Judge: Michael Shultz, Case: 20CMCV00253, Date: 2024-08-01 Tentative Ruling
Case Number: 20CMCV00253 Hearing Date: August 1, 2024 Dept: A
20CMCV00253
Phyllis Pugh-Robinson v. Frances Williams, Alfred Tatum
Thursday,
August 1, 2024, at 8:30 a.m.
[TENTATIVE] ORDER
SUSTAINING DEMURRER TO THE FIRST AMENDED COMPLAINT
The complaint filed on
October 7, 2020, asserts that Plaintiff and Defendant, Frances Williams
(“Williams”), own a 50 percent interest in real property granted to them by
Ginesha Stradford, Plaintiff’s mother, who is also Williams’ sister. Plaintiff
and Williams listed the property for sale and received an offer, but Williams
did not sign the escrow papers.
Plaintiff subsequently
learned that Williams and her son, Defendant Alfred Tatum (“Tatum"),
forged a deed purporting to transfer Plaintiff’s interest in the real property
to Williams, who subsequently transferred ownership of the property to herself
and her son Tatum, as joint tenants. Plaintiff alleges 11 claims for breach of
fiduciary duty, fraud-related claims, conversion, cancellation of instrument,
for quiet title and declaratory relief.
On May 17, 2024, Plaintiff
filed a first amended complaint (“FAC”) adding two causes of action for quiet
title and for an injunction. Defendant, Jeff Bleecker, as Trustee (“Trustee”) demurs
to the claims for fraud and slander of title.
II. ARGUMENTS
The bases for demurrer
are limited by statute and may be sustained for reasons including failure to
state facts sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10.) A demurrer
“tests the sufficiency of a complaint as a matter of law and raises only
questions of law.” (Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706.) The court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) The court may not consider contentions, deductions, or
conclusions of fact or law. (Moore v. Conliffe (1994) 7
Cal.4th 634, 638.)
III. DISCUSSION
A.
The second cause of action for
fraud is inadequately alleged.
Bleecker argues that
the claim is not adequately alleged with specificity and with particular facts
to support each element. The claim asserts the existence of a conspiracy which
is not adequately alleged. Plaintiff contends the claim is adequately alleged.
A
claim for fraud requires facts to support the following elements: (1) a
misrepresentation, (2) made with knowledge of its falsity, (3) Defendant
intended to defraud Plaintiff, i.e., induce Plaintiff’s reliance, (4) Plaintiff
justifiably relied on the misrepresentation, (5) causing damage. (Nagy v. Nagy
(1989) 210 Cal.App.3d 1262, 1268.) Fraud claims are
subject to strict requirements of particularity in pleading. (Id.) The
particularity requirements necessitate pleading facts showing “how, when,
where, to whom, and by what means the representations were tendered." (Stansfield v. Starkey
(1990) 220 Cal.App.3d 59, 73.) The requirement “applies not only to the alleged
misrepresentation, but also to the elements of causation and damage." (Moncada v. West Coast
Quartz Corp. (2013)
221 Cal.App.4th 768, 776.)
Plaintiff alleges fraud against all
Defendants. The alleged fraud appears to arise from Defendants Williams’ and
Tatum’s alleged forgery of a 2008 deed that removed Plaintiff’s ownership
interest in the property. (FAC, ¶ 37.) Defendants then recorded the deed and encumbered
the property through the use of the forged deed, resulting in a November 1, 2019,
Deed of Trust provided as security for the loan. (Id.)
Defendants then attempted to sell the property. (FAC, ¶ ¶ 38.)
With respect to Bleecker, Plaintiff
alleges Bleecker “potentially knew” about the forged deed but continued to sell
the real property. (Id.) Plaintiff
did not allege any affirmative misrepresentations made to the Plaintiff, on
which she relied, with intent to defraud Plaintiff, that subsequently caused
damage.
