Judge: Randy Rhodes, Case: 21CHCV00316, Date: 2023-02-08 Tentative Ruling

Case Number: 21CHCV00316    Hearing Date: February 8, 2023    Dept: F51

Dept. F-51¿ 

Date: 2/8/23 

Case #21CHCV00316 

¿ 

DEMURRER

 

Demurrer without Motion to Strike Filed: 12/2/22

 

MOVING PARTY: Defendant Witkin & Associates, LLC, a Delaware limited liability company (“Moving Defendant”) 

RESPONDING PARTY: Plaintiff Lucy Holdings, LLC, a Wyoming limited liability company (“Plaintiff”) 

NOTICE: OK 

 

RELIEF REQUESTED: Moving Defendant demurs to the second cause of action in Plaintiff’s second amended complaint (“SAC”).

 

TENTATIVE RULING: The demurrer is overruled.

 

REQUESTS FOR JUDICIAL NOTICE

Moving Defendant’s Request for Judicial Notice (RJN) is granted.

Plaintiff’s RJN is granted.

 

 I.      BACKGROUND 

This quiet title action arises out of a dispute over certain property located at 28212 Kelly Johnson Parkway, Santa Clarita, California 91355 (the “Subject Property”). Title to the Subject Property is vested in Plaintiff. Defendant Krupe Industries, Inc. (“Krupe”), and Moving Defendant, as the foreclosure trustee, attempted to foreclose on a deed of trust encumbering the Property.

On 4/23/21, Plaintiff filed its original complaint in this action alleging a cause of action for declaratory relief/quiet title against Krupe and Moving Defendant (collectively, “Defendants”) and a cause of action for fraud against Krupe. Defendants demurred to the original complaint. On 6/9/21, Moving Defendant recorded a Notice of Sale of the Subject Property. On 8/2/21, the Court granted Plaintiff’s request for a preliminary injunction to stop the foreclosure sale.

8/23/21, Plaintiff filed its First Amended Complaint (“FAC”), asserting a single cause of action for declaratory relief/quiet title. On 9/22/21, Moving Defendant demurred to Plaintiff’s FAC. On 5/5/22, Plaintiff was notified that Moving Defendant recorded a “Notice of Rescission of Notice of Default” as to the Subject Property, which effectively terminated the foreclosure proceeding.

On 10/4/22, the Court granted Moving Defendant’s motion for judgment on the pleadings, with 30 days leave for Plaintiff to amend its FAC to sufficiently state a cause of action against Moving Defendant. On 11/7/22, Plaintiff filed its SAC, alleging against Defendants the following causes of action: (1) Declaratory Relief/Quiet Title; (2) Slander of Title; and (3) Conspiracy to Slander Title.

On 12/2/22, Moving Defendant filed the instant demurrer and request for judicial notice. On 1/26/23, Plaintiff filed its opposition and request for judicial notice. On 2/1/23, Moving Defendant filed its reply.

 

 II.         ANALYSIS

Meet-and-Confer 

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, counsel for Defendant declares that the parties met and conferred telephonically regarding the issues raised in the demurrer, but were unable to come to a resolution. (Decl. of Demurring Party re Meet and Confer.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a). 

 

Demurrer

As a general matter, a¿party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including¿that¿“the pleading does not state facts sufficient to constitute a cause of action” or is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).)

In¿a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co.¿(2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc.¿v.¿Accountants, Inc. Servs.¿(2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) 

Here, Moving Defendant¿demurs to Plaintiff’s SAC pursuant Code of Civil Procedure section 430.10, subdivisions¿(e) and (f),¿arguing that the pleading fails¿to allege facts sufficient to¿state¿a cause of action for Slander of Title against it, and is uncertain.

 

A.    Failure to State Facts to Constitute a Cause of Action

Plaintiff’s second cause of action alleges against all defendants slander of title. “The elements of a cause of action for slander of title are ‘(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.’” (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 433, fn. 14.)

Here, Plaintiff alleges that Moving Defendant proceeded with recording a Notice of Sale on the Subject Property without any “good faith belief in the validity of the deed of trust and recklessly disregarded the documents calling into question the deed of trust and grant deed evidencing the true ownership by [Plaintiff] in the [Subject] Property as such filing of the Notice of Sale by [Moving Defendant] was without privilege.” (SAC 79.)

Moving Defendant argues that Plaintiff’s cause of action fails because Moving Defendant’s conduct was privileged, without malice, and did not call into question the validity of Plaintiff’s ownership interest in the Subject Property.

 

Privilege

Moving Defendant argues that its “actions in recording a notice of default and notice of trustee’s sale were privileged as a matter of law by Civil Code §47 and §2924(d).” (Dem. 13:23–25.) Under these statutes, the performance of a trustee’s statutory duties, including those pertaining to foreclosure procedures, is considered privileged. (Civ. Code §§ 47, 2924, subd. (d); see also Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336.)

