Judge Lynette Gridiron Winston, Case Number: 24PSCV03528, Date: 2025-01-15 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV03528, Date: 2025-01-15 Tentative Ruling

Case Number: 24PSCV03528 Hearing Date: January 15, 2025 Dept: 6

CASE NAME: Maritza Escoto v. Pamela Gayles, et al.

Defendants Jennifer C. Wong, McCarthy & Holthus LLP, and Jason Thorman’s Demurrer to Amended Complaint

TENTATIVE RULING

The Court SUSTAINS the demurrer to the First, Second and Third Causes of Action of the First Amended Complaint with 20 days’ leave to amend. The Court SUSTAINS the demurrer to the Fourth and Fifth Causes of Action of the First Amended Complaint without leave to amend.

Moving Parties are ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a quiet title action. On October 22, 2024, plaintiff Maritza Escoto (Plaintiff) filed this action. On October 25, 2024, Plaintiff filed the operative First Amended Complaint (FAC) against defendants Pamela Gayles, Jennifer C. Wong, McCarthy & Holthus, LLP, Jason Thorman, and all Unknown Respondents, alleging causes of action for quiet title, fraud, forgery, identity theft, and vacate judgment due to fraud and mootness.

On November 27, 2024, Jennifer C. Wong, McCarthy & Holthus, LLP, and Jason Thorman (collectively, Moving Parties) demurred to the FAC. Plaintiff filed an opposition December 31, 2024.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (Donabedian).) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id. at pp. 993-994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits”].)

A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.)

REQUESTS FOR JUDICIAL NOTICE

The Court GRANTS Moving Parties’ requests for judicial notice. (Evid. Code, § 452, subds. (c)-(d); West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803 [court may take judicial notice of recorded deed].) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Moving Parties were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Moving Parties’ efforts to meet and confer sufficient. (Coutts Decl., ¶ 3.)

Entire Complaint

Demurrers for uncertainty are disfavored, and are generally granted only when the pleading is so incomprehensible that the defendant cannot reasonably respond. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan).) Courts “strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery. [Citation].” (Lickiss v. Fin. Indus. Regul. Auth. (2012) 208 Cal.App.4th 1125, 1135.)

Moving Parties demur to the entire FAC on the grounds that it is uncertain. Moving Parties contend the FAC lacks any substantive allegations that would apprise each defendant of what claims are being asserted against them and what actions they each took.

The Court disagrees. While the FAC does lack many substantive allegations against Moving Parties, it is not so devoid of allegations that Moving Parties have no idea what Plaintiff is complaining about. (See Mahan, supra, 14 Cal.App.5th at p. 848, fn. 3.) Moving Parties appear to understand that Plaintiff is complaining about a transfer of the subject property arising from a prior lawsuit, i.e., LASC KC068912, involving Plaintiff and non-parties Clifton Kerr and Wilmington Trust National Association (Wilmington Trust), in which defendants Jennifer C. Wong and McCarthy & Holthus, LLP were involved as counsel for Wilmington Trust. (Demurrer, 4:17-20.) Thus, the Court does not find the entire FAC is subject to demurrer for uncertainty.

Accordingly, the Court OVERRULES the demurrer to the entire FAC on the grounds that it is uncertain.

First Cause of Action – Quiet Title

A complaint for quiet title must allege the following:

(a) A description of the property that is the subject of the action… 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…

(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.

(Code Civ. Proc., § 761.020.)

Moving Parties demur to the First Cause of Action for quiet title on the grounds that the FAC fails to allege facts sufficient to constitute a cause of action. Moving Parties contend the FAC lacks a legal description of the subject property, facts showing that Moving Parties claim an interest in the subject property adverse to Plaintiff, and does not plead the date as of which determination of title is sought. Moving Parties contend that Plaintiff failed to include Wilmington Trust in this action, who currently holds title to the subject property. Moving Parties indicate that Jennifer C. Wong and McCarthy & Holthus, LLP were the law firm and attorney that represented Wilmington Trust in the prior state court and bankruptcy court actions. Moving Parties contend that the FAC only alleges defendant Jason Thorman served Plaintiff with a relocation assistance letter in connection with the sale of the subject property, and that such allegations do not demonstrate Thorman claimed any title to the subject property.

Moving Parties further contend Plaintiff fails to allege facts demonstrating the strength of her title against Wilmington Trust’s interest, and that the FAC mentions a 2015 grant deed not attached to the FAC, thus making it impossible to determine who Plaintiff believes received the title transfer. Moving Parties then contend that either way, Plaintiff’s interest was extinguished by the foreclosure completed in October 2024.

