Judge: H. Jay Ford, III, Case: 22SMCV00534, Date: 2023-03-02 Tentative Ruling

Case Number: 22SMCV00534    Hearing Date: March 2, 2023    Dept: O

  Case Name:  Sjorstand v. Proctor, et al.

SUBJECT:                (1) DEMURRER TO FIRST AMENDED COMPLAINT  

(2) MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

MOVING PARTY:   Defendants Bye Bye House Inc. and Center Street Lending VIII SPE, LLC (collectively referred to as, “Bye Bye”)

RESP. PARTY:         No opposition was filed. Defendants filed a notice of non-opposition.

TENTATIVE RULING

            Defendants Bye Bye House, Inc. and Center Street Lending VIII, SPE, LLC’s (“Defendants”) Demurrer to the claims in the First Amended Complaint (FAC) for quiet title and cancelation of written instrument is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. 

Defendants’ Motion to Strike the Fraud cause of action is GRANTED, WITHOUT LEAVE TO AMEND.

REASONING

            Plaintiff fails to sufficiently allege a claim for “cancelation of written instrument” or quiet title under CCP §761.020.  For cancelation of a written instrument, Civil Code §3412 states 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.” To plead a right to cancellation under this section, a plaintiff must allege the instrument is “void or voidable” and would cause “serious injury” if not canceled. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818-819.) A deed will be declared void if the grantor's signature is forged. (See La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 477.)

            For quiet title “The complaint shall be verified and shall include all of the following: (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. (c) The adverse claims to the title of the plaintiff against which a determination is sought. (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. (e) A prayer for the determination of the title of the plaintiff against the adverse claims.” CCP §761.020.

            Plaintiff does not allege the legal description or the address of the subject property in the FAC.   Plaintiff does not clearly allege the basis of his title in the FAC.  According to Plaintiff, he is the son of Birgitta Sjorstand, who sold the subject property prior to her death.  See FAC, 2:17-24.  Plaintiff alleges he resides in Colorado.  Id.  Plaintiff fails to clearly allege facts establishing that Birgitta’s sale of the property was the result of fraud or because of some other ground invalidating the sale. 

            Based on a review of both the original and FAC, it appears Plaintiff is attempting to void Birgitta’s sale of the property to Defendants as void, because (1) Birgitta, who was 84 years old, suffered from Alzheimer’s and lacked capacity to effectuate or approve any sale; (2) the person who communicated with Bye Bye on Birgitta’s behalf was “Jackson,” who Bye Bye claims was Birgitta’s son, even though Plaintiff was Birgitta’s only child; (3) Birgitta never attended the closing, never met anyone representing the buyer and did not have the ability to docu-sign documents; and (4) “Jackson” is a person who is an agent of one of the defendants. 

            However, Plaintiff fails to overtly allege that “Jackson,” together with Defendants, fraudulently effectuated a sale of the property from Birgitta, although that is the clear implication from the original complaint and FAC.  Plaintiff must allege all of these facts to plead his claim of title, including his claim that Defendants participated in a wrongful scheme to take Birgitta’s property. 

            Finally, Plaintiff must allege the date as of the determination of title is sought, i.e. on what date he wants the Court determine title to the property. Plaintiff must also allege a prayer that the Court determine his claim of title as against the alleged adverse claims

            The allegations in the FAC, while ambiguous and, at times convoluted, indicate the possibility that Plaintiff may reasonably be capable of curing the defects of his quiet title and cancelation of instruments claims against Defendants.  A demurrer should be sustained without leave to amend only where the complaint “fails to state a cause of action under any possible legal theory.”  See Sheehan v. San Fracnisco 49ers, Ltd. (2009) 45 Cal.4^th 992, 996.  (Court of Appeal’s affirmance of the trial court’s sustaining of a demurrer without leave to amend reversed holding the defendants “have not demonstrated that the allegations of the complaint fail to state a cause of action under any possible legal theory. Further factual development is necessary.”)  Generally, it is not the Court’s role to identify for the Plaintiff what potential causes of action a plaintiff may have.  Here, however, the Court is not satisfied Defendant’s demurrer shows Plaintiff cannot state any cause of action (including claims not now alleged) under any possible theory.

