Judge Randolph M. Hammock, Case 20STCV47123 2023-03-03 Tentative Ruling

Judge: Randolph M. Hammock, Case: 20STCV47123, Date: 2023-03-03 Tentative Ruling

This action arises out of the sale of real property located at 5529 Vanalden Street in Tarzana, California. Plaintiff Vista Land (“Vista”) alleges it purchased the real property after being the highest bidder at a Trustee’s foreclosure sale on September 8, 2020, where it purchased the Second Deed of Trust on the property. Thereafter, Plaintiff alleges Defendants, who owned the First Deed of Trust on the property, engaged in a conspiracy to defraud Plaintiff. Plaintiff obtained a TRO on January 7, 2021, enjoining any non-judicial foreclosure action against the property.

It is further alleged that on October 6, 2021, Defendant AWBCO recorded a notice of Assignment of the Deed of Trust to R&R Real Properties, LLC (“R&R.”) Plaintiff alleges Defendant AWCBO’s attorney of record, Raymond Robinson (“Robinson”) is the Managing Member of R&R and incorporated the company. R&R allegedly conducted a nonjudicial foreclosure of the property on October 21, 2021, and then entered into a Purchase and Sale Agreement with Frank Sillman (“Sillman.”) Accordingly, Plaintiff filed a Supplemental Complaint on February 23, 2022, containing an eleventh cause of action for Embezzlement against EIJ, a twelfth cause of action for wrongful foreclosure against Robinson and eighteen other Defendants, and a thirteenth cause of action for Criminal extortion against Robinson and four other defendants.

On June 20, 2022, Plaintiff filed a “First Amended Complaint.” On September 29, 2022, Plaintiff filed the operative pleading, “Verified Second Amended Complaint and First Amended Supplemental Complaint.”

The Declaration of Attorney Richard I. Arshonsky reflects that he sent a “meet and confer” letter to Plaintiff’s counsel on October 19, 2022, but did not receive a response. (Arshonsky Decl. ¶ 2.) Defendant filed the demurrer and motion to strike on November 1, 2022. Susan Murphy, counsel for Plaintiff, states she inadvertently missed the letter. (Murphy Decl. ¶ 5.) While this demonstrates the lack of any substantive meet and confer, without objection by the Plaintiff and in order to conserve judicial resources, this court will address the demurrer on its merits. The parties are admonished to effectuate a meaningful meet and confer where required by law going forward.

The court takes judicial notice of the existence of exhibits but does “not accept their contents as true.” (Ragland v. U.S. Bank Nat'l Assn. (2012) 209 Cal. App. 4th 182, 193.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Defendant first argues the entire SAC fails to comply with this court’s August 20, 2022, Order. In that minute order, this court on its own motion gave Plaintiff leave to file a Second Amended Complaint/First Amended Supplemental Complaint. (See August 30, 2022, Minute Order.) The order stated that “[i]f Plaintiff alleges new and additional causes of action against any defendant, the factual reason shall be explained in the pleading, as to when such facts were discovered, and a[n] explanation as to why such new causes of action or claims were not presented earlier.” (Id.)

Defendant notes that the claims against him for “slander of title,” “quiet title,” “negligence,” “forcible detainer,” and violation of the Business and Professions Code were not pleaded in any of Vista’s three earlier complaints. Yet, Plaintiff failed to include when such facts were discovered or explain why the claims were not presented earlier.

This court’s reason for requiring that Plaintiff include these allegations in the amended pleading was to provide facts to demonstrate delayed discovery or some other equitable doctrine. By doing so, the parties would potentially avoid unnecessary motion-practice on issues that could arise from a statute of limitations challenge.

Defendant’s demurrer, however, did not raise any statute of limitations arguments. Indeed, the fact that Defendant does not point to any cause of action that is untimely would suggest that the pleading adequately complied with this court’s instruction. Had it not, it would be expected that Defendant raise that pleading deficiency in his demurrer on some legally recognized basis.

