Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

BACKGROUND 

This case arises from a real estate deal between Defendant Bye Bye House, Inc. and Plaintiff Myrna Ramos, Plaintiff’s mother-in-law is Birgitta Sjostrand.  Plaintiff is the administrator of the estate of Mrs. Sjostrand.  Plaintiff claims the sale of the home was fraudulent.  (Compl. 2:3-4.)  Defendant Prominent Escrow Services, Inc.’s (“Prominent’s”) only role in the transaction was to provide escrow services.  (Compl., 2:18-19.)   

Previously, Plaintiff’s husband and Mrs. Sjostrand’s son filed a complaint against Prominent and several other defendants, including Bye Bye House, Inc., Center Street Lending, and notary Julie Proctor, alleging fraud and seeking quiet title to his mother’s home.  (Request for Judicial Notice (“RJN”), Ex. A.)  After Prominent demurred to the original complaint, Mr. Sjostrand was given leave to amend and filed a First Amended Complaint on or about November 3, 2022. (RJN. Ex. B.)  Prominent again demurred, and the demurrer was sustained without leave to amend. Judgment was entered in favor of Prominent on April 3, 2023. (RJN, Ex. C).   

Plaintiff filed the present Complaint on May 13, 2024.  Plaintiff, who is Peter Sjostrand’s wife, alleges six causes of action against Prominent, for: (1) fraud; (2) elder abuse; (3) common law negligence; (4) breach of covenant of good faith and fair dealing; (5) intentional infliction of emotional distress (“IIED”); and (6) negligent infliction of emotional distress (“NIED”).    

This hearing is on Prominent’s demurrer to and motion to strike the Complaint.  Prominent argues that (1) Plaintiff’s fraud claim fails because Plaintiff has not plead fraud with particularity, including failing to name specific names of the persons who made the misrepresentations, their authority to speak for Proment, to whom they spoke, what they said or wrote and when it was said or written; (2) Plaintiff’s claim for elder abuse fails because Plaintiff has not alleged all essential elements of the claim against Prominent; (3) Plaintiff’s claim for negligence fails because Plaintiff does not plead what duty Prominent owed to Plaintiff or how it allegedly breached that duty; (4) Plaintiff’s claim for breach of the covenant of good faith and fair dealing fails because Plaintiff does not allege any breach of contract against Prominent; (5) Plaintiff’s IIED claim fails because Plaintiff groups all defendants together and there is no way for Prominent to know what Plaintiff is accusing it of; and (6) Plaintiff’s NIED claim fails because it is duplicative of Plaintiff’s negligence claim.  Prominent also moves to strike Plaintiff’s claim for punitive damages and purportedly false allegations that Catherine Wingenroth, a senior escrow agent at Prominent, “has absconded along with the funds.”  There was no opposition filed as of the posting of this tentative ruling.   

REQUEST FOR JUDICIAL NOTICE 

Prominent seeks judicial notice of (1) the Complaint filed by Peter Sjostrand in the related case, Peter Sjostrand v. Bye Bye House, Inc., et al., Los Angeles Superior Court Case No. 22SMCV00534; (2) the First Amended Complaint filed by Peter Sjostrand in the related case, Peter Sjostrand v. Bye Bye House, Inc., et al., Los Angeles Superior Court Case No. 22SMCV00534; (3) Judgment of Dismissal With Prejudice as to Defendant Prominent Escrow Services, Inc., entered on April 3, 2023 in the related case, Peter Sjostrand v. Bye Bye House, Inc., et al., Los Angeles Superior Court Case No. 22SMCV00534; (4) Defendant Bye Bye House Inc.’s Notice of Motion and Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues, filed in the related case, Peter Sjostrand v. Bye Bye House, Inc., et al., Los Angeles Superior Court Case No. 22SMCV00534; (5) Order on Defendant Bye Bye House Inc.’s Motion for Summary Judgment, entered May 7, 2024 in the related case, Peter Sjostrand v. Bye Bye House, Inc., et al., Los Angeles Superior Court Case No. 22SMCV00534.  

Cal. Evid. Code § 452 permits a court to take judicial notice of records of any court of the state of California.  Further, judicial notice of such documents is mandatory under Cal. Evid. Code § 453 “if a party requests it and (a) [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such party to prepare to meet the request; and (b) [f]urnishes the court with sufficient information to enable it to take judicial notice of the matter.”   

However, while the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to judicial notice.  A court may take judicial notice that a prior order was entered, but it may not take judicial notice of the truth of factual findings made therein.  (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121.)  Accordingly, while the Court takes judicial notice of the court records in Peter Sjostrand v. Bye Bye House, Inc., et al., Los Angeles Superior Court Case No. 22SMCV00534, it does not take judicial notice of the truth of the matters asserted therein.   