            Moreover, Defendants fail to establish that any potential claims are barred clearly and affirmatively by the defense of bona fide purchaser based on the face of the complaint.  A “demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred.”  CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.  As Defendants argue throughout the demurrer, Plaintiff vaguely alleges what transpired and the basis of his grievance is barely discernible.  These same vague allegations also fail to establish a defense based on bona fide purchaser status.

            Finally, on October 11, 2022, the Court sustained the Defendant’s demurrer to the fraud claim without leave to amend.  The Court grants the motion to strike the fraud cause of action.  The Court sustained the defendants demurrer to the prior fraud claim based on Plaintiff’s failure to establish that he could reasonably cure the pleading defects with leave to amend.  Again, Plaintiff again fails to allege fraud with any specificity.  Plaintiff’s claim he suffered harm because of representations made to him Plaintiff’s mother signed the documents relating to the sale of the property to Bye Bye House.  Plaintiff again fails to show how he could reasonably state a claim for fraud based on misrepresentations made to him about the transaction between his mother and Defendants for sale of the property.

Case Name:  Sjorstand v. Proctor, et al.

SUBJECT:                DEMURRER TO FIRST AMENDED COMPLAINT 

MOVING PARTY:   Defendant Prominent Escrow Services, Inc.

RESP. PARTY:         No opposition was filed.  However, An opposition apparently was served because a reply was filed by Prominent.

TENTATIVE RULING

            Defendant Prominent Escrow Services, Inc.’s Demurrer to the First Amended complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

            Plaintiff fails to allege any basis to assert a “cancelation of instruments claim against Prominent.  The caption lists “cancellation of written instrument” as the first cause of action, but the body of the complaint does not contain any such cause of action.  The Court cannot assess the sufficiency of a cause of action that is unpled, nor can Prominent respond to a phantom cause of action.  In addition, Plaintiff failed to file an opposition, although he apparently served one on Prominent based on Prominent’s reply.  The Court does not see any possible or logical basis for Prominent to be a necessary or proper defendant to a claim for cancelation of a written instrument.

            In Prominent’s  reply memorandum, Prominent states Plaintiff admits in its (unfiled) opposition that Plaintiff concedes “Prominent is not a defendant in the Second Cause of Action [for quiet title.]  Regardless, Plaintiff fails to state a cause of action for quiet title against Prominent. Plaintiff fails to allege Prominent’s adverse claim of title to the “property.”   Nor is their logical possibility Plaintiff can claim Prominent claims an adverse interest in the property.

            The Court previously sustained the demurrers of the co-defendants to the fraud claim without leave to amend.  Despite the Court’s order, Plaintiff realleged fraud as the 3^rd cause of action in the FAC and named Prominent as a defendant therein, even though Prominent was not a party to the original fraud claim. 

            However, based on Plaintiff’s fraud claim in the FAC, he is attempting to allege fraud based on false representations to him regarding his mother’s sale of the unidentified “property” to Defendants.  Plaintiff alleges the nature of Prominent’s alleged misrepresentations to him in Section IV(E)(1) of the FAC.  See FAC, Section IV(E)(1), p. 11.  Plaintiff fails, however, to allege when those misrepresentations were made to him, who made them, how they were made and the authority of the person who made them to speak on Prominent’s behalf. As Prominent correctly points out, there is no prayer for relief in the FAC. Plaintiff fails to show how he could reasonably state a claim for fraud based on misrepresentations made to him about the transaction between his mother and Defendants for sale of the property.

  Case Name: 
Sjorstand v. Proctor, et al.

SUBJECT:                OSC RE:
PRELIMINARY INJUNCTION

MOVING
PARTY:   Plaintiff Peter Sjorstand

RESP.
PARTY:         Defendant Bye Bye
House, Inc.  

TENTATIVE
RULING

            The
request for preliminary injunction is DENIED. The OSC re: Issuance of
Preliminary Injunction is discharged.  The
TRO is terminated.

Defendant’s Objections to Plaintiff’s
Evidence: Dec. of D. Givens, including Exhibits thereto: SUSTAINED

Defendant’s RJN is GRANTED.

            I.  Plaintiff fails to establish entitlement to
an injunction restoring his possession of the subject property

            There
is no operative complaint in this action. 
Bye Bye and Prominent’s demurrers were sustained. The Court has given
Plaintiff leave to amend his quiet title and cancelation of instruments claims
against Bye Bye.  At this time, however, there
is no complaint demonstrating facts that would support the relief requested—restoration
of possession to the Plaintiff after Defendants’ alleged forcible entry and
detainer. 

