Case Number: EC066975 Hearing Date: July 27, 2018 Dept: B

# 22

lisa hastings,

Plaintiff,

vs.

abraham kevorkian, et al.,

Defendants.

Case No.: EC066975

Previously consolidated with: EC064909

Hearing Date: July 27, 2018

[TENTATIVE] order RE:

Demurrer; motion to strike

Background

This action involves the property located at 721 Colman Street, Altadena, California 91001 (“Hastings Property”) owned by Plaintiff Lisa Hastings (“Plaintiff”), and property located at 728 Colman Street, Altadena, CA 91101 (“Kevorkian Property”) owned by Defendants Abraham Kevorkian (“Kevorkian”) and Nancy Odesho (“Odesho”). Plaintiff alleges that the Kevorkian Property has always benefited, as the dominant tenement, over the Hastings Property with a 30-foot wide recorded easement. Plaintiff filed this lawsuit against Defendants to enjoin them from using the easement for anything other than ingress and egress, in view of their history of parking vehicles in the easement area. Plaintiff also alleges that the Hastings Property receives a benefit of a Road and Utility Easement for the northern side of the Kevorkian Property. However, Plaintiff alleges that Kevorkian and Odesho persuaded Fidelity National Title Insurance Company (“Fidelity”) to improperly record a grant deed, unilaterally granting them the benefits of the Road and Utility Easement.

The second amended complaint, filed May 14, 2018, alleges causes of action for: (1) quiet title; (2) slander of title; (3) permanent injunction to compel removal of encroachment; (4) ejectment; and (5) cancellation of written instrument.

Defendants Kevorkian and Odesho demur to the SAC and move to strike portions of the FAC. Plaintiff opposes

procedural issues

A. Issue regarding moving party and the unauthorized practice of law

Kevorkian is demurring to the SAC and moving to strike portions of the FAC on behalf of himself and Odesho. However, this is improper. Odesho is represented by counsel, Gary P. Kast, Esq. As Kevorkian is not an attorney, it is improper for him to undertake the unauthorized practice of law by filing motions on behalf of Odesho.

Thus, only Kevorkian will be considered the moving party for the purposes of this demurrer and motion to strike.

B. Timeliness of the Opposition

In the reply brief, Kevorkian argues that the opposition was untimely served. The opposition was filed with the Court on July 16, 2018, which is proper. The proof of service accompanying the opposition brief shows that Kevorkian was served by mail and by overnight delivery/Federal Express.

Here, the Court will consider the merits of the opposition brief as they are responsive to Kevorkian’s demurrer and motion to strike, and Kevorkian did have time to respond by filing a reply brief.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal. App. 4th at 747.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP §436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP §436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (CCP §436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP §437.)

Meet and Confer Requirement

CCP §430.41(a) requires that the demurring party meet and confer in person or by telephone with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (CCP §430.41; see also CCP §435 [re motion to strike meet and confer requirements].) The demurring party must file and serve a declaration detailing their meet and confer efforts.

Kevorkian has not accompanied his demurrer or motion to strike with a declaration stating his meet and confer efforts with Plaintiff. In the opposition, Plaintiff’s counsel, Guy E. Jamison, states that Kevorkian did not meet and confer personal or by telephone, but simply sent a letter date June 6, 2018 stating that the SAC fails to assert sufficient facts to constitute causes of action against him. (Jamison Decl., ¶¶1-2, Ex. 1.)

Kevorkian has not complied with the code since he has not filed a meet and confer declaration, and he did not meet and confer in person or by telephone. Nevertheless, as Plaintiff has substantively addressed the demurrer and motion to strike, the Court will consider the merits of the demurrer and the motion to strike.

Kevorkian is cautioned for future motions not to neglect this requirement.

EVIDENCE

Kevorkian requests judicial notice of numerous documents, to which Plaintiff objects. The Court takes judicial notice of Exhibits A-Q, which include documents regarding the properties. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-67, disapproved on other grounds.) The Court notes that taking judicial notice of these documents does not affect the ruling on the demurrer and motion to strike.

The Court declines to take judicial notice of Kevorkian’s Exhibits 1-6, which include private emails and letters that are not subject to judicial notice. The Court also declines to take judicial notice of the documents Kevorkian submitted in the reply brief (exhibits 1-5), as these documents too are not subject to judicial notice.

Plaintiff requests judicial notice of court records filed in Hastings v. Kevorkian (Case No. EC066975). The request is granted pursuant to Evidence Code, §452(d).

Plaintiff’s objections to the declaration of Kevorkian are sustained.

