Judge Christopher K. Lui, Case 19STCV34066 2022-12-06 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendant (the live-in girlfriend of Plaintiff’s late father, Eugene) fraudulently transferred title to two real properties from Plaintiff’s name to Defendant’s name, pursuant to a Power of Attorney Plaintiff had given to her father to refinance a loan.

Defendant Ludmilla Haikin filed a Cross-Complaint alleging that Plaintiff/Cross-Defendant knowingly consented to the transfer of the subject property to Defendant/Cross-Complainant in her individual name, and Cross-Complainant added Cross-Defendant back on title. Cross-Complainant alleges that she took a loan out on the property for which she was the only responsible borrower. Later, Cross-Defendant allegedly agreed that the property only be in Cross-Complainant’s name. However, after Eugene passed away Cross-Defendant claimed for the first time that the property was hers.

The Court granted Defendant/Cross-Complainant Ludmila Haikin, an individual, individually and as Trustee of the Haikin Family Trust’s motion for summary judgment as to the Second Amended Complaint.

The Court subsequently granted Plaintiff’s motion for new trial in part. Plaintiff Anat Krichmar brings a renewed motion for leave to file a Third Amended Complaint.

The motion for leave to file a Third Amended Complaint is GRANTED. However, on its own motion, the Court orders the fifth and sixth causes of action STRICKEN, as the Court’s order granting a new trial did not extend to the fifth and sixth causes of action.

Plaintiff is to file a stand-alone copy of the Third Amended Complaint within 2 days, with the fifth and sixth causes of action omitted. Plaintiff is also to serve a copy of this revised version of the Third Amended Complaint, and Defendants will have 30 days thereafter to respond.

Upon the filing of the Third Amended Complaint, the motion for summary judgment directed to the Second Amended Complaint will go OFF-CALENDAR AS MOOT.

As a condition of this order granting the motion for leave to amend, Plaintiff is ordered to pay the costs of any new motion for summary judgment filed as against the Third Amended Complaint. However, the Court does not order Plaintiff to pay attorney’s fees incurred in preparing any such new motion for summary judgment.

Defendant’s request that the Court take judicial notice of documents filed in this action is GRANTED per Evid. Code § 452(d)(court records).

Defendant Bank of America’s notice of joinder in the opposition filed by Defendant Ludmila Haikin is GRANTED as timely.

The Court granted Defendant/Cross-Complainant Ludmila Haikin, an individual, individually and as Trustee of the Haikin Family Trust’s motion for summary judgment as to the Second Amended Complaint. Judgment was entered on May 13, 2022.

The Court then granted Plaintiff’s motion for new trial in part as to first through fourth causes of action, to the extent they address the deeds recorded in 2008, 2012, 2013 and 2015.Plaintiff Anat Krichmar brings a renewed motion for leave to file a Third Amended Complaint.

With the foregoing procedural history in mind, the Court has reviewed the proposed Third Amended Complaint and will allow Plaintiff to file it, with the following comments and revisions:

The Court finds that, by virtue of the first through fourth causes of action, Plaintiff only seeks a 50% interest in the property, consistent with the Court’s granting of the motion for summary judgment and subsequent granting of the new trial as to the first through fourth causes of action to the extent they address the deeds recorded in 2008, 2012, 2013 and 2015. Here, the proposed Third Amended Complaint challenges the validity of the Deeds attached as Exhibits H (Quitclaim Deed dated July 17, 2012) and I (Grant Deed dated February 20, 2013) thereto (see Proposed 3AC, ¶¶ 47 – 52, 60, 61, 72 – 74, 76 - 88) and Exhibits K (the 2008 BOA DOT) and J (2015 DOT) thereto. (See Proposed 3AC, ¶¶ 53, 60, 61, 69, 70, 72 – 74.)

The Court did not grant the motion for new trial as to the fifth and sixth causes of action. As pled in the proposed Third Amended Complaint, the proposed fifth cause of action for fraudulent concealment and the proposed sixth cause of action for intentional misrepresentation are really just means of pleading delayed discovery due to concealment and misrepresentations for purposes of tolling the statute of limitations[1], as they do not allege that Plaintiff entered into a transaction with Defendant Ludmilla which Plaintiff would not have entered into had she known the truth. The alleged fraudulent transfers did not occur because Plaintiff relied upon the concealments or intentional misrepresentations: they occurred because Defendant forged a grant deed and made subsequent conveyances of interests in the property.

The fact that Plaintiff uses the word “purported” is not improper in the context used, because, in ruling on the motion for summary judgment, the Court found that the forged Grant Deed recorded on April 13, 2007 which purported to convey a 50% interest in the property to Defendant Ludmila Haikin was void ab initio, but Plaintiff was barred by the statute of limitations from challenging its validity. Moreover, the Court found triable issues as to whether the Grand Deed recorded on November 21, 2007 which purportedly conveyed the subject property from Plaintiff to Defendant Ludmila Haikin was void ab initio. This in turn created triable issues as to whether subsequent conveyances by Defendant Ludmila were also void.

The Court finds no prejudice to Defendants by virtue of the proposed amendment, as there is currently no trial date set. The scope of the pleadings change only in that Plaintiff now seeks a 50% interest rather than a 100% interest, but still challenges the validity of transfers of interest in 2008 and later. If Defendant believes the statute of limitations is a bar to the proposed amendments, Defendant may bring an appropriate motion to raise such a defense.

Upon the filing of the Third Amended Complaint, the motion for summary judgment directed to the Second Amended Complaint will go OFF-CALENDAR AS MOOT.

[1] The allegations regarding delayed discovery of fraud are already pled in ¶¶ 34 – of the proposed 3AC, much of it attributed to decedent Eugene.