            In
addition, Plaintiff’s evidence fails to submit competent admissible evidence establishing
the probability of prevailing in this action. 
Plaintiff’s evidence does not establish the validity of his claim of
title to the property, the invalidity of Birgitta’s sale to Defendants or even
Plaintiff’s peaceful possession of the property when the alleged forcible entry
occurred.  There is no admissible evidence
to support Plaintiff’s claim that Birgitta had Alzheimer’s when she sold the
property to Defendants, that an imposter named “Jackson” dealt with Defendant
Bye Bye on Birgitta’s behalf during the sale, that “Jackson” was actually an
agent of Defendant Bye Bye, that Defendants Bye Bye knowingly purchased the property
from an imposter who had no authority to act on Birgitta’s behalf. 

            While
the Court must accept Plaintiff’s allegations as true on demurrer, in
determining whether an injunction should issue, Plaintiff must submit
admissible evidence that he will probably prevail on claims entitling him to
the relief requested, or that the injunction must issue otherwise any judgment
will be ineffective.  Plaintiff fails to
submit evidence of either. 

            Plaintiff
fails to substantiate the causes of action alleged in the original complaint or
the FAC for quiet title or fraud. 
Plaintiff also fails to allege any of the claims he alludes to in his
paperwork in support of the requested PI, e.g. forcible entry, forcible
detainer, CC §789.3, IIED or any claim of dependent adult or elder abuse.

            In
addition, the Court questions whether it can issue a preliminary injunction in
a civil action to restore possession to a tenant dispossessed by forcible entry
or detainer. The Legislature created a specific, summary procedure to provide
such tenants with precisely this remedy in CCP §1159, et seq.  As discussed in Daluiso v. Boone
(1969) 71 Cal.2d 484, “the legislative intent in enacting the forcible entry
statute was to establish a summary procedure for the restitution of real
property and thereby to promote the settlement of disputes over possession by
legal means rather than by self-help…It has been held that under section 1174
the plaintiff may recover all damages which are the natural and proximate
result of the forcible entry.  An
additional indication of the policy against self-help is found in Penal Code,
section 418 which makes it a misdemeanor for any person to use any force or
violence in entering upon or detaining any lands or other possessions of
another.”  Daluiso, supra, 71
Cal.2d at 498–499. 

            “In
addition to the remedy available in a summary action of forcible entry and
detainer to regain possession, a person in peaceful possession of real property
may recover damages in a tort action for injuries to his or her person or goods
caused by the forcible entry of a person who is, or claims to be, the lawful
owner or possessor.  The title or right
of possession of the person who entered forcible is no defense. The failure to
proceed under the forcible entry statute is no reason to deny the dispossessed
person damages in a tort action for injuries out of the forcible entry, even if
the person who entered had title to the land.” 
Miller and Starr, 10 Cal. Real Estate (4^th ed.) §34:233.

            “While
the law recognizes that a wrongfully dispossessed tenant may recover damages in
a common-law tort action, a summary action for forcible entry and detainer
action is the exclusive means by which a tenant dispossessed by forcible entry
and detainer can regain possession.  See
Daluiso, supra, 71 Cal.2d at 497, fn 13 (“Under these provisions a
right of action is given to one wrongfully in actual possession of property
where a forcible entry is made, even by the owner, in which action damages
occasioned through the forcible entry may be recovered, and judgment for the
restitution of the property had. But the code prescribes a method of procedure
and the extent of the remedy for such forcible entry, and that remedy is
exclusive.”); Friedman, et al, Cal. Prac. Guide—Landlord-Tenant
(November 2022), ¶7:37 (“aggrieved tenant not interested in regaining
possession may instead bring an independent damages action for
‘wrongful eviction’”)(citing Spinks v. Equity Residential Briarwoods Apts.
(2009) 171 Cal.App.4^th 1004, 1039).  

            Plaintiff
fails to establish that he can obtain the remedy of restoration of possession through
a preliminary injunction issued in this action. 
The request for injunction is DENIED. 
The OSC re: Issuance of Preliminary Injunction is discharged.