Judge: George F. Bird, Jr., Case: 22CMCVB00107, Date: 2023-02-23 Tentative Ruling

Case Number: 22CMCVB00107    Hearing Date: February 23, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

             Plaintiff and Cross Defendant Vaughn Boykin, Jr., (“Plaintiff” or “Cross-Defendant”) filed the original complaint in this action on April 28, 2022 and filed the operative Third Amended Complaint (“TAC”) on January 30, 2023, after a demurrer was sustained to the Second Amended Complaint (“SAC”).

Plaintiff alleges in the TAC that Plaintiff is the sole owner and equitable title holder of a property located at 1115 West 125th Street, Los Angeles, CA 90044 (the “Property”). (TAC ¶¶ 12, 13.) Plaintiff obtained a mortgage loan on the Property from Primary Capital Mortgage, LLC in the amount of $459,523.00 (“First Mortgage”). (TAC ¶ 20.) The trustee was Orange Coast Title Company of Southern California, and the beneficiary was MERS. (Ibid.) Plaintiff alleges that on November 9, 2018, a “Substitution of Trustee” was recorded in the Los Angeles County Recorder’s Office which purported to substitute the trustee as Zieve, Brodnax and Steele, LLP (“ZBS”) and stated that Lakeview Loan Servicing, LLC was the beneficiary. (TAC ¶ 24.)

Plaintiff alleges that on or around May 8, 2018, Plaintiff obtained a second mortgage loan on the Property from CALHFA Mortgage Assistance Corporation in the amount of $32,443.66 (“Second Mortgage”). (TAC ¶ 21.) CALFHA was the trustee and CalHFA Mortgage Assistance Corporation was the beneficiary. (Ibid.)

Plaintiff alleges that on November 13, 2018, A Notice of Default, with a Mortgage Servicer declaration, was recorded in the Los Angeles County Recorder’s Office which claimed that Plaintiff owed a past due amount of $20,588.73 on the First Mortgage. (TAC ¶ 22.) Plaintiff alleges this notice was an error. (TAC ¶ 23.)

Plaintiff states that in May of 2021 Plaintiff requested a loan modification due to hardship from the Covid-19 pandemic. (TAC ¶ 28.) Defendant then allegedly began reviewing the loan modification in May of 2021. (TAC ¶ 29.) Plaintiff alleges that between May of 2021 and April of 2022, Defendant engaged in racially discriminatory behavior using bait and switch modification delay tactics by requesting Plaintiff submit proof that the Property was Plaintiff’s primary residence, Plaintiff allegedly submitting adequate utility bills, and Defendant then claiming they could not find the submission and requesting Plaintiff repeat the process again. (TAC ¶¶ 26, 31, 33, 36, 37, 38, 39, 40, 41.)

Plaintiff alleges that on December 20, 2021, a Notice of Trustee Sale was recorded in the Los Angeles County Recorder’s Office. (TAC ¶ 25.) Plaintiff alleges that while Defendant’s loan modification department was collecting documents and escalating Plaintiff’s modification, ZBS and Defendant were moving forward with a trustee sale with a preferred investor. (TAC ¶ 34.) Plaintiff alleges that the trustee sale, which was completed on March 24, 2022, was based on an invalid notice of default. (TAC ¶ 43.)

            Defendant and Cross-Complainant Run Nan Home, LLC (“Defendant” or “Cross-Complainant”), filed the Cross-Complaint on December 6, 2022, alleging causes of action for (1) trespass, (2) unjust enrichment, (3) declaratory relief, and (4) injunctive relief against Cross-Defendant. Cross-Complainant alleges they purchased the Property at a foreclosure trustee sale on March 24, 2022, without any awareness of a competing interest. (Cross-Complaint, ¶¶ 4, 5.) Cross-Complainant alleges that the Trustee Deed was recorded and on June 30, 2022, Cross-Complainant sent Cross-Defendant a three-day notice to vacate. (Cross-Complaint, ¶¶ 8, 9.) Cross-Complainant alleges that Cross-Defendant has been residing at the Property since March 24, 2022, without paying rent, property tax, mortgage payments, and or repair costs. (Cross-Complaint, ¶ 12.)

II.       DEMURRER AND MOTION TO STRIKE CROSS-COMPLAINT

            A. Cross-Defendant filed the Demurrer and Motion to Strike on January 30, 2023.

Cross-Defendant argues that all four causes of action should fail under Code of Civil Procedure section 430.10 because (1) each cause of action fails to state facts sufficient to establish a cause of action, (2) the facts alleged are uncertain, ambiguous, or unintelligible, and (3) Cross-Complainant has failed to name an indispensable party to the action. Cross-Defendant also alleges that several allegations in the Cross-Complaint are untrue and therefore the Court should strike the allegations from the Cross-Complaint.

