Judge: Virginia Keeny, Case: 20VECV01388, Date: 2023-01-05 Tentative Ruling
Case Number: 20VECV01388 Hearing Date: January 5, 2023 Dept: W
MARK A. LIKER
v. ELIEZER APPEL, et al.
defendant’s demurrer with motion to
strike
Date
of Hearing: January
5, 2023 Trial
Date: None
set.
Department: W Case No.: 20VECV01388
Moving
Party: Defendant Eliezer Appel
Responding
Party: Plaintiff Mark A. Liker
Meet
and Confer: Yes (Appel Decl.)
BACKGROUND
Plaintiff Mark A. Liker alleges
Defendant Eliezer Appel, in his capacity as a California licensed attorney,
instructed Plaintiff to purchase certain real property for $250,000.00 from
Defendant Cochran Inc. and promised Plaintiff a return on his investment as
well as plaintiff would take ownership of the property or that the property
would secure Plaintiff’s investment. Plaintiff further alleges Eliezer Appel
concealed from Plaintiff key facts about the property and took Plaintiff’s
investment for his own gain.
On November 24, 2020, Plaintiff Mark A.
Liker filed a complaint against Defendants Eliezer Appel, Lockhart Development,
Inc., and Cochran Inc. asserting a single cause of action for fraud. Plaintiff
filed a First Amended Complaint on October 20, 2022, asserting new causes of
action – breach of contract, negligent misrepresentation, intentional
misrepresentation, and breach of attorney fiduciary duty/duty of loyalty.
On February 11, 2021, Lockhart
Development, Inc. filed a cross-complaint against Mark A. Liker asserting
causes of action for (1) Breach of Written Contract; (2) Intentional or
Negligent Interference with Contractual Relations; (3) Interference with
Prospective Economic Advantage; (4) Breach of Fiduciary Duty; (5) Declaratory
Relief; (6) Implied Contractual Indemnity; and (7) Slander of Title.
This action is related to Marc A.
Larocque v. Christine Larocque Franz, et al. (LC105233).
[Tentative] Ruling
Defendant Appel’s Demurrer to the First
Amended Complaint is OVERRULED. Defendant Appel’s Motion to Strike is DENIED.
REQUEST FOR JUDICIAL NOTICE
Defendant requests this court take
judicial notice of several cases listed in the cross-complaint and several
different grant deeds, deeds of trust, lis pendens and other documents
including the sale agreement and lis pendens filed on the Cass property. (See
RJN, Exhs. A-L.)
Plaintiff objects to Defendant’s request
for judicial notice on several grounds including Defendant’s failure to
authenticate any of the documents pursuant to Evidence Code§ 1400; failure to provide the
Court with sufficient information as to why the Court should take judicial
notice of any of the documents and court cases listed; failure to explain to
the Court why the listed documents and court cases are subject to judicial
notice under any of the evidence code sections cited; failure to make any
argument at all as to why the Court is required to take notice of any of the
listed documents or court cases cited in the 14 item list; inclusion of the
first three documents not listed in the RJN and that cannot be subject to
judicial notice at all; and finally the Defendant is trying to use statements
or contents of the documents and cases listed as facts in his demurrer that
constitute improper hearsay.
Plaintiff cites to the wrong standard.
California Rules of Court, Rule 8.252 is for requests of judicial notice on
appeal. California Rules of Court, Rule 3.1306(c) provides: A party requesting
judicial notice of material under Evidence Code sections 452 or 453 must
provide the court and each party with a copy of the material. If the material
is part of a file in the court in which the matter is being heard, the party
must: (1) Specify in writing the part of
the court file sought to be judicially noticed; and (2) Either make arrangements with the clerk to
have the file in the courtroom at the time of the hearing or confirm with the
clerk that the file is electronically accessible to the court. (CRC Rule
3.1306(c).) California Rules of Court Rule 3.1113(l) requires any request for
judicial notice to be made in a separate document. (CRC Rule 3.1113(l).)¿However,
the court agrees that Defendant improperly attaches documents Defendant has not
provided notice on. Accordingly, the court only addresses item nos. 11 – 14 in
Defendant’s request for judicial notice.
The recorded documents are to some
extent self-authenticating in that they bear the file stamp of the County
Recorder's office. (See, e.g., Lockhart v. MVM, Inc. (2009)
175 Cal. App. 4th 1452, 1460-1461.) Moreover, while the court cannot take
judicial notice of the truth of the matters asserted in the documents, the
court notes it may properly notice the existence and facial contents of
undisputed facts stated in the Grant Deed. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265;
Yvanova v. New Century Mortgage Corp. (2016)
62 Cal. 4th 919, 924, fn. 1.) Plaintiff does not dispute the facts stated in
Item nos. 11 - 14. Rather, only that they are improper hearsay and have not
been authenticated. Accordingly, the court grants Defendant’s request for
judicial notice as to those exhibits.
discussion
Defendant demurs to the First Amended
Complaint on the grounds Plaintiff Liker is not a real party in interest and
thus, has no standing to bring this lawsuit in his individual capacity if at
all. Defendant further demurs to each cause of action on the grounds Plaintiff
failed to allege the elements required to state each cause of action.
On September 20, 2022, this court
sustained Defendant’s demurrer to the original complaint for fraud with leave
to amend. The court found the allegations in Plaintiff’s complaint in some
cases simply needed clarification, or they implied underlying facts that he has
failed to lay out specifically. (E.g., the confusing allegations regarding
concealment of ownership, above.) The court also noted Plaintiff offered
supplemental allegations in his opposition that persuaded the court there is a
reasonable possibility the present deficiencies might be cured by amendment.