DEMURRER DISCUSSION

Kevorkian demurs to each cause of action in the SAC on the grounds that they fail to allege sufficient facts to constitute a cause of action against him and are uncertain.

1. Quiet Title (1st cause of action)

CCP §761.020 states that a quiet title complaint shall be verified and include the following: “(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. [¶] (c) The adverse claims to the title of the plaintiff against which a determination is sought. [¶] (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. [¶] (e) A prayer for the determination of the title of the plaintiff against the adverse claims.” (CCP §761.020.)

The SAC includes allegations regarding the description of the property (SAC, ¶¶1-2, 10), the history of the title of the Hastings Property (id., ¶¶8-22), the adverse claims to title (id., ¶24), and the date as of which Plaintiff seeks to quiet title (id., ¶29).

Furthermore, in the first cause of action, Plaintiff alleges that Defendants claim interest that is adverse to Plaintiff’s title in the Hastings Property, including a portion of the Hasting Property impacted by the Road and Utility Easement that was wrongfully recorded by Defendants on February 9, 2017, which does not benefit the Kevorkian Property. (SAC, ¶24.) Plaintiff alleges that Kevorkian and Odesho executed a grant deed purporting to grant themselves the Road and Utilities Easement. (Id.) Plaintiff also alleges that Kevorkian and Odesho are maintaining a wall and landscaping that runs east to west along the entire length of the Hasting Property, which encroaches on the Hastings Property by 3 feet in width and 36 feet long. (Id., ¶26.) Plaintiff alleges that Kevorkian and Odesho only have a 30-foot ingress-egress easement. (Id., ¶27.) Thus, Plaintiff seeks an order quieting title to the Hastings Property to remove the cloud on the title created by Defendants recording a purported grant deed to themselves of the Road and Utility Easement on February 9, 2017. (Id., ¶¶28-29.)

Kevorkian demurs to this cause of action, arguing that it is based on the false premise that he and Odesho are somehow responsible for Fidelity recording a grant deed in connection with their own property. However, the allegations of the first cause of action do not allege that Defendants caused Fidelity to record a grant deed, nor is the first cause of action alleged against Fidelity. Furthermore, the Court notes that in the demurrer’s memorandum of points and authorities, Kevorkian cites to and quotes SAC paragraphs, but the quoted language and paragraph numbers do not coincide.

Kevorkian also argues that the Plaintiff has not filed a notice of lis pendens pursuant to CCP §761.010, in order to bring a quiet title cause of action. Section 761.010 states that immediately upon commencement of a quiet title action, the plaintiff shall file a notice of pendency. However, there is no indication in the code that failure to file a notice of lis pendens effectively bars Plaintiff from pursuing her action against Defendants.

Rather, the Court finds that the allegations of the SAC and the first cause of action are sufficient to constitute a cause of action against Defendants. Plaintiff seeks to quiet title such that the Hastings Property is burdened by a 30-foot easement benefitting the Kevorkian Property; the Hastings Property and other parcels on the north side of Colman Street are benefitted by a 34-foot wide Road and Utilities Easement; and Defendants improperly granted a grant deed to themselves regarding the benefits of the Road and Utilities Easement beyond mere ingress and egress over the Hastings Property. Plaintiff also alleges a title dispute regarding Kevorkian/Odesho’s wall that encroaches on the Hastings Property.

Thus, the demurrer to the first cause of action is overruled.

2. Slander of Title (2nd cause of action)

The elements of a cause of action for slander of title are “(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Alpha and Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664.) The false statement must be maliciously made with the intent to defame. (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651.)

Kevorkian argues that this cause of action fails for the same reasons as the first cause of action, and because the SAC does not allege that Kevorkian/Odesho made any “publication” maliciously with the intent to “defame”. (Dem. at p.12.)

The Court finds that the allegations of the SAC are sufficient to allege a slander of title cause of action. In the second cause of action, Plaintiff alleges that Defendants slandered Plaintiff’s title to the Hastings Property when they intentionally and without justification recorded their grant deed, giving themselves an easement. (SAC, ¶31, Ex. J.) Plaintiff alleges that this self-granted easement is false and that Kevorkian and Odesho lacked any authority to grant themselves an interest in Plaintiff’s property, and the grant deed was recorded without privilege or justification. (Id., ¶31.) Plaintiff alleges the publication made by Kevorkian and Odesho was undertaken maliciously and with intent to defame Plaintiff’s property title because they had notice of the true limits of their rights with respect to the use of Colman Street. (Id., ¶32.) Plaintiff alleges that Kevorkian and Odesho were only entitled to a limited ingress and egress easement restricted to a 30-foot width, and that they had clear notice of their lack of right to park cars or trespass on the Hastings Property. (Id., ¶¶32-33.) Plaintiff alleges that Defendants recorded the grant deed even after they knew their easement claim was false, particularly since their prior title insurer, Old Republic Title Company, informed Kevorkian and Odesho that they only had a 30-foot easement. (Id., ¶34.) Plaintiff further alleges that this conduct was undertaken by Kevorkian and Odesho, jointly with Fidelity, because Fidelity prepared the grant deed and caused the recordation. (Id., ¶36.)

