Judge: Elaine Lu, Case: 20STCV37853, Date: 2022-09-07 Tentative Ruling

Case Number: 20STCV37853    Hearing Date: September 7, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On October 1, 2020, Plaintiff Johnny C. Gedney, as Trustee of the Gedney Family 1978 Trust (“Plaintiff”) filed the instant action for negligence and breach of contract against Defendant Inter Valley Escrow, Inc. (“IVE”).  On February 16, 2021, Plaintiff filed the First Amended Complaint against IVE.  On September 23, 2021, Plaintiff named Old Republic Title Company (“ORTC”) as Doe 1.  On October 12, 2021, the Court sustained Defendant IVE’s demurrer to the First Amended Complaint with leave to amend.

On October 27, 2021, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants IVE and ORTC (jointly “Defendants”).  The SAC asserts five causes of action for (1) Negligence, (2) Breach of Contract, (3) Breach of Fiduciary Duty, (4) Fraud, and (5) Negligent Misrepresentation.  The first cause of action is alleged against both defendants, and the second through fifth causes of action are alleged against Defendant IVE.

On November 29, 2021, Defendant IVE filed the instant demurrer to the SAC.  On March 25, 2022, Plaintiff filed an opposition.  On August 29, 2022, Defendant IVE filed a reply.

Allegations of the Operative Complaint

The SAC alleges as follows:

            Plaintiff is trustee for The Gedney Family 1978 Trust, which was the owner of three commercial properties in Orange County (“Properties”).  (SAC ¶¶ 1, 9.)  “On or about March 13, 2017, IVE contracted with Plaintiff as the Escrow Holder for the sale of the Properties.”  (SAC ¶ 11, Exh. A.)  “IVE selected ORTC to handle the title insurance and act as the Sub-Escrow Holder during escrow.”  (SAC ¶ 12.) 

            On March 13, 2017, ORTC prepared a grant deed to unify the Properties’ ownership interest between The Gedney Family 1978 Trust and related ByPass and Surviving Spouse's Trusts in favor of Johnny C. Gedney, as Successor Trustee of the Trust and Bypass Trust.  (SAC ¶ 13.)  “The unification of the Properties' interests facilitated the conveyance of the Properties to the third-party purchaser as contemplated by the escrow.”  (SAC ¶ 13.) 

            On July 21, 2017, Plaintiff executed the grant deed and deposited the grant deed with IVE.  (SAC ¶ 14, Exh. B.)  The grant deed did not indicate where to mail the grant deed when recorded.  (SAC ¶ 14, Exh. B.)  “The Escrow Instructions provide that IVE ‘may insert dates and terms on the instruments, if incomplete when executed by a party.’”  (SAC ¶ 15.) 

            Defendants inserted “Johnny C. Gedney, c/o Intervalley Escrow, 140 S. Lake Ave #265, Pasadena, CA 91101” as the address to which the recorded grant deed was to be mailed.  (SAC ¶ 17, Exh. C.)  However, this address placed on the grant deed is IVE’s address -- not Plaintiff’s address.  (SAC ¶ 17.)  “Plaintiff is informed and believes that the standard of practice in the community is to insert the address of the grantee in the section of a grant deed calling for where the grant deed should be mailed after recording[,]” which would be Plaintiff.  (SAC ¶ 18.)  In addition, Defendants did not insert Plaintiff’s information in the section asking for where tax statements should be mailed.  (SAC ¶ 19.)  Accordingly, as no party was shown in the section where tax statement should be mailed, the grant deed indicated that the tax statements were to be mailed to the address where the recorded deed was to be sent.  (SAC ¶ 19.)

            On July 25, 2017, the grant deed was recorded, and the Properties were conveyed to a third party, and escrow closed.  (SAC ¶ 20.)

