Judge: Melvin D. Sandvig, Case: 22CHCV00519, Date: 2023-05-04 Tentative Ruling

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Case Number: 22CHCV00519    Hearing Date: May 4, 2023    Dept: F47

Dept. F47

Date: 5/4/23

Case #22CHCV00519

 

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed on 1/17/23.

 

MOVING PARTY: Defendants Alvin Lamont Perkins (Perkins); The Lenope 22655 AP Trust (Lenope Trust); Does 2 Trustee for the Lenope 22566 AP Trust (Does 2 for Lenope Trust); and Doe Trustee for the Lenope Trust (Doe 1 for Lenope Trust)

RESPONDING PARTY: Plaintiff The Estate of Kiram Tampi by and through its Administratrix Jinkie Tampi

NOTICE: ok

 

Demurrer is to the entire complaint:

            1.  Quiet Title

            2.  Elder Financial Abuse

            3.  Fraud

            4.  Declaratory Relief

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking each of the causes of action alleged in the complaint and the allegations regarding and prayer for punitive damages. 

 

RULING: The demurrer is sustained without leave to amend.  The motion to strike is placed off calendar.   

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of a dispute regarding real property located at 22655 Lenope Place, Chatsworth, California 91311 (the Property).  Plaintiff The Estate of Kiram Tampi (Mr. Tampi) by and through its Administratrix Jinkie Tampi (Plaintiff) alleges that Defendants Alvin Lamont Perkins (Perkins); The Lenope 22655 AP Trust (Lenope Trust); Does 2 Trustee for the Lenope 22566 AP Trust (Does 2 for Lenope Trust); and Doe Trustee for the Lenope Trust (Doe 1 for Lenope Trust) (collectively, Defendants) defrauded Mr. Tampi, who was over age 65 at the time, out of title to the property.  On the other hand, Perkins contends in 2014, Mr. Tampi, acting through his daughter, Jinkie Tampi, sold him the Property to avoid the Property being foreclosed upon.  On 6/16/14, a Quit Claim Deed transferring the Property from Kiram Tampi Barisa to Lenope 22655 AP Trust, Alvin Perkins, Trustee, was recorded.  (RJN/Blain Decl. ¶9, Ex.4).

 

On 7/12/22, Plaintiff filed this action against Defendants and others for: (1) Quiet Title, (2) Elder Financial Abuse, (3) Fraud and (4) Declaratory Relief.  During a meet and confer conversation between counsel on 11/23/22 regarding the deficiencies Defendants’ saw in the complaint, Plaintiff’s counsel indicated that he would be filing an amended complaint.  (Blain Decl. ¶2).  However, Plaintiff’s counsel failed to amend the complaint or respond to Defendants’ counsel’s follow-up inquiries.  (Blaine Decl. ¶¶3-5, 7, Ex.2, 10).  Therefore, on 1/17/23, Defendants filed and served the instant demurrer to the entire complaint and motion to strike seeking an order striking each of the causes of action alleged in the complaint and the allegations regarding and prayer for punitive damages.  Plaintiff has not opposed or otherwise responded to the demurrer or motion to strike.  On 4/25/23, Defendants filed and served notices of non-receipt of oppositions to the demurrer and motion to strike.    

 

ANALYSIS

 

Defendants Request for Judicial Notice (RJN) is granted.  However, the Court notes that Defendants have failed to separately file their request for judicial notice as required.  See CRC 3.1113(l).

 

A demurrer may be based on the grounds that a complaint fails to state a cause of action, misjoins parties and/or is uncertain.  CCP 430.10(d), (e), (f).  A complaint fails to state a cause of action if it shows on its face, or it appears from judicially noticed matter, that the action is barred by an affirmative defense or if it fails to state facts essential to establish each element of each cause of action.  Halvorsen (1998) 65 CA4th 1383, 1391; Rakestraw (2000) 81 CA4th 39, 43; Ankeny (1979) 88 CA3d 531, 537.

 

Each of the four causes of action alleged against Defendants appear to be time-barred.   Additionally, the claims fail for other reasons. 