            B. Cross-Defendant filed a Notice of Non-Opposition on February 9, 2023.  

Under Code of Civil Procedure section 1005, subdivision (b), an opposition to a demurrer and motion to strike must be filed and served nine court days before the hearing. The hearing on this Demurrer and Motion to Strike are scheduled for February 23, 2023. The oppositions were due by the end of day on February 8, 2023. Cross-Complainant did file their oppositions on February 9, 2023, which makes the oppositions untimely. Because the court has discretion to consider late papers, and because Cross-Defendant does not demonstrate any prejudice due to the untimely filing, the Court will consider the untimely oppositions. (Cal Rules of Court, Rule 3.1300, subd. (d).)

C. Cross-Complainant filed Oppositions on February 9, 2023.

Cross-Complainant argues that the extrinsic evidence and alternative factual arguments are improper and cannot be considered on a demurrer. Cross-Complainant argues that each cause of action is supported by sufficient allegations in the Cross-Complaint and there are no other indispensable parties to these claims. Cross-Complainant states that all of the factual allegations in the Cross-Complaint are relevant to demonstrating the causes of action alleged and that the motion to strike should not be granted.

D. Cross-Defendant filed a Reply on February 15, 2023.

Cross-Defendant informs the Court of a separate unlawful detainer action between the same parties relating to possession of the Property at issue here. Cross-Complainant obtained a default judgment against Cross-Defendant in the unlawful detainer action which Cross-Defendant now appeals. Cross-Defendant argues that the unlawful detainer action and this action are related so that a stay should be granted.

III.       LEGAL STANDARDS

A demurrer tests the legal sufficiency of the factual allegations in the complaint. (K.G. v. S.B. (2020) 46 Cal.App.5th 625, 630.) “The purpose of a demurrer is to test whether, as a matter of law, the properly pleaded facts in the complaint state a cause of action under any legal theory.” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 516.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint in favor of plaintiff. (Code Civ. Proc., § 452; See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

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; McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) “[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178; See also Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) For a statutory violation, “facts in support of each of the requirements of a statute” must be “specifically pled,” and simply “parroting the language” of a statute is insufficient to survive a demurrer. (Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 477-478.)

Because a demurrer tests the legal sufficiency of a pleading, the plaintiff must show that the pleading alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) 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.) Where the pleading fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10, subd. (e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

A party may demurrer to a complaint for being uncertain, but “demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (internal quotations omitted.) (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 [251 Cal.Rptr.3d 423, 439, 38 Cal.App.5th 677, 695], as modified (Aug. 13, 2019).)

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof….” (Code Civ. Proc., § 435, subd. (b)(1).) Upon a motion to strike, the court may “(a) Strike out any irrelevant, false, or improper matter inserted in any pleading” and “(b) Strike out 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. (a)-(b).) A motion to strike “must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322.) 

IV.       EVIDENTIARY OBJECTIONS

            Cross-Complainant brought nine evidentiary objections to allegations made in Cross-Defendant’s Demurrer. The Court SUSTAINS objections 1, 2, 3, 4, 6, 7, 8, and 9. The Court OVERRULES objection number 5.

V.       REQUEST FOR JUDICIAL NOTICE

            Cross-Defendant requests the court take judicial notice of nine documents: (1) Trustees Deed Upon Sale recorded on May 18, 2022, (2) Docket from case number 22CMCV00107, (3) Market Analysis Pre March 2022, (4) Petition for Appeal of unlawful detainer case number 22CMUD01624, (5) Ex Parte Documents filed in unlawful detainer case number 22CMUD01624, (6) Complaints filed in case number 22CMCV00107, (7) Ruling on Defendant Run Nan Home, LLC hearing on October 11, 2022, (8) Run Nan notice of ruling on October 11, 2022, and (9) Case Management Statement filed by Plaintiff in case number 22CMCV00107 on November 02, 2022.

            For documents number 2, 4, 5, 6, 7, 8, and 9, the court may take judicial notice of any document filed with any court in this state under Evidence Code section 452, subdivision (d). Judicial notice of these documents is granted. For any allegations of fact contained within these documents, the Court will not take judicial notice of those facts as they are reasonably subject to dispute.

            For document 1, the court takes judicial notice that the document presented is recorded with the County, but the Court will not take judicial notice of the facts alleged therein as they are reasonably subject to judicial notice. For document 3, the Court will not take judicial notice of this document as it does not fit into any category of document the court may take judicial notice of under Evidence Code section 452 and the facts contained within are not common knowledge and are reasonably subject to dispute.

