Ivan Reyna Tovar v. Pamela Bacchus, et al.

(1) DEFENDANTS PAMELA BACCHUS AND THOMAS J. WASKIEWICZ’S DEMURRER TO COMPLAINT

(2) DEFENDANT TSM, INC.’S DEMURRER AND MOTION TO STRIKE COMPLAINT

 

MOVING PARTY: (1) Defendants Pamela Bacchus and Thomas J. Waskiewicz; (2) Defendant TSM, Inc.

RESPONDING PARTY(S): Plaintiff Ivan Reyna Tovar

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Ivan Reyna Tovar alleges he entered into an agreement with Defendants Pamela Bacchus and Thomas J. Waskiewicz whereby Defendants would help Plaintiff purchase a home in exchange for payments toward the mortgage and free labor. In 2021, Defendants purchased a home in Pacoima that Plaintiff and his family lived in. Consistent with the parties’ agreement, Plaintiff paid the mortgage, insurance, taxes, and utilities for the property, and provided more than 1,500 hours of free labor. Plaintiff now alleges Defendants refuse to turn over the property to him. Plaintiff asserts causes of action for (1) intentional misrepresentation, (2) false promise, (3) breach of contract, (4) unfair business practices, (5) conversion, and (6) quiet title.

Defendants Bacchus and Waskiewicz now demurrer to each cause of action in the Complaint. Defendant TSM separately demurrers to the Complaint and moves to strike portions therein. Plaintiff opposed the former motion but not the latter. 

TENTATIVE RULING:

Defendant Bacchus and Waskiewicz’s Demurrer to the First Cause of Action is SUSTAINED, with 30 days leave to amend.

Defendant Bacchus and Waskiewicz’s Demurrer to the Third and Sixth Causes of Action is SUSTAINED, without leave to amend.

Defendant Bacchus and Waskiewicz’s Demurrer to the Second, Fourth, and Fifth Causes of Action is OVERRULED.

Defendant TSM, Inc.’s Demurrer to the Complaint is SUSTAINED without leave to amend.

Moving parties are ordered to give notice, unless waived.

DISCUSSION:

Demurrer by Defendants Bacchus and Waskiewicz

I. Meet and Confer

II. 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.)

III. Analysis 

Defendants demurrer to each cause of action in the First Amended Complaint. Each is addressed in turn.

A. First Cause of Action for Intentional Misrepresentation

First, Defendants contend Plaintiff has not alleged how Plaintiff justifiably relied on the three allegedly fraudulent documents. Defendants also argue Plaintiff has not alleged harm from these documents. 

The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638. 

Plaintiff alleges that Defendants created three fraudulent documents to aid their scheme: (1) a lease purporting to establish a leasehold relationship between Mr. Tovar, as tenant, and Thomas Waskiewicz, as landlord; (2) a letter from a fictional accounting firm; and (3) a letter from the Los Angeles County Tax Assessors office. (FAC ¶¶ 32-37.) Plaintiff alleges Defendants presented these documents “intending that Tovar would rely on them to his detriment” and that “Tovar did rely on these documents to his detriment and was injured therefrom.” (Id. ¶¶ 38, 52.) 

As correctly noted by Defendants, however, the FAC and opposition are somewhat odd in that they seem to suggest that these documents were themselves the fraud, rather than just evidence of it. With that in mind, it is difficult to discern, for example, how Plaintiff himself relied on the fraudulent lease. 

It seems more likely that these documents were used in an apparent attempt by Defendants to add legitimacy to the scheme—or, to cover their own tracks. Plaintiff might have then relied on Defendants’ misrepresentations to make mortgage payments toward the house and offer free labor. It would follow that Defendants accepted these payments and services yet refused to add Plaintiff to the title once he met his end of the bargain. 

Were this not a fraud cause of action, this court might use some latitude—and the liberal standards of pleading—to fill in these gaps on its own. However, “[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.)

With the heightened standard for pleading fraud in mind, this court concludes that Plaintiff’s allegations are insufficient to state the fraud claim. 

Accordingly, Defendants’ 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.) It seems clear Plaintiff can state a claim for fraud. Plaintiff is given leave to amend to clearly plead how he relied on the documents named in the FAC. Alternatively, Plaintiff may plead that the documents were simply evidence of the larger misrepresentation—that is, that Defendants would transfer the property to Plaintiff in exchange for money and labor. 

B. Second Cause of Action for False Promise

Next, Defendants argue that the false promise cause of action fails because Plaintiff has not pled “any facts to show that there was no intention to perform the promises at the time they allegedly were made.” (Dem. 5: 2.)  

“Promissory fraud or false promise ‘is a subspecies of the action for fraud and deceit.”  (Rossberg v. Bank of Am., N.A.  (2013) 219 Cal. App. 4th 1481, 1498.)  “The elements of promissory fraud ... are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e].” (Id., citing Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1453.)  False promise, like other forms of fraud, must be pled with particularity.  (Id.)

