Judge: Maurice A. Leiter, Case: 22STCV17113, Date: 2022-09-29 Tentative Ruling

Case Number: 22STCV17113    Hearing Date: September 29, 2022    Dept: 54

Hearing Date: September 29, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Cross-Complaint

Moving Party: Plaintiff/Cross-Defendant Hortencia Nieves

Responding Party: Defendant/Cross-Complainant Juan A. Luna

T/R:    NIEVES’ DEMURRER IS OVERRULED.

NIEVES TO FILE AND SERVE AN ANSWER TO THE FIRST AMENDED CROSS-COMPLAINT WITHIN 15 DAYS OF NOTICE OF RULING.

            NIEVES 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 May 24, 2022, Plaintiff Hortencia Nieves sued Defendants Juan A. Luna, Melaquias Luna, Veronica Estrada, asserting causes of action for (1) fraud; (2) financial dependent adult abuse; (3) declaratory judgment; and (4) intentional infliction of emotional distress. Nieves alleges Juan Luna fraudulently coerced Nieves into transferring title to her home to Luna.

On August 3, 2022, Juan A. Luna filed the operative first amended cross-complaint against Nieves asserting causes of action for (1) declaratory relief; (2) unjust enrichment; (3) intentional misrepresentation; and (4) negligent misrepresentation. Luna alleges Nieves agreed to transfer title to the property to Luna. In exchange, Luna agreed to pay the mortgage and any repairs to the property and Nieves would live on the property rent free. Luna alleges Nieves transferred the property to him knowing that she would later claim he coerced her into transferring the property.

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.)

Nieves demurs to the third and fourth causes of action for intentional and negligent misrepresentation.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  

Negligent misrepresentation requires the defendant to make false statements believing them to be true, but without reasonable ground for such belief. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407.) 

Nieves asserts that Luna’s claim for misrepresentation fails because Luna does not allege an actual misrepresentation. Nieves argues that Nieves could not have “misrepresented” that she would transfer title to the property to Luna because she did, in fact, transfer title.

Luna alleges Nieves stated that she agreed to transfer the property to Luna in exchange for Luna’s paying the mortgage and repair expenses. (FAC ¶ 38.) Luna alleges that Nieves represented she would abide by this agreement but intended to claim ownership of the property after Luna paid the mortgage and repaired the property. (FAC ¶¶ 39-40.) This is sufficient to allege misrepresentation.