Judge: Yolanda Orozco, Case: 22STCV15476, Date: 2022-12-08 Tentative Ruling
Case Number: 22STCV15476 Hearing Date: December 8, 2022 Dept: 31
DEMURRER TO PLAINTIFF’S COMPLAINT IS SUSTAINED; MOTION TO STIKE IS GRANTED
Background
On May 10, 2022, Plaintiff pro per Jesus Islas Sanchez filed an unverified Complaint against Fidel Romano and Does 1 to 5 for:
1) Quiet Title
2) Injunctive Relief: Temporary restraining order and preliminary injunction
3) Damages
On June 10, 2022, Defendant Fidel Romano filed a Cross-Complaint against Plaintiff for:
2) Accounting
3) Declaratory Relief
On June 10, 2022, Defendant filed a Demurrer with a Motion to Strike. No opposition has been filed.
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. (Vega Decl. ¶¶ 7, 8, Ex. 1.)
Legal Standard
A. Demurrer
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.)
B. Motion to Strike
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿
C. Leave to Amend
“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 t § 452(d)(2).) The Court may also take judicial notice of a recorded deed. (Ragland v. U.S. Bank National Assn.¿(2012) 209 Cal.App.4th 182, 194.) 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:
Exhibit 1: The Plaintiff JESUS ISLAS SANCHEZ'S ("PLAINTIFF") Unverified Complaint for Quiet Title to Real Property, Injunctive Relief, and General Damages.
Defendant’s request for Judicial Notice is GRANTED, pursuant to Evidence Code section 452(d)
Discussion
I. DEMURRER
Defendant demurrers on the basis that Plaintiff failed to file a verified Complaint and serve and file a lis pendens. (Code Civ. Proc., § 405.23.) Second, Defendant demurrers to Plaintiff’s Complaint on the basis that the Complaint fails to state sufficient facts and is uncertain, ambiguous, and unintelligible. (Code Civ. Proc., § 430.10 subd. (e) and (f).)
Cause of Action for Quiet Title
A verified complaint for quiet title must contain (1) a description of the property, (2) the title of the plaintiff as to which a determination is sought and its basis, (3) the adverse claims to the title of the plaintiff against which a determination is sought, (4) the date as to which determination is sought, and (5) a prayer for determination of title. (Code Civ. Proc., § 761.020.) This cause of action also requires tender of indebtedness. (Aguilar v. Bocci (1974) 39 Cal.App.3d 475.) To prevail in an action to quiet title, the plaintiff must prove title superior to that of the defendant. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 918.)
a. Failure to File a Verified Complaint and Lis Pendens
“Actions to quiet title are governed by section 761.010 et seq. The quiet title plaintiff must file a verified complaint including a description of the property, the basis for the plaintiff’s claim of title, the adverse claims the plaintiff seeks to adjudicate, the date as of which the plaintiff seeks to adjudicate those claims, and a prayer for the determination of the plaintiff’s title against the adverse claims.” Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 524.) Moreover, a lis pendens must be filed in an action for quiet title. (Code Civ. Proc., § 761.010, subd. (b); Carr v. Rosien (2015) 238 Cal.App.4th 845, 851; Deutsche Bank National Trust Co., supra, 13 Cal.App.5th at 524 [“Immediately upon commencement of the action” a quiet title plaintiff must record a lis pendens.”].)
Since Plaintiff has failed to file a verified complaint and a lis pendens, the demurrer is SUSTAINED WITH LEAVE TO AMEND. Plaintiff’s action is STAYED until such time as a lis pendens is filed, and thereafter a verified first amended complaint.
b. Failure to State Sufficient Facts
Plaintiff’s Complaint contains a description of the subject property. (Compl. ¶ 4) Plaintiff asserts he owns the subject property since it was refinanced in 2007 as a joint owner. (Compl. ¶ 5.) Plaintiff asserts he made a verbal agreement to share all costs incurred in connection with the property and alleges that he attached as Exhibit A a quick claim deed in which Defendant concedes joint ownership. (Compl. ¶ 5.) No quick claim deed is attached to the Complaint.
