Case Number: BC707854 Hearing Date: February 05, 2019 Dept: 51

Background:

Plaintiff Arthur Edward Ezor (“Plaintiff”) owned real property (located at 2106 La Brea Avenue, Los Angeles, California, 90016) (“Property”) that was sold pursuant to a public auction. Plaintiff contends that the Property was sold for less than its fair market value, that the public auction was “rigged,” and that the purported judgment upon which the public auction sale was based was marked by extrinsic fraud and is void in law and fact. Plaintiff also alleges that Defendants County of Los Angeles Sheriff’s Department, County of Los Angeles, and Jim McDonnell had improper ex parte communications to hold the public auction and sell the Property “come hell or high water” despite Plaintiff’s objections to the auction. In addition, Plaintiff alleges that Defendant Norma Diller breached her fiduciary duties as a public notary by falsifying the Sheriff’s Deed of Sale.

On May 25, 2018, Plaintiff filed a Complaint and on August 14, 2018, a First Amended Complaint (“FAC”) against Defendants County of Los Angeles Sheriff’s Department; County of Los Angeles; Jim McDonnell; Ellie Page, Trustee of the Jill Ilana Wizel Special Needs Trust; Masoud Koshki, Shlomo Harari; Norma Diller; Lisa Majarro; and Doe Defendants. The FAC asserts the following causes of action:

Negligence

Declaratory relief to set aside trustee’s sale

Recission voiding or cancelling trustee’s deed upon sale

Wrongful foreclosure

Unjust enrichment

Violation of Cal. Bus. & Prof. Code §§ 17200 et seq. (erroneously numbered 5th cause of action)

Quiet title (erroneously numbered as 6th cause of action)

Conspiracy to commit fraudulent conveyance of real property (erroneously numbered as 7th cause of action)

Intentional interference with economic relations (erroneously numbered as 8th cause of action)

Intentional infliction of emotional distress (erroneously numbered as 9th cause of action)

Violation of civil rights (erroneously numbered as 10th cause of action)

(The Court notes that the causes of action are erroneously numbered in the FAC, starting with the fifth cause of action. For purposes of clarity, the Court will refer to the claims as Plaintiff has numbered them, with the notation of [sic] to indicate that the numbering is nonetheless incorrect.)

On November 7, 2018, Defendant Ellie Page, Trustee of the Jill Ilana Wizel Special Needs Trust (hereinafter “Defendant”) filed this Demurrer to the FAC. Defendant demurs to the first ten causes of action in the FAC.

On November 29, 2018, Plaintiff filed an Opposition in which he objected to proper service of the Demurrer.

On December 10, 2018, the Court continued the matter to December 20 because proper service was unclear.

On December 20, 2018, the Court continued the matter to February 5, 2019.

The Court now considered the moving papers, opposition, and reply, and rules as follows.

Request for Judicial Notice:

Defendant requests judicial notice of:

a court order authorizing the sale of real property (Ex. 1);

an amended court order authorizing the sale of real property (Ex. 2); and

a writ of execution (Ex. 3)

Defendant’s requests are GRANTED (Evid. Code § 452(d)), however the Court takes judicial notice only of the existence of the court orders but not of the truth of the findings therein. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Demurrer Standard:

A demurrer tests the sufficiency of the pleading at issue as a matter of law. City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719. A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP¿§¿430.10(e). The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 (“On demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”) However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.

Pursuant to CCP §430.10(f), uncertainty is a proper demurrer ground where the pleading is ambiguous and unintelligible. Demurrers for uncertainty will only be sustained where the complaint is so bad that the defendant cannot reasonably respond – i.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her. Khoury v. Maly’s Calif., Inc. (1993) 14 Cal.App.4th 612, 616. Generally, demurrers for uncertainty are overruled and counsel is expected to clear up any ambiguities through discovery or stipulations. Demurrers for uncertainty will almost certainly be overruled where they are: (1) directed to inconsequential matters; (2) the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable through discovery; (3) not dispositive of one or more causes of action.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.