            Between the notices mailed to IVE on April 9, 2018, April 23, 2018, and May 3, 2018, IVE received twenty-seven notices from the Orange County Tax Collector involving taxes for the tax periods between 2014-2018.  (SAC ¶¶ 21-23, Exh. D.)  On November 13, 2018, the Orange County Tax Collector mailed a “Notice of Filing of Tax Lien”.  (SAC ¶ 24.)  “IVE promptly forwarded this November 13, 2018 notice on or about November 21, 2018.”  (SAC ¶ 24, Exh. E.)  “Plaintiff is informed and believes that IVE’s correspondence dated November 21, 2018 constitutes the first time IVE contacted Plaintiff regarding its receipt of a notice from the County of Orange concerning the Properties since the close of escrow on July 25, 2017.”  (SAC ¶ 24.) 

            “On November 26, 2018, [Plaintiff] inquired of IVE if it had received the Notices in April and May of 2018. IVE unequivocally denied it had received the Notices and represented that it had only received the single piece of mail regarding the Notification of Filing of Tax Lien dated November 13, 2018, and no others.”  (SAC ¶ 26.)  “To mitigate his damage and in detrimental reliance on IVE's representation that it had not received the Notices, [Plaintiff] immediately paid approximately $70,000 in tax liens under protest. On December 20, 2018, [Plaintiff] appealed the County's tax assessments because [Plaintiff] believed the County failed to give proper notice of the Notices in May and April 2018.”  (SAC ¶ 28.)  During the appeal hearing on August 6, 2019, the County provided Plaintiff with evidence showing that the notices had been sent to IVE.  (SAC ¶ 29.)

Request for Judicial Notice

Defendant IVE requests that the Court take judicial notice of:

A.    The Complaint filed in the instant action on October 1, 2020

Plaintiff requests that the Court take judicial notice of:

A.    Rule 9(a) of Emergency Rules Related to COVID-19

As the Court may take judicial notice of its own records and records of the State, (See Evid. Code, § 452(c)(d)), the parties’ unopposed request for judicial notice is granted.  However, the Court does not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

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. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  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 pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).) 

Here, Defendant IVE has fulfilled the meet and confer requirement. (Wilson Decl. ¶¶ 2-5.)

Discussion

Entire Complaint: Statute of Limitations

            Defendant IVE contends that the entire action is barred based on the contractually limited statute of limitations.

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.  In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”  (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, [internal citations omitted].) 

“Under California law parties may agree to a provision shortening the statute of limitations, ‘qualified, however, by the requirement that the period fixed is not in itself unreasonable or is not so unreasonable as to show imposition or undue advantage.’”  (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 183 [internal citations omitted].) “When, as in this case, defendants have demurred to the complaint based on a contractual limitations period, ‘the real question to be determined here is whether the allegations of the complaint show that the limitation is unreasonable.... The question is one of law, namely, is the period of limitation, in itself, unreasonable.’”  (Ibid., [internal citations omitted].)

“The statute of limitations usually commences when a cause of action ‘accrues,’ and it is generally said that ‘an action accrues on the date of injury.’”  (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 743, [internal citations omitted].) 

“An important exception to the general rule of accrual is the “discovery rule,” which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)  “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ‘information of circumstances to put [them] on inquiry’ or if they have ‘the opportunity to obtain knowledge from sources open to [their] investigation.’ [Citation.] In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.”  (Id. at pp.807–808 [internal citations omitted].)  However, “[i]n order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’  In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 [internal citations omitted].)

Here, the attached escrow agreement to the SAC states in the choice of law provision at paragraph 26 that:

NO ACTION SHALL LIE AGAINST ESCROW HOLDER FOR ANY CLAIM, LOSS, LIABILITY OR ALLEGED CAUSE OF ACTION OF ANY KIND OR NATURE WHATSOEVER, HOWEVER CAUSED OR OCCURRED, UNDER THIS ESCROW OR IN CONNECTION WITH THE HANDLING OR PROCESSING OF THIS ESCROW, UNLESS BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CLOSE OF ESCROW OR ANY CANCELLATION OR TERMINATION OF ESCROW FOR ANY REASON WHATSOEVER.