Plaintiff asserts that after Defendant was deported, Plaintiff needed to obtain a loan modification, and the bank required Defendant to submit a letter relinquishing his rights to the property “since he was neither a contributor, nor a person of legal status in this country[.]” (Compl. ¶ 6.) Plaintiff asserts that Defendant complied with the request and the mortgage was modified and Defendant was removed from the mortgage (Id.) Plaintiff asserts that attached as Exhibit B is a copy of the most recent mortgage bill. (Id.) The Court notes that no attachment B is attached to the Complaint.
Plaintiff requests that he be put on title as the primary owner and that Defendant be removed completely due to his failure to comply with the agreement to pay for expenses to maintain a vested interest in the property such as paying the mortgage and the water bill (Compl. ¶ 9.) Although Plaintiff has failed to attach any of the purported attachments referenced in this Complaint, Plaintiff has stated sufficient facts to show the adverse claims Plaintiff seeks to adjudicate, and a prayer for determination of plaintiff’s title against the adverse claims. Moreover, as to ambiguity about the date, “[t]he date is to be the date of filing the complaint or, if the plaintiff so chooses, an earlier date.” (Deutsche Bank National Trust Co. v. McGurk (2012) 206 Cal.App.4th 201, 213.)
The Court finds that Plaintiff has stated sufficient facts to support a cause of action for quiet title. Moreover, the allegations as to the quiet title action are not uncertain, ambiguous, or unintelligible.
Plaintiff’s Request for Injunctive Relief
Preliminary injunctive relief is an equitable remedy in nature. (Jamison v. Department of Transp. (2016) 4 Cal.App.5th 356, 361.) The purpose of preliminary injunctive relief is to preserve the status quo pending final resolution upon a trial. (Grothe v. Cortlandt Corp. (1992) 11 Cal.App.4th 1313, 1316.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. (See Code Civ. Proc. § 527, subd. (a).) For this reason, a pleading alone rarely suffices to obtain an injunction. (Weil & Brown, California Procedure Before Trial, (The Rutter Group 2007) ¶ 9:579.) The burden of proof is on the plaintiff as the moving party. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)
Plaintiff asserts he is entitled to injunctive relief because Defendant has threatened Plaintiff’s ability to keep the property by living rent-free, not paying utilities, and requiring Plaintiff to pay for all expenses. (Compl. ¶ 12.) Plaintiff also seeks to enjoin Defendant from selling the property. (Compl. ¶ 13.)
Plaintiff’s Complaint is unverified and fails to provide sufficient evidentiary facts to show that Plaintiff is entitled to injunctive relief. The Court notes that Defendant has filed a Notice of Pendency of Action/lis pendes, so Plaintiff has not shown that he will suffer an immediate and irreparable injury.
Therefore, the demurrer is SUSTAINED WITH LEAVE TO AMEND.
II.mOTION TO STRIKE
Defendant seeks to strike page 6, line 1, paragraph 5 of Plaintiff’s unverified complaint which states:
“For an award of attorneys' fees, costs, and expenses incurred by Plaintiff in bringing this lawsuit."
Defendant asserts that attorneys’ fees are impermissible and are only recoverable if authorized by contract or by statute. (Code Civ. Proc. 1033.5 subd. (a)(10)(A),(B), and (C).) Moreover, Plaintiff a pro per litigant and is not entitled to attorney’s fees. (See Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 629, Trope v. Katz (1995) 11 Cal.4th 274, 292.)
The Court agrees. Defendant’s Motion to Strike is GRANTED.
Conclusion
The Demurrer is SUSTAINED WITH LEAVE TO AMEND. Defendant’s Motion to Strike Plaintiff’s request for Attorney’s Fees is GRANTED. Plaintiff must file a verified First Amended Complaint within 60 days.
Defendant to give notice.