Judge Cynthia A Freeland, Case 37-2023-00034527-CU-OR-NC 2024-03-01 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00034527-CU-OR-NC, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 29, 2024

03/01/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Other Real Property Demurrer / Motion to Strike 37-2023-00034527-CU-OR-NC MISKULIN VS JENSEN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/20/2023

Defendant Stanley David Jensen ('Defendant')'s demurrer to Plaintiff Dawn Denise Miskulin aka Dawn Denise Payne-Jensen ('Plaintiff')'s Complaint is sustained.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. '[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.' Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal. App. 4th 1125, 1135. Such demurrers are strictly construed since ambiguities can be clarified during discovery. See Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.

The demurrer to the second cause of action for slander of title is sustained. 'Slander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof 'some special pecuniary loss or damage.'' Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal. App. 4th 999, 1030. Accordingly, to state a cause of action for slander of title, the plaintiff must establish: (1) a publication; (2) without privilege or justification; (3) falsity; and (4) direct pecuniary loss. See Truck Ins. Exchange v. Bennett (1997) 53 Cal. App. 4th 75, 84; Howard v. Schaniel (1980) 113 Cal. App. 3d 256, 263-264, fn. 2.

The court finds that the Complaint fails to state facts sufficient to constitute a cause of action for slander of title. The Complaint alleges that on September 6, 2002, a Grant Deed (the 'September 2002 Grant Deed') was recorded transferring title to the real property located at 1157 Glen Ellen Drive, San Marcos, CA (the 'Property') to Plaintiff, her mother Leigh Denise Jensen ('Leigh'), and her stepfather Defendant as joint tenants. See Complaint, ¶¶ 2, 4, Ex. 1. At the time, Leigh and Defendant were placed on title so that Plaintiff could qualify for the home loan. Ibid., ¶ 4. Leigh and Defendant did not contribute financially to the Property, essentially acting as 'straw owners' so that Plaintiff could obtain a more favorable interest rate on the mortgage. Ibid., ¶ 4. Leigh passed away on February 15, 2016. Ibid., p. 2, l. 18. On January 17, 2020, a second Grant Deed (the 'January 2020 Grant Deed') was recorded transferring title Calendar No.: Event ID: TENTATIVE RULINGS

3054179 CASE NUMBER: CASE TITLE: MISKULIN VS JENSEN [IMAGED] 37-2023-00034527-CU-OR-NC to the Property to Plaintiff and Defendant as joint tenants. Ibid., ¶ 4, Ex. 2. The January 2020 Grant Deed was recorded, and Defendant placed on title, so that Plaintiff could refinance the mortgage on the Property to withdraw equity. Ibid., ¶ 4. As with the September 2002 Grant Deed, the Complaint alleges that Defendant is identified as a joint tenant on the January 2020 Grant Deed as merely a 'straw owner' who has made no financial contribution to the Property. Ibid. On January 17, 2020, a Deed of Trust securing the January 2020 Grant Deed was recorded in mortgage lender EmpireAmerica's favor. Ibid., ¶ 7, Ex. 3. On July 31, 2023 (misdated 2013), Defendant sent Plaintiff a letter expressing his desire to no longer co-own the Property with Defendant. Ibid., ¶ 5, Ex. 4. The Complaint alleges that 'Defendant(s) willfully, wrongfully, without justification, and without privilege caused to be recorded a deed which named them as co-owners of the Subject Property.' Ibid., ¶ 12. However, the Deed(s) is/are false, caused doubt to be cast on Plaintiff's title to the Property (which she believes she own outright), and has/have impaired the Property's salability. Ibid., ¶¶ 13-14.

