaintiff has abdicated her responsibility to demonstrate that she could successfully amend the claim; therefore, the demurer is sustained without leave to amend.

The demurrer to the second cause of action against Defendant Hernan Hernandez is sustained without leave to amend. The motion to strike is moot. Defendant Hernandez shall serve and file his Answer on or before November 30, 2023.