Ganeva Carroll, et al. v. Marcia Frater, et al.

(1) CROSS-DEFENDANT WFG NATIONAL TITLE INSURANCE COMPANY’S DEMURRER TO THE FIRST AMENDED CROSS-COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTY: Cross-Defendant WFG National Title Insurance Company

RESPONDING PARTY(S): None

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Ganeva Carroll, Karla Curry, Genesis Carroll, Edgar Pierce, and Lamar Edwards are residents of an apartment building owned by Defendant Marcia Frater. Plaintiffs allege Defendant failed to maintain the property in a habitable condition and retaliated against Plaintiffs for their complaints about the condition of the property. Plaintiffs assert causes of action for (1) breach of implied warranty of habitability, (2) breach of statutory warranty of habitability, (3) breach of covenant of quiet enjoyment, (4) negligence, (5) violation of Civil Code section 1942.4, (6) private nuisance, (7) violation of anti-harassment ordinance, and (8) violation of Civil Code section 1942.5.

Defendant Frater has filed a First Amended Cross-Complaint against Sherri Vanessa Williams, Kay Wachuku, and WFG Title Company, asserting causes of action for (1) breach of contract, (2) negligent misrepresentation” (3) fraudulent misrepresentation, (4) breach of implied covenant of good faith and fair dealing, (5) indemnification, and (6) fraudulent concealment.

Cross-Defendant WFG now demurrers to the First Amended Cross-Complaint. No opposition was filed. 

TENTATIVE RULING:

Cross-Defendant’s Demurrer to the Cross-Complaint is SUSTAINED IN ITS ENTIRETY.  Whether leave to amend is granted to any of the causes of action shall depend on the offer of proof made by Cross-complainant at the hearing as to how she can successfully amend her FAC, consistent with this ruling.

Cross-Defendant’s Motion to Strike is MOOT.

Moving party is ordered to give notice.

DISCUSSION:

Demurrer

A. Meet and Confer

B. Lack of Opposition

Cross-Complainant did not file an opposition to the demurrer. Cross-Defendant served the demurrer on Cross-Complainant, who is in pro per, by mail (and email?) on December 4, 2024. (See Proof of Service.)

On January 1, 2025, Cross-Defendant filed an “Opposition to Cross-Complainant’s Motion to Continue Hearing on Demurrer.” That filing indicates that “Frater seeks to continue the February 5, 2025, hearing” and that Cross-Defendant opposes any such continuance. (See Cross-Defendant’s 1/21/2025 Filing.) 

Be that as it may, based upon the reasons stated in said “opposition,” any request or motion to continue said hearing is DENIED, for lack of “good cause.”  The merits of the demurrer and motion to strike will now be addressed.

C. Legal Standard

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.)

D. Analysis

Cross-Defendant demurrers to all four causes of action in the Cross-Complaint against it. Each is addressed in turn.

1. First Cause of Action for Breach of Contract (Failure to Disclose Marketable Title and Defects)

First, Cross-Defendant demurrers to the First Cause of Action for breach of contract, arguing that Cross-Complainant Frater has not alleged the existence of a contract with WFG Title.

The elements of breach of contract are: “(1) the existence of the contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages.” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97–98.) The rule in California is that “[a] written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]”  (Heritage Pac. Fin., LLC v. Monroy, (2013) 215 Cal. App. 4th 972, 993.)

Cross-Complainant Frater alleges that she purchased the property subject to alleged habitability violations in the underlying complaint from Cross-Defendant Williams. (FACC ¶ 13.) Frater alleges that Cross-Defendant WFG Title “was responsible for issuing title insurance and ensuring that a clear title was provided during the transaction.” (Id. ¶ 9.) Frater alleges that WFG Title “failed to provide a Report of Residential Property Records from the City of Los Angeles prior to closing, as required. This report, which was issued after the sale, revealed that the property was encumbered by restrictions under the RSO, thereby negatively affecting the property's marketability and value.” (Id. ¶ 17.) 

Here, the purchase contract for the sale of the property at issue—which underlies the breach of contract cause of action—was entered into between Frater, on one hand, and Cross-Defendants Sherri Vanessa Williams and Kay Wachuku, on the other. (FACC 20, Exh. C.) There is no indication that WFG was a party to that agreement or had any obligations thereunder. If there does exist some other contract between Frater and WFG Title, Cross-Complainant has not provided that contract.