VI.       DISCUSSION

A.    Unlawful detainer action

            Case Number 22CMUD01624 is an unlawful detainer action commenced by Defendant and Cross-Complainant Run Nan Home, LLC against Plaintiff and Cross-Defendant Vaughn Boykin, Jr. seeking possession of the Property at issue in this matter. While an unlawful detainer action addresses possession of a property, a separate civil action can be commenced to address title to a property. (See Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 [161 Cal.Rptr.3d 471, 484].) The Complaint in the unlawful detainer action was filed on November 28, 2022, seven months after the present action was initiated. Since the unlawful detainer action was commenced, neither party filed a notice of related case or a motion to stay either proceeding.

            Under California Rules of Court, rule 3.515, subdivision (a), any party may file a motion to stay proceedings “in any action being considered for, or affecting an action being considered for, coordination….” Here, Cross-Defendant has not filed a motion to stay this proceeding nor has a notice of related proceeding been filed in this action.

            The Court cannot clearly interpret Cross-Defendant’s request in their Reply. Cross-Defendant states, “The appeal of the UD action and possession issues are now out of the jurisdiction of the civil court and therefore must be stayed until the appeals court rules on the possession issue,” but then continues to state, “An emergency petition for a stay of the UD Court’s order will be filed and pending before the appeals court when the hearing on the demurrer is held on February 23, 2023. Therefore, this demurrer hearing should be continued until after the ruling on the Emergency Writ and Stay.” (Reply, p. 1:19-27.)

            It is unclear if Cross-Defendant wishes to continue the hearing on this demurrer while Cross-Defendant seeks a stay of the unlawful detainer order or if Cross-Defendant seeks to find the unlawful detainer action related to this action and stay this action while the appeal is pending in the unlawful detainer action. As Cross-Defendant is the party who brought this demurrer and has instituted the appeal in the unlawful detainer action, Cross-Defendant has the power to file a notice of related case, bring a motion to stay proceedings, or attempt to continue the demurrer. Cross-Defendant has failed to engage any of those procedures.

             The Court will not attempt to find the cases related or stay proceedings when Cross-Defendant has not properly brought such issues before the Court.

B.     Trespass

            Cross-Defendant argues that Cross-Complainant failed to identify if the cause of action was for criminal trespass or civil trespass. Cross-Defendant originally instituted this action as a civil claim, and Cross-Complainant has responded with their own civil causes of action. The Court finds it abundantly clear that the claim of trespass is for civil trespass, not criminal trespass.

            The elements of a civil trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 [225 Cal.Rptr.3d 305, 317, 17 Cal.App.5th 245, 262], as modified (Nov. 6, 2017).) On the face of the Cross-Complaint, Cross-Complainant alleges they purchased the Property at a foreclosure sale and became the legal owner on or around May 18, 2022, notified Cross-Defendant with a three-day notice to vacate, never granted Cross-Defendant permission to enter the Property, and that they were harmed by Cross-Defendant retaining possession of the Property. (Cross-Complaint, ¶¶ 16, 17, 18.)

            Cross-Defendant presents the argument that Cross-Defendant did not enter the Property because Cross-Defendant is the rightful owner of the Property. Such alternative factual and legal contentions are improper on a demurrer. When evaluating a demurrer, the court must take all properly pleaded factual allegations as true. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318; See also McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) Taking the allegations as true, Cross-Complainant properly pleads a clear and unambiguous cause of action for civil trespass.

             This Demurrer to the first cause of action for civil trespass is OVERRULED.

C.     Unjust Enrichment

            Cross-Defendant argues that there is a split in authority in California determining if unjust enrichment is a cause of action or simply a restitution claim. The Court finds that this argument is without merit. The Supreme Court of California has stated “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [77 Cal.Rptr.2d 709, 715, 960 P.2d 513, 519], as modified (Sept. 23, 1998); See also Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 [89 Cal.Rptr.3d 594, 599, 201 P.3d 472, 476].) Even if Cross-Complainant has mislabeled the theory of recovery, there is no basis to sustain a demurrer on such grounds.

            In Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, the Court of Appeal reviewed a trial court order to grant a demurrer to a second amended complaint with a cause of action for ‘unjust enrichment.’ (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231 [166 Cal.Rptr.3d 864, 872].) The Court of Appeal stated that unjust enrichment is a general principle that is synonymous with restitution. (Ibid.) “The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another.” (Internal quotations omitted.) (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769 [171 Cal.Rptr.3d 34, 40].)

            Here, Cross-Complainant alleges that Cross-Defendant has lived at the Property without paying property tax, mortgage payments, or repair costs while Cross-Complainant owned the Property. (Cross-Complaint, ¶¶ 21, 22.) Cross-Complainant also alleges that Cross-Defendant may have been collecting rent by leasing the Property. (Cross-Complaint, ¶ 23.) Cross-Complainant alleges that, because Cross-Defendant is wrongfully retaining the Property, Cross-Complainant has suffered loss of the financial benefit of rental income, exclusive possession, and lost profits. (Cross-Complaint, ¶ 24.)