In her Opposition, Plaintiff contends that Moving Parties’ demurrer is procedurally defective because Defendant McCarthy & Holthus, LLP is engaging in improper self-representation because one of the firm’s employees, Melissa Robbins Coutts, is representing the law firm.

The Court agrees with Moving Parties. The FAC does not allege the legal description of the subject property, Moving Parties’ adverse interests in the subject property, or the date as of which determination of title is sought. (See FAC, pp. 2-5; Code Civ. Proc., § 761.020.) With respect to the absence of Wilmington Trust from this action, that is a matter for joinder, not for demurrer. (See Code Civ. Proc., §§ 379, 389.) With respect to the strength of Plaintiff’s title and the 2024 foreclosure, those are factual disputes not appropriate for demurrer. (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 703.) There is also nothing improper about the law firm being represented by one of its attorney employees.

Based on the foregoing, the Court SUSTAINS the demurrer to the First Cause of Action with leave to amend.

Second Cause of Action – Fraud

To state a cause of action for fraud, the plaintiff must allege facts demonstrating, “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. [Citation.]” (Graham v. Bank of Am., N.A. (2014) 226 Cal.App.4th 594, 605-606, internal quotation marks omitted.)

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] Thus the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.] A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must 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. [Citation.]” (Lazar v. Superior Ct. (1996) 12 Cal.4th 631, 645, internal quotation marks omitted and italics in original (Lazar).)

Moving Parties demur to the Second Cause of Action for fraud on the grounds that the FAC fails to allege facts sufficient to state a cause of action. Moving Parties contend Plaintiff fails to allege any facts demonstrating which defendant prepared and signed the fraudulent deed in 2015, to whom title was purportedly transferred, or any other facts that would tie the defendants to the action. Moving Parties contend the FAC does not allege defendant Jason Thorman had any involvement with the subject property until October 2024. Moving Parties further contend this claim is barred by the statute of limitations, based on the FAC alleging that the fraudulent grant deed was recorded on April 1, 2015.

The Court agrees with Moving Parties. The FAC lacks any specific allegations as to how, when, where, to whom, or by what means the representations were made. (Lazar, supra, 12 Cal.4th at p. 645.) In fact, the FAC does not even allege that there were any misrepresentations. The FAC merely alleges in a conclusory fashion that Moving Parties “fraudulently” filed a grant deed purporting to transfer Plaintiff’s interest in the subject property without her consent. (FAC, 2:22-3:2.) Additionally, the allegation against Jason Thorman regarding his delivery of a relocation assistance letter to Plaintiff does not support any sort of fraud claim against him, and it is unclear how merely delivering a letter constitutes fraud. (FAC, 3:20-4:4.) These allegations are insufficient.

The Court does not find, however, that Plaintiff’s fraud claim is barred by the statute of limitations at this point in time. The statute of limitations for a fraud claim is three years from the date of discovery of the facts constituting the fraud. (Code Civ. Proc., § 338, subd. (d); Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.) On a demurrer, those facts must appear clearly on the face of the complaint. (Comm. for Green Foothills v. Santa Clara Cnty. Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) While the FAC alleges that the fraudulent filing of the grant deed occurred on April 1, 2015, the FAC does not allege facts demonstrating when Plaintiff became aware of the facts comprising the alleged fraud. (See FAC, pp. 2-4.)

Based on the foregoing, the Court SUSTAINS the demurrer to the Second Cause of Action with leave to amend.

Third Cause of Action – Forgery (Penal Code §§ 470-473)

“[A]s to what constitutes forgery of instruments which are subjects of forgery, the definitions at common law and by our code are the same. Forgery, at common law, is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.” (People v. Franco (2018) 6 Cal.5th 433, 439, internal citations and quotation marks omitted.)

Moving Parties demur to the Third Cause of Action for forgery on the grounds that it fails to state facts sufficient to constitute a cause of action. Moving Parties contend the Penal Code statutes upon which Plaintiff bases her claims do not form the basis of civil tort claims. Moving Parties also contend that Plaintiff fails to allege any facts that would state such a claim, as the FAC does not allege specific facts identifying which defendants purportedly performed the act. Moving Parties also note that Plaintiff does not allege defendant Jason Thorman had any involvement before 2024, and therefore cannot state a claim against him. Moving Parties contend that Plaintiff fails to allege facts demonstrating that defendants McCarthy & Holthus or Jennifer C. Wong played any part in the allegedly fraudulent deed. Moving Parties further contend this claim would be time-barred under the three-year limitation set forth in Code of Civil Procedure section 338, or the four-year limitation set forth in section 343.

