Superior Court of California 

County of Los Angeles 

Department 78 

 

SHAI HARRIS, et al., 

Plaintiffs,

vs. 

FUNDING RUSH, INC., et al., 

Defendants. Case No.: 23STCV05896

DEMURRERS TO PLAINTIFF’S FIRST AMENDED COMPLAINT FILED BY DEFENDANTS TERESA GORMAN MARTINEZ AND RUBEN MARTINEZ, TRUSTEES OF GM DEFINED BENEFIT PENSION PLAN AND DOUGLAS BURTON AS TRUSTEE OF THE DBRAT FAMILY TRUST

Plaintiff Jovontay Williams is dismissed without prejudice from the First Amended Complaint. Plaintiff Williams never filed or signed the pro per complaint.

The Demurrers filed by Defendants Burton and Pension Plan are SUSTAINED without leave to amend.

The OSCs are discharged.

The Court sets an OSC Re: Imposition of Sanctions for Failure to Timely Request Entry of Default as to Defendants Funding Rush, Inc., Asset Default Management, Inc. and Lil Wave Financial, Inc. pursuant to CRC Rule 3.110(g) for June 28, 2024 at 8:30 a.m. 

Plaintiff Harris should be prepared to discuss the issue of leave to amend at the hearing. 

Moving party to provide notice.

FACTUAL BACKGROUND

This is a quiet title action. Plaintiffs Shai Harris, individually and as Trustee of the H McClenon Trust and ADH Harris Trust, and Jovontay Williams, Trustee of the 800 Ranch California Trust, allege that they were subjected to a promissory note secured by a deed of trust fraudulently underwritten by Funding Rush, Inc. Plaintiff seeks to quiet title on the property located at 1939 Spaulding Ave, Los Angeles, CA 90016.

PROCEDURAL HISTORY 

On May 24, 2023, Plaintiff Harris filed a First Amended Complaint (“FAC”).

On December 14, 2023, Douglas Burton, trustee of the DBRAT Family Trust filed his demurrer. The demurrer is not opposed.

On December 20, 2023, Pension Plan filed its demurrer. The demurrer is not opposed.

DISCUSSION 

I. Demurrer filed by Defendant Pension Plan

Pension Plan demurs to the Complaint on the grounds that (1) the FAC is fatally uncertain, (2) Plaintiffs lack standing to assert a cause of action against Pension Plan, (3) the FAC does not describe the title, (4) Plaintiff does not state any adverse claims to title, (5) the FAC does not include a date for which determination is sought, (6) the FAC does not include a prayer for a determination of the title, (7) the action is barred by the tender rule, (8) this action is barred by res judicata, and (9) the action is barred by the bona fide purchaser doctrine. 

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, Pension Plan’s Counsel testifies that prior to filing the demurrer, she attempted to meet and confer and received no response from Plaintiff. (Neumann Decl., ¶¶2-3.) Counsel meets meet and confer requirements.

Judicial Notice

Pension Plan requests judicial notice of the following:

1. Notice of Default and Election to Sell Under Deed of Trust recorded on February 24, 2022

2. Notice of Trustee’s Sale recorded on June 3, 2022

3. Grant Deed dated January 1, 2015

4. Trustee’s Deed Upon Sale recorded August 29, 2022

5. FAC filed in another case, 22STCV21039

6. Notice of Ruling in 22STCV21039

7. Notice of Entry of Judgment in 22STCV21039

The requests are GRANTED.

Uncertainty

Pension Plan first argues that the FAC is fatally uncertain.

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)  

The FAC does not state any facts with respect to Defendant Pension Plan. Rather, the FAC merely alleges that Defendant Funding Rush, Inc. fraudulently underwrote a promissory note. Without any facts pertaining to Pension Plan, Pension Plan cannot reasonably determine what counts or claims are directed against it. Accordingly, the demurrer is sustained on this ground. 

Standing

Pension Plan also alleges Plaintiffs lack standing to assert any claims against Pension Plan. Pension Plan cites Code Civ. Proc., section 367, which provides that each action must be prosecuted in the name of the real party in interest. Additionally, Defendants provide authority which states standing is typically treated as a threshold issue, that a party must be beneficially interested in the controversy to have standing, and the interest must be concrete and actual, not merely hypothetical. (People v. Superior Court (2002) 103 Cal.App.4th 409; Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796; Holmes v. California National Guard (2001) 90 Cal.App.4th 297, 315.

Here, the Court granted judicial notice of the Grant Deed recorded on June 21, 2022, which shows that the McClenon Trust and the ADH Trust transferred their interest in the subject property to the 800 Ranch California Trust before it was sold to the DBRAT Family Trust. (Pension Plan’s RJN, Exhs 3-4.) Because the McClenon and ADH Trusts had already transferred their interest in the subject property to the 800 Ranch California Trust at the time of the disputed sale, the McClenon and ADH Trusts do not have any beneficial interest in this controversy. Therefore, the trusts do not have standing to assert claims against Pension Plan.

Leave to Amend

Plaintiff did not oppose this demurrer. Based on the current record, the Court does not have a reasonable basis to believe that the defects in the FAC can be cured.

II. Demurrer filed by Defendant Burton

Burton demurs to the FAC on the grounds that it fails to state a cause of action against the DBRAT Family Trust (DBRAT Trust). 

Meet and Confer

Burton’s counsel met and conferred with Plaintiff prior to filing his demurrer and the parties could not resolve their dispute over the FAC. (Paloci Decl., ¶3.) 

Analysis

Burton argues the FAC fails to trace title, does not specify the adverse claims Plaintiff has against the DBRAT Trust, fails to allege grounds for which Plaintiff seeks relief, and fails to set out facts as to the DBRAT Trust. The analysis here is the same as the uncertainty analysis for Pension Plan. The FAC fails to state any facts pertaining to the DBRAT Trust such that it cannot reasonably determine what counts or claims are directed against it. Burton’s demurrer is sustained. 

Leave to Amend

Again, Plaintiff did not oppose this demurrer. Based on the current record, the Court does not have a reasonable basis to believe that the defects in the FAC can be cured.

DATED: April 17, 2024

__________________________

Hon. Jill Feeney 

Judge of the Superior Court