Judge Ralph C. Hofer, Case Number: 24NNCV03828, Date: 2024-12-20 Tentative Ruling

Plaintiff Cole Harris as Successor Trustee of the Harris Family Irrevocable Trust dated 11/8/11alleges that plaintiff is the rightful and lawful owner of real property in San Marino, which is plaintiff’s personal and principal residence. The complaint alleges that defendant Platinum Loan Servicing is the purported current loan servicer of the mortgage loan and defendant Oakhurst Opportunity Lending Fund I, LP and defendant De Montfort Group are purported current beneficiaries of the mortgage loan.

Plaintiff alleges that in October of 2021 plaintiff obtained a collateral loan on the subject property from defendant Oakhurst, memorialized by a Deed of Trust, which was recorded, and in February of 2023 plaintiff obtained a collateral loan on the subject property from defendant De Montfort Group, which was also memorialized by a Deed of Trust, which was recorded.

The complaint alleges that on December 12, 2023, a Notice of Default and Election to Sell was recorded, that on January 31, 2024 a Notice of Trustee Sale was recorded, that on March 19, 2024 a Notice of Trustee Sale was recorded, with a sale date set for March 22, 2024, that on March 22, 2024, a Trustee’s Deed Upon Sale was recorded, and that on May 7, 2024 a Trustee’s Deed Upon Sale was recorded. The complaint alleges that the subject property is in plaintiff’s trust and is currently bank owned. Plaintiff alleges that during the period from November of 2023 to April of 2024, defendant Oakhurst engaged in dual tracking and violated the Homeowner’s Bill of Rights.

Defendant argues that the entire pleading must be stricken, as the pleading asserts a cause of action to quiet title, but the pleading is not verified, so not filed in conformity with the law.

Under CCP section 760.020(a), “An action may be brought under this chapter to establish title against adverse claims to real or personal property or any interest therein.” Under CCP section 761.020, a complaint to commence an action under the chapter “shall be verified…”

Although the pleading itself is entitled “Plaintiff’s Verified Complaint,” there is no verification included in the document filed, and evidently there was no verification with the document which was served on the moving defendant.

The motion to strike accordingly is granted. The unverified pleading will be stricken, with one opportunity permitted for plaintiff to amend to correct this error, if possible.

Defendant also argues that the pleading is filed in violation of California law, and consists of improper matter, as the law prohibits trustees such as plaintiff from pursuing civil litigation matters in pro per.

“A trustee or executor who is not a lawyer cannot appear in pro per in legal proceedings to protect assets of the estate or trust ‘because in this capacity such trustee would be representing interests of others and would therefore be engaging in the unauthorized practice of law.’ Ziegler v. Nickel (1998) 64 CA4th 545, 548…(emphasis added); Hansen v. Jacobsen (2003) 114 CA4th 618, 621,…(citing text); see Bus. & Prof. C. § 6125 (unauthorized practice of law)]…”

Defendant cites to Business & Professions Code section 6125, which provides, “No person shall practice law in California unless the person is an active licensee of the State Bar.”

Defendant also relies on the recent case Estate of Sanchez (2023) 95 Cal.App.5th 331, in which the court of appeal held that a probate court had properly granted a motion to strike a complaint filed in a probate proceeding by the personal representative of an estate who pursued a partition action with respect to real property to which she was a tenant in common and estate beneficiary. The probate court found that the complaint, although brought in a probate matter, “primarily consists of civil claims typically raised in a civil action.” Sanchez, at 338. The court concluded that the representative, “a non-attorney, cannot properly prosecute those claims in propria persona in any venue.” Sanchez, at 338.

Here, the matter is being pursued by Cole Harris as Trustee, “in Pro Se” in this civil matter. [Complaint, Caption—Address box]. This method is improper, as the trust must be represented by an attorney. This situation appears particularly improper for only one of the successor trustees to be bringing this action, when the complaint itself alleges that there is another beneficiary and named “Successor Co-Trustee” of the trust, Ying Chen, and that the Deeds of Trust for both loans used Chen as a “Co-Trustee, but that Chen “refused to act and be a Co-Trustee.” [Complaint, paras. 11, 12, 25]. This posture suggests that this is a situation which requires protection for all interested parties with respect to the trust, particularly if the interests of the parties diverge.

The motion to strike accordingly is granted on this ground. The plaintiff is permitted one opportunity to amend to file this action through an attorney licensed to practice law.

Defendant requests that the motion be granted without leave to amend. However, this is the original complaint in the matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion, irrespective of whether leave to amend is requested or not.” King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.

This complaint is plaintiff’s first attempt to state claims in this matter. It is not yet clear from the face of the complaint that the pleading cannot be amended to state a cause of action. In fact, the trial court in Sanchez, the authority relied upon by defendant, had granted the motion to strike with twenty days leave to amend to give the representative the opportunity to retain counsel. Sanchez, at 337. One opportunity to amend will be permitted.

Defendant brings the demurrer in the event the motion to strike is not granted. Since the motion to strike is granted as requested, the demurrer is deemed moot.

UNOPPOSED Motion to Strike Plaintiff’s Complaint is GRANTED WITH LEAVE TO AMEND on the ground the Complaint seeks to Quiet Title but is not verified, and on the ground that the Complaint was filed by Plaintiff Cole Harris as Successor Trustee of the Harris Family Irrevocable Trust Dated 11/8/11, in Pro Se, when the interests of the Trust must be represented in this matter by an attorney.

Motion to Strike on all other grounds and Demurrer to Complaint are MOOT in light of the granting of the Motion to Strike the entire pleading with leave to amend. Any amendment may respond to the arguments raised by the moving papers with respect to moving defendant.

Any future demurrer or motion to strike must be brought as separate motions, with separate court hearing date reservations and the payment of separate filing fees. Filing such motions jointly is improper, and it also unfairly manipulates the court reservation system, and it deprives the Court of filing fees to which it is entitled.

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