Case Number: BC517135    Hearing Date: July 25, 2014    Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Friday, July 25, 2014
Calendar No.: 5
Case Name: Flint v. Glen, et al.
Case No.: BC517135
Motion: Demurrer and Motion to Strike
Moving Party: Defendant Glen Curado
Responding Party: Plaintiffs Harold Flint and Darlene Flint
Notice: OK

Tentative Ruling: Demurrer is sustained without leave to amend to the extent the FAC is brought by Darlene Flint, and is otherwise overruled. Motion to strike is granted as to the claim for attorney fees without leave to amend and is otherwise denied. Defendant Glen Curado to answer within 10 days.

Background and Procedural History –
On 8/2/13, Plaintiff Harold A. Flint, in propria persona, filed this action against Defendants Curado Glen and Robert F. Smith. Plaintiff asserts causes of action for (1) motor vehicle, (2) negligence, and (3) fraud. On 9/30/13, Defendant Glen Curado filed a demurrer to the Complaint. On 12/27/13, this action was assigned to this Court.

On 3/19/14, the Court continued the hearing on Curado’s demurrer pursuant to Harold’s request to permit the appearance of recently-hired counsel: the Court ordered the substitution of attorney to be filed forthwith.

On 4/2/14, a substitution of attorney was filed naming Kathleen Moreno as counsel and a First Amended Complaint was filed. The FAC added Darlene Flint as a plaintiff (FAC ¶ 1) and asserts only a fraud COA. On 4/7/14, the Court took Curado’s demurrer to the Complaint off-calendar as moot, reserved a demurrer to the FAC for 5/29/14. On 5/29/14, the Court continued the hearing on Curado’s demurrer to the FAC, permitting a new opposition and reply to be filed. See M.O. dated 5/29/14. No new opposition has been filed.

Factual Allegations of the FAC –
On 12/22/10, Harold was arrested and contacted Curado requesting an attorney referral: Curado referred Smith to Harold. ¶ 3. On 12/29/10, Smith visited Harold while Harold was incarcerated, and Harold declined Smith’s legal services and refused to sign any documents. ¶ 4.

On 1/2/11, Smith appeared at Harold’s residence and stated to Darlene, Harold’s wife, that she might go to jail and that Harold is looking at a $200,000 fine and 10 years. ¶ 5. This caused Darlene to sign documents presented by Smith. ¶ 7. On 1/5/11, Curado appeared at the residence with a tow truck: Darlene witnessed Curado present documents of ownership, including a bill of sale, for Harold’s 1975 911-S Porsche, which resulted in the vehicle being towed from the residence. ¶ 9.

Harold did not execute any bill of sale or other document. ¶ 11. Darlene had no authority to transfer the vehicle and did not execute any document that encumbered or transferred the vehicle. ¶ 10. On 1/10/11, Harold was released from custody (¶ 12): upon returning to home, Harold discovered that Curado and Smith had conspired to use documents signed by Darlene to take the vehicle. ¶¶ 13-15.

Demurrer –
Preliminarily, the Court notes that no new opposition has been filed, and Curado has failed to file a reply. Additionally, the Court notes that Plaintiffs’ opposition asserted that the demurrer is untimely. However, the FAC was served by mail on 4/2/14, and pursuant to CCP §§ 430.40 and 1013(a), Curado’s demurrer filed on 5/7/14 is timely.

1. Sham Pleading
Curado argues that the FAC is a sham pleading because it includes factual allegations that are different from the Complaint. The Court disagrees. The Complaint alleged that Defendants used fraudulent and forged documents to obtain the vehicle. See, e.g., Complaint ¶ FR-4(a). However, the Complaint notably failed to allege any facts with particularity: the FAC does and is consistent with the allegations of the FAC.

Even if there were some inconsistency between the pleadings, the correct pleading rule is that defects in a complaint cannot be omitted absent explanation: it does not mean that all factual allegations in previous pleadings are binding admissions. See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 755 n.12; Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.

2. Darlene’s Claim
Curado argues that Darlene’s fraud claim is barred by the statute of limitations and Darlene lacks standing to assert it. Curado’s arguments have merit.

The FAC reveals that both Plaintiffs discovered the alleged fraud on 1/10/11. See FAC ¶¶ 12-15. However, Darlene was not added as a party until the FAC was filed on 4/2/14, outside the three-year statute of limitations for fraud claims (CCP § 338(d)). If Darlene seeks an independent right or greater liability against Defendants than that asserted by Harold, the FAC does not relate back to the filing of the Complaint to save Darlene’s claim from the statute of limitations bar. See, e.g., Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1279.

To the extent Darlene’s fraud claim is the same as Harold’s, the FAC alleges damages in the sum of $45,000 (FAC ¶ 16), which is the same as the value of the vehicle alleged to be solely owned by Harold (id. ¶¶ 9-10). Darlene fails to allege facts as to how she was damaged as a result of the alleged fraud concerning the vehicle.

Therefore, the demurrer is sustained as to the FAC to the extent asserted by Darlene.

3. Fraud Allegations
Curado argues that the fraud allegations are not alleged with specificity. See, e.g., Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184. The Court disagrees.

The FAC alleges that Curado presented documents of ownership, including a bill of sale, for the vehicle in causing the vehicle to be towed from Harold’s home. FAC ¶ 9. The FAC alleges that Harold did not execute any bill of sale or other document (id. ¶ 11) and that Darlene had not authority to do so either (id. ¶ 10). Harold is not required to specifically plead information as to Curado’s alleged conspiracy with Smith because that information was uniquely within their knowledge. See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.

4. Ruling
The demurrer is sustained to the extent the FAC is brought by Darlene and is otherwise overruled. Although this is the first challenge to the pleadings addressed by the Court, the Court is inclined to deny leave to amend because the facts are not in dispute and the nature of Darlene’s claims are clear. See Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.

Motion to Strike –
Curado moves to strike the claims for punitive damages and attorney fees. In light of the ruling on the demurrer, Harold’s fraud claim is sufficient to support punitive damages (see Civil Code § 3294(a), (c)(3)).

However, the FAC fails to allege any basis for the recovery of attorney fees based on statute or contract. See, e.g., Wiley v. Rhodes (1990) 223 Cal.App.3d 1470, 1474; Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385, 405. The opposition failed to address this issue. Therefore, the motion to strike is granted as to the claim for attorney fees without leave to amend, and is otherwise denied.