Judge: Yolanda Orozco, Case: 20STCV00961, Date: 2023-03-06 Tentative Ruling
Case Number: 20STCV00961 Hearing Date: March 6, 2023 Dept: 31
DEMURRER
WITHOUT MOTION TO STRIKE
Background
On January 08, 2020, Plaintiff Rosa Herrera filed a Complaint
against Defendants Jose Ontiveros, Jr.; MOR Financial Services, Inc.;
First American Title Company; Francisco Vielma; Commercial Funding, LLC and
Does 3-50 alleging causes of action for:
1) constructive
trust;
2) to
set aside fraudulent transfer of real property;
3) to
set aside fraudulent creation of first lien on real property;
4) to
set aside fraudulent creation of second lien on real property; and
5) quiet title.
On November 08, 2022, Defendant Jose Ontiveros, Jr. filed a demurrer and a motion to strike Plaintiff’s First Amended Complaint.
On December 07, 2022, this Court granted Defendant’s Motion to Strike the FAC without leave to amend.
Plaintiff filed opposing papers on February 23, 2023, to Defendant’s demurrer.
Defendant filed a reply on September 27, 2023.
MEET AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41, 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)
the meet and confer requirement has been met. (Vaqar Decl. ¶
3.)
Legal Standard¿¿
A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the
pleading that are judicially noticeable.¿ (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)¿ “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff’s proof need not be alleged.”¿ (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
872.)¿ For the purpose of testing the sufficiency of the cause of action, the
demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿ A demurrer
“does not admit contentions, deductions or conclusions of fact or law.”¿ (Daar
v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿
¿¿
“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿
Request for Judicial Notice
The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
Defendant requests judicial notice of the following:
Exhibit 1: Herrera’s Request for Dismissal, With Prejudice, of Cynthia Ontiveros in the First Action (Case No. BC 612422), dated January 28, 2020.
Exhibit 2: Herrera’s Request for Dismissal, With Prejudice, of Cynthia Ontiveros in the Instant Action (Case No. 20STCV00961), dated January 28, 2020.
Exhibit 3: Minute Order Entered November 19, 2020.
Exhibit 4: Tentative Statement of Decision entered & filed March 2, 2022 in the matter of Herrera v. Vielma, et al. Case No. BC612422.
Exhibit 5: Statement of Decision entered and filed July 27, 2022 in the matter of Herrera v. Vielma, et al. Case No. BC612422.
Exhibit 6: Jacob Mojarro’s declaration, dated April 23, 2020, in support of motion to exonerate undertaking which includes as Exhibit 4 a copy of Herrera’s settlement with Cynthia, 2020, dated January 27, 2020.
Defendant’s request for judicial notice is GRANTED.
Discussion
On
September 12, 2022, this Court granted Plaintiff’s request to file a First
Amended Complaint.
On December 07, 2022, this
Court granted Plaintiff’s Motion to Strike without leave to Amend and dismissed
the FAC. In dismissing the FAC, the Court found that the FAC Plaintiff’s
proposed FAC was different from the one Plaintiff ultimately filed and that
Plaintiff failed to timely file the FAC. (Min. Or. 12/07/22.) Plaintiff also
failed to file any opposing papers to the Motion to Strike. (Id.)
Defendant represented that at
the December 07, 2022 hearing, the Court stated the original Complaint would
become the operative complaint. The Court allowed Defendant Jose Ontiveros, Jr.
to file a supplemental brief explaining why the arguments raised in the
demurrer to the FAC are also applicable to the original Complaint.
However, this Court had already ruled on the demurrer to Plaintiff’s original Complaint on November,19, 2020. The Court OVERRULED the demurrer to the first cause of action for constructive trust and quiet title and sustained the demurrer to the second cause of action for fraudulent transfer. (Min Or. 11/19/20.)
Therefore, to apply the arguments to the demurrer to the FAC to the original Complaint would in effect be a renewed motion, in this case a renewed demurrer to Plaintiff’s Complaint rather than to the FAC. (See Code Civ. Proc., § 1008 subd. (b).) The renewed motion must be supported by a declaration indicating the previous order, which judge made the order, and what new or different facts, circumstances, or law are claimed to exist. (Code Civ. Proc. § 1008(b); Cal. Prac. Guide Civ. Pro. Before Trial, Posthearing Procedures, Ch. 9(I)-E.) These requirements are jurisdictional. (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200 [“section 1008 ‘is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.’”].)
Defendant’s request for
judicial notice included a copy of the Minute Order regarding the previous
demurrer to the original Complaint and Defendant’s supplemental brief explained
that the new fact is that there has been a judgment in the underlying action
that was favorable to Defendants. (RJN Ex. 3, 4.)
However, the Court is concerned
that Defendant’s supplemental declaration, filed on February 17, 2023 and
served on Plaintiff electronically, did not give Plaintiff sufficient notice
that the demurrer to the FAC was now a demurrer to Plaintiff’s original Complaint.
Plaintiff’s opposition was due February 21, 2023 but was not filed and served
until February 23, 2023. Plaintiff’s brief opposition also makes references to
Plaintiff’s FAC rather than the original Complaint.
“A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state ‘the grounds upon which it will be made.’ California Rules of Court, rule 311 requires a notice of motion to state in its opening paragraph ‘the nature of the order being sought and the grounds for issuance of the order.’ As a general rule, the trial court may consider only the grounds stated in the notice of motion.”
(Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)
Defendant’s notice to the demurrer
states that the demurrer is only against Plaintiff’s first cause of action for
fraudulent transfer of real property and seventh cause of action for quiet
title, as they appear on the FAC. Meanwhile, in reply, Defendant extends the
demurrer as to Plaintiff’s conversion claim against Defendant and explains why
the arguments for a demurrer to the FAC are applicable to the Complaint.
The Court is not persuaded that Defendant’s notice of Motion and supplemental declaration sufficiently provided Plaintiff with notice that the demurrer was to Plaintiff’s original Complaint rather than the now stricken FAC.
For the reasons stated, the Court declines to rule on Defendant’s demurrer.
Defendant may properly make a
renewed motion or seek summary judgment based on the judgment obtained in the
underlying action Rosa Herrera v. Francisco Vielm, et al. (LASAC
Case No. BC612422).
Conclusion
Due to lack of proper notice of motion on the opposing party, the Court declines to rule on Defendant’s demurrer.
Moving party to give notice.