Plaintiff, however, does allege that
Defendants’ conduct was made with the intent to conceal the transfer of
Plaintiff’s rights. (FAC, ¶ ¶ 42.) Fraud in the concealment is a different
cause of action requiring facts showing “(1) the defendant must have concealed or
suppressed a material fact, (2) the defendant must have been under a duty
to disclose the fact to the plaintiff, (3) the defendant must have
intentionally concealed or suppressed the fact with the intent to defraud the
plaintiff, (4) the plaintiff must have been unaware of the fact and would not
have acted as he did if he had known of the concealed or suppressed fact, and
(5) as a result of the concealment or suppression of the fact, the plaintiff
must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310–311.)
There are “four circumstances in which nondisclosure or
concealment may constitute actionable fraud: (1) when the defendant is in a
fiduciary relationship with the plaintiff; (2) when the defendant had exclusive
knowledge of material facts not known to the plaintiff; (3) when the defendant
actively conceals a material fact from the plaintiff; and (4) when the
defendant makes partial representations but also suppresses some material
facts.” (Id. at 311.) If a fiduciary relationship
does not exist, but the latter three circumstances are present, plaintiff must
still show “the existence of some other relationship between the plaintiff and
defendant from which a duty to disclose can arise.” (Id. at 311.)
Plaintiff has not alleged any facts to support the claim that
Bleecker owed a duty to Plaintiff not to conceal that Williams and Tatum “potentially”
forged a deed, or even that Bleecker intended to conceal the material facts
from Plaintiff.
Plaintiff alleges that William and Tatum “worked in concert” with
Defendant Bleecker to sell the subject property by foreclosure sale. (FAC, ¶
38.) Bleecker argues that this bare allegation does not support a claim for
civil conspiracy. Civil conspiracy is not a cause of action, but rather a legal
doctrine that imposes liability on persons who did not actually commit a tort
but acted in concert with another tortfeasor. To support this theory of liability, Plaintiff must allege "1) the
formation and operation of the conspiracy, (2) wrongful conduct in furtherance
of the conspiracy, and (3) damages arising from the wrongful conduct.” (AREI II Cases
(2013) 216 Cal.App.4th 1004, 1022.) A conspiracy “must be
activated by the commission of an actual tort." (Applied Equipment Corp. v.
Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.)
To the extent Plaintiff is alleging a
separate basis for liability against Bleecker under a theory of conspiracy, it
is not well pleaded as the purported wrongful conduct (the alleged fraud) is
not adequately alleged.
B.
Demurrer to the 10 tenth cause of
action for slander of title is SUSTAINED.
The Trustee argues
that the alleged facts do not support liability against the Trustee for this
cause of action. To support a claim for slander of title,
Plaintiff must allege “(1) a publication, (2) which is without privilege
or justification, (3) which is false, and (4) which causes direct and immediate
pecuniary loss.” (Alpha & Omega
Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664.)
Plaintiff contends that the alleged facts are sufficient to support the claim. Alternatively,
Plaintiff asks for leave to amend.
This claim purportedly arises from the
allegedly forged 2008 deed recorded by Williams that divested Plaintiff’s
ownership interest, a second 2014 quitclaim deed purporting to transfer
Williams’ interest to herself and her son Tatum, and a subsequent 2015 Deed of
Trust and 2019 Deed of Trust encumbering the property to secure a loan. (FAC, ¶
87-89.)
Plaintiff did not allege facts showing
Bleecker’s involvement with the publication of any document or that any of his
conduct was without privilege or justification. The allegations are equivocal
with respect to Bleecker’s knowledge of falsity in that Plaintiff alleges Bleecker
“knew about three (3) years ago that Williams and Tatum potentially forged
Plaintiff’s name in the 2008 grant deed.” (FAC, ¶ 38.)
IV. CONCLUSION
Based on the foregoing, the demurrer to
the second cause of action for fraud and the 11th cause of action
for slander of title are SUSTAINED with 10 days leave to amend. Leave to amend
is ordinarily given if there is a reasonable possibility that the defect can be
cured. (Association
of Community Organizations for Reform Now v. Department of Industrial Relations
(1995) 41 Cal.App.4th 298, 302.)