Judge Daniel M. Crowley, Case Number: 20STCV08246, Date: 2025-04-22 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDEPT71@lacourt.org. Do not click on the email address, either copy and paste it or type it into your email. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.

            If you elect to argue your matter, you are urged to do so remotely, via Court-Connect. If the moving party fails to appear and/or submit to the Court’s tentative ruling, the Court will take the matter off calendar.

            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.

If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

Defendant Investor Partners, Inc. d/b/a Bruce Jay Associates’ demurrer to the 1st and 4th causes of action is sustained with 30 days leave to amend.

Defendant Investor Partners, Inc. d/b/a Bruce Jay Associates (“Investor Partners”) (“Defendant”) demurs to Plaintiff Harry Ginoza’s (“Ginoza”) (“Plaintiff”) Complaint (“Complaint”) on the basis the Complaint is uncertain in that it fails to specifically identify the written instruments sought to be cancelled; and the Complaint fails to plead facts sufficient to state a cause of action against for fraud Defendant. (Notice of Demurrer, pgs. 1-2; C.C.P. §430.10(e); CRC, Rule 3.1320.)

Plaintiff filed his operative Complaint on April 13, 2023, against Defendant alleging five causes of action: (1) cancellation of written instruments; (2) declaratory relief; (3) quiet title; (4) fraud; and (5) breach of fiduciary duty.[1]

On February 19, 2025, Defendant filed the instant demurrer. On April 7, 2025, Plaintiff filed his opposition. As of the date of this hearing no reply has been filed.

Defendant demurs to Plaintiff’s 1st cause of action for cancellation of written instruments on the basis it is uncertain because the written instruments sought to be cancelled are not identified with any particularity. (Demurrer, pg. 3.) Defendant also demurs on the basis that Plaintiff’s the 1st and 4th causes of action fail to state facts sufficient to state a cause of action. (Demurrer, pg. 3.)

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendant’s counsel declares that on February 13, 2024, he emailed Plaintiff’s counsel explaining the grounds for Defendant’s demurrer to Plaintiff’s Complaint and requesting that he advise when he is available to meet and confer. (Decl. of Patterson ¶2.) Defendant’s counsel declares Mr. Luan responded on February 18, 2025, stating that he believes that the allegations in the Complaint are adequately plead and do not need to be revised. (Decl. of Patterson ¶2.) Defendant’s counsel’s declaration is in violation of C.C.P. §430.41(a) because he did not attempt to meet and confer in person, by telephone, or by video conference. However, the failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Accordingly, the Court will consider the instant demurrer.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“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.” (Civ. Code §3412; see also Kroeker v. Hurlbert (1940) 38 Cal.App.2d 261, 266 [“In actions to cancel a certain instrument it is necessary for the complaint to state a case within the code sections for which reason it is essential to allege the facts affecting the validity and invalidity of the instrument which is attacked.”].)

Plaintiff alleges that any documents signed by him benefiting Defendants are void as a matter of law. (Complaint ¶13.) Plaintiff alleges it matters not whether the parties were aware of Plaintiff’s inability to understand the documents he was signing and/or his general mental incompetence at the time of obtaining signatures on these documents although Plaintiff is informed and believes that they were aware. (Complaint ¶13; see, e.g., Civil Code §1556.) Plaintiff alleges that, further, all parties that hold an interest in the Property, including Plaintiff have a right to seek cancellation of instruments inasmuch as they constitute, or may constitute, an illegitimate cloud on title or claim to title. (Complaint ¶13.)

Plaintiff alleges that in addition, any deed(s) or agency contracts were procured by fraud and the terms of the underlying transactions unconscionable in any event. (Complaint ¶14.)

Plaintiff alleges that a cloud, if left on title, may cause serious injury because the false claim of ownership precludes Plaintiff from refinancing the house should it be necessary for his financial needs and it also precludes Plaintiff from selling the Property should he so desire. (Complaint ¶15.) Plaintiff alleges that, further, a deed, if not canceled, may be fraudulently transferred subjecting Plaintiff to needless further legal disputes. (Complaint ¶15.)

Plaintiff fails to allege which written instruments he seeks to have cancelled. Plaintiff merely alleges that he “signed certain agreements” (Complaint ¶6), and that he now seeks to cancel “those instruments, in particular any affecting his free and clear title to his Property,” (Complaint ¶11) on the grounds that “[a]ny documents signed by [Plaintiff] benefitting Defendants are void as a matter of law” (Complaint ¶13).

Accordingly, Defendant’s demurrer to Plaintiff’s 3rd cause of action for cancellation of written instrument is sustained with 30 days leave to amend.

“The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, internal quotation marks omitted.)

Plaintiff alleges Defendants represented to Plaintiff that the Property was of a certain value and that they were fiduciaries of Plaintiff’s. (Complaint ¶26.) Plaintiff alleges Defendants’ representations were false. (Complaint ¶27.) Plaintiff alleges Defendants knew their representations were false when they made them, or that they made the representations recklessly and without regard for their truth. (Complaint ¶28.) Plaintiff alleges that given his age and infirmity, reasonably and justifiably relied on Defendants’ representations and omissions. (Complaint ¶29.) Plaintiff alleges he was harmed as a result of relying on Defendants’ misrepresentations. (Complaint ¶30.) Plaintiff alleges his reliance on Defendants’ misrepresentations were a substantial factor in causing Plaintiff’s harm. (Complaint ¶31.)

Allegations of fraud must be pleaded with specificity, general and conclusory allegations do not suffice. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) The heightened pleading standard requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.) Here, the Complaint conclusively alleges that “Defendants represented to Plaintiff that the Property was of a certain value and that they were fiduciaries of Plaintiff’s” and that “Defendants’ representations were false.” (Complaint ¶¶ 26, 27.) The Complaint also vaguely alleges that Defendants misrepresented “the services they would provide to the Plaintiff and that said services would financially benefit the Plaintiff.” (Complaint ¶34.) Plaintiff’s cause of action fails to meet the heightened pleading standard for fraud.

Accordingly, Defendant’s demurrer to Plaintiff’s 4th cause of action is sustained with 30 days leave to amend.

Defendant’s demurrer to the 1st and 4th causes of action is sustained with 30 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendant only demurs to the 1st and 4th causes of action.