However, as to Defendant’s standing contention, the court found no issues of
standing appeared on the face of the pleading and therefore, Defendant’s
argument in that respect failed.
Nonetheless,
the court agrees that the First Amended Complaint is improper in one
regard. A plaintiff may not amend the
complaint to add a new cause of action without having obtained permission to do
so, unless the new cause of action is within the scope of the order granting leave
to amend. (See Harris v. Wachovia
Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Here, plaintiff was
granted leave to amend to cure his fraud cause of action. Plaintiff did not have leave to add a claim
for breach of contract or breach of fiduciary duty. Therefore, those two causes of action are
stricken. (See CCP §436.) Accordingly, the
court only address Defendant’s demurrer based on standing and Plaintiff’s fraud
claims.
Standing
Defendant
demurs to the First Amended Complaint on the grounds Liker lacks standing.
Defendant contends Liker is not the real party in interest in litigation
involving a trust fund or funds, which belonged to MDMS when the 1031 exchange
was sought on its behalf or on behalf of Lockhart, and therefore Liker has no
standing to bring the within lawsuit in his individual capacity.
To
support their contention, Defendant refers the court to other actions involving
the parties where Plaintiff alleges Defendant convinced Plaintiff in March of
2018 to transfer the entire balance of the “Blanch Liker Irrevocable Trust” to
a 1031 exchange and an action involving Christine Larocque Fran, where the
court determined that because title was under the trust, Christine did not have
standing to bring a claim in her personal capacity.
Plaintiff
is alleging he was personally damaged by Defendant’s fraudulent
representations. While Defendant presents documents that the property was
transferred to Lockhart, these documents do not establish that the funds
Plaintiff alleges he was fraudulently induced to giving up actually came from
Lockhart or that they did not come from Plaintiff. Defendant Appel is turning the demurrer into a
contested evidentiary hearing through the guise of having the court take
judicial notice of documents and other court proceedings. (See Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) “In
short, a court cannot by means of judicial notice convert a demurrer into an
incomplete evidentiary hearing in which the demurring party can present
documentary evidence and the opposing party is bound by what that evidence
appears to show.” (Id. at p. 115.) Plaintiff has alleged it was his
money that was deposited for the Cass Property in a 1031 exchange. This is
sufficient for the purposes of a demurrer.
Intentional
Misrepresentation
Defendant
demurs to the third cause of action for intentional misrepresentation on the
grounds Plaintiff has failed to show particular acts and elements of fraud
necessary for its claim.
Specifically,
Defendant claims Plaintiff cannot sufficiently state facts to support a cause
of action for fraud on the grounds the property belonged to Cochran at the time,
nothing in the agreement referred to implies that Liker will get shares in
Lockhart, there was no lien in favor of Roshmore, the funds were not Liker’s, nothing
alleged or explains how Appel control the companies involved in the alleged,
and has not been specifically pled.
Again,
Defendant has tried to turn this demurrer into an evidentiary hearing. Based on
Plaintiff’s allegations, Plaintiff has alleged facts sufficient to support a
cause of action for misrepresentation. Plaintiff has alleged Defendant Appel in
July or August of 2018 approached Liker to solicit Liker to invest $250,000 in
a real estate deal that Appel was involved in. (FAC ¶21.) Plaintiff contends
Defendant Appel represented to Liker that the Cass Property was owned by one of
his companies (Cochran) and that Appel was looking for an investor in the
property. (FAC ¶22.) Acting as Liker’s attorney, Plaintiff alleges Defendant
structured the transaction in a way whereby the Cass Property was sold by
Cochran to another company of Appel, Lockhart, and in exchange of the purchase
price of $250,000, Plaintiff believed he would assume ownership of Lockhart at
some point. (FAC ¶23.) However, upon depositing the $250,000, Liker never
received ownership shares in Lockhart nor was he made an officer of Lockhart.
(FAC ¶¶29-32.)
Accordingly,
the demurrer to the intentional misrepresentation cause of action is OVERRULED.
Negligent
Misrepresentation
Defendant
demurs to the second cause of action for negligent misrepresentation on the same
grounds as their demurrer to the intentional misrepresentation cause of action.
Accordingly,
the demurrer to the negligent misrepresentation cause of action is OVERRULED.
Statute
of Limitations
Defendant
argues Plaintiff brought the complaint three and a half years after the
property was sold. Plaintiff alleges the parties entered into an agreement to
sell the property sometime in 2018. Plaintiff brought this action in 2020. The
statute of limitations for fraud or negligent misrepresentation is three years
(CCP §338(d)) and begins to run when the aggrieved party discovers “the facts
constituting the fraud” (Broberg v. Guardian Life Ins. Co. of America
(2009) 171 Cal.App.4th 912, 920.) As a result, Plaintiff’s claims are timely.
Motion
to Strike
Defendant
Appel moves to strike the complaint on the grounds Plaintiff lacks standing,
Plaintiff cites allegations of a previously dismissed complaint which is
irrelevant, and the complaint contains false records and allegations including
Plaintiff’s fraud allegations.
First,
the court notes Defendant’s standing contention is moot. The court has found
Plaintiff has sufficiently alleged standing. Next, the court finds Plaintiff’s
allegations of a previously dismissed complaint is not so irrelevant or
improper that it should be stricken from the complaint. The Larocque cases
relate to the alleged fraudulent transfers of the Cass Property. Lastly, the
court finds that any contention of false assumptions and assertions or false
records and allegations are not proper for motion to strike. As stated above,
Defendant cannot turn this into a contested evidentiary hearing.
Accordingly,
Defendant’s motion to strike is DENIED.