LEGAL STANDARD 

“[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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Prominent submits the Declaration of Tyler Lindberg which shows the parties met and conferred but does not specify whether they did so by telephone or in person.  While this fails to satisfy the meet and confer requirements of Code Civ. Proc. §§430.41 and 435.5, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer.  (Code Civ. Proc. §§430.41(a)(4) and 435.5(a)(4).) 

DISCUSSION 

Fraud 

Prominent demurs to Plaintiff’s fraud claim as insufficiently plead.  The Court agrees.   

A cause of action for fraud must allege the following elements: (1) misrepresentation of a material fact; (2) the defendant's knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage.  (Cicone v. URS Corp. (1986) 183 Cal. App. 3d 194.) “Because fraud allegations involve a serious attack on the defendant, such allegations must be pled with particularity so that the court can weed out non-meritorious actions before a defendant is required to answer.” (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 5 Cal. 3d 197, 216 (1983).  The particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.”  (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73.) 

Plaintiff alleges “[o]n or about October 2021 Defendants represented to [Mrs. Sjostrand] that the $2,100,000 sale of her home was for her benefit. That representation was false. Defendants knew it was false and that [Mrs. Sjostrand] would rely on it. [Mrs. Sjostrand] relied on that representation to sell the house. [Mrs. Sjostrand] was harmed by not receiving the benefit. [Mrs. Sjostrand’s] reliance on defendants’ representations was a substantial factor in the harm caused.”  (Compl. at 3:15-20.)  These allegations improperly group all Defendants without specifying what each Defendant said or wrote.   

In addition, a fraud cause of action against a corporation must allege the specific names of the persons who made the misrepresentations or concealed material facts, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal. App. 4th 153.)  Plaintiff fails to allege the specific names of any person alleged to have made the misrepresentation on behalf of Prominent.   

Accordingly, the Court sustains the demurrer on the fraud claim against Prominent with leave to amend.   

Elder Abuse 

Prominent argues that Plaintiff has failed to plead the essential elements of elder abuse against it.  The Court agrees.   

On a claim for elder abuse, a plaintiff must show that a defendant took, hid, appropriated, obtained, or retained the plaintiff’s property (or assisted in doing so), that the plaintiff was 65 years of age or older at the time of the incident; that the defendant took, hid, appropriated, obtained, or retained the plaintiff’s property (or assisted in doing so) for a wrongful use or with the intent to defraud or by undue influence; that the plaintiff was harmed; and that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.  (See Cal. Welf. & Inst. Code § 15610.30.)   

The Complaint fails to plead specific facts supporting these essential elements.  The Complaint alleges: “This cause of action is brought pursuant to CA Welfare & Institutions Code 15600. Defendants abusive actions, occurring in 2021, when defendants knew that plaintiff was over the age of 65 years and ill, as defined by Welfare and Institutions Code 15610.27. Thus, plaintiff is entitled to the statutory protections and remedies provided by Welfare and Institutions Code 15610.07.”  (Compl. at 4:22-26.)  These allegations are conclusory at best, as well as impossibly vague.  Plaintiff groups several defendants together (including Prominent) and does not say what Prominent actually did to allegedly cause Plaintiff harm.  

Accordingly, the Court sustains the demurrer to Plaintiff’s cause of action for elder abuse against Prominent with leave to amend.   

Negligence 

Prominent argues that Plaintiff’s negligence claim fails because Plaintiff improperly groups all four defendants and does not plead what duties Prominent owed to Plaintiff or that it breached that duty.  The Court agrees.   

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due case; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”  (Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.)  

Plaintiff’s negligence cause of action improperly groups four separate defendants together (including Prominent) and does not plead what duty any of the defendants had to plaintiff or how they allegedly breached this duty.  The Complaint alleges “Defendants in their individual actions and collectively were negligent. Their negligence cause harm to Plaintiff and was a substantial factor in the harm caused.”  (Compl. at 5:16-17.)  These allegations are entirely conclusory and vague and cannot state a cause of action against Prominent.  The Court sustains the demurrer to this claim against Prominent with leave to amend.    

Breach of the Covenant of Good Faith and Fair Dealing 

Prominent argues that Plaintiff’s breach of the covenant of good faith and fair dealing claim fails because Plaintiff does not allege a breach of contract.  The Court agrees for a different reason.   

“A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and is has been held that bad faith implies unfair dealing rather than mistaken judgment.”  (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App. 3d 1371, 1394.)  To recover in tort for breach of the implied covenant, the defendant must “have acted unreasonably or without proper cause.”  (Id. at 1395.)   

