Judge Maurice A. Leiter, Case BC668093 2022-08-08 Tentative Ruling

PLAINTIFFS TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 20 DAYS THEREAFTER.

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 8:30 am on the day of the hearing.

On July 17, 2017, Plaintiffs Behrouz Kianmahd and Shain Kianmahd sued Defendants West H&A LLC, et al., asserting causes of action for (1) quiet title; (2) elder financial abuse; (3) slander of title; (4) declaratory relief; (5) cancellation of deed; and (6) fraud.

On August 6, 2019, the Court entered judgment by stipulation on the causes of action for quiet title, slander of title, declaratory relief and cancellation of deed. On May 9, 2022, the Court sustained Defendants’ demurrer to Plaintiff’s fraud cause of action with leave to amend.

On June 9, 2022, Plaintiff filed a first amended complaint, asserting causes of action for (1) fraud; (2) negligent misrepresentation; and (3) elder abuse. Plaintiffs allege Defendants acquired title to their residence by recording a false Grant Deed.

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.)

Defendant James Regan demurs to the first and second causes of action for fraud and negligent misrepresentation.[1]

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.)

Defendant asserts that Plaintiffs’ fraud claim fails because Plaintiffs have not alleged they reasonably relied on a misrepresentation made by Defendant. Plaintiff alleges that Defendant made misrepresentations to the County of Los Angeles by filing a false deed. But Plaintiff does not allege that Defendant made any misrepresentations to Plaintiff or that Plaintiff relied on them. This is insufficient to plead fraud.

[1] Defendant also demurs to the entire FAC on the ground that it is barred by the litigation privilege. The Court has already considered and rejected this argument.