Demurrer Analysis:

First Cause of Action: Negligence

The elements of negligence are 1) legal duty owed by defendant to plaintiff to use due care; 2) breach of that duty by defendant; 3) causation; and 4) damage to plaintiff. ¿(County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) ¿

Defendant argues that Plaintiff has not alleged sufficient facts to state that Defendant owed a duty of care to Plaintiff. The Court concurs. A review of the Complaint reveals that the only allegation as to Defendant’s duty is the following. “At all times herein mentioned Defendant Page had a duty to exercise reasonable care and skill to ensure that the escrow on the subject property was properly adhered to and respected.” (FAC ¶ 23.) This allegation is conclusory and is unsupported by any specific facts that serve as the basis for imposing a duty upon Defendant. As such, Plaintiff fails to state facts sufficient to constitute his cause of action for negligence.

In Opposition, though, Plaintiff requests leave to amend. (Opp., p. 5.)

Accordingly, Defendant’s Demurrer to Plaintiff’s First Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

Second, Third, Fifth, and Fifth [sic] Causes of Action

As to the Second, Third, Fifth, and Fifth [sic] Causes of Action in the FAC, Defendant’s argument is premised on a dispute as to the factual truth of Plaintiff’s allegations. Specifically, Defendant disputes Plaintiff’s claim that the sale was a Trustee Sale; Defendant instead claims that sale was a Sheriff Sale. Defendant then cites to the court orders in their Requests for Judicial Notice as evidence to support their claim.

However, at the demurrer stage, the ultimate facts alleged in the complaint are deemed as true. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) Moreover, while the Court takes judicial notice of the existence of the court orders, it does not take notice of the truth of the findings therein. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.) Accordingly, Defendant’s factual argument fails for purposes of its Demurrer to these causes of action.

Accordingly, Defendant’s Demurrer to the Second, Third, Fifth, and Fifth [sic] Causes of Action is OVERRULED.

Fourth Cause of Action: Wrongful foreclosure

The elements of wrongful foreclosure are “(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of secured indebtedness or was excused from tendering. (Rockridge v. Wells Fargo, N.A. 985 F.Supp.2d 1110, 1145.)

Defendant makes three arguments in support of its Demurrer to the fourth cause of action. (Demurrer, p. 6.) First, Defendant argues that the claim is insufficiently pled because Plaintiff does not properly allege fraud. However, Plaintiff’s claim for wrongful foreclosure is not only based on fraud, but also on the fact that Plaintiff was not contacted as required by Civil Code section 2923.5(a). (FAC ¶ 33.) Therefore, regardless of the sufficiency of Plaintiff’s fraud pleading, Plaintiff still states facts sufficient to constitute a cause of action for wrongful foreclosure. Accordingly, Defendant’s first argument is unavailing.

Second, Defendant argues that the wrongful foreclosure claim is insufficiently pled because Plaintiff does not allege his reliance upon not receiving notice. However, reliance is not one of the elements required for a wrongful foreclosure claim. (See Rockridge v. Wells Fargo, N.A., supra, at 1145.) Defendant does not provide any authority to the contrary. Accordingly, Defendant’s second argument is rejected.

Third, Defendant contests the factual assertions upon which the claim is based. Specifically, Defendant (again) claims that the sale was a Sheriff Sale. As discussed above, at the demurrer stage, the ultimate facts alleged in the FAC are deemed as true, and the Court does not judicially notice the truth of the exhibits purported to show otherwise. Accordingly, Defendant’s third argument is rejected.

As such, Defendant’s Demurrer to the Fourth Cause of Action is OVERRULED.

Sixth [sic] Cause of Action: Quiet Title

To state a cause of action for quiet title, Plaintiff must plead the following: (1) description of the property; (2) plaintiff’s title or interest and the basis; (3) defendant’s asserting adverse claim or antagonistic property interest; (4) date as of which the determination is sought; and (5) prayer for determination of title. (CCP §761.020.)

