Judge: Stephen P. Pfahler, Case: 22CHCV00176, Date: 2022-08-16 Tentative Ruling

Case Number: 22CHCV00176    Hearing Date: August 16, 2022    Dept: F49

Dept. F-49

Date: 8-16-22

Case #22CHCV00176

DEMURRER

MOVING PARTY: Defendants, Calatlantic Group, Inc., et al.

RESPONDING PARTY: Unopposed/Plaintiff, Jerry Holly[1]

RELIEF REQUESTED

Demurrer to the Complaint

·         2^nd Cause of Action: Breach of Contract (Sale of Home)

·         3^rd Cause of Action: Financial Elder Abuse

·         4^th Cause of Action: Unfair Competition

Motion to Strike

·         Claim for Attorney Fees

·         Allegations in Support of, and Claim for, Punitive Damages

SUMMARY OF ACTION

On July 10, 2021, Plaintiff Jerry Holly agreed to purchase 20610 Calloway Drive, Santa Clarita for $594,990 from Defendant Calatlantic Group, Inc. (Calatlantic). The parties also executed a second agreement, whereby Defendant Opendoor Property Acquisition, LLC (Opendoor) offered to purchase Plaintiff’s existing home for $608,000. Opendoor is allegedly partially owned by Defendants Calatlantic and Lennar Title, Inc. (Lennar).

While Plaintiff sought financing for the purchase of the Galloway Drive home, Plaintiff alleges Defendants “pushed” for his use of Defendants’ preferred lender. When Plaintiff elected to use his own lender, Plaintiff alleges Defendants became less cooperative with closing on the Gallowway Drive home, including refusal to extend the deadline for document submission. Defendants subsequently sold the home to a third party for a $70,000 higher price. Defendants also allegedly conditioned any purchase of a unit in the Galloway development on the acceptance of the $608,000 sale of the existing home, which Plaintiff contends constituted a “low ball” offer given comparable values on homes in the area.

Notwithstanding Plaintiff’s instruction to pause closing the sale of the home, including notification to the escrow company, Defendant Raincross Escrow, Inc., escrow apparently closed on an unspecified date.

On March 17, 2022 and August 2, 2022, Plaintiff filed a complaint and first amended complaint for Recission, Breach of Contract (Sale of Home), Financial Elder Abuse, Unfair Competition, Breach of Contract (Escrow), and Negligence. Defendant Raincross Escrow, Inc. answered the complaint on May 4, 2022.

RULING

Demurrer: Sustained with Leave to Amend.

Defendants, Calatlantic Group, Inc. (Calatlantic), and Lennar Title, Inc. (Lennar) submit a demurrer to the second, third and fourth causes of action in the complaint for Breach of Contract (Sale of Home), Financial Elder Abuse, and Unfair Competition. Calatlantic is the only named defendant in the second cause of action. Defendants move on grounds that Plaintiff fails to allege sufficient facts supporting the three challenged causes of action. Specifically, lack of a contract or specifically pled terms, insufficient facts supporting a finding of actual financial elder abuse based on the alleged wrongful closure of escrow, and insufficient facts of unfair and deceptive business practices in regards to the alleged transactions of the parties.

Plaintiff submits no opposition and presumably relies on the August 2, 2022 filed first amended complaint. The first amended complaint was filed without leave of court following the May 4, 2022 answer of Raincross Escrow, Inc. (Code Civ. Proc., § 472, subd. (a).) The court therefore declines to declare the demurrer moot, and sustains the unopposed demurrer with leave to amend. The first amended complaint is now deemed filed with leave of court.

Because the court sustained the demurrer with leave to amend, the subject ruling now counts towards the amendment limit guidelines. “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).)

Motion to Strike: Moot.

Moving parties to give notice to all parties.

Motion to compel arbitration set for September 29, 2022.