Judge: Douglas W. Stern, Case: 23STCV12176, Date: 2023-11-15 Tentative Ruling

Case Number: 23STCV12176    Hearing Date: November 15, 2023    Dept: 68

Linda Martinez vs. Oscar Parada, et al.; 23STCV12176

MOVING PARTY: Defendant Sherman Escrow, Inc.

RESPONDING PARTY: Plaintiff Linda Martinez

Demurrer to Complaint with Motion to Strike

I. BACKGROUND

            In 2014, Plaintiff Linda Martinez (Plaintiff) befriended Defendant Oscar Parada, who was working as a parking attendant at the time. At some point thereafter Parada offered to help Plaintiff refinance a property she owned. The refinancing never happened, at least not the way Plaintiff expected it to happen. Plaintiff alleges that Parada took advantage of her and her family and stole money from them under the guise of refinancing their house and making real estate transactions for them. Over the years, Plaintiff alleges that several loans were taken out on the house by Parada because Plaintiff had given him access to her personal information.

            Plaintiff has alleged seven causes of action in her complaint: (1) conversion; (2) fraudulent deceit; (3) breach of contract; (4) fraud/intentional misrepresentation; (5) breach of fiduciary duty; (6) negligence; and (7) elder abuse.

            Nowhere in Plaintiff’s complaint does it allege what the specific involvement of Defendant Sherman Escrow, Inc., (Defendant) was in all of this. Defendant demurs to all of Plaintiff’s causes of action on the basis that they are uncertain and fail to allege any specific causes of action against Defendant. Plaintiff opposes.

            Defendant has also moved to strike portions of Plaintiff’s complaint.

II. ANALYSIS

A. The Demurrer

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

1.    All Causes of Action

Defendant demurs to all of Plaintiff’s causes of action the basis that they are uncertain and do not contain any specific allegations against Defendant.

A complaint is subject to a special demurrer if the pleading is uncertain. (CCP § 430.10(f).) As used in this subdivision, “'uncertain' includes ambiguous and unintelligible.” (CCP § 430.10(f).) If a complaint is so uncertain that a defendant “cannot reasonably respond,” the complaint is properly subject to a special demurrer. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The inability to reasonably respond occurs when a defendant cannot determine what issues to admit or deny, or what claims are being made against him. (Id.; see also, Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.)

Defendant is only mentioned at the beginning of Plaintiff’s complaint as one of the parties that Plaintiff is suing. There are no allegations in the complaint that indicate why Plaintiff has sued Defendant. None of the causes of action are directed at Defendant. There is no indication of how Defendant is connected to Oscar Parada or his alleged fraud and conversion against Plaintiff. There is no indication that Defendant handled any of the transactions discussed in the complaint.

Defendant’s demurrer for all of Plaintiff’s causes of action is granted with leave to amend.

B. Motion to Strike

Defendant has moved for the Court to strike the following from Plaintiff’s Complaint:

1. Page 18, ¶ 101, line 16 (attorney’s fees)

2. Page 18, line 14 (prejudgment interest)

3. Page 18, ¶ 102, line 15 (punitive and treble damages)

All of the paragraphs that Defendant has requested be stricken just name “Defendants” in general. The requests for attorney’s fees, prejudgment interest, and punitive damages could still pertain to other Defendants, not just Defendant Sherman Escrow. As such, the Court will not strike these requests from the complaint. Plaintiff should, however, indicate more clearly which Defendants these requests apply to.

Defendant’s motion to strike these requests from Plaintiff’s complaint is denied.

III. ORDER

1.    Defendant Sherman Escrow’s demurrer to all of Plaintiff's causes of action is sustained with leave to amend.

2.    Defendant’s motion to strike is denied.

3.    Plaintiff is given 20 days to amend the complaint.