17-CIV-02513 MICHAEL S. HENSLEY, et al. vs. DAX YEOPHANTONG CRAVEN, et al.

MICHAEL S. HENSLEY JEFFREY A. BERGER

CHICAGO TITLE INSURANCE COMPANY SCOTT D. LONG

CHICAGO TITLE INSURANCE COMPANY’S demurrer TO PLAINTIFFS’ COMPLAINT

TENTATIVE RULING:

The Demurrer of Defendant Chicago Title Insurance Company (“Defendant”) to the Complaint of Plaintiffs Michael S. Hensley, individually and as Trustee of the Hensley Family Trust, and Buddy Hensley Properties, LLC (“Plaintiffs”) is ruled on as follows:

Defendant’s Demurrer to the Fifth Cause of Action for Negligence and Sixth Cause of Action for Breach of Fiduciary Duty is OVERRULED based on failure to state facts sufficient to support these claims and uncertainty. The issue of whether Defendant Dax Yeophantong Craven (“Craven”) was acting as Plaintiffs’ actual or ostensible agent at the time Craven instructed Defendant to deposit the $100,000 into Craven’s bank account is not clear from the face of the Complaint and, thus, is a factual issue that cannot be resolved on demurrer. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [a demurrer challenges defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable.].)

Defendant is to file and serve an answer to the Complaint by March 28, 2018.

Defendant’s Request for Judicial Notice is GRANTED. (See Evid. Code § 452(d).)