Judge: Stephen P. Pfahler, Case: 22CHCV01316, Date: 2023-03-09 Tentative Ruling

Case Number: 22CHCV01316    Hearing Date: March 9, 2023    Dept: F49

DEMURRER TO THE COMPLAINT

MOVING PARTY: Defendant, Inco Builders, Inc.

RESPONDING PARTY: Unopposed/Plaintiff, James Foy

RELIEF REQUESTED:

Demurrer to the Complaint

·         1^st Cause of Action: Declaratory Relief

·         2^nd Cause of Action: Quiet Title

·         3^rd Cause of Action: Slander to Title

·         4^th Cause of Action: Cancellation of Document

·         5^th Cause of Action: Unjust Enrichment

Motion to Strike

SUMMARY OF ACTION

Plaintiff James Foy represents ownership of 15703 Sierra Hwy, Canyon Country. According to Plaintiff, a purported foreclosure and trustee sale occurred without any notice provided to Plaintiff. On December 6, 2022, Plaintiff filed a complaint Declaratory Relief, Quiet Title, Slander to Title, Cancellation of Document, and Unjust Enrichment.

RULING:

Demurrer: Sustained with Leave to Amend in Part/Sustained without Leave to Amend in Part.

Request for Judicial Notice: Granted.

The request for judicial notice establishes the existence of the deed of trust on the property. [Req. Jud. Not., Ex. 1.] A trustee’s deed upon sale was recorded on April 15, 2022 showing the sale of the property on April 13, 2022 for $302,100. [Req. Jud. Not., Ex. 4..] Prior to the trustee sale, a notice of default and notice of trustees sale were also recorded. [Req. Jud. Not., Ex. 2-3.]

Defendant Inco Builders, Inc. submits the subject demurer to the complaint on ground that Plaintiff fails to allege any basis of standing to proceed with the claims following the foreclosure, and the lack of any claim for unjust enrichment under California law. The court electronic filing system shows the demurrer is unopposed at the time of the tentative ruling publication cutoff; moving defendant filed a notice of non-opposition as well.

The court acknowledges the lack of identification of any and all defendants, and therefore assumes all defendants are named in all causes of action.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, 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.]

Standing

Defendant initially challenges any basis of standing, due to the lack of identification of James Foy on the Deed of Trust. “‘Every action must be prosecuted in the name of the real party in interest....’ (Citation.) ‘Generally, “the person possessing the right sued upon by reason of the substantive law is the real party in interest.” [Citations.]’ (Citation.) It follows that ‘[s]omeone who is not a party to [a] contract has no standing to enforce the contract or to recover extra-contract damages for wrongful withholding of benefits to the contracting party.’” (Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.) Plaintiff specifically alleges a taking out a loan on the property in 1993 with SBA for $31,200. [Comp., ¶ 7.] The September 2, 2013, deed of trust issued in favor of the U.S. Small Business Administration securing the $31,200 loan shows the borrowers as Jean E. Foy and Cindy Foy. [Req. Jud. Not., Ex. 1.]

The recorded deed of trust directly undermines the allegations of the complaint. To the extent James Foy depends on the trust deed and statutory requirements under Civil Code section 2924, Plaintiff fails to establish any basis of standing to bring the action given the conflicting evidence submitted via judicial notice. [Comp., ¶¶ 7, 9, 11, 13, 16, 19, 26, 34, 38, ] The demurrer is sustained on this basis.

Trustee Sale

To the extent Plaintiff fails to establish a basis of standing, the court additionally finds Plaintiff lacks support for a claim of a wrongful trustee sale. (See Knapp v. Doherty  (2004) 123 Cal.App.4th 76, 96; Moeller v. Lien (1994) 25 Cal.App.4th 822, 831.) The conclusion of the trustee sale on April 13, 2022 renders any and all claims a matter of monetary recovery barring allegations of actual improper conduct. (Civ. Code, § 2924.12; Monterossa v. Superior Court of Sacramento County (2015) 237 Cal.App.4th 747, 753.) The claims seeking restoration of title are therefore also barred under the allegations of the complaint, as presented. The demurrer is therefore sustained on this basis as well.

1^st Cause of Action: Declaratory Relief

Without a basis of standing, the court finds no current or prospective claim for relief. (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1014.)

2^nd Cause of Action: Quiet Title

In addition to the lack of standing, the complaint is not verified. (Code Civ. Proc., § 761.020.)

3^rd Cause of Action: Slander to Title

Plaintiff lacks standing. The court defers any consideration on the litigation privilege for a later pleading, if applicable.

4^th Cause of Action: Cancellation of Document

Plaintiff lacks standing. The court defers the specific challenges to the elements of the claim for a later pleading, if applicable.

5^th Cause of Action: Unjust Enrichment

California no longer recognizes unjust enrichment as a cause of action. (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138.) The demurrer is sustained without leave to amend.

Motion to Strike: Moot.

The demurrer is sustained with 30 days leave to amend. The motion to strike is moot. Plaintiff may not add any new or different causes of action, and may only add facts within the scope of the existing claims. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Any new causes of action added without leave from court are subject to a motion to strike. If Plaintiff declines to file an amended pleading, Defendant may seek a dismissal.

Case Management Conference set for July 18, 2023.

Defendant to give notice to all parties.