The foregoing is insufficient to constitute a cause of action for slander of title. First, the court finds that the Complaint, as presently pled, is at best uncertain as to whether Defendant published a false statement disparaging title to the Property. On the one hand, the Complaint alleges that Plaintiff recorded the September 2002 and January 2020 Grant Deed at the behest of her mortgage lender(s) because she did not qualify for a mortgage loan and/or refinancing. Ibid., ¶ 4. Exhibit 1 to the Complaint, which contains a copy of the September 2002 Grant Deed, indicates that: (1) Continental Residential, Inc. was transferring title to the Property to Plaintiff, Leigh, and Defendant as joint tenants; (2) the recording was requested by First American Title; and (3) when recording was completed, a copy was to be mailed to Plaintiff and Leigh at the Property. Exhibit 2 to the Complaint, which contains a copy of the January 2020 Grant Deed, indicates that: (1) Plaintiff was transferring title to the Property to herself and Defendant as joint tenants; (2) the recording was requested by First American Title; and (3) when recording was completed, a copy was to be mailed to Plaintiff at the Property. In juxtaposition, the Complaint alleges at ¶ 12 that Defendant(s) recorded the subject grant deeds naming them as co-owners of the Property. These allegations and exhibits, at best, are inconsistent and fail to state a viable claim.

In addition, the Complaint fails to allege sufficiently special and direct pecuniary loss flowing from Defendant's alleged false publication. The Complaint alleges in conclusory fashion that '[t]he recording of the deed directly impaired the immediate salability of the property to a particular purchaser or vendibility of the property on the open market in the sum of $1.5 million dollars.' Ibid., ¶ 14. However, the court, in ruling on a demurrer, does not assume the truth of contentions, deductions or conclusions of law. The Complaint is devoid of factual allegations explaining how Defendant being identified as a joint tenant or allegedly recording the subject grant deeds has caused Plaintiff to suffer special and direct pecuniary loss.

Accordingly, the court sustains the demurrer to the second cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

The demurrer to the third cause of action for removal of cloud on title is sustained. '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.' Cal. Civ. Code § 3412. 'In a suit to remove a cloud the complaint must state facts, not mere conclusions, showing the apparent validity of the instrument designated, and point out the reason for asserting that it is actually invalid. [Citations.]' Ephraim v. Metropolitan Trust Co. of Cal. (1946) 28 Cal. 2d 824, 833-834. 'To prevail on a claim to cancel an instrument, a plaintiff must allege and prove (1) the instrument is void or voidable; and (2) he or she has a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of their position.' Lauckhart v. El Macero Homeowners Assn. (2023) 92 Cal. App. 5th 889, 900.

The court finds that the Complaint fails to state facts sufficient to constitute a cause of action for removal of cloud on title. First, the Complaint is devoid of factual allegations demonstrating that the subject deeds Calendar No.: Event ID: TENTATIVE RULINGS

3054179 CASE NUMBER: CASE TITLE: MISKULIN VS JENSEN [IMAGED] 37-2023-00034527-CU-OR-NC of trust are void or voidable owing to fraud or any other reason. The Complaint merely alleges that the deeds of trust 'are invalid and void because Defendants were placed on title simply for Plaintiff to qualify for a mortgage and to receive favorable financing, and Defendants have made zero contributions to the Subject Property.' See Complaint, ¶ 18. The foregoing, without more, is insufficient to establish a legal basis to find the deeds of trust void or voidable.

Additionally, the Complaint fails to sufficiently allege a reasonable apprehension of serious injury to Plaintiff's position. As set forth above, the Complaint, as presently pled, does not adequately identify the particular pecuniary loss or injury Plaintiff has suffered and/or will suffer as a result of Defendant being on title as a joint tenant. The Complaint's conclusory allegation that Defendant's claim to title to the Property 'clouds plaintiff's title to that property, depreciates the property's market value, and prevent plaintiff from enjoying the use of the property and premises in the manner most to Plaintiff's interest as its owner', without more, is insufficient to state a claim for removal of cloud on title. Ibid., ¶ 19.

Accordingly, the court sustains the demurrer to the third cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

In light of the foregoing, the court sustains the demurrer with leave to amend. Plaintiff shall file and serve a first amended complaint, if she chooses to file such a pleading, within ten (10) days of this hearing.

See Cal. R. Ct. 3.1320(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 1, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 1, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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