Judge Lee W. Tsao, Case 22NWCV00487 2023-02-09 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00487, Date: 2023-02-09 Tentative Ruling

Case Number: 22NWCV00487 Hearing Date: February 9, 2023 Dept: C

WASHINGTON v. REID

CASE NO.: 22NWCV00487 (Related Case: 22NWCV00400)

HEARING: 02/09/23

TENTATIVE ORDER

Defendant ERSELL REID’s (pro per) Motion for Judgment on the Pleadings is DENIED in part and GRANTED with 30 days leave to amend in part.

Opposing Party to give notice.

This action concerning real property was filed by Plaintiff ANITRA WASHINGTON (“Plaintiff”) against Defendant ERSELL REID (“Defendant”) on June 20, 2022. The relevant facts, as alleged, are as follows: “Plaintiff… because [sic] fee simple owner of the subject property located at 201 Reposado Drive, La Habra Heights, CA 90631 (‘Subject Property’) by virtue of the grant deed recorded 9/21/21 bearing instrument number 20211438000…. Subsequently thereto, she agreed to rent the property to [Defendant], whereby [Defendant] agreed to make the monthly mortgage payments and to purchase the subject property from Plaintiff when she was qualified to do so. There was no formal agreement in place.” (Complaint ¶6.) “Defendant Reid defaulted in her rental obligations and Plaintiff has sought to evict Reid. Due to Reid’s failure to pay the rent, Plaintiff risks losing the subject property to foreclosure and must prepare for a quick sale in a recently deteriorating real estate market.” (Complaint ¶7.) “Plaintiff recently discovered a fraudulent quitclaim deed that was recorded against the subject property on 2/03/2022 that bears Plaintiff’s forged signature, a seal of notary public that does not exist, and a fraudulent transfer to Reid, which Plaintiff did not authorize…. The deed of trust executed by Plaintiff on 12/15/2021 bears her genuine signature, in stark contrast to the signature in the Quitclaim Deed.” (Complaint ¶8.)

Plaintiff’s Complaint asserts the following causes of action: (1) Cancellation of Instruments; and (2) Violation of Business and Professions Code §17200.

Defendant generally and specially demurs to each cause of action. However, the Demurer is untimely. (CCP §430.40(a).) Nonetheless, the Court may treat the Demurrer as a Motion for Judgment on the Pleadings, which may be brought anytime and follows the same analysis as on a demurrer. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.)

Uncertainty

Defendant argues that Plaintiff’s claims are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) 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.” (Ibid.) Here, it is clear from Defendant’s other arguments that they understand what Plaintiff at least attempts to allege, and there is no true uncertainty. The Motion is not granted on the basis of uncertainty.

First Cause of Action – Cancellation of Instruments

“A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” (Cal. Civ. Code §3412.) To plead a right to cancellation under this section, a plaintiff must allege that the instrument is “void or voidable” and would cause “serious injury” if not cancelled. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818-819.)

Here, Plaintiff alleges that the Defendant recorded a fraudulent quitclaim deed bearing Plaintiff’s forged signature, and therefore the quitclaim deed is void. (See Complaint ¶8.) Plaintiff’s factual allegations are sufficient to withstand a motion for judgment on the pleadings.

Accordingly, the Motion is DENIED as to the first cause of action.

Second Cause of Action – Violation of Bus. & Prof. Code §17200

To state a claim under §17200, Plaintiff must allege whether the conduct complained of is a fraudulent, unlawful or an unfair business practice. To bring a claim under the fraud prong, Plaintiff must allege an affirmative misrepresentation, conduct or business practice on the part of a defendant; or an omission in violation of defendant’s duty to disclose; and that is likely to deceive members of the public. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the unfairness prong, Plaintiff must allege that one or more of Defendants’ business practices are unfair, unlawful, or fraudulent; and the remedy sought is authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) To state a claim under the unlawful prong, plaintiff must allege a violation of law and cite that law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to allege violation of a law was properly sustained without leave to amend].)

Bus. & Prof. Code §17204 governs the question of standing to bring a §17200 claim, providing that such claims be brought “by a person who has suffered an injury in fact and has lost money or property as a result of the unfair competition.” (See Bus. & Prof. Code §17204.) “[A] party who has lost money or property generally has suffered injury in fact. Consequently, the plain language of these clauses suggests a simple test: To satisfy the narrower standing requirements imposed by Proposition 64, a party must now (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Sup. Ct. (2011) 51 Cal.4th 310, 322.)

Here, Plaintiff does not allege that she lost “money” or “property” as a result of Defendant’s fraudulent recording. Therefore, Plaintiff has failed to allege that she has standing to prosecute the §17200 claim against Defendant.

The Court additionally notes that money damages are not recoverable in the context of a §17200 claim. (See Vikco Insurance Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 67-68, and the only remedies available to private plaintiffs are restitution and injunctive relief. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144-1152.)

The Motion is GRANTED with 30 days leave to amend as to the second cause of action. (See CCP §438(h)(2) [where motion for judgment on the pleadings is granted, court shall give 30 days leave to amend.].)