Filed 7/14/20 Levy v. Silverman Realty Corp. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ESTHER LEVY,

Plaintiff and Appellant,

v.

SILVERMAN REALTY CORP.,

Defendant and Respondent.

B296238

(Los Angeles County

Super. Ct. No. LC107052)

APPEAL from a judgment of the Superior Court of Los Angeles County. Frank J. Johnson, Judge. Affirmed.

Esther Levy, in pro. per., for Plaintiff and Appellant.

Green & Marker and Richard A. Marker for Defendant and Respondent.

____________________

Plaintiff and appellant Esther Levy appeals from a judgment of dismissal entered after the trial court sustained without leave to amend defendant and respondent Silverman Realty Corp.’s demurrer to plaintiff’s first amended complaint (FAC).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Complaint; Defendant’s Demurrer

On March 28, 2018, plaintiff initiated this lawsuit against defendant, alleging claims for fraud and emotional distress, and seeking to quiet title. Contemporaneously, she filed an action against her brother, Avraham Levy (Avi), alleging the same claims.

Defendant demurred to the complaint. According to the demurrer, “Both the instant action and the [action by plaintiff against Avi] apparently have been initiated as a result of a purported claim by Plaintiff against her brother Avi regarding her alleged interests in” certain real property now owned by defendant. Plaintiff did not file a written opposition to the demurrer.

On July 11, 2018, the trial court entertained oral argument and then sustained defendant’s demurrer with leave to amend.

The FAC

On or about July 31, 2018, plaintiff filed her verified FAC against defendant, alleging claims for quiet title, fraud, and intentional infliction of emotional distress. According to the FAC, in 1992, plaintiff’s parents provided Avi with the down payment for the purchase of the subject property. At around that time, plaintiff and her parents entered into an oral argument with Avi concerning the property. Specifically, plaintiff and her parents could reside at the property for life; plaintiff would work for Avi’s clothing business “at reduced compensation and in consideration for” Avi transferring title to the property to plaintiff. In fact, beginning in 1992 until around August 2017, plaintiff worked for Avi at a reduced salary in consideration for residing at the property “for as long as she lived and receiving title to it from” Avi.

Instead of transferring title to her, in 2014, Avi approached defendant for a loan. Defendant allegedly made a usurious loan to Avi. Prior to making this loan, defendant “was fully aware that [plaintiff] resided at [the property] and was to receive the title to the Property from” Avi. Plaintiff informed defendant that she had a claim of title to the property and that she had an agreement concerning title to the property with her brother.

When Avi failed to make timely payments on the loan, defendant took title to the property and evicted plaintiff from the premises.

Defendant’s Demurrer to the FAC

Defendant again demurred, arguing that the claims had “absolutely no nexus” to it and should therefore be dismissed. Regarding plaintiff’s claim to quiet title, defendant argued that plaintiff failed to allege that she had a “perfected ownership interest in and to the Property.” Defendant also argued that plaintiff’s fraud and intentional infliction of emotional distress claims lacked specificity and were uncertain. Finally, defendant asserted that all of plaintiff’s claims were barred by the statute of frauds because her alleged agreement with Avi to transfer title to the property to her was oral.

Again plaintiff neglected to file a written opposition to the demurrer.

After entertaining oral argument, the trial court sustained defendant’s demurrer without leave to amend. A judgment of dismissal was entered.

Motion for Reconsideration

On or about December 5, 2018, plaintiff filed a motion for reconsideration of the trial court’s order sustaining defendant’s demurrer. As is relevant to the issues raised in this appeal, plaintiff argued that she could plead facts showing that her agreement with Avi concerning the transfer of title to the property had been reduced to writing. Defendant opposed the motion.

The trial court denied plaintiff’s motion on the grounds that it failed to set forth new facts or circumstances.

Appeal

Plaintiff’s timely appeal ensued.

