Judge: Joel L. Lofton, Case: 22AHCV00397, Date: 2023-05-09 Tentative Ruling

Case Number: 22AHCV00397    Hearing Date: May 9, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     May 9, 2023                            TRIAL DATE: No date set.

CASE:                         AMOUR FRANSWA COSEY and JACQUELINE ROSEANNE BROWN, v. ARMOUR (AMOUR) DAYTHON COSEY, and DOES 1 through 10.

CASE NO.:                 22AHCV00397

DEMURRER

DEMURRING PARTY:       Defendant Armour (Amour) Daython Cosey

RESPONDING PARTY:      Plaintiffs Amour Franswa Cosey and Jacqueline Roseanne Brown

SERVICE:                              Filed January 25, 2023

OPPOSITION:                       Filed April 27, 2023

REPLY:                                   No reply filed.

RELIEF REQUESTED   

            Defendant demurrers to Plaintiffs’ complaint.

BACKGROUND

             This case arises out of a dispute over real property located at 237 West Howard Street, Pasadena, California 91103 (“Subject Property”). Plaintiffs Amour Franswa Cosey and Jacqueline Roseanne Brown (“Plaintiffs”) filed this complaint on June 23, 2022, alleging four causes of action for (1) elder financial abuse, (2) fraud, (3) intentional infliction of emotional distress, and (4) breach of fiduciary duties against Armour (Amour) Daython Cosey (“Defendant)”.

TENTATIVE RULING

            Defendant’s demurrer to Plaintiffs’ complaint is SUSTAINED with leave to amend.

LEGAL STANDARD

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (Code Civ. Proc. section 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn v. Mirda, supra, 147 Cal.App.4th 740, 747.)

DISCUSSION

            Demurrer for Lack of Standing

            Defendant argues that Plaintiffs’ claim fail because Plaintiffs lack standing to bring the claims they seek to allege.

             “Only a real party in interest has standing to prosecute an action, except as otherwise provided by statute. (Code Civ. Proc., § 367.) A party who is not the real party in interest lacks standing to sue.” (Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920.) “ ‘Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.’ ” (Robinson v. Southern Counties Oil Company (2020) 53 Cal.App.5th 476, 481.)

            Plaintiffs’ first cause of action alleges Rosebud Jacques Cosey (“Rosebud”) was subjected to elder abuse. However, Rosebud is not a party to the action, nor do Plaintiffs allege they are Rosebud’s representative or successor in interest. Plaintiffs have failed to allege standing to bring their first cause of action for elder abuse.

            Next, Plaintiff’s second cause of action is for fraud. Plaintiffs allege Defendant misrepresented his ability to collect part of the sale proceeds for the Subject. (Complaint ¶ 23.) However, Plaintiffs allege no ownership interest in the Subject Property and specifically allege title to the property belongs to Jack T. Cosey and Rosebud. (Id. ¶ 6.) Plaintiffs fail to allege they have standing to bring their claim for fraud.

            Lastly, Plaintiff’s fourth cause of action alleges that Defendant owed Plaintiffs a fiduciary duty as attorney-in-fact or executor. (Complaint ¶ 32.) However, Plaintiffs allege that Defendant was Rosebud’s attorney-in-fact. (Id. ¶ 9.) Plaintiffs do not allege that Defendant owed them a fiduciary duty and have failed to allege standing to bring this claim.

            Demurrer for Failure to State a Claim

            Plaintiffs’ third cause of action for intentional infliction of emotional distress.

also fails to allege facts sufficient to state a claim.

            “ ‘ “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” ’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

            Plaintiffs fail to allege what conduct Defendant engaged in, that the conduct was outrageous, and that they suffered severe or extreme emotional distress. Plaintiffs’ claim for intentional infliction of emotional distress fails.

            In opposition, Plaintiffs simply request leave to amend.

CONCLUSION

            Defendant’s demurrer to Plaintiffs’ complaint is SUSTAINED with 20 days leave to amend.

            Moving Party to give notice.

Dated:   May 9, 2023                                      ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org