Judge: Joseph Lipner, Case: 22STCV28729, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV28729    Hearing Date: October 12, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

(1) Plaintiff Maria Estela Carreno (“Carreno”) moves to strike the Unverified Answer of Defendant Maria Espinoza (“Espinoza”).   Carreno’s Motion to Strike  Espinoza’s Unverified Answer is granted.  Espinoza shall have 10 days leave to file a First Amended Answer that is verified in accordance with CCP §446. 

(2) Plaintiff/Cross-Defendant Carreno and Cross-Defendant Brenton Horner (“Horner”) (collectively, “Carreno/Horner”) move to strike portions of Espinoza’s Cross-Complaint filed on May 8, 2023.  Carreno/Horner’s Motion to Strike is granted as to Items 4 and 6 of the prayer for relief as these items relate to Carreno and Horner and denied as to Item 5. 

Espinoza’s Request for Judicial Notice of the Deed of Trust is granted. 

Background

          Carreno alleges she executed a quitclaim deed transferring the titular ownership of real property based on the false representations of Defendant Maria Guadalupe Lopez (“Lopez”).  Carreno alleges  Lopez told her the quitclaim deed would avoid the necessity of probate if Carreno should die.  Carreno also alleges Lopez promised that in the event of Carreno’s death, Lopez would provide for Plaintiff’s disabled sister, Maria De Jesus Bursiaga, by either allowing her to live on the property or by using the proceeds from sale of the property for her care and maintenance.  Plaintiff alleges Lopez stated that she would not use the property for her benefit and Carreno would remain the owner of the property despite the quitclaim deed to Lopez. 

          Carreno alleges Lopez’s statements were fraudulent.  Carreno alleges Lopez immediately began encumbering the property and using the interest created by the quitclaim deed for her benefit.  Carreno alleges Lopez incurred indebtedness, encumbered and recorded trust deeds on the subject real property in favor of Espinoza, Marco Antonio Lara, Jr. and Abigail Gramajo (collectively, the “Lender Defendants”). 

          On September 2, 2022, Carreno filed a complaint against Lopez and the Lender Defendants alleging (1) cancellation of quitclaim deed and to quiet title to real property; (2) fraud; and (3) declaratory relief.  Plaintiff seeks damages as a result of Lopez’s fraud, an order voiding the quitclaim deed and deeds of trust and an order quieting title to the property in Carreno’s name. 

          On December 27, 2022, Espinoza demurred to the complaint. 

          On April 27, 2023, the Court overruled Espinoza’s demurrer and ordered her to answer in 10 days. 

          On May 8, 2023, Espinoza filed a cross-complaint for judicial foreclosure. Espinoza filed this cross-complaint against Carreno and Horner (who are the moving parties on the motion to strike) as well as against Lopez and the Lender Defendants, who have not moved to strike the cross-complaint.

          On May 17, 2023, Carreno filed a motion to strike Espinoza’s Unverified Answer.  On the same date, Carreno and Horner filed a motion to strike Espinoza’s Cross-Complaint.  As noted, none of the other cross-defendants joined in the motion to strike.

          On September 29, 2023, Espinoza filed an opposition entitled “Opposition to Motion to Strike Answer.”  The opposition’s substantive arguments are directed solely at Carreno and Horner’s motion to strike Espinoza’s cross-complaint. 

          No reply has been filed as of October 9, 2023. 

Legal Standard

CCP §435

“(a) As used in this section:

          (1) The term “complaint” includes a cross-complaint.

          (2) The term “pleading” means a demurrer, answer, complaint, or cross-complaint.

(b)(1) Any party, within the time to allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any party thereof, but this time limitation shall not apply to motions specified in subdivision (e)…” 

[Subdivision (e) refers to motions to strike brought in conjunction with a motion for judgment on the pleadings.]

CCP §436

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

          Pursuant to CCP §435, the Court may strike out “any irrelevant, false, or improper matter inserted in any pleading” and/or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  (CCP §435.)  In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true: “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.)     

Discussion

          Carreno’s Motion to Strike Unverified Answer

          Carreno filed a verified complaint against Espinoza.  Espinoza filed an unverified answer on May 8, 2023.  Plaintiff’s counsel emailed defense counsel on May 15, 2023 informing him of the defect in an attempt to meet and confer.  (Horner Dec., ¶  No response was received.  CCP §435.5 required Plaintiff to meet and confer in person or by phone.  However, Plaintiff’s failure to meet in person or by phone does not justify denial of the motion.  Plaintiff substantially complied. 

          Defendant Espinoza’s opposition does not raise any substantive arguments in opposition to the request to strike her answer.  Espinoza’s opposition arguments are directed at the motion to strike her cross-complaint. 