Defendant Sillman contends the second cause of action for slander of title fails against him “because Sillman, as the grantee of the December 13, 2021 grant deed, did not publish the grant deed.” (Dem. 6: 7-8.)

“To establish slander of title, a plaintiff must show: “(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Klem v. Access Ins. Co. (2015) 17 Cal. App. 5th 595, 612.)

The SAC alleges Defendants, including Sillman, slandered Plaintiff’s title on December 13, 2021, when they “recorded a grant deed to Defendant Sillman who was an associate of Royston and on notice of the Court’s order enjoining foreclosure in an attempt to wash all this fraud by a grant deed to a purported BFP.” (SAC ¶ 86.) Plaintiff further alleges this act “cast doubt upon the existen[ce] of Plaintiff’s interest in Vanalden Street, disparaged his title, and caused him damage.” (Id. ¶ 87.). For Sillman’s part, Plaintiff also alleges that “Sillman is not a bona-fide purchaser having had notice of this Court’s order prohibiting non judicial foreclosure of Vanalden Street and having obtained his title by various VOID and slanderous recorded assignments and deeds and having purchased the property at half the fair market value.” (SAC ¶101.)

Defendant argues that “Plaintiff has not, and cannot, cite any authority for the proposition that a grantee of a deed is liable for slander of title.” (Reply 2: 20-21.) Defendant, however, likewise fails to cite any authority suggesting the reverse: that a grantee is not liable for slander of title.

At minimum, it would appear that Sillman’s alleged involvement in the publication is sufficient for pleadings purpose to maintain a cause of action against Sillman. Sillman—as grantee of the alleged void grant deed—played a role in the “publication” giving rise to the cause of action. By accepting the allegedly invalid grant deed with knowledge of the alleged scheme, Sillman made an “unfounded claim of an interest in the property which thr[ew] doubt upon its ownership.” (M.F. Farming Co. v. Couch Distrib. Co. (2012) 207 Cal. App. 4th 180, 199 [disapproved of on other grounds by Baral v. Schnitt (2016) 1 Cal. 5th 376].) These allegations plead acts by Sillman constituting a false publication, without privilege, that caused Plaintiff harm. (Klem, supra, 17 Cal. App. 5th at 612.)

Defendant also demurs to the Seventh, Eighth, and Ninth Causes of Action, arguing none state a claim against Sillman. Plaintiff does not oppose the demurrer as to these claims, therefore conceding the claims cannot stand against the moving Defendant. (Opp. 10: 1-3.)

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff makes no attempt to demonstrate that it can successfully amend the Complaint, and thus it appears there is no reasonable possibility of amendment. Therefore, no leave to amend is given.

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Defendant moves to strike Paragraph 7 of the Prayer for Relief, in which Plaintiff seeks “costs of suit herein incurred including attorneys’ fees.” (See Prayer, ¶ 7.) Defendant contends Plaintiff “does not, and cannot cite, to any contract or statute that would allow Plaintiff to recover attorneys’ fees against Sillman.” (MTS 5: 1-2.)

In opposition, Plaintiff argues attorney’s fees are recoverable based on Sillman’s alleged “bad faith” involvement in the scheme to defraud Plaintiff. Plaintiff’s authority is a general statement from the Supreme Court of the United States. (Alyeska Pipeline Serv. Co. v. Wilderness Soc'y (1975) 421 U.S. 240, 258–59 [stating that “a court may assess attorneys' fees for the ‘willful disobedience of a court order . . . as part of the fine to be levied on the defendant…or when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . ..’”].) Frankly, this theory seems implausible.

Be that bas it may, courts are given “broad discretion” when ruling on a motion to strike. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699). Courts need not strike a prayer for attorney’s fees before a party “has had a full opportunity to determine, through discovery, whether a basis for recovery exists.” (Id.) Thus, the court is not inclined to strike claims for attorney’s fees at this stage.

Judge of the Superior Court

FN 1 -- For ease, this court refers to the “Second Amended Complaint and First Amended Supplemental Complaint” as the “Second Amended Complaint” or “SAC” herein.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.