Case Name: Rhonda Merritt-Tinsley v. David Merritt
Case No.: 17CV311288

I. Background

This case brought by Rhonda Merritt-Tinsley (“Plaintiff”) against David Merritt (“Defendant”) arises from Defendant’s alleged forgery of Plaintiff’s signature on documents transferring Plaintiff’s real property to Defendant.

According to the allegations in the complaint, Plaintiff and her husband Henry Tinsley owned real property located at 1679 East San Fernando Street, San Jose, California, 95116 as joint tenants. When Mr. Tinsley died, Plaintiff became the sole owner of the property by virtue of being the sole surviving joint tenant. Plaintiff has never transferred the property to anyone or signed any documents to that effect.

Defendant forged Plaintiff’s signature on documents transferring the property from Plaintiff to Defendant. Defendant then represented himself as the owner of the property to various third parties. Acting as if he was the legitimate owner, Defendant evicted tenants, remodeled the property, and sold it.

The complaint alleges causes of action against Defendant for (1) fraud and deceit; (2) forgery; (3) and breach of fiduciary duty. Currently before the Court is Defendant’s motion to quash service of summons and demurrer to each cause of action.

II. Motion to Quash

Pursuant to Code of Civil Procedure section 418.10, a Defendant may, on or before the last day of his or her time to plead or within any further time the court may for good cause allow, serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction. (Code Civ. Proc., § 418.10, subd. (a).)

Defendant argues that personal jurisdiction is lacking because he was not personally served and the complaint fails to state any cause of action.

As a preliminary matter, Defendant’s argument there is a lack of personal jurisdiction based on failure to state a claim is improper. Personal jurisdiction relates to the ability of the Court to render a judgment effecting the rights of an individual, and is unrelated to the issue of whether the Defendant has stated any cause of action. (See Borsuk v. Appellate Division of the Superior Court (2015) 242 Cal.App.4th 607, 613–614.) While Defendant’s arguments regarding deficiencies in the complaint may form the basis of a demurrer, they do not address the issue of personal jurisdiction.

In any event, the motion is defective. For context, the complaint was filed on June 2, 2017. Plaintiff filed a proof of service reflecting that the summons and complaint were served on Defendant via first class mail on June 14, 2017. Defendant subsequently filed a demurrer on August 14, 2017. Four months later, on December 14, 2017, Defendant filed the instant motion to quash.

Defendant’s motion to quash is grossly untimely. A motion to quash service of process must be brought within the time for pleading, which is 30 days following service. (Code Civ. Proc., § 418.10, subd. (a); Code Civ. Proc., § 412.20, subd. (a)(3).) Thus, Defendant would have had 30 days following receiving the complaint and summons to file any pleading, or a motion to quash. Defendant’s motion was filed six months after the complaint was mailed to him. Defendant filed his motion to quash is untimely by several months.

More importantly, Defendant forfeited any defect in service by making a general appearance. “A general appearance by a party is equivalent to personal service of summons.” (Code Civ. Proc., § 410.50, subd. (a)); see Fireman’s Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1145.) Filing a demurrer is a general appearance. (Code Civ. Proc., § 1014.) Defendant filed a demurrer before bringing the motion to quash, which ordinarily resolves the issue of service. (See Fireman’s Fund Ins. Co. v. Sparks Const., Inc., supra, 114 Cal.App.4th at 1145.)

Code of Civil Procedure section 418.10, subdivision (e), creates a narrow exception. If a party files a demurrer or another motion simultaneously with a motion to quash service, the accompanying motion is not considered a general appearance. (Code Civ. Proc., § 418.10, subd. (e).) This exception applies only where the two motions are filed simultaneously, “[f]ailure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver.” (Code Civ. Proc., § 418.10, subd. (e)(3).) Where a defendant has already made a general appearance, he or she cannot negate it by a subsequent motion to quash. (Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246, 251–252.)

Here, although the motion to quash and demurrer are being heard together, they were not filed simultaneously. The demurrer was filed several months before the motion to quash. Defendant therefore waived any defect in service.

In conclusion, Defendant’s motion is untimely, and Defendant waived any defect in service by filing his demurrer. Accordingly, the motion to quash is DENIED.

III. Demurrer

Defendant demurs to each cause of action on the grounds of failure to state sufficient facts to constitute a cause of action and uncertainty.

