Judge: Mark E. Windham, Case: 24STLC03359, Date: 2024-10-28 Tentative Ruling

Case Number: 24STLC03359    Hearing Date: October 28, 2024    Dept: 26

Movsisian v. Escrow Time, Inc., et al

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Escrow Time, Inc.’s Demurrer to the Complaint is OVERRULED. DEFENDANT IS TO FILE AND SERVE ITS ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On May 6, 2024, Plaintiff Msrop E. Movsisian (“Plaintiff”), in propria persona, filed the Complaint in this action against Defendant Escrow Time, Inc. (“Defendant”). On September 12, 2024, Defendant filed the instant Demurrer to the Complaint. Plaintiff filed an opposition on October 14, 2024. 

Discussion

Allegations in the Complaint

On March 8, 2022, escrow was opened between Plaintiff and a buyer, Elen Ghazaryan, through Defendant. (Compl., ¶6.) The escrow agreement stated Plaintiff would not be responsible for “the sufficiency or correctness as to form, manner of execution or validity of any documents deposited in this escrow.” (Id. at ¶6 and Exh. A.) Plaintiff provided Defendant’s Escrow Officer Iris Martinez (“Martinez”) with a dismissal from Los Angeles Superior Court case James Rex Fenley vs. Msrop E. Movsisian (“Prior Action”), which was dismissed on November 6, 2015. (Id. at ¶6.)

Escrow closed on November 8, 2023, during which time Plaintiff was told all of the paperwork was “good to go” by Martinez. (Ibid.). On November 9, 2023, Plaintiff realized that $15,450.00 had been disbursed by Defendant to Los Angeles Housing Department despite providing Defendant the dismissal paper from the Prior Action. (Id. at ¶7.). Plaintiff then contacted Iris Martinez to inform her he had given her a dismissal paper, which she denied ever receiving. (Id. at ¶8.) Martinez then called Plaintiff back to inform him she found the dismissal paper but had already sent the check. (Ibid.) Martinez told Plaintiff to go to L.A Housing Authority on 7th street in Los Angeles but when Plaintiff went there he discovered the building had been closed for two years. (Ibid.) When Plaintiff informed Martinez the building was no longer in operation, she hung up the phone. (Ibid.) Martinez then called Plaintiff back and said she would see what she could do about the situation but never called Plaintiff back. (Ibid.) In January 2024, Plaintiff called and asked to speak with the manager and was told they were out sick. (Ibid.) Plaintiff called again to speak with the manager several times but was told they were not available. (Ibid.)

Demurrer to the Complaint

The Complaint alleges causes of action for (1) Professional Negligence; and (2) Breach of Contract. The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Benson Decl., ¶¶2-3.) Defendant demurs on the grounds that the Complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

The demurrer is rife with statements of fact that are outside the four corners of the Complaint or of which Defendant has not requested the Court take judicial notice. (Demurrer, p. 4, § I.) It is black letter law that the Court’s consideration of these facts on demurrer is improper. (Code Civ. Proc., § 430.30; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The demurrer also fails to set forth the necessary elements to state a cause of action for either professional malpractice or breach of contract. Defendant only broadly mentions that “[a]n escrow holder’s fiduciary duty is generally limited to the faithful performance of the instructions given by the Principals to the Escrow.” (Citing Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711,713.) The demurrer provides no analysis of the allegations in the Complaint with respect to this duty and instead improperly relies on the extrinsic facts.

Therefore, Defendant’s demurrer does not show that the Complaint fails to state a cause of action for either professional negligence or breach of contract.

Conclusion

Defendant Escrow Time, Inc.’s Demurrer to the Complaint is OVERRULED. DEFENDANT IS TO FILE AND SERVE ITS ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

Court clerk to give notice.