Judge: Gary Y. Tanaka, Case: 22TRCV00713, Date: 2023-02-02 Tentative Ruling

Case Number: 22TRCV00713    Hearing Date: February 2, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                    Thursday, February 2, 2023

Department B                                                                                                                             Calendar No. 8

PROCEEDINGS

Salome Davis v. Mary Wendel, et al.   

22TRCV00713

1.      Mary Wendel and MK Consultants, Inc.’s Demurrer to First Amended Complaint  

TENTATIVE RULING

            Mary Wendel and MK Consultants, Inc.’s Demurrer to First Amended Complaint is sustained with 20 days leave to amend.

            Background

Plaintiff filed the Complaint on August 19, 2022. Plaintiff’s First Amended Complaint was filed on September 26, 2022. Plaintiff alleges the following facts. Plaintiff alleges that Defendant MK Consultants, Inc., a suspended corporation, conducted a Trustee’s sale of Plaintiff’s former property. Plaintiff alleges that Mary Wendel is the President of MK Consultants, Inc. Plaintiff alleges a sole cause of action for Fraud in the Procurement of Foreclosure Decree.  

Meet and Confer

Defendants set forth a meet and confer declaration in sufficient compliance with CCP § 430.41.  (Decl. Glenn H. Wechsler, ¶ 2.)

Request for Judicial Notice

Defendants’ request for judicial notice is granted pursuant to Evidence Code Section 452(d) and (h). Pursuant to Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 overruled on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4^th 919:  “[A] court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity.” The Court takes judicial notice of the Trustee's Deed Upon Sale recorded on January 3, 2022. (Request for Judicial Notice Exhibit A (“RJN Ex. A.) as well as the Third Amended Complaint filed in Case No. 21STPC02447. (Request for Judicial Notice Exhibit B (“RJN, Ex. B).

Objections

Plaintiff’s objections are overruled.

Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendants demur to the First Amended Complaint pursuant to Code of Civil Procedure sections 430.10(e) and (f), on the grounds that the cause of action fails to state facts sufficient to constitute a cause of action and that the cause of action is uncertain.  

First Cause of Action for Fraud

Defendants’ demurrer to the first cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.      

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.”  Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he has known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.

            “Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.”  Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.  Plaintiffs must state 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.

Plaintiff fails to plead specific facts to state a cause of action for Fraud, including specific facts as to the alleged false representations, knowledge that the representations were false, intent to deceive, justifiable reliance, and resulting damages. In addition, Plaintiff fails to plead the requisite specific facts as to how, when, where, to whom, and by what means the representations were tendered.

The cause of action alleges fraud in the procurement of a foreclosure decree. Although uncertain, demurring Defendant is apparently alleged to be the foreclosing trustee which conducted the trustee’s sale. However, upon matters to which the Court may properly take judicial notice, the trustee’s sale officer is listed as a different entity – Prestige Default Services, LLC. (RJN, Ex. A). In addition, Plaintiff herself appears to allege that this entity is the foreclosing trustee in a prior lawsuit that she filed. (RJN, Ex. B).

Finally, the Court notes that Plaintiff has failed to plead any facts to demonstrate the existence of personal liability against individual Defendant Mary Wendel.

Thus, Defendants’ demurrer to the first cause of action is sustained with 20 days leave to amend.

Defendants are ordered to give notice of this ruling.