Judge: Jill Feeney, Case: 22STCV07797, Date: 2024-01-29 Tentative Ruling

Case Number: 22STCV07797    Hearing Date: January 29, 2024    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Cross-Defendant Payton’s Demurrer is SUSTAINED without leave to amend.

Payton is to serve and file a judgment on the first amended cross-complaint within 10 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

FACTUAL BACKGROUND

This is an action for fraud, financial elder abuse, quiet title, cancellation of deeds, and declaratory relief. Plaintiff Sallyanne Payton, as trustee of the Monteith Drive Trust, alleges that Defendant Joseph Griffith misrepresented the condition Plaintiff’s property, the value of the property, and that continuing to own the property would expose Plaintiff to liability. Griffith made these misrepresentations to induce Plaintiff to sign a grant deed transferring ownership of her property to Griffith.

Griffith filed a Cross-Complaint against Payton and Tammy Williams for fraud and intentional infliction of emotional distress. Griffith alleges that while he was working as a handyman on the property, he jokingly said he would be interested in making an offer on the property. Griffith recommended urgently needed repairs which Payton stated she had no money for. Payton stated the home was worth $200,000, that she needed money urgently, and would be willing to sign any papers to assist Griffith in obtaining a loan to purchase the property. Griffith alleges that Payton had no intention of selling the property and sold the property to him in a scam to obtain free repair and maintenance services and to obtain the sales proceeds through a quick escrow.

PROCEDURAL HISTORY 

On March 3, 2022, Plaintiff filed her Complaint against Defendants Griffith and Jack Shut.

On May 31, 2022, Plaintiff filed her First Amended Complaint.

On October 31, 2022, Griffith filed a Cross-Complaint against Cross-Defendants Payton and Tammy Williams.

On August 2, 2023, the Court sustained Payton’s first demurrer to the Cross-Complaint.

On August 17, 2023, Griffith dismissed Tammy Williams and filed a First Amended Cross-Complaint (“FACC”).

On September 7, 2023, Cross-Defendant Payton filed this demurrer.

DISCUSSION 

I.            DEMURRER

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Here, Payton’s counsel testifies that he met and conferred with Griffith’s counsel via telephone on September 5, 2023 and could not resolve their dispute over the FACC. (Forry Decl., ¶¶3-4.) Payton satisfies meet and confer requirements.

Judicial Notice

Payton seeks judicial notice of (1) the Complaint filed March 3, 2022, (3) the FACC filed May 31, 2022, and (3) the Notice of Rulings and Trial filed on August 3, 2023. The requests are granted.

Analysis

Payton demurs to the FACC on the grounds that (1) the FACC fails to state facts sufficient to support the causes of action for fraud and IIED and (2) the Court previously ruled that the claims are barred by litigation privilege set forth in Civ. Code, section 47.

Civil Code section 47(b) provides an absolute privilege for communications made in any legislative proceeding, in any judicial proceeding, in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law. (See Civ. Code, § 47(b); Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) “‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’” (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 964 (quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212).) The privilege “protects any statements or writings that have ‘some relation’ to a lawsuit,” meaning that “communications made both during and in anticipation of litigation are covered by the statute.” (Id. at 965 (quoting Rubin v. Green (1993) 4 Cal.4th 1187, 1193-94).) “‘The privilege is broadly applied to protect most publications within lawsuits provided there is some connection between the lawsuit and the publication.’” (Obos v. Scripps Psychological Associates, Inc. (1997) 59 Cal.App.4th 103, 108 (quoting Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529).) “‘Any doubt as to whether the privilege applies is resolved in favor of applying it.’” (Id. (emphasis in original).)¿¿

Here, the Court previously sustained Payton’s demurrer to the original Cross-Complaint on the grounds that Griffith’s claims are barred by litigation privilege. The Court found that the gravamen of the Cross-Complaint was that Plaintiff agreed to sell the property and then filed a Complaint to fraudulently retain possession after obtaining the sales price. (See Court Order in this matter dated August 2, 2023.) Griffith’s FACC contains substantially similar allegations. However, the general allegations and the first cause of action for fraud no longer contain language about Plaintiff’s quiet title action. The FACC now states Payton did not intend to sell the property but intended to defraud Griffith out of the sales proceeds through a quick escrow. (FACC ¶¶17-21.) The sale was part of a scam to trick Griffith into repairing and maintaining the property for free. (FACC ¶15.) Payton had engaged in similar scams to defraud purchasers of her other properties. (FACC ¶16.)

The Court granted Payton’s request for judicial notice of the Complaint, among other documents. The Complaint states that Payton is attempting to reclaim the subject property through a quiet title action. Although the FACC now only states Payton is engaging in a scam and omits how Payton is allegedly executing the scam, there is still a logical connection between the FACC and the underlying quiet title action because Payton is attempting to quiet title after selling the property to Griffith. The FACC would rely on privileged statements made in connection with Plaintiff’s quiet title action to prove that she fraudulently sold the property to Griffith. Griffith’s claims are barred by litigation privilege because they are based on Plaintiff’s underlying quiet title action. As before, should Griffith’s allegations prove to be true, he may file a claim for Malicious Prosecution in the event that he prevails in this action. The Court need not reach whether the FACC states facts sufficient to support Griffith’s claims.

The demurrer is sustained without leave to amend. The Court does not see how this defect can be cured. Defendant/Cross-Complainant had one opportunity to amend already to address this issue. Defendant/Cross-Complainant has not opposed this motion and thus has not provided a reasonable basis for concluding that the deficiency may be cured.

DATED: January 29, 2024

__________________________

Hon. Jill Feeney 

Judge of the Superior Court