Judge Kerry Bensinger, Case Number: 23STCV15229, Date: 2023-12-15 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On June 30, 2023, Plaintiff, Joseph Salazar,[1] filed a Judicial Council form complaint, against Defendants, First American Title Insurance Co. (“First American”) and Urbana Bonnie Footte (“Footte”), for taking a loan out on the residence at 1250 King Lake Dr., Diamond Bar, California 91765 (the “Subject Property”) without Plaintiff’s consent. On July 25, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for (1) Negligence and (2) Intentional Tort. The FAC adds JP Morgan Chase Bank (“Chase”) as a defendant.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

First American requests judicial notice of twenty-four documents. The unopposed requests are GRANTED. (Evid. Code, § 452, subds. (c), (g), (h).)

Defense counsel has satisfied the meet and confer requirement.¿ (Declaration of Mariel Gerlt-Ferraro, ¶¶ 2, 3.)¿¿¿¿

Chase argues each cause of action in the FAC is time barred. The Court agrees. The First Cause of Action for Negligence and the Second Cause of Action for Intentional Tort are based on fraud. The FAC alleges that ‘[o]n or about March 2001, Ms. UrBana [sic] Bonnie Footte, during her employment and without the plaintiff consent [sic] or authorization a $57.000.00 dollar loan was taken out on the above resident, with the said residence being insured by First American Title Insurance(FATI) Com, and having personal knowledge Ms. Urbana Bonnie Footte, acts of fraud the (FATI) refused to pay the insurance policy[.]” (FAC, p. 3.) An action for relief on the ground of fraud or mistake must be filed within three years. (Code Civ. Proc. § 338, subd. (d).) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Id.)

Here, Chase provides evidence by way of judicial notice that the deed of trust securing the alleged fraudulent loan was recorded over 17 years ago on March 2, 2006. (Request for Judicial Notice (RJN) No. 2.) Chase further argues that Plaintiff has been aware of the recorded Deed of Trust since September 2019 (over three years prior to filing this action) when Plaintiff filed another lawsuit in the Superior Court of California Los Angeles, Case No. 19STCV33120. (RJN No. 9.) Case No. 19STCV33120 which concerned, in relevant part, the execution of a mortgage lien of $570,000 which was secured by a Deed of Trust recorded on March 2, 2006.

Accordingly, Defendant JPMorgan Chase Bank, N.A.’s Demurrer is Sustained. Leave to amend is Denied with prejudice.

Plaintiff was previously ordered to file a Notice of Related Case in all cases including, but not limited to, Case Nos. 19STCV33120 and 23STCV06642. The Court sets an OSC re: Related Cases for March 12, 2024 at 10:00 a.m.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff is self-represented.

[2] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54 (c).)