(SAC, Exh. A at ¶ 26.)

            A one-year statute of limitations is not unreasonable or unfair on its face.  (See e.g., Fageol Truck & Coach Co. v. Pacific Indem. Co. (1941) 18 Cal.2d 748, 753 [“One year was not an unfair period of limitation.”].)

The SAC alleges as to the first cause of action for negligence that IVE owed a duty to promptly forward Plaintiff the notices from Orange County regarding the Properties that were subject to the escrow instructions.  (SAC ¶ 45.)  In April and May of 2018, IVE received 27 separate pieces of mail regarding the tax liabilities for the Properties meant for Plaintiff.  (SAC ¶ 46.)  Defendant IVE failed to promptly give the notices to Plaintiff causing Plaintiff to miss the Prop 58 exemption that would have abrogated the tax liability referenced in the notices.  (SAC ¶ 47.)  This caused Plaintiff to incur substantial tax liability and costs in attorney fees in attempting to avoid the tax liability.  (SAC ¶ 48.)

            The first cause of action for negligence clearly arises under the escrow or in connection with the handling or processing of the escrow.  As noted above, the duty to provide notice to Plaintiff is alleged to have arisen from IVE’s handling of the escrow.  (SAC ¶ 45.)  Accordingly, the contractual one-year statute of limitation applies.

            The second and third causes of action for breach of contract and breach of fiduciary each arise from the same alleged conduct.  Specifically, Plaintiff alleges that IVE breached the escrow agreement and its fiduciary duty “by failing to exercise reasonable skill and diligence in carrying out the escrow instructions to insert terms on the Instrument when they (1) inserted, caused the insertion of, and/or allowed IVE's address on the Instrument instead of [Plaintiff]'s address, (2) failed to notify [Plaintiff] that IVE's address has been added to the Instrument or obtain his consent to do so and/or (3) did not add [Plaintiff]'s address on the Instrument where it calls for tax statements to be mailed where IVE's address would be used for such purposes in the absence of [Plaintiff]’s information.”  (SAC ¶¶ 54, 58.)  This conduct again clearly arises from the handling of the Escrow and therefore is subject to the one-year contractual statute of limitations.

            The fourth and fifth causes of action for fraud and negligent misrepresentation arise from allegations that on November 26, 2018, IVE represented to Plaintiff that they had only received a single piece of mail regarding the tax liens on November 13, 2018 and no others.  (SAC ¶ 61.)  This representation was false because IVE knew its address was on the Instrument, and IVE knew that IVE had received 27 pieces of mail regarding the tax lien.  (SAC ¶ 62.)  IVE “intended to induce [Plaintiff]'s reliance on the representation because said defendants intended to avoid liability for their wrongful conduct.”  (SAC ¶ 63.)  “[Plaintiff] justifiably and reasonably relied on said defendants' representation because he reasonably assumed that said defendants (1) were telling the truth and (2) would have had promptly forwarded the Notices in the same, timely manner it had forwarded the November 13, 2018 Notification of Filing of Tax Lien if the Notices (twenty-seven separate pieces of mail) had been received in April and May of 2018.”  (SAC ¶ 64.)  This caused Plaintiff to unnecessarily incur litigation costs and attorneys’ fees.  (SAC ¶¶ 65, 67.) 

The SAC alleges that the knowledge of the falsity for the fraud claims arose from IVE’s handling of the escrow and by placing IVE’s address on the instrument.  Thus, pursuant to the escrow agreement, the fourth and fifth causes of action would also be subject to the one-year statute of limitations.

