Judge Virginia Keeny, Case 22VECV00958 2023-01-31 Tentative Ruling

Judge: Virginia Keeny, Case: 22VECV00958, Date: 2023-01-31 Tentative Ruling

Case Number: 22VECV00958 Hearing Date: January 31, 2023 Dept: W

MICHAEL SHERIDAN v. PATRICIA BARR, et al.

demurrer with motion to strike

Date of Hearing: January 31, 2023 Trial Date: None Set

Department: W Case No.: 22VECV00958

BACKGROUND

On July 12, 2022, Plaintiff filed a Complaint against Defendants Patricia Barr, Dihn Luu, FCI Lender Services, and Union Home Loans (“Defendants”). On October 18, 2022, Plaintiff filed a First Amended Complaint (“FAC”) alleging (1) Financial Elder Abuse; (2) Fraud; (3) Negligent Infliction of Emotional Distress; (4) Cancellation of Written Instrument under Civil Code § 3412; (5) Slander of Title; (6) Breach of Fiduciary Duty; and (7) Negligence.

Longview Valley Inc., The Russak Family Trust Dated February 8, 2001, Robert M. Russak and /or, Marlene Russak and Union Home Loans, Inc. collectively and jointly while acting as agent of each other filed a substitution of trust and retained a foreclosure trustee to foreclose the subject real property. (Amend. Mot., Exh. D.)

On October 19, 2022, Plaintiff filed an ex parte application for Temporary Restraining Order (TRO) and Preliminary Injunction. On November 2, 2022, Plaintiff filed an Amended Application for TRO and Preliminary Injunction. The court granted a preliminary injunction on January 24, 2023.

[TENTATIVE] RULING

I. Defendant Patricia L. Barr’s Demurrer to the First and Seventh Causes of Action is OVERRULED; Defendant Barr’s Demurrer to the Second, Third, Fourth, Fifth, and Sixth Causes of Action is SUSTAINED WITH LEAVE TO AMEND.

II. Defendants Goldfarb and Luu’s Demurrer to the Second, Third, and Sixth Causes of Action is SUSTAINED WITH LEAVE TO AMEND; Defendants Demurrer to the First Cause of Action is OVERRULED. The Motion to Strike is DENIED.

III. Defendants’ Robert M. Russak and/or Marlene Russak, Trustees or Successor Trustee(s) of the Russak Family Trust Dated February 8, 2001; and Steven M. Russak and/or Robyn L. Russak, Trustees of the Steven Russak Family Trust dated December 14,2009’S Demurrer is SUSTAINED WITH LEAVE TO AMEND, in part; Defendants’ Motion to Strike is GRANTED WITH LEAVE TO AMEND.

discussion

I. DEFENDANT PATRICIA L. BARR’S DEMURRER TO THE FIRST AMENDED COMPLAINT

Defendant Patricia L. Barr demurs to the First Amended Complaint filed by Plaintiff Michael Sheridan. Defendant Barr demurs to the complaint on the grounds Plaintiff has failed to allege facts sufficient to support any of his causes of action against Barr and the complaint is uncertain.

Financial Elder Abuse

Defendant Barr first demurs to the first cause of action for financial elder abuse on the grounds it is uncertain and Plaintiff fails to state facts sufficient to support their claim.

Defendant Barr argues if Plaintiff is alleging fraud in the execution, he has not alleged facts demonstrating reasonable reliance in executing the documents in question. Even so, Defendant contends Plaintiff’s financial elder abuse claim is actually one of deceit and as a result, is not pled with the requisite particularity required for a fraud claim.

In opposition, Plaintiff argues the court should disregard Defendant’s attempt to conflate the first and second causes of action. The court agrees. Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. (See Welf. & Inst. Code § 15610.30(a).) A person is deemed to have taken the property when he or she has deprived an elder of any property right. (See Welf. & Inst. Code § 15610.30(c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person . . . takes . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder . . . .” (Welf. & Inst. Code § 15610.30(b).) To establish financial elder abuse, the plaintiff must allege that the defendant took or retained the plaintiff’s property; that the plaintiff was 65 years of age or older at the time of the conduct; that the defendant took or retained the property for a wrongful use or with the intent to defraud; that the plaintiff was harmed; and that the defendant’s conduct was a substantial factor in cause the plaintiff’s harm. (See CACI, § 3100.)

