Judge Matthew C. Braner, Case Number: 37-2023-00047679-CU-OR-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2023-00047679-CU-OR-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other Real Property Demurrer / Motion to Strike 37-2023-00047679-CU-OR-CTL KELEMAN VS GADLER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The demurrer to the Complaint by Richard Means Gadler, individually and as Trustee of the Gadler-Chadwick Family Trust dated August 19, 2004, as amended and restated on March 25, 2021 ('Defendant Gadler') is SUSTAINED with leave to amend.

Preliminary Matters Defendant Gadler's request for judicial notice of Exhibits A-G is granted. However, 'the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein.' (Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Similarly, while courts may notice official acts and public records, they do not take judicial notice of the truth of all matters stated therein. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, disapproved on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) As the court has not taken judicial notice of the facts contained within these documents, Plaintiff's objections to Exhibit G is overruled as moot.

The court will disregard the 'evidence' in the Declaration of Richard Gadler and paragraphs 5-8 of the Declaration of Rebecca Zipp as outside the pleadings and not subject to judicial notice.

Demurrer A demurrer shall be sustained if the court 'has no jurisdiction of the subject of the cause of action alleged in the pleading', the 'person who filed the pleading does not have the legal capacity to sue', or the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., � 430.10(a), (b), (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Finally, it is not necessary to 'plead evidentiary facts supporting [an] allegation of ultimate fact,' and a pleading 'is adequate so long as it apprises the defendant of the factual basis for the claim.' (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1549.) Defendant Gadler demurs to the entire Complaint. Defendant Gadler argues the court lacks jurisdiction and Plaintiff lacks standing on the grounds the Complaint is barred by the statutes of limitations, the Complaint does not state facts sufficient to constitute a cause of action, and the Complaint is barred by Calendar No.: Event ID: TENTATIVE RULINGS

3064442 25 CASE NUMBER: CASE TITLE: KELEMAN VS GADLER [IMAGED] 37-2023-00047679-CU-OR-CTL laches and waiver.

As an initial matter, the statute of limitations is not grounds for a demurrer based on lack of jurisdiction or standing, but may be asserted by a general demurrer for failure to state a cause of action. (See SLPR, L.L.C. v San Diego Unified Port Dist. (2020) 49 Cal.App.5th 284, 306.) Given Defendant Gadler has separately demurred to the Complaint under Code of Civil Procedure � 430.10(e) and Plaintiff addressed the merits of the statute of limitations arguments, the court will address this ground for demurrer to facilitate a timely resolution of the issues.

The court agrees with Plaintiff that the applicable statute of limitations is three years under Code of Civil Procedure � 338(d). The Complaint alleges causes of action for cancellation of written instruments and quiet title and seeks punitive damages for fraud. The statute of limitations for cancellation of written instruments is ordinarily four years, but when the alleged claim involves fraud, the applicable statute is three years from the time of discovery of facts constituting fraud or mistake. (Robertson v. Superior Ct.

(2001) 90 Cal.App.4th 1319, 1326.) Additionally, because there is no specific statute of limitations for quiet title claims, the courts refer to the underlying theory to determine the applicable limitations period.

(Salazar v. Thomas (2015) 236 Cal.App.4th 467, 476.) All of Plaintiff's claims are grounded in fraud (see, e.g., Complaint, �� 10-11, 14, 16, 17), which has a three-year statute of limitations and 'is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.' (Code Civ. Proc., � 338, subd. (d).) However, Plaintiff has not adequately pleaded around the statute of limitations. Plaintiff relies on the discovery rule, as the Complaint alleges the acts and omissions giving rise to the fraud occurred in 2004, but Plaintiff did not discover the fraud until July 2023. The discovery rule 'postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.' (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) To rely on the discovery rule, a plaintiff 'must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1232.) Plaintiff has the burden of proving she did not make the discovery by alleging 'facts showing 'the time and surrounding circumstances of the discovery and what the discovery was.'' (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472.) Plaintiff also has the burden of pleading facts demonstrating she was not negligent in failing to make the discovery sooner and that she has no actual or presumptive knowledge of facts sufficient to put her on inquiry. (Id.) 'The discovery related facts should be pleaded in detail to allow the court to determine whether the fraud should have been discovered sooner.' (Id.) The delayed discovery rule also applies to the extent Plaintiff contends her causes of action are also based on undue influence. (See Estate of Young (2008) 160 Cal.App.4th 62, 77-78.) The Complaint alleges Plaintiff did not discover the actions and omissions that occurred in 2004 and serve as the basis for her claims until July 2023, when Plaintiff received a phone call from Defendant Leigh Powell telling Plaintiff that Defendant Powell owned the property, and the property was going to be sold. (Complaint, �� 6, 11.) Plaintiff thereafter reached out to Defendant Gadler and received a copy of the Trust. (Id. at � 11.) Contrary to the representations that Defendant Gadler and others made to Plaintiff when she executed a quitclaim deed on August 5, 2004, the Trust did not identify Plaintiff as the trustee or give her control of the property. (Id. at �� 10, 11.) If Plaintiff did not discover the alleged fraud until July 2023 or later, then she filed this case well within the statute of limitations on November 1, 2023.

However, Plaintiff has not adequately pleaded any facts showing she was not negligent in failing to make this discovery sooner, or that she has no actual or presumptive knowledge of facts sufficient to put her on inquiry. Plaintiff's allegations regarding her inability to discover Defendants' actions with reasonable diligence are conclusory and insufficient to meet her burden. (Complaint, � 6.) Accordingly, Defendant Gadler's demurrer to the Complaint is sustained. The court will give leave to amend the Complaint, as it is possible for Plaintiff to plead additional facts showing that the discovery rule applies to her cancellation of written instrument and quiet title causes of action. In light of this conclusion, the court need not address Defendant Gadler's other arguments.

Calendar No.: Event ID: TENTATIVE RULINGS

3064442 25 CASE NUMBER: CASE TITLE: KELEMAN VS GADLER [IMAGED] 37-2023-00047679-CU-OR-CTL Plaintiff has 30 days from entry of this order to file and serve an amended complaint.

The minute order is the order of the court.

Calendar No.: Event ID: TENTATIVE RULINGS

3064442 25