Sakai v Shibamoto | Legal News

DEMURRERS (3)

Calendar: 4
Case No: EC058944
Date: 2/28/14

MP: Defendants, Universal Escrow, Inc. (DOE 4) and Frank Takahashi (DOE 3)
Defendants, Shigeyuki Shibamoto and Tenrikyo Church
Defendant, Timothy Takata
RP: Plaintiff, Jun Sakai

ALLEGATIONS IN FIRST AMENDED COMPLAINT:
The Defendants made the false promise that the Plaintiff and his wife could reside at the house for the rest of their life without paying their mortgage, property tax, or property insurance payments in exchange for a transfer of title. The Defendants made the false statements to induce the Plaintiff into signing a grant deed in order to take the Plaintiff’s property. In addition, the Defendants failed to pay the mortgage, property insurance, and property taxes on the property.

CAUSES OF ACTION IN FIRST AMENDED COMPLAINT:
1) Quiet Title
2) Fraud
3) Accounting
4) Elder Abuse
5) Breach of Fiduciary Duty
6) Intentional Infliction of Emotion Distress

RELIEF REQUESTED:
1. Defendants, Universal Escrow, Inc. (DOE 4) and Frank Takahashi (DOE 3)
Demurrer to each cause of action in Complaint

2. Defendants, Shigeyuki Shibamoto and Tenrikyo Church
Demurrer to each cause of action in Complaint
Strike request for punitive damages

3. Defendant, Timothy Takata
Demurrer to each cause of action in Complaint

DISCUSSION:
This hearing concerns the Defendants’ attacks on the pleadings in the First Amended Complaint through demurrers and a motion strike.

An initial issue is that the first cause of action for quiet title and the sixth cause of action for intentional infliction of emotional distress were added to the First Amended Complaint without leave of Court. When a Court grants leave to amend after sustaining a demurrer, it is leave to amend only the cause of action to which the demurrer has been sustained. People ex rel. Department of Public Works v. Clausen (1967) 248 Cal. App. 2d 770, 785.
On November 22, 2013, the Court sustained the demurrer of Defendants, Universal Escrow and Frank Takahashi, to the causes of action in the original Complaint. The Court sustained the demurrers to the causes of action for fraud, negligent misrepresentation, breach of agreement, accounting, breach of fiduciary duty, and elder abuse with leave to amend. Accordingly, the Plaintiff had leave to file a First Amended Complaint that attempted to amend only these causes of action.
On December 11, 2013, the Plaintiff filed a First Amended Complaint. The Plaintiff added two new causes of action: the first cause of action for quiet title and the sixth cause of action for intentional infliction of emotional distress. Since the Plaintiff did not have leave of Court to add these two causes of action, they are contrary to the Court’s November 22, 2013 order.
Accordingly, the Court will sustain each Defendant’s demurrer to the first and sixth causes of action without leave to amend. If the Plaintiff seeks to add new causes of action, the Plaintiff must file a properly noticed motion for leave to amend the pleadings.

1. Defendants, Universal Escrow, Inc. and Frank Takahashi
The Defendant, Universal Escrow Inc., is a licensed escrow agent. The Defendant, Frank Takahashi, is the escrow manager of Universal Escrow Inc.

a. Demurrer to First Cause of Action for Quiet Title
As noted above, the cause of action for quiet title was added to the First Amended Complaint without leave of Court. Accordingly, the Court will sustain the demurrer to the first cause of action without leave to amend.

b. Demurrer to Second Cause of Action for Fraud and Misrepresentation
The Defendants argue that this cause of action fails to plead facts with particularity. However, a review of the caption for the second cause of action reveals that it is directed solely at “Defendant CASTRO”. Since the cause of action is not directed at Defendants, Universal Escrow, Inc. and Frank Takahashi, the demurrer is moot.

However, if the cause of action were directed at Universal Escrow, Inc. and Frank Takahashi, it does not plead sufficient facts. A cause of action for fraud must be pleaded with particularity. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Since fraud must be pleaded with particularity, the complaint must allege facts showing how, when, where, to whom, and by what means the representations were tendered. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. In addition, fraud pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.
A review of the allegations reveals no allegations particular to Universal Escrow, Inc. and Frank Takahashi. There are no allegations identifying a representation he made or how, when, where, or what means he tendered the representation. There are no allegations identifying the person who spoke on behalf of Universal Escrow. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrers to the second cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden of demonstrating that amendment can correct the defects in this cause of action.
Accordingly, the Court will not grant leave to amend.