Plaintiff has sufficiently alleged Defendant Barr took Plaintiff’s property right when she fraudulent recorded a mortgage lien on his residential property; Plaintiff was 80 years old at the time of the conduct; Defendant Barr took Plaintiff’s property with the intent to defraud him; Plaintiff has been harmed by the conduct as he is now in collections due to the loan on the subject property; and Defendant Barr’s conduct was a substantial factor in his harm as she was a fiduciary. This is sufficient to state a financial elder abuse cause of action for the purposes of a demurrer. For purposes of demurrer, the court must liberally construe the pleading with a view to substantial justice between the parties. (Mack v. Soung (2000) 80 Cal.App.4th 966, 971, disapproved on other grounds.) All properly pleaded allegations must be deemed true, regardless of the plaintiff's ability to later prove them. (Ibid.) Facts that may be implied or inferred from those alleged are also accepted as true. (Ibid.)

Accordingly, Defendant Barr’s demurrer to the first cause of action is OVERRULED.

Fraud

Defendant Barr demurs to the second cause of action for fraud on the same grounds as Defendant’s demurrer to the financial elder abuse cause of action. Defendant argues regardless of whether Plaintiff is alleging fraud in the inducement or concealment or suppression of a fact, Plaintiff has not alleged facts sufficient to state a claim for fraud against Defendant Barr.

In opposition, Plaintiff argues they have alleged facts sufficient to support a cause of action for fraud in the inducement. Although Plaintiff labels their cause of action as fraud in the inducement, the court finds Plaintiff is alleging fraud in the execution. In classifying a given action, the court looks to its substance, i.e., the nature of the rights at issue and the remedy sought. The label attached to a complaint or cause of action does not control. (Fearey v. Gough (1943) 61 Cal. App. 2d 778.) “California law distinguishes between fraud in the “execution” or “inception” of a contract and fraud in the “inducement” of a contract. In brief, in the former case ‘ “the fraud goes to the inception or execution of the agreement, so that the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all, mutual assent is lacking, and [the contract] is void. In such a case it may be disregarded without the necessity of rescission.” ’ (Ford v. Shearson Lehman American Express, Inc. (1986) 180 Cal.App.3d 1011.) “A necessary element of the defense of fraud in the execution is reasonable reliance. That is, when a plaintiff asserts that the defendant misrepresented the nature of the contract, the contract is not considered void due to the fraud if the plaintiff had a reasonable opportunity to discover the true terms of the contract.” (Brown v. Wells Fargo Bank, N.A. (2008) 168 Cal.App.4th 938, 958.)

Here, Plaintiff alleges he did not know what he was signing when Defendants presented the documents to him. (FAC ¶78.) Plaintiff contends the Defendants represented to him that the documents he was signing would allow for distribution of his wife’s assets to Plaintiff should his wife die. (FAC ¶91.) Instead, Plaintiff had actually signed a Durable Power of Attorney, a Trust Declaration of a purported Michael Sheridan Family Trust, a Grant Deed, and other documents. (FAC ¶92.) Based on the representations made by Defendant, Plaintiff could not have discovered the Defendants’ secret intentions to defraud him. (FAC ¶94.) As for specificity, Plaintiff has alleged on June 15, 2020 and August 20, 2020, all Defendants presented Plaintiff the series of documents and informed him the documents were necessary for the prosecution of his wife’s conservatorship case. (FAC ¶91.) As a result of Defendants’ fraudulent conduct, Plaintiff entered into agreements he did not know he was entering and obtained a loan in the amount of $450,000. (FAC ¶35.) However, these allegations are not pled with the requisite specificity for a fraud claim. Plaintiff alleges all defendants generally fraudulently deceived Plaintiff into signing the documents. However, this is insufficient for a fraud cause of action.

Accordingly, Defendant Barr’s demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND.

