Judge: Theresa M. Traber, Case: 22STCV35206, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV35206    Hearing Date: August 9, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 9, 2023                       TRIAL DATE: NOT SET

CASE:                         Harlan Helvey v. Kamille Grey et al.

CASE NO.:                 22STCV35206           

MOTION TO QUASH SERVICE OF SUMMONS

MOVING PARTY:               Specially Appearing Defendants Kamille Grey, James E. Stovall, and Hometown Classic Builders, LLC

RESPONDING PARTY(S): Plaintiff Harlan Helvey

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action, filed on November 4, 2022, for breach of contract, conversion, and money had and received. Plaintiff alleges that the parties entered into an agreement concerning the development and management of real property located in Dallas, Texas. Plaintiff alleges that, when the property was sold, Defendants refused to compensate Plaintiff for his investment into the property from the proceeds of the sale.

Defendants demur to the Complaint in its entirety.

TENTATIVE RULING:

Defendants’ Demurrer to the Complaint is OVERRULED.

Defendants shall file their Answer to the Complaint within 10 days of this order pursuant to California Rule of Court 3.1320(f).

DISCUSSION:

Defendants demur to the Complaint in its entirety.

Legal Standard

A demurrer 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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Defective Notice

            A demurrer must “distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (Code Civ. Proc. § 430.60.) Further, “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint. . . or to specified causes of action or defenses.” (Cal. Rules of Court 3.1320(a).)

            Plaintiff objects to the Demurrer as failing to specify the grounds of the demurrer in separate paragraphs, and in specifying whether they apply to the entire complaint or only to specific causes of action. Plaintiff is correct that the notice of demurrer does not set forth the grounds for the demurrer in separate paragraphs, nor does it explicitly identify the scope of the demurrer, as required by Rule 3.1320(a). However, the notice does identify the grounds for the demurrer (Notice of Demurrer p.2:2-4) and the memorandum of points and authorities identifies this filing as a general demurrer, i.e., a demurrer to the Complaint in its entirety. (Memorandum of Ps. & As. p.3:24.) The Court therefore finds that Defendants have substantially complied with Rule 3.1320 such that Plaintiff was on adequate notice of the basis of this demurrer.

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).)

            Defendants did not address the statutory meet and confer requirement in their moving papers beyond a bare, one-sentence assertion in their brief that the parties have met and conferred. (Memo. of Ps. & As. p.3:21-22.) Defendants have tried to supplement this showing with a brief declaration from Defendants’ counsel Brian C. Holloway, which states, in relevant part, that he met and conferred with Plaintiff’s counsel on March 7, 2023. (Declaration of Brian C. Holloway ISO Reply ¶ 2.) Neither the declaration nor the reply papers describe the form of this meeting, nor do Defendants provide details of these discussions. The Court does not find this to be a sufficient showing to satisfy Defendants’ statutory meet and confer obligations.

Forum Non Conveniens

Defendants assert that California is an “improper venue” for this dispute. This argument, more properly considered a contention of forum non conveniens, is not one of the enumerated bases to demur to a complaint. (Code Civ. Proc. § 430.10.) Notwithstanding Defendants’ contentions to the contrary, a claim of inconvenient forum is not a basis for a demurrer. (Miller-Leigh LLC v. Henson (2007) 152 Cal.App.4th 1143, 1150.) Although this Court may, on its own motion, find in the interest of substantial justice that an action should be heard in a forum outside this state, pursuant to Code of Civil Procedure section 410.30(a), such a finding would necessarily require the consideration of extrinsic evidence, which is not permissible on demurrer. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The Court therefore refuses to consider this argument further.

Personal Jurisdiction

            Defendants challenge the Complaint in the entirety based on  a lack of personal jurisdiction, asserting essentially identical arguments to those raised in Defendants’ unsuccessful motion to quash service of the summons. Personal jurisdiction is also not an enumerated basis for a demurrer. (Code Civ. Proc. § 430.10.) Indeed, as demonstrated by the Court’s consideration—and rejection—of these arguments in Defendants’ Motion to Quash, extrinsic evidence, which may not be considered on demurrer, is a necessity for the Court to evaluate the issue of personal jurisdiction. (See February 7, 2023 Minute Order.) Even if the Court could consider extrinsic evidence on demurrer, the Court has already found that it has personal jurisdiction over Defendants, and Defendants offer no reason for the Court to depart from that finding.

Subject Matter Jurisdiction

            Although Defendants assert that the Complaint fails for lack of subject matter jurisdiction, Defendants do not address these contentions in the body of their moving papers. The Court therefore finds that Defendants have not demonstrated that the Complaint is defective on this basis.

Failure to State a Claim

            Defendants also claim that Plaintiff’s “fraud claims” are not stated with particularity, which the Court construes, as Plaintiff does, to pertain to the fourth cause of action for fraud. Defendants did not properly raise a challenge to specific causes of action in their notice of motion, as addressed above. For that reason, the Court would be within its rights to refuse to consider a challenge to a specific cause of action based on improper notice. Even if the Court were to consider a challenge to the fourth cause of action only, Defendants’ argument that the claim is not pled with specificity is without merit.

“The elements of fraud that will lead to a tort action are: (a) misrepresentation; (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant[s] to understand fully the nature of the charge made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid.) “[G]eneral and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The elements of fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) intent to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) the plaintiff sustained damage as a result of the concealment or suppression of fact. (Hambridge v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)  

            Defendants contend that the Complaint is defective because it does not allege with specificity any misrepresentations made by Defendants. This contention misconstrues the legal basis for this cause of action. Plaintiff asserts that Defendants fraudulently concealed information concerning the subject property while a fiduciary relationship existed between the parties. (Complaint ¶¶ 63-64.) Plaintiff is not required to allege a misrepresentation to assert such a claim.

            As Defendants do not address any other cause of action asserted in the Complaint in their Demurrer, the Court finds that Defendants have not demonstrated that the Complaint fails to state facts sufficient to constitute a cause of action.

CONCLUSION:

Accordingly, Defendants’ Demurrer to the Complaint is OVERRULED.

Defendants shall file their Answer to the Complaint within 10 days of this order pursuant to California Rule of Court 3.1320(f).

Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  August 9, 2023                                   ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.