Judge: Peter A. Hernandez, Case: 23PSCV00378, Date: 2023-12-12 Tentative Ruling
Case Number: 23PSCV00378 Hearing Date: January 19, 2024 Dept: K
1. Defendants Lucy Seh’s, Jonathan Seh’s
and The Peter Seh Living Trust 2001’s Demurrer to [First Amended] Complaint is OVERRULED
as moot, in part (i.e., as to the first cause of action) and SUSTAINED without
leave to amend, in part (i.e., as to the third and seventh causes of action). Defendants
are ordered to file an Answer with 10 days.
2. Plaintiff Benjamin Kirk’s Motion for Preliminary Injunction is DENIED.
Background
Plaintiff Benjamin Kirk (“Kirk”) alleges as follows:
On
January 19, 2021, Kirk, as manager of Butterfield Property LLC (“Butterfield”),
and SVPP Properties LLC (“SVPP”) entered into a lease to purchase agreement for
the property located at 761 Corporate Center Drive in Pomona, California
(“subject property”). In June 2021, Lucy Seh (“Lucy”) joined Kirk’s affiliated
organization, Kingston Financial, as a loan officer. Lucy had been Kirk’s domestic
partner from 2000-2014. Lucy learned of the transaction and expressed interest
in the subject property. Kirk and Lucy agreed to split the equity in the
subject property when the subject property was sold if Lucy participated in the
close of escrow.
Lucy
set up Edington Asset LLC (“Edington”) and Kirk and Lucy agreed to name Lucy’s
son, Jonathan Seh (“Jonathan”), as Edington’s manager. Kirk agreed to assign
Butterfield’s interest in the subject property to Edington and closed escrow. Lucy,
though, failed to complete the legal paperwork to reflect the 50/50 interest in
the subject property between her and Kirk. Escrow closed on February 24, 2022.
On May 18, 2022, Lucy recorded a deed of trust in the amount of $3.3 million
against the subject property in favor of 168 Investment LLC, an entity Lucy
controlled. On October 7, 2022, Lucy assigned the aforesaid deed of trust to
the Peter Seh Living Trust 2001 dated September 13, 2001 (“Trust”), in which
Lucy is the trustee. On December 13, 2022, Lucy recorded a grant deed (which
was signed by Jonathan), granting the subject property to the Trust.
On July 17, 2023, Kirk filed a First Amended Complaint (“FAC”), asserting causes of action against Lucy, Jonathan, Trust, All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property for:
1.
Suit to
Quiet Title
2.
Fraud in
the Inducement
3.
Rescission
4.
Violations
of Uniform Voidable Transactions Act
5.
Common
Law Fraudulent Transfer Claims
6.
Conspiracy
to Commit Fraudulent Transfer
7.
Request
for Injunctive Relief
A Case Management Conference and an Order to Show Cause Re: Failure to File Proof of Service as to Edington are set for January 19, 2024.
1. Demurrer
Discussion
Lucy, Jonathan and Trust demur, pursuant to Code of Civil Procedure § 430.10, to the first, third and seventh causes of action in Plaintiff’s FAC, on the basis that they each fail to state facts sufficient to a constitute cause of action.
Meet and Confer
At the outset, the court notes that the instant demurrer was originally set for hearing on December 12, 2023; on that date, the court continued the hearing to January 19, 2024 on the basis that the demurrer was not accompanied by a Code of Civil Procedure § 430.41 meet and confer declaration and that Kirk’s opposition indicated that no meet and confer was conducted.
The court instructed counsel for Lucy, Jonathan and Trust to
file a declaration in compliance with Code of Civil Procedure § 430.41 at least
nine court days prior to the continued hearing date (i.e., January 5, 2024). The
court is not in receipt of any such declaration, as of January 11, 2024, 1:50
p.m. The court admonishes counsel for Lucy, Jonathan and Trust for failing to
comply with the court’s instruction. The court will rule on the merits of the
demurrer at this juncture.
Merits
1.
First Cause of Action (i.e., Suit to Quiet
Title)
Lucy, Jonathan and Trust demur to the first cause of action on the basis that Plaintiff’s FAC is not verified, as required by Code of Civil Procedure § 761.020. On November 29, 2023, however, Plaintiff filed a “Notice of Lodging Verified First Amended Complaint,” which includes a verification from Plaintiff dated September 6, 2023.
Lucy, Jonathan and Trust’s demurrer to the first cause of action, then, is overruled as moot.
2.
Third and Seventh Causes of Action (i.e., for
Rescission and Injunctive Relief, Respectively)
Lucy, Jonathan and Trust demur to the third and seventh causes of action on the basis that they are not causes of action but remedies. “Rescission is not a cause of action; it is a remedy.” (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 70). “Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293).
Lucy, Jonathan and Trust demurrer to the third and seventh causes of action is sustained without leave to amend.
2. Motion for Preliminary Injunction
Discussion
Kirk moves the court for an order restraining defendants from transferring, conveying, selling, liquidating or otherwise disposing of the subject property and, in addition, prohibiting them from interfering with the operation, maintenance, or construction occurring or undertaken in, on, or affecting the building. Kirk also seeks to enjoin Defendants from interfering with the business or occupancy of any tenant of the building.
On December 12, 2023, the court adopted its tentative ruling and denied the instant motion, but subsequently indicated that it would “CONTINUE THE MOTION TO BE HEARD CONCURRENTLY WITH THE ABOVE-REFERENCED DEMURRER.” The court reiterates its denial of the motion based on the previously adopted tentative ruling.
The court notes that Plaintiffs filed a “Supplement to Notice of Motion and Motion for Temporary Injunction” on December 26, 2023. Plaintiffs’ supplement is not considered. The court’s December 12, 2023 minute order does not indicate that the court requested or permitted the parties to file any supplemental briefing.