Negligent Infliction of Emotional Distress

Defendant Barr demurs to the third cause of action for negligent infliction of emotional distress on the grounds it is so vague and uncertain. Defendant contends the cause of action improperly combines a claim for negligent infliction of emotional distress and intentional infliction of emotional distress.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) Nevertheless, negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) There are two classifications for NIED claims: (1) bystander and (2) direct victim. The bystander theory recognizes a duty in the limited class of cases where a plaintiff “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that¿which would be anticipated in a disinterested witness.”¿(Thing v. La Chusa¿(1989) 48 Cal.3d 644, 647.)¿Direct victim theory involves a duty owed directly to the plaintiff “that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”¿(Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.¿(1989) 48 Cal.3d 583, 590.)

The court agrees that the theories should be pleaded as two separate causes of action. It is difficult to discern Plaintiff’s allegations between intentional infliction of emotional distress and negligent infliction of emotional distress. As currently pled, the court finds Plaintiff has failed to allege facts sufficient to support either theory. Plaintiff has sufficiently alleged Defendant Barr’s conduct was extreme and outrageous by fraudulently obtaining power of attorney as well as taking out a $450,000 loan on Plaintiff’s property without Plaintiff’s knowledge. Plaintiff has further sufficiently alleged the conduct caused him emotional distress including humiliation, mental anguish, and emotional distress. The fact he was already an elderly sick man does not negate the humiliation Plaintiff allegedly felt as a result of Defendant Barr’s conduct. Plaintiff, however, has not sufficiently alleged Defendant Barr’s conduct was done with the intention of causing, or reckless disregard of causing Plaintiff’s emotional distress.

As for Plaintiff’s negligent infliction of emotional distress claim, there are no allegations of duty or Defendant’s breach.

Accordingly, Defendant Barr’s demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.

Cancellation of Written Instrument

Defendant demurs to the fourth cause of action for cancellation of written instrument on the grounds it is uncertain and does not state facts sufficient to support a claim against Defendant Barr.

Defendant Barr argues the complaint fails to state a cause of action for financial elder abuse or fraud which are the grounds stated for the cancellation and the complaint fails to state a cause of action for financial elder abuse and fraud, then there are no grounds for cancellation. Defendant Barr further argues Plaintiff has not alleged reliance, inducement, or whether the documents are void versus voidable.

Civil Code section 3412 “[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” (See also California Credit & Collection Corp. v. Goodin (1926) 76 Cal.App. 785, 794.) Ordinarily, to state a claim for cancellation of a written instrument, a plaintiff must allege facts showing that the instrument was procured by fraud, accident or mistake. (Hironymous v. Hiatt (1921) 52 Cal.App. 727, 731 (disapproved on other grounds in Robertson v. Superior Court (2001) 90 Cal.App.4th 1319).)

Plaintiff does allege that based on Defendant’s fraudulent conduct, the Grant Deed and Deed of Trust are void as a matter of law. However, later in the complaint, Plaintiff alleges the Grant Deed and Deed of Trust are either void or voidable. Plaintiff must allege the instruments are void or avoidable. Moreover, Plaintiff generally alleges the serious injury. Plaintiff must allege what serious injury may occur if left outstanding.

The court also notes Plaintiff failed to attach the Grant Deed and Deed of Trust to the complaint.

Accordingly, Defendant’s demurrer to the fourth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Slander of Title

Defendant Barr demurs to the fifth cause of action for slander of title on the grounds Plaintiff fails to allege the trust was not the legal owner of the property.

“The elements of a cause of action for slander of title are (1) a publication, which is (2) without privilege or justification, (3) false, and (4) causes pecuniary loss.” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 472.)

Defendant Barr Plaintiff alleges he has demanded Defendant Barr’s immediate resignation as Trustee of the Family Living Trust and Defendant Barr obliged. (FAC ¶37.) As a result, this means Plaintiff is now either the trustee of his own trust and can sell the real property, or he can instruct whomever the current trustee is now to sell the property. As a result, no doubt has been cast upon the property and no pecuniary loss has occurred.

In opposition, Plaintiff argues by procuring Plaintiff’s signature on the Deed of Trust and Grant Deed and recording said documents, Defendants were able to procure a $450,000 loan against the property. However, this is not alleged in the fifth cause of action. Plaintiff alleges Defendant Barr’s publication of the Grant Deed and Deed of Trust disparages and prevents the vendibility of the said real property which belongs to the Plaintiff. (FAC ¶108.) As noted by Defendant Barr, if Plaintiff now is Trustee of the Living Trust, it is unclear how there is now any doubt of ownership.

