Judge: H. Jay Ford, III, Case: 22SMCV00534, Date: 2022-10-11 Tentative Ruling

Case Number: 22SMCV00534    Hearing Date: October 11, 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

MODIFIED 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. 

The Court adopts its tentative
ruling of 10-6-22 with the following modification:

The Paragraph on “Standing” is deleted.

In response to the Court’s
tentative ruling to deny leave to amend, Plaintiff submitted a “supplement” to
his opposition which attached a proposed amended complaint.  The Court finds the proposed amended
complaint still shows Plaintiff is unable to allege facts to support any of
Plaintiff’s claims against WFG.   

              Case Name: 
Sjorstand v. Proctor, et al.

SUBJECT:    
           (1) DEMURRER TO COMPLAINT

                                    (2)
MOTION TO STRIKE

MOVING
PARTY:   (1) and (2) Defendants Bye Bye
House Inc. and Center Street Lending VIII SPE, LLC

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

TENTATIVE
RULING

Defendants Bye Bye House Inc. and
Center Street Lending VIII SPE, LLC.’s Demurrer to the Complaint is SUSTAINED with
20 days leave to amend as to the 1^st cause of action for
cancellation of written instrument and 2^nd cause of action for quiet
title and SUSTAINED WITHOUT LEAVE TO AMEND as to the 3^rd cause of
action for fraud.  Defendants Motion to
Strike is GRANTED WITHOUT leave to amend. 
Defendant is to prepare the proposed order reciting the stricken
allegations.  

            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.” 

If claims are held by an estate or
trust, the executor, administrator, or trustee is the real party in interest.
Such fiduciary has the right to sue—without joining the persons for whose
benefit he or she holds title. CCP § 369(a). 
Thus, a trustee may sue on claims held by the trust without naming the
trust or its beneficiaries.  “Where the
legal title to property is vested in the trustee, it is unnecessary to state in
the complaint the means by which plaintiff acquired it, and so far as concerns
the defendant he is the real party in interest and may sue in his own
name.  In Restatement of Trusts, §
280(h), it was said: it is unnecessary for the trustee in the pleadings or
other proceedings to describe himself as trustee. He can proceed in the action
as though he were the owner of the claim which he is enforcing. If he does
describe himself as trustee the description is treated as surplusage.  It was not necessary for plaintiff to
describe himself as trustee.”  McKoin
v. Rosefelt (1944) 66 Cal.App.2d 757, 768–769; Hassoldt v. Patrick Media
Group, Inc. (2000) 84 Ca.App.4th 153, 170 (abrogation on other grounds
recognized by People v. Rogers (2013) 57 Cal.4th 296, 330)(“It appears that the
subject property is owned by the Hassoldts as trustees of the Yankee Trust, and
that the Hassoldts are the beneficiaries of such trust. Under these
circumstances, the Hassoldts could maintain an action in their own name, i.e.,
without mentioning the trust.”)

It is still unclear if Plaintiff is
claiming that title to the property was held by the trustee of the “family
trust” and he is now the owner of the property, because he is the successor
trustee, or if he is claiming that it was held by Brigitta as an individual and
standing is 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.

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.  Plaintiff claims he has
standing to sue for cancellation of instrument, quiet title and fraud based either
as the successor trustee of the family trust or the heir of Brigitta.  Demurrer is SUSTAINED WITH 20 DAYS LEAVE TO
AMEND on grounds of standing. 

Cancellation of Instrument.  “A written instrument, in respect to which
there is a reasonable apprehension that if left outstanding it may cause
serious injury to a person against whom it is void or voidable, may, upon his
application, be so adjudged, and ordered to be delivered up or canceled.”  Civ. Code §3412. 

Plaintiff admits that he is unclear
what occurred prior to his mother’s death. 
See Complaint, ¶¶22-26. 
Plaintiff alleges he is unclear as to the whether the Grant Deed
recorded by Bye Bye is valid.  Id.
at ¶26. Plaintiff alleges he made inquiries of Defendants regarding the Grant
Deed’s validity, but they did not respond. 
Id. at ¶26. 

Plaintiff also alleges that
Brigitta did not sign the Grant Deed, that neither Brigitta nor the Trust
received anything of value in exchange for the Grant Deed and that Defendants
are not bona fide purchasers of the property. 
See Complaint, ¶30.  These allegations,
if accepted as true, would establish grounds to void the Grant Deed. 

Plaintiff also claims in opposition
that an unknown party named “Jackson” held himself out to be Brigitta’s son. In
response to discovery, Defendant informed Plaintiff that Jackson managed the transactions
between Brigitta and Defendants. 

However, Plaintiff fails to allege facts
indicating that he would be seriously injured if the instrument were left
outstanding.  Plaintiff fails to allege
what claim of title he would have to the property were it not for the allegedly
fraudulent grant deed, i.e. legal title as successor trustee or legal title as
heir of Brigitta.  Plaintiff claims he
has a claim of title to the Property, but as discussed in connection with the
standing issue, he fails to clearly allege the basis of this claim. 

Defendants’ Demurrer is SUSTAINED
WITH 20 DAYS LEAVE TO AMEND. 

            Quiet Title.  For the reasons stated in connection with the
standing issue, Plaintiff also fails to allege the nature of his claim to the
property.  See CCP §761.020(b).  Plaintiff claims he is the successor trustee
or the heir of Brigitta.  However,
Plaintiff fails to allege his claim of title to the property and the basis
thereof, including whether the property was owned by Brigitta or if it was a
trust asset of the family trust of which Brigitta.  Demurer is SUSTAINED WITH 20 DAYS 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 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 opposition fails to address
the defects in the fraud cause of action raised by the demurer.  Plaintiff fails to establish that he can
plead a fraudulent misrepresentation by Defendants with specificity, his justifiable
reliance on those misrepresentations and damages as a result of his justifiable
reliance.  Indeed, the proposed first
amended complaint attached to Plaintiff’s “supplement to opposition to demurrers
of Prominent and WFG co.” filed  fails to
cure the defects in Plaintiff fraud cause or action.  Plaintiff has failed to show any further
facts in support of this cause of action can be alleged.

Based on Plaintiff’s allegations,
if there were any misrepresentations made and relied upon, they were made to
his mother and relied upon by her.  Plaintiff
fails to establish that he can plead a survival action for fraud as the
personal representative of his mother, or if no such personal representative
exists, as the successor in interest.  See
CCP §§377.20 and 377.30.  Demurrer is
SUSTAINED WITHOUT LEAVE TO AMEND as to the fraud cause of action.