            Though Cross-Defendant points to the allegations in the Third Amended Complaint which allegedly defeat Cross-Complainant’s contention they are bona fide purchasers of the Property, such an argument cannot be considered on a demurrer. Alternative interpretations of the facts are not relevant. A demurrer assumes the truth of the allegations in the pleading at issue. (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) Assuming that Cross-Complainant is the owner of the Property, Cross-Complainant properly alleges facts under a theory of unjust enrichment.

            The demurrer to the second cause of action alleging a theory of unjust enrichment is OVERRULED.

D.     Declaratory Relief

            Cross-Defendant argues that the Court should exercise its discretion under Code of Civil Procedure section 1061 which allows the court to refuse to grant declaratory relief “in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” Again, Cross-Defendant presents factual arguments that Cross-Complainant was not a bona fide purchaser of the Property. This argument is irrelevant on a demurrer where Cross-Complainant has alleged they are the rightful owner of the Property. (Cross-Complaint, ¶ 16.)

            Cross-Defendant also argues that the Court should deny declaratory relief because “it is too soon to determine ownership at this time.” (Demurrer to Cross-Complaint, p. 12:23-25.) Cross-Defendant fails to present any argument as to why determination of ownership is premature. Though there is an unlawful detainer action between the parties, unlawful detainer only determines possession, not title. (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 [161 Cal.Rptr.3d 471, 484].) Without any convincing basis for exercising the court’s discretion, the Court declines to exercise discretion and will allow Cross-Complainant to pursue declaratory relief.

            The Demurrer to the third cause of action for declaratory relief is OVERRULED.

E.     Injunctive Relief

            Cross-Defendant argues that injunctive relief is not a separate cause of action, but a remedy that relies on a separate cause of action existing before injunctive relief may be granted. (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168 [125 P.2d 930, 932].) Because Cross-Complainant has properly alleged a cause of action for civil trespass, Cross-Complainant may pursue injunctive relief as a remedy.

            The Demurrer to the fourth cause of action seeking injunctive relief is OVERRULED.

F.      Indispensable Party

            Cross-Defendant argues that ZBS and Flagstar, defendants named in the Third Amended Complaint, are indispensable parties to the Cross-Complaint that were not named. Cross-Defendant contends that the demurrer should be sustained as to all causes of action for failure to add these parties to the Cross-Complaint. Cross-Complainant argues that ZBS and Flagstar are not necessary for the court to grant complete relief.

            The cause of action for trespass does not seem to require the presence of additional parties. Cross-Complainant alleges they are the owner of the Property and that Cross-Defendant is in wrongful possession of the Property. Cross-Complainant seeks declaratory relief of the rights and obligations between Cross-Complainant and Cross-Defendant, an injunction against Cross-Defendant only, and a monetary award on a theory of unjust enrichment for the benefits Cross-Defendant has allegedly received at the expense of Cross-Complainant. Though ZBS and Flagstar are involved with the mortgages and foreclosure sale of the Property, neither claims an ownership interest in the Property.

            The Court does not find that ZBS and Flagstar are indispensable parties.

G.    Motion to Strike

            On a motion to strike, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Cross-Defendant requests that the court strike several allegations that are allegedly untrue in the Cross-Complaint.

            Paragraph 7 references the Trustee’s Deed that the Court has taken judicial notice of. Upon reviewing the document, the Court finds that the document was signed and notarized on May 5, 2022. Cross-Complainant alleges that ZBS filed the Trustee’s Deed on May 5, 2022, and that Cross-Complainant recorded the Trustee’s Deed on May 18, 2022. Seeing no evidence that ZBS did not filed the document on May 5, 2022, the Motion to Strike is DENIED as to paragraph 7.

            Paragraph 11 alleges that Cross-Defendant failed to file the Second Amended Complaint. The record of this action reflects that the Second Amended Complaint by Cross-Defendant was filed on November 2, 2022. The Court does not find this allegation relevant to any of the causes of action or theories put forth by Cross-Complainant. The Motion to Strike is GRANTED as to paragraph 11, line 15.

            The objections to paragraphs 12, 18, 19, 22, 23, and 24 are based on Cross-Defendant’s alternative factual interpretations. The Court will not weigh the evidence of the parties and determine the truth of the facts asserted on a motion to strike. The Motion to Strike is DENIED as to paragraphs 12, 18, 19, 22, 23, and 24.

VII.       CONCLUSION

            Based on the foregoing, the Demurrer to the Cross-Complaint is OVERRULED in its entirety. An answer is to be filed and served within 20 days. The Motion to Strike is DENIED as to paragraphs 7, 12, 18, 19, 22, 23, and 24. The Motion to Strike is GRANTED as to paragraph 11, line 15.

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 Dated: February 23, 2023                                          __________________________________

                                                                                                Judge of the Superior Court