          Pursuant to CCP §446, “When the complaint is verified, the answer shall be verified.”  Espinoza’s answer is not drafted in conformity with CCP §446 and is subject to being stricken. 

          Carreno/Horner’s Motion to Strike Cross-Complaint

          As with the Carreno’s Motion to Strike Espinoza’s answer, Carreno/Horner failed to properly meet and confer under CCP §435.5.  Carreno/Horner sent an email to Cross-complainant’s counsel on May 30, 2023 objecting to the request for attorney’s fees and punitive damages.  (Horner Dec., ¶4.)  However, Carreno/Horner’s email substantially complied with the meet and confer requirement as to the cross-complaint’s punitive damages and attorney’s fees request.  Moreover, failure to satisfy the meet and confer requirement is not grounds to deny the motion.  (CCP §435.5(a)(4).)

          In addition, Carreno/Horner’s notice of motion fails to comply with the requirements of CRC Rule 3.1322(a):  “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.”  (CRC Rule 3.1322(a).)  Carreno/Horner does not identify in the notice of motion what precise allegations she is moving to strike from Espinoza’s cross-complaint, nor is it clear from the notice of motion if Carreno/Horner is seeking to strike the entire cross-complaint, an entire cause of action or paragraph. 

          However, based on Carreno/Horner’s memo of points and authorities and meet and confer correspondence, they are clearly moving to strike the request for attorney’s fees and punitive damages from the cross-complaint.  (Motion to Strike Cross-complaint, 6:1-3.)  Carreno/Horner argue the bare-bones allegations of the cross-complaint do not allege a default, date of default, amount of default or any conduct warranting attorney’s fees or punitive damages against Carreno/Horner.  (Id.)

          In her opposition, Espinoza argues Horner is a proper party to the cross-complaint.  However, Carreno/Horner do not challenge the propriety of naming Horner as a party.

          In her opposition, Espinoza does not respond to Carreno/Horner’s arguments that the punitive damages are improper.  Espinoza filed a cross-complaint for judicial foreclosure pursuant to CCP §725a.  There are no allegations of fraud, malice or oppression to support Espinoza’s claim for punitive damages under Civil Code §3294.  The motion to strike punitive damages is granted. 

          Finally, in her opposition, Espinoza attempts to rely on Espinoza’s Deed of Trust and CCP §§726 and 730 to support the claim for attorney’s fees.  Espinoza is correct, but only as to cross-defendant Lopez.   There are no grounds for attorney’s fees against Carreno/Horner, who are not parties to the deed of trust between Espinoza and Lopez:

·       Espinoza cites paragraph 4, p. 2 of the Deed of Trust between Espinoza and Lopez.  (Espinoza’s RJN, Ex. 1, p. 2, ¶4.)  Paragraph 4 is a promise by Lopez to pay the attorney’s fees incurred by Espinoza in any action purporting to affect the deed to trust.  (Id.)  It only obligates Lopez.  It does not obligate Carreno/Horner. 

·       Next, Espinoza attempts to rely on Civil Procedure Code §§726 and 730.   The first of these statutes states:  “In the action the court may, by its judgment, direct the sale of the encumbered real property…and the application of the proceeds of the sale to…the amount due plaintiff, including, where the mortgage provides for the payment of attorney's fees, the sum for attorney's fees as the court shall find reasonable…”  (CCP §726(a), emphasis added.) The second states:  “In all cases of foreclosure of mortgage the attorney's fee shall be fixed by the court in which the proceedings are had, any stipulation in the mortgage to the contrary notwithstanding.”  (CCP §730.)  But the only mortgage cited is the one between Espinoza and Lopez, which does not obligate Carreno/Horner.

Thus, the Court strikes the request for attorney’s fees as it relates to a claim for attorney’s fees against Carreno and Horner.  The attorney’s fees request stands as it relates to cross-defendant Lopez and the other Lender Defendants, who did not move to strike. 

          The Court notes that Carreno/Horner also briefly reference Item 5 of the Prayer for Relief, “For a foreclosure and sale of the Real Property,” in the motion to strike.  (Motion, 4:11-14.) Carreno/Horner did not meet and confer on Item 5.  Moreover, the motion to strike Item 5 would gut the complaint for judicial foreclosure, amounting to a demurrer, not a motion to strike.  Carreno/Horner do not identify the elements of a judicial foreclosure action or what elements of such a claim Espinoza fails to allege. 

          Carreno/Horner’s Motion to Strike the Cross-Complaint is granted as to the request for attorney’s fees and punitive damages, Items 4 and 6, solely as they relate to Carreno and Horner.  Carreno/Horner’s Motion to Strike the request for foreclosure and sale of the property, Item 5, is denied. 

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Maria Espinoza (“Espinoza”) moves to
strike certain allegations from the complaint of Plaintiff Maria Carreno
(“Plaintiff”) that pertain to Lopez’s use of the property as collateral for
certain loans.