Accordingly, Defendant Barr’s demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Breach of Fiduciary Duty

Defendant Barr demurs to the sixth cause of action for breach of fiduciary duty on the grounds the allegations of the complaint fail to allege with specificity how Barr mismanaged Plaintiff’s estate and that of his wife.

The elements for a breach of fiduciary duty cause of action are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604.) “‘[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.’” (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140 (quoting Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221).) “A fiduciary duty under common law may arise ‘when one person enters into a confidential relationship with another.’” (Id.)

Plaintiff alleges Defendant Barr breached her fiduciary duty when she mismanaged Plaintiff’s estate by procuring a hard money loan to pay themselves professional fees. Plaintiff contends he has been damaged as a result of the breach because he is unable to pay the $4,500 monthly note of the said mortgage by Union Home Loans, Inc. Further, Plaintiff’s is unable to refinance his real property as doing so will void his medical cost coverage of Plaintiff’s nursing home care. The court finds these allegations sufficient for the purposes of a demurrer. Plaintiff has alleged the existence of a fiduciary relationship between Plaintiff and Defendant Barr, Barr’s breach of that duty, and damage proximately caused by that breach. There is no specificity requirement in a breach of fiduciary duty.

However, as further discussed below in the Goldfarb and Luu demurrer, Plaintiff’s breach of fiduciary duty fails for other reasons.

Accordingly, Defendant Barr’s demurrer to the sixth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Negligence

Defendant Barr demurs to the seventh cause of action for negligence on the grounds Defendant Barr did not have a duty to explain the terms of the trust to Plaintiff.

To plead a cause of action for negligence, one must allege (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) “In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.) In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)

Defendant argues the seventh cause of action itself fails to specify the legal duty at issue, what act or omission was negligently done, and who breached it.

In opposition, Plaintiff contends Defendant owed a legal duty as discussed in their breach of fiduciary duty cause of action and Defendant Barr breached that duty causing Plaintiff damages. The court finds Plaintiff’s allegations sufficient for the purposes of a demurrer. “The breach of fiduciary duty can be based upon either negligence or fraud depending on the circumstances.” (Ash v. North American Title Co. (2014) 223 Cal.App.4th 1258, 1276.)

Accordingly, Defendant Barr’s demurrer to the seventh cause of action is OVERRULED.

II. DEFENDANT GOLDFARB AND LUU’S DEMURRER WITH MOTION TO STRIKE[1]

Request for Judicial Notice

Defendants Goldfarb and Luu request this court take judicial notice of the following documents: (1) the Request for Elder or Dependent Adult Restraining Order filed February 4, 2020 in Michael Sheridan v. Richard Abrigo, LASC No. 20STR001057 (“Abrigo Action”); (2) the Elder or Dependent Adult Abuse Restraining Order After Hearing filed March 6, 2020 in Abrigo Action; (3) the Petition for Conservatorship filed February 21, 2020 in the Conservatorship of Gail Sheridan, LASC No. 20STPB01704; and (4) Order for First and Final Account filed March 10, 2021 in the Conservatorship of Gail Sheridan, LASC No. 20STPB01704.

The court grants Defendants Goldfarb and Luu request for judicial notice.

Financial Elder Abuse

Defendants Goldfarb and Luu demur to the first cause of action for financial elder abuse on the grounds Plaintiff fails to allege facts sufficient to state a claim against Goldfarb and Luu. Specifically, Defendants argue the first cause of action pleads nothing more than unclear allegations along with an attempt to take advantage of an elder abuse statute because plaintiff was 82 years of age.

The court disagrees. Plaintiff has sufficiently alleged facts to support a claim for financial elder abuse against Defendants Goldfarb and Luu. Plaintiff is not alleging they are liable under financial elder abuse for simply being his attorney. Plaintiff is alleging Defendants Goldfarb and Luu took Plaintiff’s property right when they fraudulently recorded a mortgage lien on his residential property and used the money to pay themselves. Moreover, the fact they were not there when it was actually executed does not prevent Plaintiff from stating a claim for financial elder abuse. Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. (See Welf. & Inst. Code § 15610.30(a).) Plaintiff has alleged this.

