Judge: Lee W. Tsao, Case: 23NWCV01111, Date: 2023-09-13 Tentative Ruling
Case Number: 23NWCV01111 Hearing Date: April 10, 2024 Dept: C
DAN KLOSS v. JAMAL DAWOOD, ET AL.
CASE NO.: 23NWCV01111
HEARING: 4/10/24 @ 10:30 A.M.
#9
TENTATIVE RULING
I.
Defendant Quantum Properties, LLC’s demurrer to plaintiff’s complaint is
SUSTAINED in part, with 30 days leave to amend, and OVERRULED in part.
II.
Defendant’s motion to strike is GRANTED.
Moving Party to give NOTICE.
Plaintiff Dan Kloss alleges that he is the true
and rightful owner of the real property located at 10700-10712 Sessler Street,
South Gate, CA 90280 (“Property”). (Complaint, ¶ 17.) Plaintiff Kloss is 73
years old. (Complaint ¶ 18.) In 2021, Plaintiff was going through a contentious
divorce action with his former wife, Joanna Kloss. (Complaint ¶ 19.) In 2021,
Defendant JAMAL DAWOOD proposed a way to “safeguard” Plaintiff’s one-half interest
in the Property whereby Plaintiff would transfer his one-half interest in the
Property to a limited liability company. (Complaint ¶ 20.) On or about November
24, 2021, Defendant JAMAL DAWOOD presented Plaintiff with a grant deed claiming
that it was just a standard form with boilerplate language, that Plaintiff
should not take any time to review it, and that Plaintiff should simply sign
the document. (Complaint, ¶ 24.) In trust and reliance on the representations
of JAMAL DAWOOD, Plaintiff believed and trusted Defendant, JAMAL DAWOOD, did
not review the Grant Deed, and executed a Grant Deed for his one-half interest
in the Property to transfer title from himself to Defendant QUANTUM PROPERTIES
LLC which Grant Deed was recorded with the Los Angeles County Recorder on
December 29, 2021 (“Grant Deed”). (Complaint, ¶ 25.) Although the Grant Deed
recites that valuable consideration was received and acknowledged by Plaintiff,
Plaintiff did not receive any such valuable consideration. (Complaint, ¶ 26.) Plaintiff
later discovered the involvement of Defendant CHRISTINE ARMANI-DAWOOD who
executed the Articles of Organization, Statement of Correction, and Limited
Liability Company Annual Report for QUANTUM PROPERTIES LLC with full knowledge
and understanding that QUANTUM PROPERTIES LLC would be used to defraud Plaintiff
and take Plaintiff’s Property. (Complaint, ¶ 29.)
In the operative complaint filed on July 25,
2023, Plaintiff sues for the following causes of action:
1) Cancellation of Written
Instrument
2) Fraud
3) Negligent
Misrepresentation
4) Breach of Oral Contract
5) Financial Elder Abuse
6) Slander of Title
7) Intentional Infliction
of Emotional Distress
8) Unfair Business
Practices
9) Declaratory Relief.
Defendant Quantum Properties, LLC demurs to all
nine causes of action on the grounds that they do not state facts sufficient to
constitute causes of action and they are uncertain. Defendant also moves to
strike certain allegations.
A demurrer is an
objection to a pleading, the grounds for which are apparent from either the
face of the complaint or a matter of which the court may take judicial
notice. (Code Civ. Proc., § 430.30,
subd. (a); see also Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The purpose
of a demurrer is to challenge the sufficiency of a pleading “by raising
questions of law.” (Postley v. Harvey (1984) 153
Cal.App.3d 280, 286.) The court
“treat[s] the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . .” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the
construction of a pleading, for the purpose of determining its effect, its
allegations must be liberally construed, with a view to substantial justice
between the parties.” (Code Civ. Proc.,
§ 452; see also Stevens v. Super.
Ct. (1999) 75 Cal.App.4th 594, 601.)
“When a court evaluates a complaint, the plaintiff is entitled to
reasonable inferences from the facts pled.”
(Duval v. Board of Trustees
(2001) 93 Cal.App.4th 902, 906.)
Demurrers for
uncertainty are disfavored and are granted only if the pleading is so
incomprehensible that a defendant cannot reasonably respond. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn.
3.)
