Superior Court of California

County of Los Angeles

North Central District

Department B

MICHELE A. SANTOPIETRO,

Plaintiff,

SANDRA D. SANTOPIETRO, et al.,

Defendants.

Case No.: 23BBCV00340

Hearing Date: April 5, 2024

[TENTATIVE] ORDER RE:

MOTION TO DISMISS THE FIRST CAUSE OF ACTION IN THE VERIFIED COMPLAINT FILED BY PLAINTIFF, PURSUANT TO CCP § 581(F)(2)

BACKGROUND

A. Allegations

Plaintiff Michele Santopietro (“Plaintiff,” a self-represented litigant) alleges that on June 27, 2007, she and her mother purchased property located at 554 E. San Jose Ave., #204 in Burbank for $510,000 and the grant deed asserted the property was granted to “Sandra D. Santopietro, a widow and Michele A. Santopietro, a single woman as Joint Tenants” (“First Deed”).

On October 8, 2008, a second grant deed (“Second Deed”) was executed, whereby Plaintiff’s interest in the property was transferred to her mother as a bona fide gift, but she alleges that she had no knowledge of the fraudulent transfer of title and did not agree to relinquish her interest. Plaintiff alleges she lived at the property for 14-15 years without knowledge of the transfer and made mortgage payments. Plaintiff alleges that in May 2022, her mother changed the locks to the property to prevent her from entering and thereafter learned of the fraudulent transfer. On June 3, 2022, Plaintiff alleges she discovered that the property was listed for sale. On June 15, 2022, she alleges she went to the property to collect her mail and she encountered Defendant Michael McDonald of Compass (real estate agent), who threatened her. She also encountered Defendant Mary Anne Been (another real estate agent) who informed her mother to block her phone number.

On September 16, 2022, a third grant deed (“Third Deed”) was entered, whereby Plaintiff’s mother sold the property to Defendants Juvelyn Palomique and Stephen Harrison for $780,000. She alleges that McDonald and Been, by and through compass, and Defendant Robert Reffkin facilitated the sale of the property.

Plaintiff alleges that she has attempted to approach the property to obtain her mail, but has been denied access. She alleges that the sale was wrongful.

The complaint, filed February 10, 2023, alleges causes of action for: (1) quiet title; and (2) fraud.

B. Motion on Calendar

On February 13, 2024, Defendant Sandra D. Santopietro (“Defendant”) filed a motion to dismiss the 1^st cause of action in the complaint filed by Plaintiff, pursuant to CCP § 581(f)(2).

On March 22, 2024, Plaintiff filed an opposition brief.

On March 28, 2024, Defendant filed a reply brief.

LEGAL STANDARD
CCP § 581(f)(2) states: “The court may dismiss the complaint as to that defendant when: … (2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”

DISCUSSION

Defendant Sandra D. Santopietro moves to dismiss the 1^st cause of action alleged in the complaint.

By way of background, on September 14, 2023, Defendant filed a demurrer to the 1^st and 2^nd causes of action in the complaint. The Court sustained the demurrer to the 1^st cause of action with 20 days leave to amend and overruled the demurrer to the 2^nd cause of action. On November 9, 2023, Defendant filed a Notice of Ruling Re: Demurrer – November 3, 2023, which was served on Plaintiff on November 9, 2023 by mail. (Mot., Ex. B.) Based on the Court’s records, following the hearing on the demurrer and the notice of the hearing, Plaintiff has not filed an amended pleading.

In opposition, Plaintiff argues that she is saving money to retain legal representation for this case, which will be an additional $10,000. Plaintiff argues that Defendant’s antics have caused her potential counsel to rescind his offer of representation unless Plaintiff paid $7,500 as a retainer fee. Plaintiff argues that she never received notice of the demurrer order and only saw it when she received the motion to dismiss paperwork. Plaintiff then argues the merits of the case and her attempts to retain an attorney. She states that she has attached an opposition to the demurrer and that she attended the hearing on the demurrer online, but did not get a mailed copy of the decision.

The Court notes that the hearing for the demurrer was November 3, 2023. As such, Plaintiff’s opposition was due by October 23, 2023. Plaintiff filed an opposition to the demurrer on October 31, 2023, which was untimely. According to CCP § 1005(b), all moving and supporting papers shall be filed and served at least 16 court days before the hearing; all opposing papers shall be filed with the court and served at least 9 court days before the hearing; and all reply papers at least 5 court days before the hearing. Pursuant to CRC, Rule 3.1300(d), the court may in its discretion refuse to consider a late filed paper. As such, the Court was in its discretion to refuse to consider Plaintiff’s late-filed opposition. In addition, Plaintiff admits that she was at the hearing on the demurrer online. (Opp. at p.4.) If she wanted to present oral arguments or inform the Court that she had belatedly filed an opposition brief, the Court would have heard such arguments at that time. Further, since she attended the hearing, she heard the results of the demurrer hearing.

The Court declines to consider Plaintiff’s opposition brief to the demurrer at this time. Plaintiff has not filed a motion for reconsideration of the demurrer pursuant to CCP § 1008. Even if she had, the motion for reconsideration would be untimely as it was not filed within 10 days after service of Defendant’s written notice of entry of order of the demurrer.

Next, Plaintiff has not shown that she did not receive notice of the demurrer order. She states that she did not agree to accept electronic service and she was never served with the demurrer documents. (Pl.’s Decl., ¶3.) The documents were served by electronic service at santopietro7@aol.com and by mail at P.O. Box 1318, Sacramento, CA 95812. Plaintiff does not dispute that these addresses are correct. In fact, the caption of her opposition papers shows that the P.O. Box address is her current address. The proof of service accompanying her opposition papers show that her email address is the email address she was electronically served at.

Based on the timeline of events, the Court grants the motion to dismiss the 1^st cause of action from the complaint. Plaintiff did not timely file an amended pleading and still has not done so. Although it is unfortunate that Plaintiff has not retained counsel, this in itself is not a viable excuse for her failure to comply with the Court’s order to amend the complaint within 20 days of the demurrer order.

CONCLUSION AND ORDER

Defendant Sandra D. Santopietro’s motion to dismiss the 1^st cause of action from the complaint is granted.