 

Since Plaintiff’s 1st cause of action for Quiet Title is based on fraud, it is governed by a 3-year statute of limitations.  CCP 338(d).  As such, the claim must have been filed within 3 years of the discovery of the last element of the claim.  CCP 338(d); Salazar (2015) 236 CA4th 467, n.9, 10; Aryeh (2013) 55 C4th 1185, 1191.  As noted above, here, the Quitclaim Deed transferring the Property from Kiram Tampi to Lenope 22655 AP Trust, Alvin Perkins, Trustee, was recorded on 6/16/14.  (RJN/Blain Decl. ¶9, Ex.4).  While the complaint alleges that Kiram Tampi did not discover the “malfeasance” (fraud) until “February and March of 2019,” Plaintiff fails to adequately explain how Defendants “hid these facts from Mr. Tampi.”  (See Complaint ¶¶28-29). 

 

Plaintiff has failed to respond to the fact that the recorded Quitclaim Deed was signed by Kiram Tampi and notarized on 3/2/14.  (RJN/Blaine Decl., Ex.4).  As such, the judicially noticeable facts indicate that Mr. Tampi had actual notice of the Quitclaim Deed before it was recorded on 6/16/14.  Further, notice of each conveyance of real property recorded as prescribed by law provides constructive notice of its contents to subsequent purchasers, mortgagees or a party in interest.  See Civil Code 1213; Cady (1901) 131 Cal. 552, 555.

 

Since this action was filed on 7/12/22, more than 3 years after the quitclaim deed was recorded, it appears that the claim is time-barred.  The 3rd cause of action for fraud is also governed by the 3-year statute of limitations set forth in CCP 338(d).  As such, it too, appears to be time-barred.   

 

The quiet title claim also fails because the complaint is not verified.  See CCP 761.020.  The fraud claim also fails because it is not plead with the requisite factual specificity.  See Stansfield (1990) 220 CA3d 59, 73; Lazar (1996) 12 C4th 631. 

 

The 2nd cause of action for financial elder abuse is governed by a 4-year statute of limitations.  Welfare & Institutions Code 15657.5-15657.7.  As noted above with regard to the quiet title and fraud causes of action, Plaintiff has failed to allege adequate facts to support the claim that Mr. Tampi did not discover his claim until 2019 when the judicially noticeable facts show that he executed a Quitclaim Deed in 2014.  Since this action was filed on 7/12/22, more than 4 years after the quitclaim deed was recorded, the claim appears to be time-barred.    

 

Under California law, the time periods applicable to ordinary causes of action should be applied to actions for declaratory relief.  Maguire (1944) 23 C2d 719.  Since the 1st, 2nd, and 3rd causes of action appear to be time-barred, the 4th cause of action for declaratory relief also appears to be so barred as there are no other grounds for the Court to provide equitable relief.   

 

A plaintiff must have standing and capacity to sue in order to maintain a cause of action.  Maguire, supra.  The real party in interest is the person who possesses the right sued upon by reason of substantive law.  Killiam (1991) 228 CA3d 1601, 1605; CCP 367. 

 

Since the complaint involves Mr. Tampi’s former interest in the Property, he was the real party in interest during his lifetime.  Although the complaint alleges that Mr. “passed away” on January 3, 2022 at the age of 82 and that Jinkie Tampi is allegedly the administratrix of Mr. Tampi’s estate and successor Trustee to the Tampi Family Irrevocable Trust, there is no evidence  before this Court to establish Mr. Tampi’s alleged death, the filing of any estate, and/or the authority of Jinkie Tampi to serve in any representative capacity in this action.  (See Complaint ¶16). 

 

As such, Plaintiff has failed to adequately establish that she has standing to make the claims alleged in the complaint as the administratrix of Mr. Tampi’s estate.   

 

CONCLUSION

 

Based on the foregoing, all of the claims in the complaint fail.  Since Plaintiff has not opposed or otherwise responded to the demurrer, despite indicating to Defendants’ counsel that an amended pleading would be filed, it does not appear that the defects in the complaint can be cured.  (See Blaine Decl. ¶2).  As such, the demurrer is sustained without leave to amend. 

 

The Court notes that it did not consider the extrinsic facts, of which judicial notice was not taken, included in the demurrer, declaration of Alvin Lamont Perkins and/or declaration of Tony Blain in ruling on the demurrer.

 

The motion to strike is placed off calendar as moot due to the ruling on the demurrer.