Meet and Confer
Defendant satisfied the
meet-and-confer requirements. (Decl. Bryner, ¶ 2; Code. Civ. Proc., § 430.41,
subd. (a).)
Requests for Judicial
Notice
Defendant requests
judicial notice under Evidence Code sections 452 and 453 of the following:
(1)
Declaration
of Dan Kloss in Support of Debtor Emergency Motion filed in the United States
Bankruptcy Court on April 7, 2023 in the matter of In re Precision Forging
Dies, Inc., Case No. 2:23-bk-12015;
(2)
Notice
of Default recorded on 7/29/21 in the Los Angeles County Recorder’s Office, and
Notice of Trustee Sale recorded on 11/3/21 at the Los Angeles County Recorder’s
Office;
(3)
Grant
Deed executed by Joanna Kloss and recorded on 11/29/21 in Los Angeles County
Recorder’s Office;
(4)
Grant
Deed executed by Dan Kloss and recorded on 12/29/21 in Los Angeles County
Recorder’s Office;
(5)
Complaint
for Unlawful Detainer by Medline Management Corporation against Dan Kloss dba CNC
Aero Machining and Ionna Kloss dba CNC Aero Machining on 4/12/23, Los Angeles
Superior Court Case No. 23NWCV01111;
(6)
Unlawful
Detainer judgment entered on 5/15/23 in Los Angeles Superior Court Case No.
23NWCV01111;
(7)
Notice
of Chapter 11 Bankruptcy Case filed on 4/6/23 in United States Bankruptcy Court
for the Central District of California in the matter of In re Precision Forging
Dies, Inc., Case No. 2:23-bk-12015-WB;
(8)
Declaration
Under Penalty of Perjury for Non-Individual Debtors and relevant pages of
Schedule A/B: Assets – Real and Personal Property filed on 5/1/23 United States
Bankruptcy Court for the Central District of California in the matter of In re
Precision Forging Dies, Inc., Case No. 2:23-bk-12015-WB;
(9)
Notice
of Motion and Motion to Set Aside Default and Vacate Default Judgment filed on
8/17/23 in Los Angeles Superior Court Case No. 23NWCV01111;
(10)
Relevant
pages of Schedule E/F: Creditors Who Have Unsecured Claims filed on 5/1/23
United States Bankruptcy Court for the Central District of California in the
matter of In re Precision Forging Dies, Inc., Case No. 2:23-bk-12015-WB;
(11)
Relevant
pages of Schedule A/B: Assets – Real and Personal Property filed on 5/1/23
United States Bankruptcy Court for the Central District of California in the
matter of In re Precision Forging Dies, Inc., Case No. 2:23-bk-12015-WB;
(12)
Notice
of Motion and Motion to Stay or Enjoin Unlawful Detainer Action and Trial Until
Trial or Resolution of Related Case filed on 9/22/23 in Los Angeles Superior
Court Case No. 23NWCV01111.
However, Defendant does not specify which grounds it seeks judicial
notice. A legal proposition asserted
without apposite authority fails. (People v. Taylor (2004) 119
Cal.App.4th 628, 643.)
Thus, the Court denies the
requests.
First,
Second, and Fifth Cause of Action – Cancellation of Written Instrument, Fraud, and
Financial Elder Abuse
Defendant demurs
to the first, second, and fifth causes of action based on its alleged
fraudulent conduct.
Civil Code section 1710 defines the tort of fraud,
“(1) The suggestion, as a fact,
of that which is not true, by one who does not believe it to be true; (2) The
assertion, as a fact, of that which is not true, by one who has no reasonable
ground for believing it to be true; (3) The suppression of a fact, by one who
is bound to disclose it, or who gives information of other facts which are
likely to mislead for want of communication of that fact.” The requirement of specificity in a fraud action
against a company requires the plaintiff to allege the names of the persons who
made the allegedly fraudulent representations, their authority to speak, to
whom they spoke, what they said or wrote, and when it was said or written. (See, e.g. Tarmann v. State Farm Mut.
Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
One purpose of the
specificity requirement is to provide adequate notice to the defendant. (Committee
on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.) Another purpose is for the court to eliminate non-meritorious actions based
on the pleadings. (Id. at 217.) Less specificity is required when it
appears from the nature of the allegations that the defendant possesses full
information concerning the facts of the controversy. (Ibid.)
