Judge Christian R. Gullon, Case Number: 23PSCV00226, Date: 2023-09-06 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV00226, Date: 2023-09-06 Tentative Ruling

(1) DEMURRER BY DEFENDANT DENNIS R. BARANOWSKI TO PLAINITFF’S FIRST AMENDED COMPLAINT is SUSTAINED without leave to amend.

(2) DEMURRER OF DEFENDANTS Defendants Robert E. Weiss, Inc.; James T. Lee; and Cris A Klingerman to PLAINTIFF’S FIRST AMENDED COMPLAINT is SUSTAINED without leave to amend.

This is a professional negligence case. Plaintiff JOSE GUZMAN SALCEDO alleges the following against Defendants DENNIS R. BARANOWSKI (“Baranowski”), ROBERT E. WEISS, INC (“Weiss Inc.”), JAMES T. LEE (“Lee”)[1] and CRIS A. KLINGERMAN (“Klingerman”): In 2002, Plaintiff was incarcerated and sentenced to 20 years in prison. In April 2021, after his release from prison in November 2020, Plaintiff found a letter regarding the sale of two properties[2] wherein there was an excess of foreclosure proceeds, but there has “never been an accounting of the distribution of excess funds from either sale.” (First Amended Complaint (FAC) ¶¶17, 19.)

On January 26, 2023, Plaintiff filed suit for (1) general and professional negligence.

On February 16, 2023, Defendant Baranowski filed a demurrer, which the court sustained with leave to amend on June 15, 2023.

On July 10, 2023, Plaintiff filed his first amended complaint (FAC) asserting the following five causes of action:

On August 10, 2023, Weiss Inc., Lee, and Klingerman filed their demurrer to the entirety of the FAC.

On August 22, 2023, Plaintiff filed his opposition to Baranowski’s demurrer.[3]

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.[4] (CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.)

As both parties’ demurrers are predicated upon the statute of limitations, the court will provide a consolidated analysis.[5]

Before engaging in the merits of the demurrers, the court will briefly revisit the court’s June 15, 2023 ruling and compare the original complaint and the FAC.

In the court’s June 15, 2023 ruling, the court determined that the statute of limitation (SOL) appears to bar Plaintiff’s claim. Specifically, the Stipulation for Judgment that was filed on 1/31/2003 and signed by Plaintiff on 12/20/2022 and signed by his wife on 1/03/2022 acknowledged that Plaintiff understood that the “the excess proceeds held by the Plaintiff herein was $110,913.04” and that the “SALCEDOS will be paid a total of $103,337.04, from the subject funds.” (See Tentative Ruling, citing Stipulation p. 3.) And the Stipulation bears Plaintiff’s name and signature, which Defendant explained Plaintiff signed while Plaintiff was incarcerated. Consequently, if Plaintiff (or his wife or sons) did not receive the funds sometime shortly after the signing of stipulation, then Plaintiff should have been suspicious of wrongdoing around that time. Instead, Plaintiff nor his family thought of the $102,951.04 check until after Plaintiff’s release at some point in 2020. Thus, even with a tolled statute of limitations (adding two years), the court determined that the action was grossly untimely because Plaintiff should have commenced action at some point in 2006, but the action was not filed until 2023.

That said, the court granted leave to amend as the series of events in the complaint could have used more clarity. However, upon filing of an amended complaint, the court finds that the FAC is more unclear.

For one, while the original complaint reasonably led to the reasonable interpretation that Baronowski was Plaintiff’s attorney, Plaintiff now alleges that Baronowski was never hired. (FAC ¶20.) Of note, Plaintiff also now alleges that the signatures on the Stipulation were forged, which was not previously alleged nor referenced in the original complaint nor opposition to the first demurrer. (FAC ¶53.)[6] However, as noted by both moving Defendants, that is inapposite because Plaintiff admits he signed a durable financial power of attorney (POA) in the presence of a notary on January 6, 2003, while incarcerated. (FAC, p. 13, ¶¶53-54; see also RJN, Ex. 3, p. 31-37 of 37 of PDF.) And in that POA, there is an explicit reference to the proceeds from the foreclosure sale. The exact provision is as follows:

To collect and deposit for the benefit of the principal all debts, interest, dividends or other assets that may be due or belong to the principal, and to execute and deliver receipts and other discharges therefor; to demand, arbitrate, and pursue litigation on the principal's behalf concerning all rights and benefits to which the principal may be entitled; and to compromise, settle, and discharge all such matters as the agent considers appropriate under the circumstances, including, but not limited to obtaining surplus proceeds from the foreclosure of real property located at 1340-1344 South Palomares Street, Pomona, California, 1356 South Palomares Street, Pomona, California, and 404 South Towne Avenue, Pomona, California (if foreclosure occurs).

