Judge: H. Jay Ford, III, Case: 22SMCV00534, Date: 2022-10-06 Tentative Ruling

Case Number: 22SMCV00534    Hearing Date: October 6, 2022    Dept: O

Case Name:  Sjorstand v. Proctor, et al.

SUBJECT:                (1) DEMURRER TO COMPLAINT

                                    (2) MOTION TO STRIKE

MOVING PARTY:   (1) and (2) Defendants WFG Title Company of California Inc.

RESP. PARTY:         (1) and (2) Plaintiff Peter Sjorstand

TENTATIVE RULING

Defendant WFG Title Company of California Inc.’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant WFG’s Motion to Strike is MOOT. 

Plaintiff’s opposition was filed on 7 court days before the hearing date.  While the opposition is untimely, The Court exercises its discretion to consider it.

            Standing.  Plaintiff fails to allege standing to sue for cancellation of instruments, quiet title or fraud.  Plaintiff alleges he is the only child of Brigitta Sjorstand, that he is her heir and the successor trustee of the “family trust.” 

It is unclear from the complaint if Plaintiff is claiming that (1) title to the property was held by the trustee of the “family trust” and he is suing as successor trustee, or (2) title was held by Brigitta as an individual and he is suing based on his status as her heir.  In addition, Exhibit 1 to the Complaint is purportedly the grant deed subject to cancellation and the basis for this action.  However, there is nothing attached as Exhibit 1 to the Court’s copy of the Complaint.

Plaintiff fails to allege the basis for his standing. Demurrer to the entire complaint based on standing is sustained.

            Quiet Title.  Plaintiff also fails to allege a quiet title claim against WFG.  A claim for quiet title requires Plaintiff to identify the adverse claims to her claim of title.  See CCP §761.020(c). 

Plaintiff fails to allege WFG’s adverse claim of title.  See Complaint, ¶29.  The only competing claim of title alleged is against Bye Bye House, Inc. based on a recorded grant deed.  Id. at ¶¶6, 29.  Plaintiff alleges that WFG provided title services to the other Defendants.  See Complaint, ¶11. 

Provision of title services alone would not give WFG a claim of title to the property.  Plaintiff’s opposition does not address this defect in the 2^nd casue of action or how this defect can be cured.  The burden is on Plaintiff to establish that the defect is reasonably capable of cure with leave to amend.  See Hendy v. Losse (1991) 54 Cal.3d 723, 742.  WFG’s demurrer to the 2^nd cause of action for quiet title is therefore SUSTAINED WITHOUT LEAVE TO AMEND. 

Fraud.  The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  See Civil Code §1709.  Fraud actions are subject to strict requirements of particularity in pleading.  See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.  A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation.  See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782. 

Plaintiff fails to allege fraud against WFG.  Plaintiff only alleges that Defendants prepared the Grant Deed recorded by Bye Bye House, Inc., Defendants prepared and submitted the Lien based on the Grant Deed, the Deed of Trust was not executed by Brigitta, and Defendants knew that the Grant Deed was not signed by Brigitta.  See Complaint, ¶¶34-37.  Plaintiff alleges Defendants knew the Grant Deed was false but “proceeded with their scheme to take the property.”  Id. at ¶38. 

Plaintiff’s allegations fail to plead the misrepresentation made by WFG, who made them on WFG’s behalf, the capacity of that person to act on WFG’s behalf, to whom those misrepresentations were made and Plaintiff’s justifiable reliance on those misrepresentations.  Plaintiff’s opposition fails to address these defects or establish that they are reasonably capable of cure.  See Hendy v. Losse (1991) 54 Cal.3d 723, 742.  Demurrer to the 3^rd casue of action for fraud is SUSTAINED WITHOUT LEAVE TO AMEND. 

Defendant WFG’s Motion to Strike is MOOT in light of the ruling in Demurrer.