Judge: Lee W. Tsao, Case: 22NWCV00535, Date: 2023-05-09 Tentative Ruling

Case Number: 22NWCV00535    Hearing Date: May 9, 2023    Dept: C

MAKARY v. VAZQUEZ

CASE NO.:  22NWCV00535

HEARING: 5/9/23

 

#9

TENTATIVE RULING

 

I.             Cross-Defendant George Makary’s unopposed demurrer to the cross-complaint is SUSTAINED without leave to amend.

 

II.            Cross-Defendant George Makary’s unopposed motion to expunge lis pendens is GRANTED.  The lis pendens is expunged. Attorney’s fees and costs are imposed against Cross-Complainant in the sum of $2,060.00, payable within 30 days.

 

Moving Party to give NOTICE.

 

I.             Demurrer

 

Cross-Defendant George Makary demurs to the 1st cause of action of the First Amended Cross-Complaint on the grounds that it fails to state facts sufficient to constitute a cause of action, and is uncertain.

 

The Complaint filed by Plaintiff Makary alleges that Plaintiff purchased the subject real property from Jazmine Vazquez, who vacated the premises on December 17, 2021.  (Complaint, ¶ 4.)  At the time, Defendant Guillermina Vazquez was occupying and residing in the converted garage that is unpermitted for occupancy.  (Id., ¶ 5.)  Plaintiff then entered into a contract for sale of the premises to Juan R. Ortiz, and Defendant was informed of the pending sale by written notice.  (Id., ¶ 7.)  Defendant Vazquez refused to vacate the premises.  (Id., ¶ 8.)  As a result, Defendant interfered with Plaintiff’s ability to sell and deliver the premises.  Based thereon, the Complaint asserts causes of action for:

 

1.    Interference with Economic Relations and for Temporary and Permanent Injunctive Relief for Intentional Interfrernce with Economic Relationship

2.    Private Nuisance

 

Vazquez’s First Amended Cross-Complaint alleges a single cause of action for Quiet Title.

 

The instant demurrer concerns the Cross-Complaint.

 

1st CAUSE OF ACTION

 

QUIET TITLE:  The complaint shall be verified and shall include all of the following:  (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any; (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession; (c) The adverse claims to the title of the plaintiff against which a determination is sought; (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought; (e) A prayer for the determination of the title of the plaintiff against the adverse claims.  (CCP § 761.020.) 

 

¶¶ 9-10 allege that Guillermina Vazquez is the owner of the real property at 11661 Burke Street, Whittier, CA, and took title with her daughter Jazmin Vazquez as joint tenants.  ¶ 11 alleges that Guillermina gave loan payments to Jazmin, who stopped making the loan payments at some point and instead kept the money.  On April 6, 2017, Jazmin created a fraudulent Quitclaim Deed, transferring ownership to Jazmin as the sole owner of the property.  ¶ 14 alleges that on October 4, 2021, Jazmin quitclaimed the property to Plaintiff George Makary and Ayad Makary. ¶ 18 requests a determination of title to the property.

 

The court finds the fraud allegations fail for lack of specificity. A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation.  (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)  There are no allegations tying Jazmin’s alleged fraud to Cross-Defendant Makary.

 

Accordingly, the demurrer is SUSTAINED.  As there is no opposition, the demurrer is SUSTAINED without leave to amend.

 

II.            Expunge Lis Pendens

 

Cross-Defendant George Makary moves to expunge lis pendens pursuant to CCP § 405.30 et seq.

 

When a motion to expunge lis pendens is filed, the burden is on the opposing party to show that the complaint contains allegations of a real-property claim, and to evidence the probable validity of the claim based on a preponderance of evidence. (CCP §§ 405.32 and 405.31; Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 648.)  The decision regarding the likelihood that a plaintiff will prevail, as to a motion to expunge, reflects trial courts’ evaluations of the record, which appellate courts will review for substantial evidence, but they will reweigh moving and opposing parties’ conflicting evidence or adjudge credibility of witnesses. (Howard S. Wright Construction Co. v. Sup. Ct. (2003) 106 Cal.App.4th 314, 320.)

 

A real property claim is defined in CCP § 405.4 as “the cause or causes of action in a pleading which would, if meritorious, affect title to, or the right to possession of, specific real property.”  Whether a complaint is sufficient in asserting a real-property claim is determined under demurrer-like analysis.  (Kirkeby v. Sup. Ct. (2004) 33 Cal.4th 642, 648.)  Review “involves only a review of the adequacy of the pleading and normally should not involve evidence from either side, other than possibly that which may be judicially noticed on a demurrer.” (Id.)

 

This First Amended Cross-Complaint alleges a single cause of action for Quiet Title.  The FAXC sufficiently alleges a real property claim.

 

Cross-Complainant failed to file any evidence supporting the likelihood of success on the merits. 

 

Accordingly, the motion is GRANTED.  The lis pendens is expunged.

 

“[T]he court shall direct that the party prevailing on any motion under this chapter be awarded reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that the circumstances make the imposition of sanctions unjust.”  (CCP Sec. 405.38.)

 

Here, Cross-Defendant is entitled to attorney’s fees in the reasonable sum of $2,000.00 plus costs of $60.00.  Accordingly, attorney’s fees and costs are imposed against Cross-Complainant in the sum of $2,060.00, payable within 30 days.