Effectively, and as the validity of the POA is not disputed in the FAC (in fact, its validity is conceded),[7] then the POA acknowledges that Plaintiff was aware of the foreclosure proceedings and that his sons were to obtain the excess funds. (Demurrer pp. 7-8.) Accordingly, the statute of limitations commenced some time after the signing of the POA in January 2003 when Plaintiff (or his sons) received no check with the excess foreclosure funds (i.e., suspicion of wrongdoing). (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.) And at that time of suspicion of wrongdoing, Plaintiff should have acted with reasonable dispatch (ibid) to investigate any claim, the very purpose of which is to avoid the present situation: lost evidence (here, internal records such as copies of checks from the interpleader action involving one of the properties that occurred over 18 years ago). (Id. at p. 1124.)

Thus, as all the COAs alleged do not carry a 20 plus year statute of limitations, then the entire action is time-barred.[8]

Based on the foregoing—which is that the facts allege that Plaintiff was put on notice of the foreclosure proceeds in 2003—then the demurrer is sustained as it is time-barred.[9] As for leave to amend, while the court recognizes Plaintiff is pro-per, a pro per litigant is treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (See, e.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-47.) With that, as the court previously allowed for leave to amend but Plaintiff has failed to cure the defects (and arguably has pled inconsistent/unclear facts), the court declines to grant leave to amend.

[1] Lee was not named in the original complaint.

[2] The original complaint only discussed one property.

[3] The opposition is nothing more than a recitation of the allegations. Therefore, it will not be addressed in the court’s analysis as the opposition does not address the points raised in demurrer.

[4] The court grants Defendant’s request for judicial notice of (1) Stipulation for Judgment filed On January 31, 2003 in the Los Angeles County Superior Court East District Courthouse (Case No: KC039247), (2) Complaint filed on January 26, 2023 in the County of Los Angeles East District Courthouse as Jose Guzman Salcedo v. Dennis R. Baranowski, et al. Case No. 23PSCV0026., and (3) Durable Power of Attorney recorded on January 21, 2003 as Document No. 03-0185018 in the Los Angeles County Recorder’s Office as all are records of this court. (California Evidence Code §452(c) and (d).)

[5] Though the court’s analysis will focus on Baronowski’s demurrer as it provides a more robust discussion.

[6] As noted by Baronowski, if Plaintiff did not sign the Stipulated Judgment (which was pertaining to an interpleader action), then Plaintiff is effectively arguing that the sale proceeds never belonged to him, which is contradictory to the entire basis of the lawsuit. (Demurrer p. 9.)

[7] In determining the sufficiency of a complaint against demurrer, a court will consider matters that may be judicially noticed. (Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 796.) Accordingly, while a complaint is not the appropriate procedure for determining the truth of disputed facts, here, the POA is not factually disputed such that the FAC should be read as containing the judicially noticeable fact. (See Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 [“[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.”]; see also Iram Enterprises v. Veditz (1981) 126 Cal.App.3d 603, 608 [“Accordingly, a complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.”]

[8] As noted by Baronowski in demurrer, the COA or legal theory pled is not determinative of the right sued upon. Rather, the nature or gravamen of the claim determines the applicable SOL. (Demurrer p. 5, quoting California Practice Guide: Civil Procedure Before Trial - Statute of Limitations, Ch. 2-A; Sahadi v. Schaeffer, (2007) 155 Cal.App.4th 704, 715.) Here, the gravamen of the claims is for professional negligence. According to CCP § 340.6 creates a one-year statute of limitations to bring a claim for professional negligence after a plaintiff discovers or should have (through reasonable diligence) discovered the wrongful act or omission, or four years from date of the wrongful act or omission, whichever occurs first. CCP § 340.6(a)(4) creates an exception to the statute of limitations for professional negligence where the plaintiff is under a legal or physical disability that restricts the plaintiff’s ability to commence legal action. CCP § 352 defines legal disability as including the time during which a plaintiff is imprisoned on a criminal charge, which limits the tolling to two years.

[9] See Cavey v. Tualla (2021) 69 Cal.App.5th 310, 326 [“The untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed before an appellate court will affirm an order sustaining the demurrer.”].)