Defendant Espinoza’s
motion to strike is denied. 

Background

          Plaintiff
Maria Estela Carreno is the alleged owner in fee simple of certain
property.  Plaintiff alleges she executed
a quitclaim deed transferring the titular ownership of the property based on
the false representations of Defendant Maria Guadalupe Lopez.  Plaintiff alleges Defendant Lopez told her
the quitclaim deed would avoid the necessity of probate if Plaintiff should
die.  Plaintiff also alleges Lopez
promised that in the event of Plaintiff’s death, Lopez would provide for
Plaintiff’s disabled sister, Maria De Jesus Bursiaga, by either allowing her to
live on the property or by using the proceeds from sale of the property for her
care and maintenance.  Plaintiff alleges
Lopez stated that she would not use the property for her benefit and Plaintiff
would remain the owner of the property despite the quitclaim deed to
Lopez. 

          Plaintiff
alleges Lopez’s statements were fraudulent. 
Plaintiff alleges Lopez immediately began encumbering the property and
using the interest created by the quitclaim deed for her benefit.  Plaintiff alleges Lopez incurred
indebtedness, encumbered and recorded trust deeds on the subject real property
in favor of Maria Espinoza, Marco Antonio Lara, Jr. and Abigail Gramajo
(“Lender Defendants”). 

          On
September 2, 2022, Plaintiff filed a complaint against Defendant Lopez and
Lender Defendants alleging (1) cancellation of quitclaim deed and to quiet
title to real property; (2) fraud; and (3) declaratory relief.  Plaintiff seeks damages as a result of
Defendant Lopez’s fraud, an order voiding the quitclaim deed and Lender
Defendants’ deeds of trust and an order quieting title to the property in
Plaintiff’s name. 

          On
December 27, 2022, Espinoza demurred to the complaint. 

          On
April 27, 2023, the Court overruled Espinoza’s demurrer and ordered Lopez to
answer in 10 days. 

          On
May 8, 2023, Defendant Espinoza filed this motion to strike.  On June 22, 2023, Plaintiff filed an
opposition to Espinoza’s motion to strike. 
On June 30, 2023, Defendant Espinoza filed a reply to the motion.           

Legal Standard

CCP §435

“(a) As used in this section:

          (1)
The term “complaint” includes a cross-complaint.

          (2)
The term “pleading” means a demurrer, answer, complaint, or cross-complaint.

(b)(1) Any party, within the time to allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any party thereof, but this time limitation shall not apply to motions
specified in subdivision (e)…” 

[Subdivision (e) refers to motions to strike
brought in conjunction with a motion for judgment on the pleadings.]

CCP §436

“The court may, upon a motion made pursuant to
Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or
improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading
not drawn or filed in conformity with the laws of this state, a court rule, or
an order of the court.”

Pursuant to CCP §435, the Court may strike out “any irrelevant, false, or
improper matter inserted in any pleading” and/or “all or any part of any
pleading not drawn or filed in conformity with the laws of this state, a court
rule, or an order of the court.”  (CCP
§435.)  In ruling on a motion to strike,
the allegations in the complaint are considered in context and presumed to be
true: “[J]udges read allegations of a pleading subject to a motion to strike as
a whole, all parts in their context, and assume their truth.”  (Clauson v. Sup.Ct. (Pedus Services, Inc.)
(1998) 67 Cal.App.4th 1253, 1255.)     

Discussion

          Motion to Strike untimely and filed in violation of Court’s
April 27, 2023 Order overruling the demurrer

          Defendant Espinoza
previously demurred to the complaint and the demurrer was overruled on April
27, 2023.  Espinoza was ordered by the
Court to “answer” in 10 days. 
Instead, Espinoza filed this improper motion to strike pursuant to CCP
§§435 and 436.  The motion to strike
itself is therefore subject to being stricken as not being drawn in conformity
with an order of the court. (CCP §435(b).) 

          Apart from violating the
Court’s April 27, 2023 order, the motion to strike is also untimely.  A motion to strike must be brought “within
the time allowed to respond to a pleading,” i.e. 30 days after service of the
complaint.  Espinoza filed a demurrer
within the time to respond but failed to bring a motion to strike.  Given the deadline to file a motion to strike
under CCP §436, Espinoza is not entitled to lengthen the time to attack the
pleadings by filing a motion to strike after unsuccessfully demurring to the
complaint.

          The motion is also based
entirely on the “first in time rule” under Civil Code §2897, an argument that
was already raised in Espinoza’s prior demurrer.  (Demurrer filed on December 27, 2022, pp.5-6.)  Espinoza’s motion to strike is therefore in
actuality a procedurally improper motion for reconsideration.   

          For these reasons,
Defendant’s motion to strike is denied on procedural grounds. 