Lastly, Defendant’s contention that “if Plaintiff’s cause of action is based on the conservatorship fees and costs paid with court approval, there can be no basis for this cause of action as a matter of law” lacks genuine merit. Plaintiff alleges that Defendants used the alleged fraudulently obtained documents to obtain a loan in the amount of $450,000.00 to pay themselves. Whether some portion of that money was actually owed to Goldfarb and Luu remains to be determined.

Accordingly, Defendants Goldfarb and Luu’s demurrer to the first cause of action is OVERRULED.

Fraud

Defendants Goldfarb and Luu demur to the second cause of action for fraud on the grounds Plaintiff has failed to state a claim for fraud in the inducement as he admits he did not know what he was signing. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Ca1.4th 394, 415, holding fraud in the inducement occurs when “the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.” However, as discussed above, the label attached to a complaint or cause of action does not control. (Fearey v. Gough (1943) 61 Cal. App. 2d 778.)

Regardless, the court finds Plaintiff has not alleged facts sufficient to support a claim for fraud in the inception (also known as fraud in the execution or fraud in the factum) as to these defendants. Plaintiff has failed to allege this cause of action with the requisite specificity.

Accordingly, Defendants Goldfarb and Luu’s demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND.

Negligent Infliction of Emotional Distress

Defendants demur to the third cause of action for negligent and intentional infliction of emotional distress on the grounds Plaintiff cannot overcome the insurmountable hurdle of pleading any facts which would satisfy the “extreme and outrageous conduct” element, which must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Ca1.4th 965, 1001.)

The court disagrees. Plaintiff’s allegations that his former attorneys misrepresented what Plaintiff would be signing and used the documents to take out a loan on his property is extreme and outrageous conduct. However, Plaintiff claims they are alleging a cause of action for both intentional and negligent infliction of emotional distress. As such, the causes of action should be alleged separately.

Accordingly, Defendants Goldfarb and Luu’s demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.

Breach of Fiduciary Duty

Defendants Goldfarb and Luu demurrer to the sixth cause of action for breach of fiduciary duty on the grounds a) Plaintiff lacks standing to raise issues with the conservatorship; b) actions involving a refinance of Plaintiff's property did not involve these defendants and c) incorporation of two (2) causes of action which are not against these defendants is improper.

Defendants contend Plaintiff has no standing because he alleges “Vic hired a law firm named Goldfarb and Luu to file a TRO against Ritchie Abrigo.” (FAC ¶55.) Whether Vic was the one who hired Defendants or paid for their legal fees, Defendants do not dispute they were hired to represent Plaintiff in the TRO against Ritchie or then allegedly tricked Plaintiff to accepting Defendant Barr as trustee or co-conservator. Plaintiff has alleged Defendants Goldfarb and Luu’s involvement in the refinance – specifically, Defendants had Barr refinance Plaintiff’s property in order to pay their legal fees. However, as noted by Defendants, this cause of action has become duplicative of Plaintiff’s negligence cause of action.

“A cause of action for fiduciary breach is predicated on either a breach of a duty of loyalty or a breach of confidentiality. A breach of the duty of “undivided loyalty” occurs in two basic situations. The first is when an attorney obtains a personal advantage, whether consisting of an acquisition from the client, a joint venture with the client, or usurpation of an interest in, or opportunity concerning, the subject matter of the retention. Second, circumstances that create adversity to the client's interest imperil the duty of undivided loyalty. These circumstances may consist of an existing, personal adverse interest of the attorney, an interest of a prior or subsequent client, or conflicting interests of present and multiple clients. The other fiduciary duty is that of confidentiality. A breach of confidentiality typically involves an unauthorized and unprivileged use or disclosure of a client's confidences.” (§ 15:4. The cause of action—Defining the cause of action, 2 Legal Malpractice § 15:4 (2023 ed.).) Plaintiff has not alleged a breach of loyalty or confidentiality. Allegations that constitute negligence do not implicate a fiduciary obligation. (See § 15:2. The cause of action, 2 Legal Malpractice § 15:2 (2023 ed.).)

Because Plaintiff has not alleged a breach of loyalty or confidentiality, the court finds the action duplicative of Plaintiff’s negligence action and therefore, sustains the demurrer with leave to amend.

