Judge: Lee W. Tsao, Case: 20STCV19098, Date: 2023-12-13 Tentative Ruling
Case Number: 20STCV19098 Hearing Date: December 13, 2023 Dept: C
Talavera v. ozzy
network, et al.
CASE NO.: 22STCV19098
HEARING: 12/13/23 @ 9:30 AM
#5
Defendants Antonio Aguilar, United
Escrow Services, and Executive Realty Services, Inc.’s Motion for Judgment on the Pleadings is GRANTED in part
and DENIED in part with 30 days leave to amend.
Moving Party to give NOTICE.
Defendants Antonio Aguilar, United Escrow
Services, and Executive Realty Services, Inc. (collectively Escrow Defendants)
move for a judgment on the pleadings on Plaintiff Dinorah Talavera’s
(Plaintiff) First Amended Complaint (FAC).
Plaintiff
filed a FAC against Defendant Ozzy Network, Inc., Golden State Foreclosure
Services, Inc.; Oswaldo Martinez; Miriam Melero; Antonio Aguilar; United Escrow
Services; and Executive Realty Services, Inc. alleging:
1.
Fraud;
2.
Violation
of Civil Code § 2920;
3.
Violation
of Civil Code § 1632;
4.
Wrongful
Foreclosure;
5.
Intentional
Misrepresentation;
6.
Negligent
Misrepresentation;
7.
Constructive
Fraud;
8.
Constructive
Trust;
9.
Conversion;
10.
Slander
of Title;
11.
Common
Count;
12.
Recission;
13.
Unfair
Business Practices;
14.
Declaratory
Relief;
15.
Cancellation
of Written Instrument;
16.
Tort
of Another;
17.
Breach
of Written Contract;
18.
Breach
of Implied Covenant of Good Faith & Fair Dealings;
19.
Breach
of Fiduciary Duty;
20.
Receipt
of Stolen Property; and
21.
Aiding
and Abetting.
Plaintiff’s
claims arise from a residential real estate transaction between her and Miriam
Melero and Oswaldo Martinez (Owner Defendants). Plaintiff alleges that the
Owner Defendants introduced her to Antonio Aguilar who was a real estate agent
of Executive Realty Services, Inc. and owned United Escrow Services to act as a
fiduciary and real estate broker for a real estate transaction. Plaintiff alleges that Escrow Defendants
misrepresented that certain facts were true regarding the Residential Purchase
Agreement, escrow documents, Deed of Trust, Notice of Default, and Notice of
Trustee’s Sale.
Plaintiff
has filed a Request for Dismissal as to Causes 1, 4, 5, 7-10, 13, 14, and 21 as
to Escrow Defendants and Causes 2, 3, 11, 12, 15, 17, 18, and 20 were not
alleged as to Escrow Defendants. Thus, only Causes 6, 16, and 19 remain against
Escrow Defendants.
Legal Standard
The standard for ruling
on a motion for judgment on the pleadings is essentially the same as that
applicable to a general demurrer, that is, under the state of the pleadings,
together with matters that may be judicially noticed, it appears that a party
is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183
Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60
Cal.App.4th 1205, 1216.) “A demurrer tests the sufficiency of the complaint as
a matter of law; as such, it raises only a question of law.” (Osornio v.
Weingarten (2004) 124 Cal.App.4th 304, 316.) No matter how unlikely or
improbable, the complainant’s allegations must be accepted as true for the
purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural
Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, the Court does not
need to assume the truth of “contentions, deductions or conclusions of law.” (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
Discussion
The FAC asserts three Causes of Action against
Defendants: The Sixth Cause of Action for Negligent Misrepresentation, the
Sixteenth Cause of Action for Tort of Another, and the Nineteenth Cause of
Action for Breach of Fiduciary Duty.
Sixth Cause of Action
Escrow Defendants argue that claim for
Negligent Misrepresentation fails because the FAC does not specify what each
Defendant did to mislead Plaintiff. Escrow Defendants claim that the FAC “lumps
all of the defendants (‘and each of them’) together, without differentiating
which defendant did what. See FAC ¶¶ 94-101.” (Motion at p. 6.) “Each element
in a cause of action for fraud or negligent misrepresentation must be factually
and specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125
Cal.App.4th 513, 519.) Here, Plaintiff has failed to plead with specificity as
to what “certain facts were true with regard to the Residential Purchase
Agreement, escrow documents, Deed of Trust, Notice of Default, and Notice of
Trustee’s Sale.” (FAC ¶ 95.) Thus, Plaintiff’s Sixth Cause of Action for
Negligent Misrepresentation fails as a matter of law. Therefore, Escrow
Defendants’ Motion for Judgment on the Pleadings is granted as to the Sixth
Cause of Action.
Sixteenth Cause of Action
As to the Sixteenth Cause of Action for Tort of
Another, attorney’s fees are recoverable for instituting or defending an action
against a third party as the direct result of the tort of another. Here,
Plaintiff can claim attorney’s fees under the Tort of Another Rule against
Escrow Defendants because they had to institute an action against Ozzy Network,
Inc. Oswaldo Martinez, and Miriam Melero based on Escrow Defendants’ alleged
breach of their fiduciary duty to Plaintiff. Thus, Plaintiff’s Sixteenth Cause of
Action for Tort of Another does not fail as a matter of law. Therefore, Escrow
Defendants’ Motion for Judgment on the Pleadings is denied as to the Sixteenth
Cause of Action.
Nineteenth Cause of Action
As to the Nineteenth Cause of Action for Breach
of Fiduciary Duty, Escrow Defendants argue the FAC does not allege how the Escrow
Defendants breached their fiduciary duty. The elements of breach of fiduciary
duty cause of action are a duty through a fiduciary relationship, its breach,
and damages (Knox v. Dean (2012) 205 Cal.App.4th 417, 432-433.) The FAC
alleges that Escrow Defendants owed Plaintiff a fiduciary duty (FAC ¶ 171),
they breached that duty (FAC ¶ 174), and the breach was a substantial factor in
causing Plaintiff damages (FAC ¶ 175.) Plaintiff need not plead the ultimate
facts of how the Escrow Defendants breached their fiduciary duty to overcome a
motion for judgment on the pleadings because there is not heightened pleading
standard for breach of fiduciary duty causes of action. Thus, Plaintiff’s
Nineteenth Cause of Action for Breach of Fiduciary Duty does not fail as a
matter of law. Therefore, Escrow Defendants’ Motion for Judgment on the
Pleadings is denied as to the Nineteenth Cause of Action.
Accordingly, Defendants
Antonio
Aguilar, United Escrow Services, and Executive Realty Services, Inc.’s Motion for Judgment on the Pleadings
is GRANTED in part as to the Sixth Cause of Action for Negligent
Misrepresentation and DENIED in part as to the Sixteenth and Nineteenth Causes
of Action for Tort of Another and Breach of Fiduciary Duty, with 30 days leave
to amend.