Judge Holly J. Fujie, Case 21STCV17727 2022-10-11 Tentative Ruling

MOVING PARTY: Defendant Wells Fargo Bank, N.A. on behalf of itself and Wells Fargo Home Mortgage, Inc. (collectively, “Moving Defendants”)

On May 31, 2022, Plaintiff filed a complaint (the “Complaint”) alleging: (1) intentional and tortious infliction of physical and emotional distress; (2) conversion; (3) fraud, deceit and misrepresentation; (4) unfair business practices; and (5) negligence.

In relevant part, the Complaint alleges: Moving Defendants colluded with Plaintiff’s ex-spouse, John Manocheri Visconti (“Mr. Visconti”), who died in 2020, to overcharge Plaintiff $3,685,922.59 from her personal and separate funds. (Complaint 1:19-22.) Plaintiff learned of this overcharge after an investigation conducted in May 2022. (Complaint 1:22-23.) From what the Court can ascertain from the Complaint, Moving Defendants improperly allowed Mr. Visconti to transfer funds for the purpose of concealing them from Plaintiff during their marriage dissolution proceedings. (See Complaint ¶ 8.) The named Defendants’ collective misconduct has caused Plaintiff to incur greatly increased expenses in repaying loans associated with real property located at 1140 Calle Vista Drive, Beverly Hills, California (the “Property”). (See Complaint ¶ 16.) Moving Defendants allowed Mr. Visconti to conceal $345,000 that was related to a $2.5 million loan taken out against the Property. (See Complaint ¶ 32.) Moving Defendants’ wrongful conduct has caused Plaintiff to incur additional expenses associated with paying off the loans taken out against the Property. (See, e.g., Complaint ¶¶ 58-59.) In May 2022, Plaintiff discovered information that confirmed her prior suspicions that she was being overcharged on the loan repayments. (Complaint 1:22-26.)

Moving Defendants filed a demurrer (the “Demurrer”) to the Complaint on the grounds that: (1) the Complaint alleges insufficient facts to constitute a cause of action; (2) the Complaint is time-barred; and (3) the Complaint is likely barred by the doctrine of claim preclusion. Moving Defendants also filed a motion to strike (the “Motion”) portions of the Complaint related to damages.^{^[1]}

Plaintiff’s opposition (the “Opposition”) does not raise substantive arguments in response to the Demurrer. Instead, the Opposition indicates Plaintiff’s intent to file a first amended complaint to state a cause of action for accounting against Moving Defendants. (See Declaration of Maha Moqaddem (“Moqaddem Decl.”) ¶ 4-5.) Plaintiff declares that she has never previously alleged an accounting claim against Moving Defendants and did not learn that she had overpaid them until May 2022. (Moqaddem Decl. ¶ 5.)

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

The first and fifth causes of action are subject to a two-year statute of limitations period. (CCP § 335.1.) The second and third causes of action are subject to a three-year statute of limitations period. (CCP § 338, subd. (d).) The fourth cause of action is subject to a four-year statute of limitations period. (Bus. & Prof. Code § 17208.)

As explained by the California Supreme Court in Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-07:

“Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements. An important exception to the general rule of accrual is the “discovery rule,” which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.

A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. … In so using the term ‘elements,’ we do not take a hypertechnical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-07 (citations omitted).)

Here, a review of judicially noticeable records demonstrates that Plaintiff’s claims are time-barred. Moving Defendants’ judicially noticed exhibits indicate a long history of litigation associated with the loans taken out against the Property as alleged in the current Complaint. More specifically, however, the allegations in previous actions allege the same wrong-doing and alleged damages sustained by Plaintiff. For example, in 2014, Plaintiff filed a federal action alleging that Moving Defendants had wrongfully failed to provide her with an accounting, and that she had incurred damages in the form of increased expenses to manage the Property and recover funds and that she was wrongfully charged additional expenses associated with repaying the loan referenced in the current Complaint. (See RJN, Exhibit W ¶¶ 23-26.)

Accordingly, the Court finds that Plaintiff’s current Complaint is time-barred and Plaintiff has not presented facts that indicate that this deficiency may be cured by amendment. Plaintiff’s request to file an FAC stating an accounting cause of action would not remedy the statute of limitations problem, as Plaintiff has previously alleged that Moving Defendants failed to provide her with an accounting and because an accounting cause of action is a remedy rather than an independent cause of action and is therefore contingent upon the validity of an underlying claim. (See Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 833.)

The Court therefore SUSTAINS the Demurrer in its entirety without leave to amend. In light of this ruling, the Motion is MOOT.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] Plaintiff did not file any opposition papers in connection to the Motion. Any opposition papers were required to have been filed and served at least nine court days before the hearing pursuant to California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).