Moving Defendant argues that the instant case is indistinguishable from Schep, where the Court of Appeal affirmed the trial court’s sustaining of a demurrer against a plaintiff who alleged slander of title against the foreclosing trustee of the deed of trust. (12 Cal.App.5th at 1338.) The Schep Court reasoned that under Civil Code sections 47 and 2924, the recording of a notice of sale, notice of default, and trustee’s deed upon sale are privileged. (Id. at 1336.)

The Schep Court further noted that Civil Code section 47 creates two privileges: (1) an absolute privilege, “and (2) a qualified privilege that ‘applies only to communications made without malice.’” (Id. at 1337.) Here, Plaintiff argues in opposition that the Court should distinguish the instant case from Schep because here, unlike in Schep, Plaintiff has alleged malice which would void Moving Defendant’s qualified privilege. (Pl.’s Opp., 12:26–28.)

 

Malice

As set forth under Schep, “‘malice’ means that the defendant (1) was motivated by hatred or ill will towards the plaintiff, or (2) lacked reasonable grounds for [its] belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights.” (12 Cal.App.5th at 1337 [quotations omitted].)

Here, Plaintiff alleges in its SAC that Moving Defendant proceeded with recording a Notice of Sale on the Subject Property without any “good faith belief in the validity of the deed of trust and recklessly disregarded the documents calling into question the deed of trust and grant deed evidencing the true ownership by [Plaintiff] in the [Subject] Property as such filing of the Notice of Sale by [Moving Defendant] was without privilege.” (SAC 79.)

In Schep, the Court found that no malice existed despite the plaintiff’s claim that the defendants were constructively aware of his competing claim to title due to his recording of a wild deed. (12 Cal.App.5th at 1338.) Moving Defendant argues that the Court should follow the same reasoning in the instant case and find no malice despite Plaintiff’s allegation that Moving Defendant “should have been on actual or constructive notice that the Deed of Trust was invalid merely because it ‘sent an email’ to [Moving Defendant] after the Notice of Default was recorded.” (Dem. 16:15–18.)

However, unlike in Schep, here, Plaintiff has alleged actual notice to Moving Defendant rather than mere constructive notice. (SAC 78.) Moreover, as Plaintiff notes, Moving Defendant continued to move forward with the foreclosure proceedings even after Plaintiff filed the instant action, which further distinguishes this case from Schep. (Pl.’s Opp., 8:17–19.)

The Court notes that a demurrer tests the pleadings alone, and not the validity of the facts or evidence alleged. (E-Fab,153 Cal.App.4th at 1315.) As such, the Court finds that Plaintiff has sufficiently plead malice with regard to Moving Defendant’s conduct, which would void Moving Defendant’s otherwise privileged conduct.

 

Injury

Moving Defendant argues that Plaintiff’s cause of action for slander of title necessarily fails because “foreclosure recordings do ‘not call into question the validity of plaintiffs’ control of the property’ or assert any legal or equitable ownership/title interest in the property.’” (Dem. 22:23–25.)

However, “the recordation of an instrument facially valid but without underlying merit will, of course, give rise to an action for slander of title.” (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 857.) Moreover, “a slander of title cause of action need not be based upon an actual foreclosure,” and may be valid where a “defendant had recorded a notice of default and published notice of a trustee's sale such that the only injury was pecuniary.” (Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 58 (citing Broadway Federal Savings & Loan Ass’n of Los Angeles v. Howard (1955) 133 Cal.App.2d 382, 400.) “It is well-established that attorney fees and litigation costs are recoverable as pecuniary damages in slander of title causes of action when … litigation is necessary “to remove the doubt cast” upon the vendibility or value of plaintiff's property.” (Sumner Hill Homeowners’ Ass’n, Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.)

Here, Plaintiff has sufficiently pled that Moving Defendant wrongfully recorded the notice of sale, thereby clouding title to the Subject Property, and causing Plaintiff to incur costs and fees to litigate the instant action and clear title. (SAC ¶¶ 78–81.) Moving Defendant’s reliance on Salazar v. Thomas (2015) 236 Cal.App.4th 467 is misplaced, as there were no claims of slander of title in that action.

 

Based on the foregoing, the Court finds that Plaintiff has alleged facts sufficient to state a cause of action for slander of title as against Moving Defendant. Accordingly, the demurrer is overruled on this ground.

 

  1. Uncertainty 

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)¿¿

Here, Moving Defendant argues that Plaintiff’s second cause of action in the SAC is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). In applying the stringent standard for demurrers filed on this ground, the Court finds that the SAC is not “so incomprehensible” that Moving Defendant cannot respond, especially given the extensive analyses it has offered in attacking the pleading. Accordingly, the demurrer is overruled on this ground.¿

 

CONCLUSION 

The demurrer is overruled.