Judge: Joseph Lipner, Case: 23STCV28232, Date: 2024-06-04 Tentative Ruling
Case Number: 23STCV28232 Hearing Date: June 4, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
ROSALIE GENUS, Plaintiff, v. JANET HAYWOOD, et al., Defendants. |
Case No:
23STCV28232 Hearing Date: June 4, 2024 Calendar Number: 4 |
Defendant Lawyers Title Company (“Lawyers Title”) demurs to
the first, second, and fourth causes of action in the Complaint filed by
Plaintiff Rosalie Genus (“Plaintiff”). Lawyers title additionally moves to
strike portions of the Complaint.
Defendants Janet Haywood (“Haywood”) and 8424 Western Plaza,
LLC (“Western Plaza”) demur to the Complaint filed by Plaintiff Rosalie Genus
(“Plaintiff”).
The Court OVERRULES Haywood’s demurrer.
The Court OVERRULES Western Plaza’s demurrer.
The Court SUSTAINS Lawyers Title’s demurrer to the first,
second, and fourth claims as to Lawyers Title with leave to amend.
The Court DENIES Lawyers Title’s motion to strike as MOOT.
This is a real property dispute. The following facts are
taken from the allegations of the Complaint.
Plaintiff and Haywood are sisters. Haywood owned the real
property located at 10427 S. Denker Avenue, Los Angeles, California 90047 (the
“Property”).
In 2007, Plaintiff moved into the Property as a tenant.
On January 27, Haywood formed the Western Plaza as an LLC.
On April 7, 2017, Haywood transferred title to the Property to the Western
Plaza.
On January 25, 2018, Plaintiff and Western Plaza entered a
written agreement whereby Plaintiff would purchase the property from Western
Plaza for $325,000.00. Plaintiff complied with the terms of the purchase
agreement. Western Plaza, acting through Haywood, refused to sign the necessary
documents to close escrow and thus transfer the property.
What followed was a series of lawsuits resulting in
stipulated judgements, each of which provided that Defendants Haywood and
Western Plaza would transfer the property to Plaintiff, and each of which
Defendants Haywood and Western Plaza violated by refusing to sign the transfer
documents.
Most recently, in Los Angeles Superior Court Case No.
19STCV39523, the Court ordered on November 29, 2022 that the court clerk would
be appointed as an elisor to execute sale documents on behalf of Haywood and
Western Plaza. Plaintiff brought an ex parte application on May 18, 2023 for an
order directing the court clerk to sign the escrow instructions for the
transfer (the “Escrow Instructions”), which the Court granted. The court clerk
signed the Escrow Instructions.
The Escrow Instructions provide for the duties and
obligations of New Era, which include engaging Lawyers Title to prepare and
deliver to Plaintiff a policy of title insurance.
Plaintiff provided the signed Escrow Instructions to the
escrow officer, New Era and to the title company, Lawyers Title.
Haywood and the Western Plaza contacted New Era and demanded
that New Era refrain from closing escrow to allow Haywood and Western Plaza to
appeal the judgment in Case No. 19STCV39523. The Escrow Instructions do not
provide a grace period for appeal, nor do they permit a party to unilaterally
cancel the agreement. Haywood and Western Plaza have not posted bond.
New Era refused to comply with the Escrow Instructions and
close escrow.
Lawyers Title has not delivered a title insurance policy to
Plaintiff.
Plaintiff filed this action on November 16, 2023, joining
New Era and Lawyers Title as defendants in addition to Western Plaza and
Haywood collectively, “Defendants”). New Era and Lawyers Title were not parties
to the previous actions. Plaintiff raises claims for (1) declaratory relief
(against all Defendants); (2) injunction (against New Era and Lawyers Title);
(3) injunction (against Haywood and Western Plaza); and (4) specific
performance (against New Era and Lawyers Title). Plaintiff seeks damages from Haywood
and Western Plaza, and an order compelling New Era to comply with the Escrow
Instructions and close escrow.
Default was entered against Western Plaza on January 17,
2024.
On April 29, 2024, Lawyers Title filed its demurrer and
motion to strike. Plaintiff did not file an opposition to either.
