Judge: Sandy N. Leal, Case: 2022-01279273, Date: 2023-08-31 Tentative Ruling

1)   Demurrer to Amended Complaint

2)   Motion to Strike Portions of Complaint

MOTION NO. 1:

The Demurrer of Defendants Tiburon North Homeowners Association, Inc.; Litehouse Community Management, Inc., and Marilyn Phyllis Slagle to the First Amended Complaint (“FAC”) of Plaintiffs Gary O. Poteet, Jr. And Sandra K. Poteet is OVERRULED in part and SUSTAINED in part with 20-days leave to amend.

Since Defendants filed a reply on the merits, the Court is inclined to consider Plaintiffs’ untimely opposition.

Application of Litigation Privilege:

Defendants challenge all seven causes of action alleged in the FAC on the grounds that Defendants are immune from liability pursuant to the litigation privilege. Specifically, Defendants contend that the litigation privilege bars Plaintiffs claims because the claims arise out of the Associations’ recording of an assessment lien against Plaintiffs.

Civil Code section 47, subdivision (b), provides in relevant part: “A privileged publication or broadcast is one made ... [i]n any ... judicial proceeding…” “[T]he privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).

Wilton v. Mountain Wood Homeowners Assn. (1993) 18 Cal.App.4th 565 (Wilton) “conclude[d] that the publication of homeowners’ assessment liens is absolutely privileged under Civil Code section 47, subdivision (b). (Id. at 569.) The Wilton case noted that “our holding does not prevent those who are subject to homeowners’ assessment liens from seeking declaratory relief or filing quiet title actions to contest the validity of liens that are improper.” (Id. at 571.)

The first cause of action for Slander of Title alleges that Defendants “falsely recorded and updated the Lien” and “the recording of the Lien, and its updates, has impaired the value of the SUBJECT PROPERTY, and improperly incumbered Plaintiffs’ property interest therein.” (FAC, ¶¶ 26, 28.)

Plaintiff argues based on Diamond v. Superior Court (2013) 217 Cal.App.4th 1172, 1192 (Diamond) that unless a homeowner’s association strictly complies with notice requirements of the statute, an assessment lien is not valid, was recorded in error, and may not be enforced by judicial foreclosure. The court in the Diamond case did not address the litigation privilege and Plaintiff does not explain how the notice requirements impact the litigation privilege. Further, although the FAC alleges that the Line was “falsely recorded,” it does not allege any failure to comply with notice requirement.

Accordingly, demurrer to the first cause of action for Slander of Title is SUSTAINED.

The second cause of action for Quiet Title and the sixth cause of action for Declaratory Relief are not barred by the litigation privilege. (Wilton, supra, 18 Cal.App.4th at 571.) Further, the third cause of action for breach of contract, fourth cause of action for fraud, fifth cause of action for abuse of process and seventh cause of action for equitable relief are not exclusively based on the recording of the Lien. Accordingly, demurrer to the second through seventh causes of action on the grounds of litigation privilege is OVERRULED.

Second Cause of Action for Quiet Title:

Defendants challenge the Quiet Title cause of action on the grounds that the FAC fails to identify the date of determination and reasons why a determination as of that date is sought as required by Code of Civil Procedure section 761.020(d).

Section 761.020 states in relevant part: “The complaint shall be verified and shall include all of the following: . . . (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.”

The opposition states that determination is sought “from the date this action was filed, and is not uncertain or fails to state a cause of action.” (Opp., p. 3, ln. 1.) However, the FAC alleges that “Plaintiffs seek an order striking the Lien, and any other recording made by Defendants . . . from the date of judgment or dismissal based upon settlement, as this is a continuing and ongoing issue/matter.” (FAC, ¶ 34.)

The FAC is vague as to the date that Plaintiffs seek determination. Accordingly, demurrer to the Quiet Title cause of action is SUSTAINED.