The Court agrees with Moving Parties in part. Forgery under Penal Code sections 470 to 473 does not provide a basis for a civil tort claim, and the Court found no authority to the contrary. (See Penal Code, §§ 470-473.) However, any valid cause of action overcomes demurrer. It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. "A complaint 'is adequate so long as it apprises the defendant of the factual basis for the claim.' [Citation.]" (Prue v Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376.) It is possible that Plaintiff could state a cause of action for cancellation of fraudulent document based on forgery.

Here, the Court finds that the FAC does not allege any facts demonstrating that Moving Parties had any involvement in the forgery of the allegedly fraudulent grant deed. Instead, the FAC alleges in a vague and conclusory fashion that the Grant Deed was forged. (FAC, 3:8-11, 4:14-5:3.) Given the Court’s ruling, the Court declines to rule on the statute of limitations argument.

Based on the foregoing, the Court SUSTAINS the demurrer to the Third Cause of Action with leave to amend.

Fourth Cause of Action – Identity Theft (Penal Code, § 530.5)

“Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.” View Options(Penal Code, § 530.5, subd. (a).)

Moving Parties demur to the Fourth Cause of Action for identity theft on the grounds that it fails to state facts sufficient to constitute a cause of action. Moving Parties’ arguments here are the same as those above with respect to the Third Cause of Action. The Court agrees with Moving Parties for the same reasons set forth above. However, the Court finds no valid civil claimstated.

Based on the foregoing, the Court SUSTAINS the demurrer to the Fourth Cause of Action without leave to amend.

Fifth Cause of Action – Vacate Judgment Due to Fraud and Mootness (Code Civil Proc., § 473, subd. (b))

Collateral attacks on orders or judgments are generally disfavored. (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 987.) Collateral attacks lie only for orders or judgments void on their face for the court’s lack of personal or subject matter jurisdiction or for a claim for relief that the court had no power to grant. (Becker v. S.P.V. Constr. Co. (1980) 27 Cal.3d 489, 493 (Becker).)

Moving Parties demur to the Fifth Cause of Action to vacate judgment due to fraud and mootness on the grounds that it fails to state a cause of action. Moving Parties contend Plaintiff is only attacking the judgment entered in the prior case, LASC Case No. KC068912, because she is unhappy with it, which is not a basis for collateral attack. Moving Parties contend the only way she could have asserted these challenges was as a defense in that prior action or in an appeal from the judgment. Moving Parties contend Plaintiff does not allege any facts that show the judgment entered in the prior case is void on its face for lack of jurisdiction. Moving Parties further contend that even if she had a basis to attack the judgment from the prior case, she has no cause of action against the defendants in this action because none of them are parties to the prior judgment, particularly Jason Thorman who is not alleged to have even come into the picture until 2024, six years after the judgment was entered. Moving Parties contend Jennifer Wong and McCarthy & Holthus are simply legal counsel for Wilmington Trust and not parties to the prior judgment.

The Court agrees with Moving Parties. The FAC lacks allegations indicating how the judgment from the prior case, LASC Case No. KC068912, is void, as it contains no allegations or facts demonstrating that the court in the prior case lacked jurisdiction or that it lacked power to grant the relief obtained. (See Becker, supra, 27 Cal.3d at p. 493.) It is unclear to the Court how the alleged stipulation entered into with Wilmington Trust would provide a basis for attacking the judgment in the prior case. (See FAC, 3:12-15, 5:11-16.)

Moreover, although the FAC mentions a recent discovery of evidence regarding the fraudulent nature of the grant deed, it provides no facts indicating what that newly discovered evidence is. (FAC, 3:16-19.) Even if Plaintiff discovered new evidence showing the grant deed at issue was fraudulent, if it does not show that the prior court lacked jurisdiction or power to grant relief in that case, it does not provide a basis for attacking the prior judgment. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950 [errors of substantive law and other nonjurisdictional errors are not subject to collateral attack].)

Furthermore, Moving Parties correctly contend that this cause of action does not apply to them because they are not parties to the prior judgment. (Request for Judicial Notice, Ex. A.) Thus, even if Plaintiff were to prevail on this cause of action, it would not affect Moving Parties.

Based on the foregoing, the Court SUSTAINS the demurrer to the Fifth Cause of Action without leave to amend.

CONCLUSION

Moving Parties are ordered to give notice of the Court’s ruling within five calendar days of this order.