As to the quiet title claim, Defendant’s argument is based on their contention that Plaintiff has insufficiently pled fraud. (Demurrer, 6:12.) However, fraud is not an element of a quiet title claim. (See CCP §761.020.) Furthermore, Plaintiff’s allegations of adverse claims against the property are not based on fraud alone (as discussed above). Accordingly, Defendant’s argument is rejected.

As such, Defendant’s Demurrer to the Sixth [sic] Cause of Action is OVERRULED.

Seventh [sic] Cause of Action: Conspiracy to commit fraudulent conveyance of real property

As to the seventh [sic] cause of action, Defendant’s argument is based on disputing the factual assertions upon which the claim is based. Specifically, Defendant contests Plaintiff’s claim that the proceeds of the sale were never paid by the buyers or received by the Trustee. (Demurrer, 8:27-28.)

As discussed above, at the demurrer stage, the ultimate facts alleged in the FAC are deemed as true, and the Court does not judicially notice the truth of the exhibits purported to show otherwise. Accordingly, Defendant’s argument is rejected.

As such, Defendant’s Demurrer to the Seventh [sic] Cause of Action is OVERRULED.

Eighth [sic] Cause of Action: Intentional interference with economic relations

The elements for the tort of intentional interference with prospective economic advantage are: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.)

As to the eighth [sic] cause of action, Defendant argues that Plaintiff has not alleged facts showing Defendant’s intent or Plaintiff’s harm.

However, Plaintiff does allege Defendant’s intent, in that Defendant “intentionally and willfully interfered” with Plaintiff’s economic relations. (FAC ¶ 57.) Plaintiff incorporates the factual allegations in Paragraphs 1 through 55 to show the exact acts that Defendant allegedly performed with intent. (FAC ¶ 56.) In addition, Plaintiff does allege harm, including “general and special damages and loss of income.” (FAC ¶ 58.)

As such, Defendant’s argument is unavailing. Defendant’s Demurrer to the Eighth [sic] Cause of Action is OVERRULED.

Ninth [sic] Cause of Action: Intentional infliction of emotional distress

“‘[T]o state a cause of action for intentional infliction of emotional distress [“IIED”] a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.]” (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1108 [ruling sustaining demurrer on ground that conduct was not extreme and outrageous was affirmed].)

Here, Defendant argues that Plaintiff has not adequately pled outrageous conduct.

For conduct to be “outrageous,” it must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) There is no bright line standard for judging outrageous conduct, which is usually a question of fact. (Yun Hee So, supra, at p.p. 671-672.) However, the issue may be resolved as a matter of law on the alleged facts. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209–210.)

Upon review of the FAC, the only allegation as to the nature of Defendant’s conduct is that “Defendants knew that the purported trustee’s sale herein alleged was bogus, fraudulent, and invalid, and that Defendants Harari and Koshki never tendered the $412,000 sales monies for said alleged trustee’s sale of the La Brea Property. Such fraudulent, wrongful, and unlawful conduct constituted outrageous conduct that would not be condoned in normal society.” (FAC ¶ 60.)

The Court finds this allegation to be conclusory and insufficient to plead outrageous conduct. Even more problematically, the allegation does not even specify conduct on the part of the moving Defendant – Ellie Page, Trustee of the Jill Ilana Wizel Special Needs Trust. Therefore, the allegations are insufficient to state an essential element of Plaintiff’s IIED claim against Defendant. As such, the claim is demurrable.

Accordingly, Defendant’s Demurrer to Plaintiff’s Ninth [sic] Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

Conclusion:

Demurrer as to the First Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

Defendant’s Demurrer to the Second, Third, Fifth, and Fifth [sic] Causes of Action is OVERRULED.

Defendant’s Demurrer to the Fourth Cause of Action is OVERRULED.

Defendant’s Demurrer to the Sixth [sic] Cause of Action is OVERRULED.

Defendant’s Demurrer to the Seventh [sic] Cause of Action is OVERRULED

Defendant’s Demurrer to the Eighth [sic] Cause of Action is OVERRULED.

Defendant’s Demurrer as to Plaintiff’s Ninth [sic] Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

Defendant to give notice.