Third Cause of Action for Breach of Contract:

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

The FAC alleges that on February 1, 2022, Defendants offered/promised to settle the dispute for $13,468.68. (FAC, ¶ 36.) This offer/promise was not conditioned and did not have an expiration date. (FAC, ¶ 36.) On May 9, 2022, Plaintiffs accepted the offer/promise of $13,468.68 to resolve the open book account dispute and a contract was formed. (Complaint, ¶ 37.) Plaintiffs further allege that Defendants refused to acknowledge the acceptance, falsely claiming that the offer/promise had expired. (FAC, ¶ 38.) Plaintiffs contend that at no time had notice been given by Defendants, nor received by Plaintiffs that the offer/promise was no longer good before acceptance. (FAC, ¶ 39.) Plaintiffs further contend that they have performed all that was required of them under the contract. (FAC, ¶ 40.) Plaintiffs also contend that Defendants knowingly and falsely refuse to accept and perform the contract, instead seeking in excess of four times the contract amount. (FAC, ¶ 41.) Lastly, the Complaint states that Plaintiffs have suffered, and continue to suffer, loss of use of funds, interest thereon, has become improperly indebted, placing Plaintiffs in financial turmoil, all causing pain and suffering. (FAC, ¶ 43.) Therefore, the breach of contract cause of action is sufficiently pled.

Accordingly, the demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action for Fraud:

 “ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.]” Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar) [¶] ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]” “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Id., at p. 645.) Italics in Lazar.)

The FAC fails to allege facts which show how, when, where, to whom, and by what means the representations consisting of offer/promise were tendered.

Therefore, the demurrer to the fourth cause of action is SUSTAINED.

Fifth Cause of Action for Abuse of Process:

Defendant challenges the Abuse of Process cause of action on the grounds that since there is no court action which was alleged to be misused, there is no cause of action for Abuse of Process.

“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. [Citation.] It has been ‘interpreted broadly to encompass the entire range of “procedures” incident to litigation.’ [Ciation.] [¶] ‘[T]he essence of the tort [is] ... misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.’ [Citation.] To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings. [Citation.] (Rusheen v. Cohen (2006)37 Cal.4th 1048, 1056–57.)

Plaintiff has sufficiently alleged a claim for abuse of process based on Defendants’ institution of foreclosure proceedings.

Accordingly, the demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action for Declaratory Relief:

Defendants contend that Plaintiffs’ declaratory relief cause of action is subject to demurrer because it is based on the other non-viable causes of action. Since the Court overrules the third and fifth causes of action, demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action for Equitable Relief:

Defendants challenge the Equitable relief cause of action on the grounds that equitable relief is a remedy only allowed when monetary damages will not make the aggrieved party whole.

“Injunctive relief is a remedy, not a cause of action.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.)

Further, Plaintiffs did not oppose or address Defendants’ demurrer to the seventh cause of action. Failure to challenge a contention in a brief results in the concession of that argument. (DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 (DuPont) [“By failing to argue the contrary, plaintiffs concede this issue”]; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [“failure to address the threshold question ... effectively concedes that issue and renders its remaining arguments moot;” Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it.]; Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20.)

Therefore, the demurrer to the seventh cause of action is SUSTAINED.

Moving Defendants to give notice.

MOTION NO. 2:

Defendants Tiburon North Homeowners Association, Inc.; Litehouse Community Management, Inc., and Marilyn Phyllis Slagle’s motion to strike portions of the First Amended Complaint of Plaintiffs Gary O. Poteet, Jr. And Sandra K. Poteet is MOOT in part and GRANTED in part with 20-days leave to amend.

Punitive damages:

Defendants move to strike Plaintiffs request for punitive damages from paragraphs 31, 43, 50, 55, and p. 9:3.

Civil Code Section 3294, subdivision (a) provides for punitive damages: “In an action for breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. . .”

A claim for punitive damages must be pled with factual specificity.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Plaintiffs’ allegations that Defendants are insufficient to plead malice, oppression or fraud.

Accordingly, the request to strike punitive damages is GRANTED.

Prayer for Quieting of Title:

The request is MOOT based on the Court’s ruling SUSTAINING the demurrer to the cause of action to Quiet Title.

Attorneys’ fees:

Defendants move to strike Plaintiffs request for attorneys’ fees from pg. 5:11; 7:2; 7:22; 8:16; 10:2.

Code of Civil Procedure Section 1033., subdivision (a) provides in pertinent part: “The following items are allowable as costs under Section 1032: . . . (10) Attorney’s fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.”

Plaintiffs have not alleged any contract, statute or law which allow recovery of attorneys’ fees.

Accordingly, the request to strike attorneys’ fees is GRANTED.

Prayer for Equitable Relief:

The request is MOOT based on the Court’s ruling SUSTAINING the demurrer to the cause of action to Equitable Relief.

Moving Defendants to give notice.