DISCUSSION

I. Standard of review

“Our Supreme Court has set forth the standard of review for ruling on a demurrer dismissal as follows: ‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ [Citations.]” (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043–1044.)

II. Analysis

The trial court properly sustained defendant’s demurrer without leave to amend. Her FAC alleges three causes of action; we address each in turn.

A. Quiet title

Code of Civil Procedure section 761.020 sets forth the elements of a claim to quiet title. Specifically, the complaint must be verified and include the following information: (1) “A description of the property that is the subject of the action”; (2) “The title of the plaintiff as to which a determination . . . is sought and the basis of the title”; (3) “The adverse claims to the title of the plaintiff against which a determination is sought”; (4) “The date as of which the determination is sought”; and (5) “A prayer for the determination of the title of the plaintiff against the adverse claims.” (Code Civ. Proc., § 761.020, subds. (a)-(e).)

The inherent problem with plaintiff’s claim to quiet title is that she does not, and cannot allege, that she ever had title to the property. (Code Civ. Proc., § 761.020, subd. (b).) The FAC specifically alleges that she never had title to the property; rather, at all relevant times, Avi maintained title to the property. Even in her reply brief, plaintiff admits that title to the property never transferred to her: “The oral agreement alleged in the FAC was not the transfer of title itself, but was a promise by [Avi] to transfer title to the Property. In other words, the agreement was not that title was transferred, but that title would be transferred to [plaintiff].” While she may have some sort of claim against Avi, she has not alleged a proper claim to quiet title against defendant.

It follows that the trial court properly denied plaintiff leave to amend. There is no evidence or argument that plaintiff will ever be able to allege that she had a claim to title of the property.

B. Fraud

“The elements of fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage. [Citation.] Fraud causes of actions must be pled with specificity in order to give notice to the defendant and to furnish him or her with definite charges. [Citation.] In drafting the complaint, “‘(a) [g]eneral pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.” [Citations.]’ [Citation.]” (Gil v. Bank of America, N.A. (2006) 138 Cal.App.4th 1371, 1381.)

“The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Here, the FAC fails to meet these pleading requirements. It does not allege any of the elements of fraud, let alone with any specificity. While the FAC alleges that defendant knew about an agreement plaintiff purportedly had with Avi concerning her right to the property, it does not allege fraud against defendant. What false representation did defendant make to plaintiff? Who made the alleged misrepresentation to her? When was it made? Was it oral or in writing? Because these questions are unanswered by the FAC, the trial court rightly sustained the demurrer.

Leave to amend was properly denied as well. There is no indication in plaintiff’s appellate briefs that she can amend her FAC to include these requisite pleading details. (Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 458 [“‘Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]’ [Citation.]”.)

C. Intentional infliction of emotional distress

“The elements of a cause of action for intentional infliction of emotional distress are (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) “‘Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”’ [Citation.]” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)

Here, plaintiff has not alleged outrageous conduct by defendant. According to the FAC, defendant is liable for intentional infliction of emotional distress because it provided a loan to Avi when it knew that plaintiff had an interest in the property and then evicted plaintiff after Avi failed to make the requisite loan payments. Those allegations do not amount to an actionable claim. As set forth above, plaintiff has not alleged how she has a viable claim to the subject property. She also does not explain why defendant was not allowed to make a loan to Avi, the allegedly rightful owner of the property at the time the loan was made, and/or why defendant was not allowed to take title to the property when Avi failed to make the loan payments. It follows that plaintiff has not set forth a claim for intentional infliction of emotional distress against defendant.

For the same reasons, leave to amend was properly denied. Based upon these allegations, and the arguments raised on appeal, there is no indication that plaintiff can amend her pleading to allege a proper claim for intentional infliction of emotional distress against defendant.

DISPOSITION

The judgment is affirmed. Defendant is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

ASHMANN-GERST

We concur:

_____________________, J.

CHAVEZ

_____________________, J.

HOFFSTADT