Motion to Strike

Defendants Goldfarb and Luu move to strike several allegations Defendants’ conduct was fraudulent and/or with malice, “conspiracy” allegations, punitive damages, and incorporation paragraphs.

The court denies Defendants’ motion to strike “general conclusory” allegations regarding Defendants’ alleged fraudulent and malicious conduct and “conspiracy” allegations. A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) ¿A party cannot use a motion to strike as a “line item veto.” (Id.) Defendants have not demonstrated such allegations are irrelevant, false or improper but go to support their overall claims against the Defendants.

The court also denies Defendants’ motion to strike punitive damages. Punitive Damages are recoverable where the defendant has been guilty of oppression, fraud, or malice, express or implied. (Civ. Code §3294.) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation our outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Plaintiff has sufficiently alleged fraudulent conduct above the mere tort for the purposes of a motion to strike.

As for Plaintiff’s “chain letter” pleading, while it should be avoided, the court finds the contentions and allegations are not clearly irrelevant, false, or improper, and the motion to strike is denied.

III. DEFENDANTS ROBERT M. RUSSAK AND/OR MARLENE RUSSAK, TRUSTEES OR SUCCESSOR TRUSTEE(S) OF THE RUSSAK FAMILY TRUST DATED FEBRUARY 8, 2001; AND STEVEN M. RUSSAK AND/OR ROBYN L. RUSSAK, TRUSTEES OF THE STEVEN RUSSAK FAMILY TRUST DATED DECEMBER 14, 2009’S DEMURRER WITH MOTION TO STRIKE

Request for Judicial Notice

Defendants Robert M. Russak and/or Marlene Russak, Trustees or Successor Trustee(s) of The Russak Family Trust Dated February 8, 2001; and Steven M. Russak and/or Robyn L. Russak, Trustees of The Steven Russak Family Trust Dated December 14, 2009 requests this court take judicial notice of several documents filed in the Official Records of the Recorder's Office of Los Angeles County, California (RJN, Exhs. 1-7).

The court grants Defendants’ request for judicial notice.

Slander of Title

Defendants Robert M. Russak and/or Marlene Russak, Trustees or Successor Trustee(s) of The Russak Family Trust Dated February 8, 2001; and Steven M. Russak and/or Robyn L. Russak, Trustees of The Steven Russak Family Trust Dated December 14, 2009’s (collectively “Russak Family Defendants”) demur to the fifth cause of action for slander of title on the grounds it is uncertain and Plaintiff has not alleged the necessary elements required to plead a claim for slander of title.

Russak Family Defendants argue the cause of action is uncertain because there are no specific and direct allegations which have been made against them and as such, the allegations “Defendants and each of them” is vague and uncertain. The Russak Family Defendants also argue Plaintiff has failed to state a claim as Plaintiff has not alleged Defendants knew the Russak DOT was false or that they acted recklessly. Moreover, one of the Russak Family Defendants, the 2009 Russak Trust, was not even one of the originating lenders. The court agrees.

In opposition, Plaintiff argues Union Home Loan, Inc., was the Broker and agent of the Russak Family Trust Defendants and such, the conduct of Union Home Loan is binding on the Russak Family Trust Defendants as the principal and agent relationship. However, this is not sufficiently alleged. Moreover, as noted above, Plaintiff has not sufficiently alleged a cause of action for slander of title. The court also notes based on the judicially noticeable facts, the 2009 Russak Trust is not part of the loan. As such, Plaintiff cannot allege a slander of title claim against them.

Accordingly, the demurrer to the slander of title claim is SUSTAINED WITH LEAVE TO AMEND as to Defendants Robert M. Russak and/or Marlene Russak, Trustees or Successor Trustee(s) of The Russak Family Trust Dated February 8, 2001. The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to Steven M. Russak and/or Robyn L. Russak, Trustees of The Steven Russak Family Trust Dated December 14, 2009.

Motion to Strike

The Russak Family Defendants move to strike Plaintiff’s allegations and prayer for punitive damages. The court grants the Russak Family Defendant’s motion to strike with leave to amend. As noted above, Plaintiff’s have not alleged sufficient facts against the Defendants.

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