Judge: Melvin D. Sandvig, Case: 22CHCV00519, Date: 2023-08-22 Tentative Ruling

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Case Number: 22CHCV00519    Hearing Date: August 22, 2023    Dept: F47

Dept. F47

Date: 8/22/23

Case #22CHCV00519

 

DEMURRER & MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

 

Demurrer & Motion to Strike filed on 7/14/23.

 

MOVING PARTY: Defendants Alvin Lamont Alvin Lamont Perkins (Alvin Lamont Perkins), individually and in his capacity as the trustee for The Lenope 22655 AP Trust (Lenope 22655 AP Trust) and The Lenope Trust (Lenope Trust)   

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

NOTICE: ok

 

Demurrer is to the entire First Amended 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 First Amended 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, individually and in his capacity as the trustee for The Lenope 22655 AP Trust (Lenope 22655 AP Trust) and The Lenope Trust (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, Alvin Lamont 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.  (Request for Judicial Notice, Exhibit 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.  On 5/4/23, this Court sustained Defendants’ demurrer to the original complaint with 20 days leave to amend.  (See 5/4/23 Minute Order).  At the 5/4/23 hearing, Plaintiff’s counsel represented that a First Amended Complaint had been submitted.  Id.  Despite such representation on 5/4/23, the First Amended Complaint, which alleges the same four Causes of Action as the original complaint, was not filed until 6/14/23.  

 

On 6/16/23, Defendant’s counsel sent a meet and confer letter to Plaintiff’s counsel regarding deficiencies in the First Amended Complaint.  (Blaine Declaration ¶2, Exhibit 11).  In response, Plaintiff’s counsel indicated that Plaintiff would be standing by the First Amended Complaint.  (Id., Exhibit 12).  Therefore, on 7/14/23, Defendants filed and served the instant demurrer to the entire First Amended Complaint and motion to strike seeking an order striking each of the Causes of Action alleged in the First Amended 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 8/15/23, Defendants filed and served notices of non-receipt of oppositions to the demurrer,  motion to strike and request for judicial notice.    

 

ANALYSIS

 

Defendants Request for Judicial Notice is granted. 

 

A demurrer may be based on the grounds that a complaint fails to state a Cause of Action, misjoins parties and/or is uncertain.  Code of Civil Procedure Section 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 First Cause of Action for Quiet Title is based on fraud, it is governed by a three-year statute of limitations.  Code of Civil Procedure Section 338(d).  As such, the claim must have been filed within three years of the discovery of the last element of the claim.  Code of Civil Procedure Section 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.  (Request for Judicial Notice, Exhibit 4). 

 

While Plaintiff claims that the recorded Quit Claim Deed was altered after it was signed by Mr. Tampi, Plaintiff concedes that Mr. Tampi became aware of the recorded Quit Claim Deed in March 2019.  (First Amended Complaint ¶¶18, 20, 38).  Additionally, Plaintiff, again, fails to explain how Defendants “concealed their conduct from Mr. Tampi at all times.”  (See First Amended Complaint ¶29, 38).  Even using the March 2019 discovery date, the three-year statute of limitations expired 3/31/22, at the latest.  This action was not filed until 7/12/22. 

 

Moreover, 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 Section 1213; Cady (1901) 131 Cal. 552, 555.

 

Since this action was filed on 7/12/22, more than three3 years after the quitclaim deed was recorded and after Mr. Tampi admittedly had notice of such recordation, the claim is time-barred.  The Third Cause of Action for fraud is also governed by the three-year statute of limitations set forth in Code of Civil Procedure Section 338(d).  As such, it too, is time-barred.   

 

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

 

The Second Cause of Action for financial elder abuse is governed by a four-year statute of limitations.  Welfare & Institutions Code Sections 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 the Quit Claim Deed was recorded on 6/16/14 based on the constructive notice provided by the recordation and lack of facts supporting the allegation that Defendants concealed their conduct from him.   

 

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 First, Second, and Third Causes of Action appear to be time-barred, the Fourth 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; Code of Civil Procedure Section 367. 

 

Since the First Amended Complaint involves Mr. Tampi’s former interest in the Property, he was the real party in interest during his lifetime.  Although the First Amended Complaint alleges that Mr. Tampi “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 First Amended Complaint ¶25). 

 

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

 

CONCLUSION

 

Based on the foregoing, all of the claims in the First Amended Complaint fail.  Since Plaintiff has failed to cure all of the defects noted the  Court’s ruling on the demurrer to the original complaint and Plaintiff has not opposed or otherwise responded to the demurrer, it does not appear that the defects in the pleading can be cured.  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.