            The SAC concedes that Plaintiff first discovered that an Assessment or Tax Lien had been issued concerning the Properties on November 21, 2018 when Defendant IVE forwarded the Notice of Tax Lien.  (SAC ¶ 24, Exh. E.)  The forwarded notice includes the incorrect address alleged in the complaint on its face.  (SAC, Exh. E.)  As alleged, the forwarded notice placed Plaintiff on at least inquiry notice that Defendant had placed its own address on the grant deed instead of Plaintiff’s address.  Accordingly, Plaintiff was on notice and discovered the breach of contract and breach of fiduciary duty claims based on placing IVE’s address instead of Plaintiff’s on the instrument.  Plaintiff had until approximately November 21, 2019 to timely file the instant action.  However, the instant action was not filed until October 1, 2020.  Accordingly, on its face, the second and third causes of action are barred by the statute of limitations.

            As to the first cause of action for negligence and the fourth and fifth causes of action for fraud, Plaintiff alleges that he was unaware of the prior notices of tax lien sent to IVE until August 6, 2019 when “[Plaintiff] actually received documentary evidence that IVE received the Notices in April and May of 2018.”  (SAC ¶ 35.)  Prior to the onset of the COVID-pandemic, Plaintiff would have had until August 6, 2020 to timely file the claims for negligence and fraud.  However, due to the COVID-19 pandemic, the statute of limitations for civil actions were further extended.  “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” (Emergency rule 9(a); See Judicial Council of Cal., Advisory Com. com., Emergency rule 9 [“Emergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action”].)  Due to this six-month tolling, Plaintiff had until January 31, 2021 to timely file the claims for negligence and fraud.  Plaintiff filed the instant action filed on October 1, 2020 – prior to January 31, 2021 – and thus, Plaintiff’s claims for negligence and fraud are not time-barred.

Equitable Estoppel

To the extent that Plaintiff contends that equitable estoppel would save the time barred second and third causes of action, the Court disagrees.

“ ‘ “Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.” ’ ” (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268, 84 Cal.Rptr.2d 552.)  “The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit.”  (Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.)

Notably, however, even a defendant who is ignorant or mistaken as to the real facts may be equitably estopped if the defendant was “ ‘ “in such a position that he [or she] ought to have known” ’ ” the true facts. (Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 566, (Krolikowski).) This means that an estoppel may be created where the defendant harbored no intent to mislead and did not engage in actual fraud or bad faith. (Lantzy, supra, 31 Cal.4th at p. 384; Holdgrafer v.Unocal Corp. (2008) 160 Cal.App.4th 907, 925, (Holdgrafer).) Rather, it is enough that the defendant's conduct “induced” the plaintiff to delay commencement of an action. (Benner v. Industrial Acc. Commission (1945) 26 Cal.2d 346, 349–350; Vu, supra, 26 Cal.4th at pp. 1152–1153; Holdgrafer, at p. 925.) A plaintiff has “a reasonable time in which to bring [the] action after the estoppel has expired.” (Regus v. Schartkoff (1957) 156 Cal.App.2d 382.)

(Doe, supra, 49 Cal.App.5th at pp.1028–1029.)

For pleading purposes “[w]hen a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory.”  (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.)

Here, as noted above, Plaintiff first discovered that that an Assessment or Tax Lien had been issued concerning the Properties on November 21, 2018 when Defendant IVE forwarded the Notice of Tax Lien.  (SAC ¶ 24, Exh. E.)  The forwarded notice includes the incorrect address alleged in the complaint on its face.  (SAC, Exh. E.)  Thus, as alleged, Plaintiff was on inquiry notice at least that Defendant had placed its own address on the grant deed instead of Plaintiff’s address.  There is no allegation that IVE misled Plaintiff on this fact.  Rather, the only misrepresentation alleged is that IVE represented to Plaintiff that the November 13, 2018 notice of tax lien was the only notice received.  (SAC ¶ 13.)  However, by this time, Plaintiff was already aware that the instrument bore the wrong address due to the notice of tax lien specifying Plaintiff’s address as being IVE’s address.  Thus, Plaintiff was not ignorant of the fact that the address on the instrument was incorrect.  Accordingly, equitable estoppel is inapplicable to the second and third causes of action.