In the Court’s prior ruling on the demurrer to the FAC, the Court found that Plaintiff did not provide facts showing that Defendants acted maliciously with the intent to slander/disparage Plaintiff’s title to the Hastings Property. However, as summarized above, Plaintiff has cured this issue by alleging that Kevorkian and Odesho were on notice that they only possessed a limited 30-foot easement over the Hastings Property, which did not include the 34-foot wide easement. Plaintiff also points out that this is supported by the preliminary injunction entered in case no. EC064909, where Kevorkian and Odesho were enjoined from blocking or obstructing ingress/egress over any part of the Hastings Property. (Pl.’s RJN, Ex. 1.)

Kevorkian also argues that the recordation was done by Fidelity and not by him or Odesho; thus, he argues he cannot be liable for slander of title. However, this scenario was addressed in Seeley v. Seymour (1987) 190 Cal.App.3d 844. In Seeley, the plaintiff/property owner entered into a negotiation with defendant Seymour regarding the lease of the property. The plaintiff outlined several provision he required before entering into an agreement, but Seymour unilaterally prepared a document entitled “Memorandum of Agreement”, Seymour took the document to an escrow officer at Safeco Title Company (signed only by Seymour and without any knowledge of the plaintiff), Safeco agreed to record the document, and the recorder accepted and recorded it. After negotiations with Seymour broke down, the plaintiff discovered the existence of the recorded memorandum while negotiating with different potential buyers. The Court of Appeal held that the memorandum was the perfect example of publication of no real consequence, but one which Seymour could anticipate would chill the enthusiasm of a prospective purchase of the plaintiff’s property. The Court held the law does not require that published matter create a legal “cloud” on the plaintiff’s title to constitute disparagement, and stated that the tort of slander may be committed through oral statements without recordation. (Seeley, supra, 190 Cal.App.3d at 858.)

Thus, the mere fact that Kevorkian did not undertake the actual act of recording the grant deed does not absolve Kevorkian of liability for slander of title. According to the allegations of the SAC, Kevorkian caused the grant deed to be recorded through Fidelity. This is sufficient to allege publication.

Accordingly, the demurrer to the second cause of action is overruled.

3. Permanent Injunction (3rd cause of action)

A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate. (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 800.) Civil Code, §3422 allows the court to grant a permanent injunction to prevent the breach of an obligation existing in favor of the applicant: “1. Where pecuniary compensation would not afford adequate relief; [¶] 2. Where it would be extremely difficult to ascertain the amount of compensation [that] would afford adequate relief; [¶] 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, [¶] 4. Where the obligation arises from a trust.”

Kevorkian demurs to the third cause of action, arguing that the wall has been there for years and that it has not caused any damage to Plaintiff’s property. However, these arguments/facts by Kevorkian will not be considered in ruling on a demurrer, as the demurrer tests the sufficient of Plaintiff’s complaint and accepts the truth of the allegations.

A review of the third cause of action shows that Plaintiff has adequately pled facts for a permanent injunction cause of action. In the third cause of action, Plaintiff alleges that Defendants caused a certain structure, wall, sign post, and landscaping to be erected on the Hasting Property, but that these structures/landscaping encroach and trespass onto Plaintiff’s Hastings Property. (SAC, ¶40.) She alleges that the structure encroaches approximately 108 square feet onto the Hastings Property. (Id., ¶40.) She alleges that she has lost the use of this 108 square feet area and that she will continue to suffer damages. (Id., ¶42.) She alleges Kevorkian and Odesho have utilized the encroachment area to harass her and invade her privacy, such as by playing a spotlight and video camera on her property. (Id., ¶43.) Thus, Plaintiff argues that a permanent injunction should issue so that Defendants remove the wall and all landscaping or other improvements, restore the encroachment area, and discontinue exerting control of the area. (Id.)