c. Demurrer to Third Cause of Action for Accounting
The Defendants argue that this cause of action lacks sufficient facts to demonstrate that they owe any money to the Plaintiffs. In order to plead a claim for an accounting, the Plaintiff must allege that the Defendants caused losses and are liable to the Plaintiffs and that the true amounts of losses owed to the Plaintiffs cannot be ascertained without an accounting. Kritzer v. Lancaster (1950) 96 Cal. App. 2d 1, 6 to 7.
There are no allegations that Universal Escrow, Inc. or Frank Takahashi caused losses or are liable to the Plaintiff. The Plaintiff alleges in paragraph 57 that the “exact amount of money Defendants owe to Plaintiff is unknown”. However, there are no allegations that demonstrate that the Defendants caused losses or any basis for finding that the Defendants owe money to the Plaintiff. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the third cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

d. Demurrer to Fourth Cause of Action for Elder Abuse
The Defendants argue that this cause of action lacks the particular facts needed to plead a claim for financial elder abuse.
A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”). The Elder Abuse Act is enacted at Welfare and Institutions Code sections 15600 to 15675. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died. Id.
The Plaintiff is required to plead the cause of action with particularity because it is a statutory cause of action. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790 (holding that the general rule is that statutory causes of action must be pleaded with particularity).

The Plaintiff claims that the Defendants engaged in financial elder abuse of the Plaintiff. There are no allegations of fact that are particular to any Defendant, e.g., allegations identifying the particular conduct of each, separate Defendant that constituted the alleged financial elder abuse. Further, the pleadings lack any particular facts regarding the conduct of Universal Escrow, Inc. or Frank Takahashi to demonstrate that they are liable for financial elder abuse. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the fourth cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

e. Demurrer to Fifth Cause of Action for Breach of Fiduciary Duty
The Defendants argue that there are no allegations that allege that they have a fiduciary relationship or fiduciary duty to the Plaintiff.
An initial defect with the cause of action is that the caption does not specify against which Defendants it is directed. This violates CRC rule 2.112(4), which requires each separately stated cause of action to specify the party or parties to whom it is directed, e.g., “against defendant Smith”.

A cause of action for breach of fiduciary duty must include allegations that plead the following elements:

1) the existence of a fiduciary relationship;
2) its breach; and
3) damage proximately caused by that breach.
Roberts v. Lomanto (2003) 112 Cal. App. 4th 1553, 1562.

There are no allegations that Universal Escrow, Inc. or Frank Takahashi were in a fiduciary relationship with the Plaintiff or that they breached identified fiduciary duties to the Plaintiff. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the fifth cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

f. Demurrer to Sixth Cause of Action for Intentional Infliction of Emotional Distress
As noted above, the cause of action for intentional infliction of emotional distress was added to the First Amended Complaint without leave of Court. Accordingly, the Court will sustain the demurrer to the sixth cause of action without leave to amend.

2. Defendants, Shigeyuki Shibamoto and Tenrikyo Church
Defendants, Shigeyuki Shibamoto and Tenrikyo Church, obtained title to the real property at issue. These Defendants have made a demurrer to each cause of action. In addition, they seek to strike the request for punitive damages.

b. Demurrer to Second Cause of Action for Fraud and Misrepresentation
The Defendants argue that this cause of action fails to plead facts with particularity. However, a review of the caption for the second cause of action reveals that it is directed solely at “Defendant CASTRO”. Since the cause of action is not directed at these Defendants, Shigeyuki Shibamoto and Tenrikyo Church, the demurrer is moot.

However, if the cause of action were directed at Shigeyuki Shibamoto and Tenrikyo Church, it does not plead sufficient facts. A cause of action for fraud must be pleaded with particularity. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Since fraud must be pleaded with particularity, the complaint must allege facts showing how, when, where, to whom, and by what means the representations were tendered. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. In addition, fraud pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.
A review of the allegations reveals no allegations particular to Shigeyuki Shibamoto and Tenrikyo Church. There are no allegations identifying a representation he made or how, when, where, or what means he tendered the representation. There are no allegations identifying the person who spoke on behalf of Tenrikyo Church. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrers to the second cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

c. Demurrer to Third Cause of Action for Accounting
The Defendants argue that this cause of action lacks sufficient facts to demonstrate that they owe any money to the Plaintiffs. In order to plead a claim for an accounting, the Plaintiff must allege that the Defendants caused losses and are liable to the Plaintiffs and that the true amounts of losses owed to the Plaintiffs cannot be ascertained without an accounting. Kritzer v. Lancaster (1950) 96 Cal. App. 2d 1, 6 to 7.
There are no allegations that Shigeyuki Shibamoto and Tenrikyo Church caused losses or are liable to the Plaintiff. The Plaintiff alleges in paragraph 57 that the “exact amount of money Defendants owe to Plaintiff is unknown”. However, there are no allegations that demonstrate that the Defendants caused losses or any basis for finding that the Defendants owe money to the Plaintiff. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the third cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

The Plaintiff claims that the Defendants engaged in financial elder abuse of the Plaintiff. There are no allegations of fact that are particular to any Defendant, e.g., allegations identifying the particular conduct of each, separate Defendant that constituted the alleged financial elder abuse. Further, the pleadings lack any particular facts regarding the conduct of Shigeyuki Shibamoto and Tenrikyo Church to demonstrate that they are liable for financial elder abuse. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the fourth cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

A cause of action for breach of fiduciary duty must include allegations that plead the following elements:

1) the existence of a fiduciary relationship;
2) its breach; and
3) damage proximately caused by that breach.
Roberts v. Lomanto (2003) 112 Cal. App. 4th 1553, 1562.