Therefore, Defendant IVE’s demurrer to the second and third causes of action based on the statute of limitations is SUSTAINED.  Defendant IVE’s demurrer based on the statute of limitations is otherwise OVERRULED.

Fourth and Fifth Causes of Action for Fraud and Negligent Misrepresentation

            In addition, Defendant IVE contends that the fourth and fifth causes of action for negligent misrepresentation lack sufficient specificity.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  

            “The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Bains v. Moores (2009) 172 Cal.App.4th 445, 454 [internal citations omitted].)  “Under California law, negligent misrepresentation is a species of actual fraud and a form of deceit.”  (Wong v. Stoler (2015) 237 Cal.App.4th 1375, 1388.)  Both a claim for intentional misrepresentation and a claim for negligent misrepresentation must be pleaded with specificity rather than with general and conclusory allegations.  (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) 

“Fraud allegations ‘involve a serious attack on character’ and therefore are pleaded with specificity.  [Citation.]  General and conclusory allegations are insufficient.  [Citation.]  The particularity requirement demands that a plaintiff plead facts which ‘‘‘show how, when, where, to whom, and by what means the representations were tendered.’’’  [Citation.]”  (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  “[E]ach element must be pleaded with specificity.  [Citations.]”  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)  This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) 

Here, the fourth and fifth causes of action allege that on November 26, 2018, IVE represented to Plaintiff that they had received only a single piece of mail regarding the tax liens on November 13, 2018 and no other mail.  (SAC ¶ 61.)  This representation was false because IVE knew its address was on the Instrument and knew that IVE had received 27 pieces of mail regarding the tax lien.  (SAC ¶ 62.)  IVE “intended to induce [Plaintiff]'s reliance on the representation because said defendants intended to avoid liability for their wrongful conduct.”  (SAC ¶ 63.)  “[Plaintiff] justifiably and reasonably relied on said defendants' representation because he reasonably assumed that said defendants (1) were telling the truth and (2) would have had promptly forwarded the Notices in the same, timely manner it had forwarded the November 13, 2018 Notification of Filing of Tax Lien if the Notices (twenty-seven separate pieces of mail) had been received in April and May of 2018.”  (SAC ¶ 64.)  This caused Plaintiff to unnecessarily incur litigation costs and attorneys’ fees.  (SAC ¶¶ 65, 67.)

While some specificity is included, there is no allegation as to who on behalf of IVE made the misrepresentation to Plaintiff, how the misrepresentation was made, or where the misrepresentation was made.  Accordingly, the SAC lacks sufficient specificity to state a claim for fraud.  Defendant IVE’s demurrer to the fourth and fifth causes of action is SUSTAINED.

Leave to Amend

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. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

            Here, the second and third causes of action are barred by the statute of limitations, and it does not appear that Plaintiff can successfully amend the second and third causes of action.  Further, Plaintiff has already been given an opportunity to amend the complaint as to these claims.  Accordingly, the Court finds that there is no reasonable possibility of successful amendment of the second and third causes of action. 

            As to the fourth and fifth causes of action, Plaintiff can reasonably be expected to amend the complaint by adding specific factual allegations.

            Accordingly, leave to amend is DENIED as to the second and third causes of action and GRANTED as to the fourth and fifth causes of action.

CONCLUSION AND ORDER

Based on the foregoing, Defendant Inter Valley Escrow, Inc.’s demurrer to the second and third causes of action of the Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.  Defendant Inter Valley Escrow, Inc.’s demurrer to the fourth and fifth causes of action to the Second Amended Complaint is SUSTAINED WITH LEAVE TO AMEND. Defendant Inter Valley Escrow, Inc.’s demurrer is otherwise OVERRULED.

Plaintiff is to file an amended complaint before October 14, 2022.

The case management conference is continued to November 18, 2022 at 8:30 am.

Moving Party is to give notice and file proof of service of such.

DATED: September 7, 2022                                                  ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court