Plaintiff alleges various false promises, including the one at crux of this dispute: “The WB Parties stated that they intended to transfer title to Mr. Tovar in the Pacoima Property when the loan taken out to buy the house was paid off. They made this promise in-person each month in 2020 and 2021; that promise was not fulfilled.” (FAC ¶ 55(a).) In reliance on that representation, Plaintiff “performed the work…and made the mortgage payments…” (Id. ¶ 57.) Considering these allegations, Plaintiff has stated a claim for false promise.

Accordingly, Defendants’ Demurrer to the Second Cause of Action is OVERRULED.

C. Fourth Cause of Action for Unfair Business Practices

Next, Defendants argue the Fourth Cause of Action for violation of the UCL fails because Plaintiff has “not alleged any facts to show that the public in general is harmed by the defendants’ practices.” (Dem. 8: 22-23.) 

Business and Professions Code section 17200 defines “unfair competition” to include “any unlawful, unfair or fraudulent business act or practice....” “The scope of section 17200 is broad, encompassing ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ... It governs ‘anti-competitive business practices’ as well as injuries to consumers, and has as a major purpose ‘the preservation of fair business competition.’” [Citations.] (Linear Tech. Corp. v. Applied Materials, Inc., (2007) 152 Cal. App. 4th 115, 133).  Whether a practice violates the section “is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.” [Citation].  (Id.)

“The UCL confers standing on a private plaintiff to seek relief under the statute only if that plaintiff has ‘suffered injury in fact’ and ‘lost money or property as a result of the unfair competition’ at issue.” (California Med. Assn. v. Aetna Health of California Inc. (2023) 14 Cal. 5th 1075, 1082, [citing Bus. & Prof. Code, § 17204].) The UCL “broadly define[s]” the word “person” to “mean and include natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons.” (Cal. Bus. & Prof. Code § 17201; California Med. Assn., supra, 14 Cal. 5th at 1082.)

Here, Defendants have presented no binding California authority clearly precluding the cause of action or the broad standing conferred by the UCL. Because the question of whether a practice violates the section “is generally a question of fact which requires ‘consideration and weighing of evidence from both sides,” the court declines to conclude the UCL claim fails at the pleading stage. (Linear Tech. Corp., supra, 152 Cal. App. 4th at 133).

Accordingly, Defendants’ Demurrer to the Fourth Cause of Action is OVERRULED.

D. Fifth Cause of Action for Conversion

Next, Defendants argue the conversion cause of action fails “because there is no allegation that any demand was made to return the money and was refused.” (Dem. 9: 5-7.) 

But even assuming there was no demand, Plaintiff has alleged that Defendants received the property through fraudulent means. And “when property comes into the possession of a bailee or other person tortiously or unlawfully…a demand, as a necessary prerequisite to the maintenance of a suit for conversion, is not necessary.” (Flennaugh v. Heinrich (1948) 89 Cal. App. 2d 214, 221.)

Accordingly, Defendants’ Demurrer to the Fifth Cause of Action is OVERRULED.

E. Third Cause of Action for Breach of Contract; Sixth Cause of Action for Quiet Title

Finally, Defendants challenge the Third Cause of Action for Breach of Contract and Sixth Cause of Action for Quiet Title. 

In opposition, Plaintiff states that “[b]ecause [he] has, since the filing of the FAC, purchased the Pacoima Property, the Third Cause of Action for Breach of Contract and the Sixth Cause of Action for Quiet Title is withdrawn.” (Opp. p. 11, fn 3.) 

Accordingly, Defendants’ Demurrer to the Third and Sixth Causes of Action is SUSTAINED without leave to amend. 

Demurrer and Motion to Strike by Defendant TSM, Inc.

I. Meet and Confer

The declaration of Joshua W. Miller reflects that the meet and confer requirement was met.

II. Analysis

Defendant TSM, Inc., demurrers to the First Amended Complaint because it is unverified. Defendant TSM is named only in the Sixth Cause of Action for quiet title.

Plaintiff filed a Non-Opposition to the Demurrer and Motion to Strike stating: 

“On March 4, 2025, Pamela Bacchus and Thomas Waskiewicz sold 13032 Glamis Street, Los Angeles, California to Ivan Tovar. As a result of this transaction, Mr. Tovar withdraws his Quiet Title claim against TSM, Inc. The Quiet Title claim is the only claim asserted against Defendant TSM, Inc. Mr. Tovar therefore intends to dismiss his claim against TSM, Inc. and does not oppose TSM, Inc.’s demurrer and motion to strike.” (Non-Opposition 2: 1-6.) 

Moving parties are ordered to give notice. 

IT IS SO ORDERED.

Dated:   April 17, 2025 ___________________________________