Defendant argues that Plaintiff
does not allege whether defendant Jamal Dawood acted in his role as a manager
or as an individual. Defendant also argues that Plaintiff does not allege that defendant
Christine Armani Dawood made any misrepresentations. However, that is not the
law. Plaintiff does not need to allege the role of the speaker of the purported
misrepresentations. Plaintiff also does not need to allege that the other
defendants made representations.
Defendant also argues
that the Plaintiff’s allegations are vague and uncertain as to how the alleged
representations were fraudulent and when they were made. The Court determines
that the allegations are pleaded with sufficient specificity to enable
Defendant to respond.
Defendant also argues
that Plaintiff does not allege where or how Defendant made the statements. However,
that is not the law. Plaintiff does not need to allege where the statements
were made.
Accordingly, the
demurrer to the First, Second, and Fifth Causes of Action is OVERRULED.
Third Cause of
Action – Negligent Misrepresentation
The elements of a
cause of action for negligent
misrepresentation include “[m]isrepresentation of a past or existing material fact,
without reasonable ground for believing it to be true, and with intent to
induce another’s reliance on the fact misrepresented; ignorance of the truth
and justifiable reliance on the misrepresentation by the party to whom it was
directed; and resulting damage.” (Hydro-Mill Co., Inc. v. Hayward, Tilton
& Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145,
1154, quotation marks omitted.) While there is some conflict in the case law
discussing the precise degree of particularity required in the pleading of a
claim for negligent misrepresentation, there is a consensus that the causal
elements, particularly the allegations of reliance, must be specifically
pleaded. (Nat.
Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group,
Inc.
(2009) 171 Cal.App.4th 35,50.)
Defendant makes the same
arguments for negligent misrepresentation as it did for fraud. Because the law
for negligent misrepresentation differs from that of fraud, Defendant did not
apply the correct law. In any event, the Court determines that Plaintiff has
pleaded negligent misrepresentation with sufficient specificity.
Accordingly, the demurrer
to the Third Cause of Action is OVERRULED.
Fourth Cause of Action –
Breach of Oral Contract
To
prevail on a cause of action for breach of oral contract, the plaintiff must
prove the following: (1) the contract, (2) the plaintiff’s performance of the
contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the
resulting damage to the plaintiff. (Richman v. Hartley (2014) 224
Cal.App.4th 1182, 1186.)
Plaintiff
alleges, “Plaintiff and Defendants, and each of them, orally agreed that
Defendants would assist Plaintiff to safeguard and protect Plaintiff’s Property
and that they would act in the best interests of Plaintiff.” (Compl., ¶ 63.) Defendant
demurs on the grounds that Plaintiff does not state the existence of a contract.
Defendant also demurs on the grounds that Plaintiff does not state the material
terms of the purported agreement or what Defendant was supposed to do to
“safeguard” the property or act in Plaintiff’s best interests. In addition,
Defendant demurs on the grounds that the fact of the agreement and its duration
are uncertain. The Court determines that the material terms of the contract have
not been sufficiently plead.
Accordingly,
the demurrer to the Fourth Cause of Action is SUSTAINED with 30 days leave to
amend.
Sixth Cause of Action –
Slander of Title
The elements of
slander of title are the following: (1) a publication; (2) without privilege or
justification; (3) that is false; and (4) causes direct and immediate pecuniary
loss. (M.F. Farming, Co. v. Couch Distributing Co. (2012) 207
Cal.App.4th 180, 198-199.)
Slander of title occurs when one publishes untrue and disparaging
statements about someone else’s property that would lead a reasonable person to
foresee that a prospective purchaser or lessee might abandon his intentions. (M.F. Farming, Co. v. Couch Distributing Co.,
supra, 207 Cal.App.4th 180 at p. 198.) It diminishes the
vendibility of property. (Id. at 199.) To be disparaging, a
statement need not be a complete denial of title in others but may be any
unfounded claim of an interest in the property which casts doubt upon its
ownership. (Ibid.)
Defendant demurs on the grounds
that the cause of action is premised on the recorded grant deed, which states
that Defendant owns the property rather than the plaintiff. Defendant argues that
the only way such a statement can be false is if the execution of the grant
deed was procured by fraud or breach of contract. The Court has already
determined that Plaintiff’s fraud allegations are sufficiently pleaded.
Accordingly, the demurrer to
the Sixth Cause of Action is OVERRULED.