As a preliminary matter, in the introduction section of the motion Defendant insists the allegations in the complaint are demonstrably false. He asks the Court to “take note” of a promissory note with Plaintiff’s signature “to substantiate” his assertion promissory note is genuine and the complaint is false. (Defendant’s P&A, p. 1:24.)

A demurrer is not the procedure for resolving factual disputes. (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) Courts must assume the allegations in the complaint are true when deciding a demurrer (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), and can consider only the complaint and matters that are judicially noticeable. (Code Civ. Proc., § 430.30, subd. (a); see Brown v. Deutsche Bank National Trust Company (2016) 247 Cal. App. 4th 275, 279.) Defendant does not discuss judicial notice, or properly request judicial notice of his exhibit. (See Cal. Rules of Court, rule 3.1113(l).) Even if Defendant did so request, the promissory note is not a proper subject of judicial notice under Evidence Code sections 452 and 453. (See Evid. Code, §§ 452, 453.) Thus, the Court cannot entertain Defendant’s argument about the truth of the complaint at this time.

A. First Cause of Action for Fraud

1. Failure to State Sufficient Facts

Defendant argues Plaintiff has not plead a misrepresentation, and as a result has not alleged any other element.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled with specificity, and “the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Id. at 645.)

Here, Plaintiff alleges misrepresentations to third parties, not to her. Plaintiff alleges “Defendant falsely and fraudulently represented to a 3rd party that he was the Trustee of Mr. Tinsley’s Trust and ultimately, Plaintiff’s Property.” (Complaint, ¶ 13.) Defendant represented to the tenants of the property that he was the rightful owner, and could evict them. (Complaint, ¶ 7.) Defendant also sold the property, and implicitly represented to the buyer that he had the right to dispose of the property. (Complaint, ¶ 8.)

The lack of a misrepresentation by Defendant directly to Plaintiff is not per se fatal to a fraud cause of action. (See Mega Life and Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1530.) A speaker may make a false statement to someone through a third party. (Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 94.) Yet, here there is no allegation that any misrepresentation was said to some intermediary with knowledge it would reach Plaintiff, or that Defendant intended Plaintiff to take action.

As Defendant argues, without a misrepresentation, the other elements of fraud are missing. For example, Plaintiff does not allege she took any specific action in reliance on any falsehood. “It is settled that a plaintiff, to state a cause of action for deceit based on a misrepresentation, must plead that he or she actually relied on the misrepresentation.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088.) Where a plaintiff did not hear the representation or take action in reliance upon it, but was only harmed later by someone else’s reliance, there is no fraud. (See Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal.App.4th 949, 960 [purchaser of engagement ring could maintain action against seller for fraud related to sale, but recipient of ring could not, because she did not rely on any misrepresentation].)

In sum, Plaintiff has alleged fraud, but not against her. Plaintiff was certainly damaged by Defendant’s forgery of her signature, through loss of her real property. Nevertheless, the Court is not aware of, and Plaintiff does not provide, any authority for the proposition that one who forged another’s signature may be sued for fraud by the person whose signature they forged.

Accordingly, the demurrer to the first cause of action for fraud based upon the ground of failure to plead sufficient facts is SUSTAINED, with 10 days leave to amend.

2. Uncertainty

Code of Civil Procedure section 430.10, subdivision (f) permits a party to demur if the complaint is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.)

Plaintiff alleges Defendant misrepresented he owned real property that actually belonged to Plaintiff. While Plaintiff has not alleged sufficient facts to support her fraud claim, this does not imply that her claim is uncertain. In contrast to a demurrer based upon a failure to state sufficient facts, a special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading. (People v. Lim (1941) 18 Cal.2d 872, 883.)

The complaint is sufficiently clear to advise Defendant of the fraud being alleged, and the contentions involved. (See Lickiss v. Financial Industry Reg. Authority, supra, 208 Cal.App.4th at 1135.) The fact Defendant was able to respond and identify deficiencies in the cause of action indicates the complaint was certain enough to survive a demurrer for uncertainty. (See Ibid.) Accordingly, the demurrer to the first cause of action for fraud based upon the ground of uncertainty is OVERRULED.

B. Second Cause of Action for Forgery

The sole argument Defendant offers in support of his demurrer on the grounds of failure to state a cause of action and uncertainty is that forgery is a criminal offense prosecutable only by the government, not a civil cause of action that can be brought by citizens.