Thus, Plaintiff has alleged that she has suffered damages not only by the loss of use of a portion of her property, but that Kevorkian and Odesho have also invaded her privacy by erecting spotlights and video cameras on her property.

As such, the demurrer to the third cause of action is overruled.

4. Ejectment (4th cause of action)

The elements of an ejectment cause of action include: (1) the plaintiff’s ownership in real property disclosing a right of possession; (2) the defendant’s possession and a withholding thereof from the plaintiff; and (3) damage to the plaintiff, if any, and value of rents and profits, if recovery of their value is sought. (Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 675; 5 Witkin on Cal. Proc. (Mar. 2018 Update) Ch. V at IX(G)(2), §635.)

Here, the 4th cause of action alleges the necessary elements of ejectment. Plaintiff alleges that Defendants are in possession of a portion of Plaintiff’s property consisting of approximately “3 wide foot by 36-foot strip”. (SAC, ¶46.) Plaintiff alleges that within the past year, she through counsel has demanded that Defendants remove themselves and any structures from the property. (Id., ¶47.) Plaintiff alleges that she has suffered damages thereto. (Id., ¶48.) These allegations are sufficient for an ejectment cause of action.

The demurrer to the 4th cause of action is overruled.

5. Cancellation of Written Instrument (5th cause of action)

“A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” (Civ. Code, §3412; U.S. Bank National Ass’n v. Naifeh (2016) 1 Cal.App.5th 767, 778.)

Kevorkian demurs to this cause of action on the same grounds as the first cause of action. At most, Kevorkian states the elements of this cause of action, but fails to state how this cause of action is otherwise subject to a demurrer.

In the fifth cause of action, Plaintiff alleges that Defendants caused to be recorded a grant deed (regarding the benefits of the Road and Utility Easement) to themselves on February 9, 2017. (SAC, ¶50.) Plaintiff alleges that the recordation was done with knowledge of the grantee’s lack of right to such an easement and was thus a wrongful attempt by Kevorkian and Odesho to expand their usage of the 30-foot ingress-egress easement. (Id.) Plaintiff alleges that the grant deed is harmful to the interests of the Hastings Property because it burdens the property with an easement right it never granted to the Kevorkian Property, it gives rise to confusion as to the degree and scope of the burden created by the purported grant of the easement, threatens the use of the Hastings Property, and impairs the marketability of title to the Hastings Property. (Id., ¶51.)

Here, the allegations are sufficient to allege a cancellation of written instrument cause of action. Further, Plaintiff has cured the issues raised by the Court in its ruling on the demurrer to the FAC, including attaching a copy of the grant deed at issue to the operative complaint, as well as alleging how Plaintiff has suffered injury as a result of Defendants’ actions.

The demurrer to the fifth cause of action is overruled.

MOTION TO STRIKE DISCUSSION

Kevorkian moves to strike portions of the SAC that allege facts in support of a request for punitive damages and injunctive relief.

A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Specific factual allegations are required to support a claim for punitive damages. (Id.)

Civil Code §3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud. Section 3294(c) defines the terms in the following manner:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

In the motion’s memorandum of points and authorities, Kevorkian provides a lengthy recitation of the law regarding punitive damages and argues that the SAC improperly seeks the recovery of punitive damages because the allegations lack specific facts regarding Kevorkian’s behavior. However, Kevorkian’s moving papers lack further argument or support for how the allegations are insufficient to plead a request for punitive damages.

Furthermore, in Seeley, supra, 190 Cal.App.3d at 866, the Court of Appeal held that Seymour’s conduct justified a punitive damages award, since punitive damages may be awarded in a slander of title action where fraud, oppression or malice is shown by the evidence. The Court held that “[t]here was ample evidence for the jury to infer that, in recording the memorandum, Seymour acted with ‘conscious disregard of the plaintiff’s rights.’” (Id.) Similarly here, the allegations of the SAC allege that Defendants recorded a grant deed, granting themselves an easement over the Hastings Property, when they had no authority or right to do so.

With regard to the injunctive relief allegations, Kevorkian fails to provide any arguments in the memorandum of points and authorities. As such, these allegations will not be stricken.

The motion to strike is denied in its entirety.

Conclusion and Order

Kevorkian’s demurrer to the first to fifth causes of action are overruled.

The motion to strike is denied in its entirety.

The Case Management Conference for this case (EC066975) shall remain on calendar. The Trial Setting Conference for case no. EC064909 will also remain on calendar this date.

Kevorkian is ordered to provide notice of this ruling.

Posted 7/24/18 at 2:23 p.m.