Judge: Maurice A. Leiter, Case: 22STCV09355, Date: 2022-10-04 Tentative Ruling

Case Number: 22STCV09355    Hearing Date: October 4, 2022    Dept: 54

Hearing Date: October 4, 2022

Department 54, Judge Maurice A. Leiter

(2) Demurrers to First Amended Complaint

Moving Party: Defendants Adnan Mohamed Aljojo and AmWest Funding Corp.

Responding Party: Plaintiff Nadia Kamel Salem

T/R:    DEFENDANTS’ DEMURRERS ARE OVERRULED.

DEFENDANTS TO FILE AND SERVE ANSWERS TO PLAINTIFF’S FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

            DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

On April 21, 2022, Plaintiff sued Defendants for cancellation of instruments. Plaintiff is Defendant Aljojo’s mother. Plaintiff alleges Defendant recorded a fraudulent deed transferring Plaintiff’s real property to Defendant.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Defendant Aljojo’s Demurrer

Defendant demurs to the complaint on the ground that it is barred by the three-year statute of limitations for fraud causes of action.

A demurrer lies where the dates alleged in the complaint show “clearly and affirmatively” that the action is barred by a statute of limitations.  It is not enough that the complaint shows that the action may be barred.  (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.)  The statute of limitations begins to run when the cause of action “accrues.”  (CCP § 312.) A cause of action “accrues” when, under the substantive law, the wrongful act is done or the wrongful result occurs, and the consequent liability arises.  (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)  That is, a cause of action accrues “upon the occurrence of the last element essential to the cause of action.”  (Howard Jarvis Taxpayers Ass’n v. City of La Habra (2001) 25 Cal.4th 809, 815.) 

Plaintiff alleges that the subject deed was recorded on October 10, 2017. (Compl. ¶ 15.) Plaintiff filed this action on April 21, 2022. Defendant asserts the fraud statute of limitations should apply because Plaintiff alleges Defendant fraudulently forged and recorded the deed. In opposition, Plaintiff argues that the five-year statute of limitations for cancellation of instruments should apply.

The sole remedy Plaintiff seeks is cancellation of the deed. Though Plaintiff’s complaint may implicate some fraudulent activity, Plaintiff does not seek damages or state a cause of action for fraud. The Court is unpersuaded that the complaint is clearly and affirmatively barred on its face.

Defendant also argues that the complaint is not pleaded with the specificity required for a fraud claim. As discussed, this action seeks relief in the form of cancellation of instrument. Plaintiff does not allege a cause of action for fraud and does not pray for damages.

The demurrer is OVERRULED.

B. Defendant AmWest’s Demurrer

            AmWest demurs to the complaint on the grounds that it is barred by the statute of limitations and fails to state sufficient facts. As stated, the complaint is not clearly and affirmatively barred, and it states sufficient facts.