Seventh Cause of Action –
Intentional Infliction of Emotional Distress
Intentional
infliction of emotional distress requires the following: “(1) extreme and
outrageous conduct by the defendant with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) the plaintiff
suffered severe emotional distress; and (3) the defendant's extreme and
outrageous conduct was the actual and proximate cause of the severe emotional
distress.” (Crouch v. Trinity
Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)
Defendant
demurs on the grounds that Plaintiff does not include additional facts but
relies on the conclusory assertion, “The conduct of Defendants, and each of
them, described herein was intentional, malicious, and outrageous and was done
for the purpose of causing Plaintiff to suffer humiliation, mental anguish, and
emotional distress.”
Whether
the alleged conduct is outrageous is usually a question of fact. (So v. Shin
(2013) 212 Cal.App.4th 652, 672.) Plaintiff
alleges Defendant fraudulently obtained his interest in real property worth at
least $7 million, causing him severe emotional distress. On this basis, Plaintiff’s Seventh Cause of
Action is properly pleaded.
Accordingly,
the Demurrer to the Seventh Cause of Action is OVERRULED.
Eighth Cause of Action –
Unfair Business Practices
The elements for
unfair competition under Section 17200 are the following: (1) a business
practice; (2) that is unfair, unlawful, or fraudulent; and (3) an authorized
remedy.¿ (Bus. & Prof. Code, § 17200; Paulus v. Bob Lynch Ford, Inc.
(2006) 139 Cal.App.4th 659, 676.)¿ A breach of contract may, but need not
necessarily, form the predicate for a cause of action under Section 17200,
provided it also constitutes conduct that is unlawful, unfair, or fraudulent.¿(Puentes
v. Wells Fargo Home Mortgage, Inc. (2008) 160 Cal.App.4th 638, 645.)¿
“Fraudulent,” as used in Section 17200, does not mean common-law fraud, but
only that members of the public likely would be deceived by the conduct.¿ (Id.
at pp. 646-649.)
Here, Defendant repeats its
arguments relating to the fraud causes of action, which the Court has already
considered and rejected.
Accordingly, the demurrer to
the Eighth Cause of Action is OVERRULED.
Ninth Cause of Action –
Declaratory Relief
“To qualify for
declaratory relief, a party would have to demonstrate its action presented two
essential elements: (1) a proper subject of declaratory relief, and (2) an
actual controversy involving justiciable questions relating to the party’s
rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213
Cal.App.4th 872, 909.) Code of Civil Procedure
section 1060 authorizes
actions for declaratory relief under a “written instrument” or
“contract.” “The ‘actual controversy’ language encompasses a probable future controversy
relating to the legal rights and duties of the parties.” (Environmental Defense Project of Sierra County v. County of
Sierra (2008) 158 Cal.App.4th 877.)
Defendant demurs on the
grounds that it is not clear what other unalleged agreements existed between
the parties. Defendant also demurs on the grounds that it is not clear which
defendants entered the contract, what the parties agreed to do, what their
purported obligations were, or what consideration was exchanged.
Plaintiff seeks declaratory relief “as to the enforceability,
applicability, and existence of the oral and other agreements and the rights,
duties, and obligations of the parties under the agreements.” (Complaint, ¶ 102.) The Court has determined that Plaintiff has
failed to plead the material terms of an oral contract with sufficient
specificity. The existence of “oral and
other agreements” also fails as currently pleaded.
Accordingly, the demurrer to the
Ninth Cause of Action is SUSTAINED with 30 days leave to amend.
Motion to Strike
Defendant
moves to strike certain allegations of the complaint. The Court may strike out
any irrelevant, false, or improper matter in a pleading. (Code Civ. Proc., §
436.)
Meet and Confer
Defendant
satisfied the meet-and-confer requirements. (Decl. Bryner, ¶ 2; Code Civ.
Proc., § 435.5, subd. (a).)
Discussion
Defendant
moves to strike allegations of a prior felony conviction, pending criminal
charges, and a pending civil action because they have no connection to the
issues in the instant case. The Court finds these allegations immaterial to defendant
Jamal Wood’s purported fraudulent conduct in the instant action because they
arise from different events. (McCarthy v. McColgan (1929) 99 Cal. App.
492, 498.)
Thus, the
motion to strike is GRANTED.