There are no allegations that Shigeyuki Shibamoto and Tenrikyo Church were in a fiduciary relationship with the Plaintiff or that they breached identified fiduciary duties to the Plaintiff. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the fifth cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

g. Motion to Strike
In light of the sustaining of the demurrers to each cause of action directed at Defendants, Shigeyuki Shibamoto and Tenrikyo Church, there are no causes of action remaining in the First Amended Complaint directed at them. Accordingly, their motion to strike is moot and the Court will take it off calendar.

3. Defendant, Timothy Takata
Timothy Takata was the attorney for Defendants, Shigeyuki Shibamoto and Tenrikyo Church.

However, if the cause of action were directed at Timothy Takata, it does not plead sufficient facts. A cause of action for fraud must be pleaded with particularity. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Since fraud must be pleaded with particularity, the complaint must allege facts showing how, when, where, to whom, and by what means the representations were tendered. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. In addition, fraud pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.
A review of the allegations reveals no allegations particular to Timothy Takata. There are no allegations identifying a representation he made or how, when, where, or what means he tendered the representation. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrers to the second cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

c. Demurrer to Third Cause of Action for Accounting
The Defendant argues that this cause of action lacks sufficient facts to demonstrate that he owe any money to the Plaintiffs. In order to plead a claim for an accounting, the Plaintiff must allege that the Defendant caused losses and is liable to the Plaintiff and that the true amounts of losses owed to the Plaintiff cannot be ascertained without an accounting. Kritzer v. Lancaster (1950) 96 Cal. App. 2d 1, 6 to 7.
There are no allegations that Timothy Takata caused losses or are liable to the Plaintiff. The Plaintiff alleges in paragraph 57 that the “exact amount of money Defendants owe to Plaintiff is unknown”. However, there are no allegations that demonstrate that the Defendants caused losses or any basis for finding that the Defendants owe money to the Plaintiff. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the third cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

d. Demurrer to Fourth Cause of Action for Elder Abuse
The Defendant argues that this cause of action lacks the particular facts needed to plead a claim for financial elder abuse.
A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act (“Elder Abuse Act”). The Elder Abuse Act is enacted at Welfare and Institutions Code sections 15600 to 15675. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died. Id.
The Plaintiff is required to plead the cause of action with particularity because it is a statutory cause of action. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790 (holding that the general rule is that statutory causes of action must be pleaded with particularity).

The Plaintiff claims that the Defendants engaged in financial elder abuse of the Plaintiff. There are no allegations of fact that are particular to any Defendant, e.g., allegations identifying the particular conduct of each, separate Defendant that constituted the alleged financial elder abuse. Further, the pleadings lack any particular facts regarding the conduct of Timothy Takata to demonstrate that he is liable for financial elder abuse. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the fourth cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

e. Demurrer to Fifth Cause of Action for Breach of Fiduciary Duty
The Defendant argues that there are no allegations that allege that he had a fiduciary relationship or fiduciary duty to the Plaintiff.
An initial defect with the cause of action is that the caption does not specify against which Defendants it is directed. This violates CRC rule 2.112(4), which requires each separately stated cause of action to specify the party or parties to whom it is directed, e.g., “against defendant Smith”.

A cause of action for breach of fiduciary duty must include allegations that plead the following elements:

1) the existence of a fiduciary relationship;
2) its breach; and
3) damage proximately caused by that breach.
Roberts v. Lomanto (2003) 112 Cal. App. 4th 1553, 1562.

There are no allegations that Timothy Takata was in a fiduciary relationship with the Plaintiff or that he breached identified fiduciary duties to the Plaintiff. This is insufficient to plead the cause of action.
Therefore, the Court will sustain the demurrer to the fifth cause of action. The Court identified this defect when it sustained the demurrer on November 22, 2013.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet his burden.
Accordingly, the Court will not grant leave to amend.

RULING:
1. Defendants, Universal Escrow, Inc. (DOE 4) and Frank Takahashi (DOE 3)
SUSTAIN demurrers to first, second third, fourth, fifth, and sixth causes of action without leave to amend.

2. Defendants, Shigeyuki Shibamoto and Tenrikyo Church
SUSTAIN demurrers to first, second, third, fourth, fifth, and sixth causes of action without leave to amend.
TAKE OFF CALENDAR motion to strike

3. Defendant, Timothy Takata
SUSTAIN demurrers to first, second, third, fourth, fifth, and sixth causes of action without leave to amend.