Defendant is not entirely right that only District Attorneys or other government attorneys can enforce criminal statutes. (See Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 141.) A criminal statute can expressly or implicitly give rise to a private right of action allowing citizens to sue for its violation. (Ibid.) Whether a criminal statute creates a private right of action is a question of legislative intent. (Id. at 142.) If the legislature has stated there is no private right of action with regard to a particular criminal statute, or has not spoken on the issue, there is no private right with regard to that criminal statute. (Ibid.)

Penal Code section 470 creates the crime of forgery. (See Pen Code, § 470.) It contains no language whatsoever with regard to a private right of action. The Court is unaware of, and Plaintiff does not present, any authority showing a legislative intent creating a private right of action for forgery. Without authority supporting a legislative intent to create a private right of action for forgery, there is no such private right of action. (See Ibid.) Thus, the Court agrees with the Defendant, forgery is not a civil cause of action.

But the label assigned by a pleader is not determinative, and the Court must consider if a cause of action has been stated on any theory, irrespective of the label attached by the pleader. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1392.) Plaintiff’s allegations do not suggest what cause of action Plaintiff might intend to plead. The complaint references a false representation, but Plaintiff separately asserts a fraud cause of action. The second cause of action does not allege a fraud distinct from that discussed in the first cause of action. Neither the Complaint nor Plaintiff’s opposition suggests an alternative cause of action. Thus, it is unclear what cause of action Plaintiff is attempting to assert.

Where, as here, a complaint does not give the Defendant sufficient information to know the cause of action against them and reasonably respond, it is subject to a demurrer for uncertainty. (See Lickiss v. Financial Industry Reg. Authority, supra, 208 Cal.App.4th at 1135.) Therefore, the second cause of action both fails to state sufficient facts, and is uncertain. Accordingly, the demurrer to the second cause of action is SUSTAINED, with 10 days leave to amend.

C. Third Cause of Action for Breach of Fiduciary Duty

The sole argument Defendant offers in support of his demurrer to the third cause of action on the grounds of failure to state a cause of action and uncertainty is that Plaintiff has not plead the existence of a fiduciary duty.

1. Failure to State Sufficient Facts

An essential element of breach of fiduciary duty is the existence of a fiduciary duty. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.) Generally, “before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221.)

A fiduciary duty under common law may arise “when one person enters into a confidential relationship with another.” (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140.) The type of confidential relationship which leads to a fiduciary duty can be summarized as having several elements, “1) [t]he vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 272–273.) Vulnerability is essential and “usually arises from advanced age, youth, lack of education, weakness of mind, grief, sickness, or some other incapacity.” (Ibid.)

Alternatively, certain relationships are considered inherently fiduciary by the law. For example partners in a joint venture, or attorney-client relationships. (Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1339; Mark Tanner Constr., Inc. v. HUB Int’l Ins. Services, Inc. (2014) 224 CA4th 574, 585.)

An allegation of a fiduciary relationship without supporting facts is a mere legal conclusion. (See Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 13 [“A bare allegation that defendants assumed a fiduciary relationship or […] are conclusions”].) The Court may ignore legal conclusions when deciding a demurrer. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336.)

Plaintiff has not alleged any such voluntarily undertaking or relationship. Far from it, Plaintiff’s sole allegation regarding the existence of a fiduciary duty is “Defendant owed a fiduciary duty to Plaintiff.” (Complaint, ¶ 28.) Standing alone, the allegation that Defendant was in a fiduciary relationship with Plaintiff, without supporting facts, is a legal conclusion.

As a result, the demurrer to the third cause of action for breach of fiduciary duty on the ground of a failure to state sufficient facts is SUSTAINED, with 10 days leave to amend.

2. Uncertainty

Defendant makes the same argument in support of the ground of uncertainty at that he does for failure to allege sufficient facts.

While the allegations supporting the third cause of action are thread bare, a lack of facts is not a basis for a demurrer on the ground of uncertainty. (See People v. Lim, supra, 18 Cal.2d at 883.) In contrast to a demurrer based upon a failure to state sufficient facts, a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading. (See Ibid.) Rather, a demurrer for uncertainty is directed at the uncertainty existing in the allegations actually made. (Ibid.)

Although the allegations presented are factually deficient, they are not uncertain in that what little has been alleged is clearly stated. (See People v. Lim, supra, 18 Cal.2d at 883.) Accordingly, the demurrer to the third cause of action for breach of fiduciary duty on the ground of uncertainty is OVERRULED.