Accordingly, Cross-Defendant’s Demurrer to the First Cause of Action is SUSTAINED. 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.) Frater must make an offer of proof at the hearing that there exists a contract between her and WFG Title. If she does not, no leave to amend will be given. 

2. Second Cause of Action for Negligent Misrepresentation

Next, WFG Title demurrers to the second cause of action for negligent misrepresentation, arguing that Frater has not alleged any duty. 

To state a cause of action for negligent misrepresentation, a plaintiff must establish “misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.... ” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 983.)

First, it is noted that under the second cause of action for negligent misrepresentation, Frater alleges only that Cross-Defendant Kay Wachuku—the buyer’s and seller’s agent for the sale—made false representations to induce Frater to purchase the property. There are no allegations against WFG Title. 

Elsewhere in the FACC, Frater suggests WFG Title wrongfully failed to provide a Report of Residential Property Records from the City of Los Angeles prior to closing. (FACC ¶ 17.) To the extent this is the theory for her negligent misrepresentation cause of action against WFG Title, Frater has not alleged that WFG had any duty to make those disclosures. “[A]s in negligence, ‘responsibility for negligent misrepresentation rests upon the existence of a legal duty, imposed by contract, statute or otherwise, owed by a defendant to the injured person.’” (Bock v. Hansen (2014) 225 Cal. App. 4th 215, 228.) The failure to allege any duty here defeats the claim.

Accordingly, Cross-Defendant’s Demurrer to the Complaint is SUSTAINED. Frater must make an offer of proof at the hearing that there exists a specific legal duty (and the supporting facts thereof)  between her and WFG Title. If she does not, no leave to amend will be given. 

Fifth Cause of Action for Implied Contractual Indemnity

Cross-Complainant seeks implied contractual indemnification from WFG Title. (FACC ¶¶ 45-51.) “Implied contractual indemnity is a form of equitable indemnity, arising from equitable considerations either by contractual language not specifically dealing with indemnification or by the equities of the specific matter. (Sehulster Tunnels/Pre-Con v. Traylor Bros./Obayashi Corp. (2003) 111 Cal. App. 4th 1328, 1350.) “The right to implied contractual indemnity is predicated [on] the indemnitor's breach of contract....” (Id.) 

Here, as discussed supra, Cross-Complainant has not alleged the existence of any contract between her and WFG Title. Without a contract, Cross-Complainant cannot allege a breach. And without any breach, she cannot seek implied contractual indemnity. 

Accordingly, Cross-Defendant’s Demurrer to the Fifth Cause of Action is SUSTAINED. Cross-Complainant will be given leave to amend this cause of action only if she is given leave to amend her First Cause of Action for Breach of Contract.  If not, no leave will be granted.

3. Sixth Cause of Action for Fraudulent Concealment

Finally, Cross-Defendant argues that Cross-Complainant has not plead the fraud-based cause of action with the requisite specificity. Generally, “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc.¿(2009) 171 Cal.App.4th 1356, 1384, internal quotations omitted.) “The normal policy of liberally construing pleadings against a demurrer will not be invoked to sustain a fraud cause of action that fails to set forth such specific allegations. (Id.)” The heightened pleading standard for fraud requires “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.)

Cross-Complainant alleges only that WFG Title, “with knowledge of the encumbrances on the property, willfully and intentionally concealed these material facts from Cross-Complainant, thereby inducing her to complete the purchase of the property without full knowledge of the property's restrictions.” (FACC ¶ 53.) 

Here, Cross-Complainant has failed to allege the fraudulent concealment with the requisite specificity. Additionally, fraudulent concealment requires that a defendant had “a duty to disclose the fact to the plaintiff.” (Hambrick v. Healthcare Partners Med. Grp., Inc. (2015) 238 Cal. App. 4th 124, 162.) As discussed, Cross-Complainant has not alleged that duty here. 

Accordingly, Cross-Defendant’s Demurrer to the Sixth Cause of Action is SUSTAINED. Frater must make an offer of proof at the hearing to demonstrate the reasonable possibility of a successful amendment.  If she does not, no leave to amend will be given. 

Motion to Strike

A. Legal Standard

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.)

B. Analysis

Cross-Defendant moves to strike causes of action from the FACC. Because Cross-Defendant’s demurrer is sustained in its entirety, the Motion to Strike is MOOT.

IT IS SO ORDERED.

Dated:   February 5, 2025 ___________________________________