Judge: Peter A. Hernandez, Case: 21PSCV00748, Date: 2022-12-08 Tentative Ruling

Case Number: 21PSCV00748    Hearing Date: December 8, 2022    Dept: O

1. Defendant Michael Trujillo’s Motion for Judgment on the Pleadings is DENIED.

2. Defendant Maya Trujillo’s Motion for Judgment on the Pleadings is DENIED.

Background   

Plaintiff Rajinder K. Sekhon (Plaintiff) alleges as follows: Plaintiff was a family friend of Merisha Chiqua Grujal Trujillo (sued as Chiqua Merisha Trujillo) (Merisha), Michael Trujillo (Michael) and Maya Trujillo (Maya) (collectively, Defendants). Merisha and Michael are married; Maya is their daughter. Defendants frequented Plaintiff in her home for many years, and Plaintiff visited their home as well. In or about August 2019, Merisha asked Plaintiff if she and her daughters could borrow jewelry from Plaintiff to wear at a family wedding in England. Plaintiff agreed. Defendants came to Plaintiff’s house, selected certain pieces of jewelry, and told Plaintiff that they would return the jewelry upon their return from England in about three weeks. In or about September 2019, Plaintiff became disabled and was in a nursing home until July 4, 2021. Defendants would visit Plaintiff in the nursing home and assured her that the jewelry was safe. A few years prior, Merisha convinced Plaintiff to transfer her bank account to One West Bank, as Merisha was friendly with the bank manager. Merisha induced Plaintiff to grant her a power of attorney whereby Merisha had access to Plaintiff’s bank accounts in-person and online. Merisha oversaw Plaintiff’s banking activities and often stopped payment on checks issued by Plaintiff, on at least January 2020 and February 2021, without telling Plaintiff she was doing so. Plaintiff revoked the power of attorney in or about August 2021. After learning of the revocation, Defendants came to Plaintiff’s house and told her that they would not be returning the jewelry.

On June 2, 2022, Plaintiff filed a First Amended Complaint, asserting causes of action against Merisha, Michael, Maya and Does 1-10 for:

1.      Fraud/Intentional Misrepresentation


2.      Negligent Misrepresentation
3.     Civil Conspiracy to Defraud and Convert Property
4.      Financial Elder Abuse
5.      Breach of Contract
6.      Conversion
7.      Intentional Infliction of Emotional Distress

A Case Management Conference is set for December 8, 2022.

1. Michael’s Motion for Judgment on the Pleadings

Legal Standard

The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [“The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit”].)

A motion by a plaintiff may only be made on the grounds “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint” or (2) “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c).)

Although a nonstatutory motion “may be made at any time either prior to the trial or at the trial itself” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)

Discussion

Michael moves the court, per Code of Civil Procedure § 438 and under the common law, for judgment on the pleadings as to Plaintiff’s FAC, on the basis that the allegations and claims in this case against Michael are a sham and aimed at avoiding the court’s May 23, 2022 order sustaining Michael’s demurrer to Plaintiff’s complaint.

Request for Judicial Notice

The court rules on Michael’s Request for Judicial Notice as follows: Granted as to Exhibit 1 (i.e., ruling filed May 23, 2022 on Maya’s and Michael’s respective demurrers and motions to strike as to Plaintiff’s original complaint in this action) and Granted as to Exhibit 2 (i.e., May 23, 2022 minute order).

Meet and Confer

At the outset, the declaration submitted by Plaintiff’s counsel Anju Multani concurrently with the opposition suggests that Michael’s counsel did not adequately meet and confer with her prior to the filing of the instant motion. The meet and confer obligation espoused in Code of Civil Procedure § 439, however, is required only for motions made pursuant to § 438. Inasmuch as the instant motion was also made pursuant to the common law, the court elects to proceed to the merits of the motion, regardless of any such meet and confer deficiency.

Merits

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers . . .The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425 [internal quotations and citation omitted]; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877 [“A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false”].) The sham pleading rule applies to verified and unverified complaints alike. (See Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 836; Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1109.)

Michael asserts that Plaintiff “has created a new narrative in an effort to evade the consequences of this Court’s prior ruling on Defendant’s demurrer.” (Demurrer, 8:7-8.) It is unclear, however, what newly alleged facts contradict the facts Plaintiff pled in her original complaint; instead, Plaintiff has pled additional facts appearing to clarify the items taken from her and by whom.

The motion is denied.