Here, Plaintiff alleges “Defendants interfered with Plaintiff's rights to receive the benefit of the contracts resulting in harm to Plaintiff.”  (Compl. at 5:26-27.)  These allegations are entirely conclusory and fail to show how Prominent acted unreasonably or without proper cause.  Accordingly, the Court sustains the demurrer to this claim against Prominent with leave to amend.   

IIED 

Prominent argues that Plaintiff has not sufficiently pled the elements of a cause of action for IIED.  The Court agrees.   

An IIED claim requires Plaintiff to plead the following: (1) that defendant’s conduct was extreme and outrageous; (2) that Defendant intended to cause Plaintiff emotional distress or acted in reckless disregard of the probability of causing emotional distress; (3) that Plaintiff suffered severe and extreme emotional distress; and (4) that Defendant’s conduct was a substantial factor in causing Plaintiffs’ emotional distress. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)  These elements are simply not pled in the Complaint.  

Plaintiff alleges: “Defendants acted, as described above, with the actual knowledge that Birgitta was elderly and ill. Defendants acted, as described above, with the actual knowledge that they knew they had not directly communicated with Birgitta or in any way obtained her consent for the actions they took.”  (Compl. at 6:17-20.)  These allegations are entirely conclusory.  It is unclear what actions Plaintiff alleges Prominent took, much less that the actions were extreme and outrageous or that Prominent undertook them with the intent of causing Plaintiff emotional distress.  Accordingly, the Court sustains the demurrer to the IIED claim against Prominent with leave to amend.   

NIED 

Prominent argues that Plaintiff’s NIED claim is duplicative of her negligence claim and should be dismissed.  The Court agrees.   

In Christensen v. Superior Court (1991) 54 Cal.3d 868, our Supreme Court explained, “when damages are sought for negligently inflicted emotional distress, the tort is negligence regardless of the specific name that may be used to describe the tort, and that the elements of duty, breach of duty, causation and damages must be pleaded and proven.” (Id. at 882.)  Since Plaintiff has already alleged a cause of action for common law negligence, she may not state a separate claim for NIED.  Plaintiff may recover emotional distress damages as part of her negligence claim.  Therefore, the demurrer is sustained as to the NIED claim against Prominent without leave to amend.   

Punitive Damages 

Because the Court sustains the demurrer to the fraud, elder abuse and IIED claims, there is no basis for Plaintiff to seek punitive damages.  In addition, Plaintiff’s allegations of punitive damages are conclusory.  A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  Specific factual allegations are required to support a claim for punitive damages. (Id.) 

The Complaint contains a single paragraph that alleges generally that “Defendants acted with recklessness, oppression, fraud and malice, and plaintiff is entitled to damages pursuant to Welfare and Institutions Code 15657.5 and Civil Codes Sections 3294.”  (Compl. at 5:8-10.)  This allegation does not specify what Prominent did that was allegedly done with malice, oppression or fraud, as required under Section 3294. 

Further, punitive damages cannot be obtained against a corporation unless (1) an officer, director, or managing agent of the corporate employer is guilty of malice, oppression, or fraud; (2) an officer, director, or managing agent of the corporate employer authorized or ratified the wrongful conduct for which punitive damages are awarded, or (3) an officer, director, or managing agent of the corporate employer had advance knowledge of the unfitness of an employee but nevertheless chose to hire him or her. (Civ. Code § 3294(b).)  “Managing agent” under Civil Code § 3294(b) means “only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy.”  (White v. Ultratmar. Inc. (1999) 21 Cal.4th 563, 566-67.)  Here, Plaintiff has not identified a managing agent of Prominent or how that agent authorized or ratified any wrongful conduct by Prominent.   

Accordingly, the Court grants the motion to strike the punitive damages claim with leave to amend.     

False Allegation 

Prominent also moves to strike allegations that its senior escrow agent, Ms. Wingenroth “has absconded along with the funds.”  Prominent claims this allegation is false based on the court’s factual finding in the related case, on Bye Bye House Inc.’s motion for summary judgment.  But the Court cannot take judicial notice of that factual finding.  Accordingly, as that is the only basis for Prominent’s argument that the allegation is false, the Court denies the motion to strike.     

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Prominent’s demurrer with 20 days’ leave to amend, except as to the NIED claim which is dismissed without leave to amend.  The Court also GRANTS IN PART and DENIES IN PART the motion to strike with 20 days’ leave to amend.       

IT IS SO ORDERED. 

DATED:  December 4, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court