On May 3, 2024, Haywood and Western Plaza filed their
demurrer. Plaintiff did not file an opposition.
Haywood
and Western Plaza indicated in their demurrer that a request for judicial
notice would be filed. On May 3, 2024, Haywood and Western Plaza filed a
document that is electronically labeled as a request for judicial notice.
However, the document is simply a copy of their demurrer and supporting brief.
Haywood and Western Plaza do not provide the materials for which they seek
judicial notice.
The Court therefore finds that no request for judicial
notice has been made.
As a general matter, 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 pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
“A defendant against whom a default has been entered is out
of court and is not entitled to take any further steps in the cause affecting
[the] plaintiff's right of action; he cannot thereafter, until such default is set
aside in a proper proceeding, file pleadings or move for a new trial or demand
notice of subsequent proceedings.” (Devlin v. Kearny Mesa AMC/Jeep/Renault,
Inc. (1984) 155 Cal.App.3d 381, 385–386 [citation and quotation marks
omitted].)
Default was entered against Western Plaza on January 17,
2024. Western Plaza has not sought or obtained relief from default. Western
Plaza’s demurrer is therefore improper.
The Court therefore overrules Western Plaza’s demurrer.
A demurrer must be filed within 30 days after service of the
complaint to which it objects. (Code Civ. Proc., § 430.40.)
According to the proof of service filed on January 29, 2024,
Haywood was served on January 22, 2024 by personal service at 939 Everest
Court, Chino Hills, California 91709.
Haywood filed her demurrer on May 3, 2024. This is well over
30 days after service. Haywood’s demurrer is therefore untimely.
The Court overrules Haywood’s demurrer.
In her prayer for relief, Plaintiff seeks, among other
things:
“5.
For a declaration that Lawyers Title Company had an obligation to prepare and
deliver to Rosalie Genus a title insurance policy in July 2023 when all
conditions of the escrow were satisfied;
6. For
a declaration that all conditions of the escrow were satisfied in July 2023; ….
8. For an order
directing Lawyers Title Company to prepare and deliver to Rosalie Genus a title insurance policy;
9.
For an order requiring Defendants to show cause, if any, why they should not be
ordered to perform as set forth in this complaint during the pendency of this
action; ….
11.
For a temporary restraining order, a preliminary injunction, and a permanent injunction,
directing Lawyers Title Company prepare and deliver a title insurance policy to
Rosalie Genus.
12. For
the court decree specific performance of the written escrow instructions; ….
14.
That Lawyers Title Company prepare and deliver a title insurance policy to
Rosalie Genus[.]”
(Complaint at pp. 14:23-15:19.)
Plaintiff’s fundamental reason why Lawyers Title should be
compelled to issue a title insurance policy is because such is necessary to
comply with the Escrow Instructions.
However, the Escrow Instructions do not state such a
requirement on Lawyers Title. Lawyers Title is not a signatory to the Escrow
Instructions – the only signatories are Plaintiff and Western Plaza. The Escrow
Instructions are directed to New Era – the escrow holder – and not to Lawyers
Title. Thus, Lawyers Title is not itself bound by the Escrow Instructions.
Plaintiff’s allegations comport with this understanding –
Plaintiff alleges that “[t]he instructions provide for the duties and
obligations of New Era including, but not limited to, engaging [Lawyers
Title] to prepare and deliver to Plaintiff a policy of title insurance.”
(Complaint at p. 12:24-28 [emphasis added].) Furthermore, the title insurance
company that the Escrow Instructions apparently instruct New Era to use is
Progressive Title Company, and not Lawyers Title. (Complaint, Ex. B at p. 1.)
“An insurer does not have a duty to do business with or
issue a policy of insurance to any applicant for insurance. Whether an insurer
should be required to offer a particular class of insurance or insure
particular risks are matters of complex economic policy entrusted to the
Legislature.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19
Cal.4th 26, 43.) Plaintiff’s allegations and exhibits do not provide a reason
to set aside this general rule.
The Court therefore sustains the demurrer to the first,
second, and fourth claims as to Lawyers Title with leave to amend.
The Court denies Lawyers Title’s motion to strike as moot.