          Motion to Strike fails
to establish allegations are false, irrelevant or improper

          Espinoza’s motion to
strike also fails on the merits. 
According to Espinoza, the following allegations must be stricken:

1. The portion of Pg. 8 Para. 27 Lines 4-7 of the Plaintiff's Complaint,
stating “and defendants and each of them have clouded title, excluded,
dispossessed, hypothecated, and have otherwise made unavailable to Plaintiff
her ownership rights in the subject real property that any powers of attorney
or any other documents executed by Defendant Maria Guadalupe Lopez are void,
without legal force or effect.”

2. The portion of Pg. 8 Para. 27 Lines 8-10 of the Plaintiff's Complaint,
stating “and that any attempts to sell or alienate any real or personal
property in the name of Maria Guadalupe Lopez should be enjoined.”

3. The portion of Pg. 8 Payer. 3 Lines 25-28 of the Plaintiff's
Complaint, stating “for a temporary restraining order, a preliminary
injunction, and a permanent injunction, all enjoining defendants, and all
persons action under, for, or in concert with that Defendants from selling,
encumbering, or transferring, the subject real property of Maria Guadalupe
Lopez or attempting to sell it or causing them to be sold, encumbered,
hypothecated or otherwise made unavailable.”

4. The portion of Pg. 9 Payer. 5 Lines 4 of the Plaintiff's Complaint,
stating “for general damages to be proven at trial.”

5. The portion of Pg. 9 Payer. 6 Lines 5 of the Plaintiff's Complaint,
stating “for exemplary and punitive damages.” 

6. The portion of Pg. 9 Payer. 3 Lines 10 of the Plaintiff's Complaint,
stating “for general damages.” (Notice of Motion, 2:5-25.)(referring to as the
“Subject Allegations.”)

          Espinoza argues these
allegations must be stricken, because Plaintiff cannot seek to invalidate the
interests of lenders with prior recorded interests.  Espinoza argues that based on the “first in
time rule” under Civil Code §2897, Plaintiff cannot invalidate the recorded
interests of the Lender Defendants, because they are “first in time” and they
are “bona fide purchasers.”

          Espinoza’s argument fails
to establish that the allegations identified in the notice of motion are
“irrelevant, false, or improper” or that they “are not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the
court.”  (CCP §435.)  The Subject Allegations are relevant to
Plaintiff’s claims for cancellation of instrument and declaratory relief. There
is currently a dispute over whether Lopez has a valid interest in the property
and whether the deeds of trust recorded against the property by Lender
Defendants, including Espinoza, are valid interests.  The Subject Allegations are material to
Plaintiff’s theory of the case.  Espinoza
also fails to demonstrate that these allegations are “false” under CCP §435.

          In addition, accepting
Plaintiff’s allegations as true, Civil Code §2897 does not bar Plaintiff’s
claim that the Lender Defendants’ deed of trusts are invalid.  Civil Code §2897 provides, “Other things
being equal, different liens upon the same property have priority according to
the time of their creation, except in cases of bottomry and respondentia.” 

          The statute applies the
“first in time rule” to competing liens, “other things being equal.”  Plaintiff alleges that Lender Defendants’ deeds
of trust are based on Lopez’s fraudulently acquired interest in the property,
and they are therefore void just as Lopez’s interest is void.  (Complaint, ¶¶25, 27.)  Plaintiff alleges Lopez did not have a valid
interest in the property to use as security for any loan.  (Complaint, ¶10.)  Nowhere in Plaintiff’s complaint has she
alleged that she has a superior lien or that she is seeking to have one lien
declared superior over another. 

          Even if Plaintiff were
asserting that certain validly created liens are superior to those liens based
on Espinoza’s fraudulent interest in the property, the “first in time rule”
would not apply amongst such liens, because “other things” are not “equal”
among the liens.  (Civ. C. §2897.)  Plaintiff is not alleging that lender
defendants’ liens are “equal” to other liens in all respects other than order
of recordation.  Plaintiff is alleging
lender defendants’ deeds of trust are void, because they are based on Lopez’s
fraudulent, void interest in the property. 
These allegations must be accepted as true on a motion to strike. 

          Likewise, Espinoza’s
reliance on the bona fide purchaser rule is misplaced.  Plaintiff is not alleging that any sale has
occurred or that the lenders are bona fide purchasers.  Plaintiff seeks an injunction to prevent any potential
sale. 

          Finally, a number of the
Subject Allegations have nothing to do with the request to void the deeds of
trust and merely seek punitive damages and general damages against
Defendants.  Espinoza fails to
demonstrate that these categories of damages are somehow barred by the “first
in time rule” under Civil Code §2897.

          For these reasons, Defendant
Espinoza’s motion to strike is also denied on substantive grounds.