Judge: Joseph Lipner, Case: 22STCV12666, Date: 2024-05-14 Tentative Ruling

Case Number: 22STCV12666    Hearing Date: May 14, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Cross-Defendant Agnes Sinclair (“Sinclair”) moves for judgment on the pleadings as to the Cross-Complaint filed by Defendant and Cross-Complainant Kelly Ann Greenfield (“Greenfield”).

The Court GRANTS the motion as to Greenfield’s fourth cause of action for defamation against Sinclair.

The Court DENIES the remainder of the motion.

Background

This case relates to a failed real estate transaction.

On October 1, 2021, non-parties Negar Aref and Omid Pezeshkfar (together, “Sellers”) and Cross-Defendant Agnes Sinclair entered into a written Residential Purchase Agreement (“RPA”) for the purchase by Sinclair of a single-family residence located at 24701 Argus Drive, Mission Viejo, California 92691 (the “Property”).

On October 29, 2021, Sinclair assigned her rights and obligations under the RPA to Plaintiff Long Peter Chin (“Plaintiff”), making him the prospective purchaser.

Greenfield alleges that Sinclair and Plaintiff are married, and that Sinclair transferred her rights because she could not obtain a loan to purchase the Property.

Plaintiff alleges that he engaged Defendant and Cross-Complainant Greenfield as a loan broker to obtain a loan to fund the RPA. Plaintiff alleges that Greenfield represented Plaintiff should seek out a loan from Defendant A&D Mortgage LLC (“A&D”) and, when A&D delayed issuing the loan, that Plaintiff could trust that it would be ready soon.

Greenfield alleges that Chin never asked for Greenfield’s advice or even spoke to her in real time. Greenfield alleges that Plaintiff relied on Sinclair’s advice for everything, including the loan.

Greenfield alleges that she worked for Lendsure Mortgage Corp. (“Lendsure”), and not A&D, as Plaintiff alleges. Greenfield alleges that she was an account executive, not a loan agent or broker. Greenfield alleges that an account executive is someone who talks to and assists loan advisors, agents, or brokers in packaging the loan before the loan goes to underwriting and then continues to assist them up until closing. Greenfield alleges that account executives are also charged with getting interest rates and terms to their loan agents, who then verify the information and relay it to their clients.

Greenfield alleges that Sinclair was Plaintiff’s loan agent. Greenfield alleges that Plaintiff and Sinclair knew that Greenfield was an account executive.

Ultimately, A&D did not provide the loan in time, and the escrow period in the RPA lapsed. The Sellers sold the property to another buyer. The Sellers refused to return Plaintiff’s deposit and threatened a legal action against him; Plaintiff eventually settled Sellers’ claim against him for $27,000.00.

Greenfield alleges that Plaintiff falsely told Lendsure that Greenfield was improperly performing outside work, resulting in Greenfield’s termination from Lendsure.

Plaintiff filed this action on April 14, 2022. The operative complaint is now the First Amended Complaint (“FAC”), filed on November 14, 2022. The FAC raises claims against Greenfield and A&D, among others, for (1) breach of contract – promissory estoppel; (2) breach of contract; (3) professional negligence; and (4) breach of fiduciary duty.

Greenfield filed the Cross-Complaint on June 22, 2022. The Cross-Complaint raises claims against Plaintiff and Sinclair (collectively, “Cross-Defendants”) for (1) fraud and deceit; (2) fraud in the inducement; (3) breach of contract and promissory estoppel; (4) defamation; (5) unintentional infliction of economic loss and fiduciary duty.

Sinclair answered the Cross-Complaint on July 18, 2022.

Sinclair moved for judgment on the pleadings as to the Cross-Complaint. Sinclair’s motion purports to be on behalf of Plaintiff and Cross-Defendant Chin as well as Sinclair. However, neither the motion nor the supporting declaration (which also purports to be on behalf of both Sinclair and Chin) are signed by Chin, who is self-represented, nor does Chin join the motion. The papers are only signed by Sinclair. The Court therefore treats Sinclair as the only moving party.

Sinclair served the motion on Greenfield on March 27, 2024 at the address she has on file with the Court.  Greenfield did file a later document in this case with a different address, but did not file a notice of change of address.

Greenfield did not file an opposition.

Legal Standard

Either prior to trial, but after the time to answer or demur has passed, or at the trial, the plaintiff or the defendant may move for judgment on the pleadings and that the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense. (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791; See also Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [The non-statutory motion for judgment on the pleadings can be made at any time, even during trial, since the grounds for a general demurrer are never waived.], see also Code Civ. Proc., §438(f).)  

A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (See, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 1998) §§ 7:275, 7:322; Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Id.; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677; Edwards v. Centex Real Estate Corp, (1997) 53 Cal.App.4th 15, 27.) 

The motion may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired; (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. (Code Civ. Proc., § 438(f).) The motion provided for in Code of Civil Procedure section 438 may be made even though either of the following conditions exist:  (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer; (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. (Code Civ. Proc., § 438(g).) No motion may be made pursuant to Code of Civil Procedure section 438 if a pretrial conference order has been entered pursuant to Code of Civil Procedure section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438(e).)   

Discussion

As an initial matter, Sinclair’s presentation of evidence on a motion for judgment on the pleadings is improper. A motion for judgment on the pleadings attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (See, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 1998) §§ 7:275, 7:322; Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Id.; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

Sinclair’s contention that the Cross-Complaint lacks substantive evidence is therefore not applicable to a motion for judgment on the pleadings. However, Sinclair may raise this argument in a motion for summary judgment that comports with the procedural requirements for such a motion if she wishes to do so.

Sinclair contends that Greenfield presented herself as a real estate agent or broker despite being unlicensed. First, this contention does not appear on the face of the Cross-Complaint. Second, Sinclair does not argue why, even taking this fact as true, it would warrant dismissal of Greenfield’s claims. Sinclair’s contention that Greenfield breached professional duties related to the loan transaction similarly does not appear on the face of the Cross-Complaint.

Sinclair argues that Greenfield’s filing of the Cross-Complaint breached fiduciary duties that Greenfield had to Cross-Defendants. Sinclair provides no authority (nor is the Court aware of any) indicating that a fiduciary relationship bars the filing of a lawsuit.

Sinclair argues that Cross-Defendants were not involved in the termination of Greenfield’s employment. Greenfield adequately alleges that Chin filed a false complaint against Greenfield, defaming her and resulting in her termination. However, Greenfield alleges no involvement by Sinclair in that alleged defamation. Nor does Greenfield seek to amend the complaint or argue that she has additional facts to allege implicating Sinclair in the defamation claim.  The Court therefore grants judgment on the pleadings as to the fourth cause of action for defamation.

The Court denies the remaining portions of the motion.