2017-00219847-CU-OR

Leslie Bakey vs. J. Pedro Zarate

Nature of Proceeding: Hearing on Demurrer

Filed By: Lapham, Mark W.

Defendants J. Pedro Zarate and Maria V. Camacho’s Demurrer to the Verified Complaint is ruled on as follows:

Plaintiff brought this action to ensure she has clear, lien free title to the real property. She seeks to quiet title, cancel the grant deed recorded by Defendants immediately before the trustee’s sale, and confirm her full ownership interest. Plaintiff has three remaining causes of action: quiet title, cancellation

of deed, and declaratory relief. Plaintiff dismissed the 1st cause of action for specific performance on October 1, 2018.

Plaintiff Leslie Bakey (“Plaintiff) seeks to clear title to real property she purchased on September 11, 2017 for $400,000 at a duly noticed and properly conducted trustee’s sale. (Complaint ¶ 15,17.) The trustee sale occurred because Defendants J. Pedro Zarate and Maria Camacho were in default on the loan they had with Defendant Countrywide. (Complaint ¶ 16) Defendants, J. Pedro Zarate and Maria V. Camacho claim an interest in this real property which is adverse to Plaintiff. (Complaint ¶ 21, 33.) Immediately before the trustee’s sale, defendants J. Pedro Zarate and Maria V. Camacho attempted to transfer the real property to Defendants Steve Roger and Robert Sedlar and recorded a grant deed. (Complaint ¶ 21, Exhibit “B” thereto.) As a result of Plaintiff being the successful purchaser at the trustee’s sale, the grant deed filed by Defendants should be expunged because plaintiff owns the property free and clear without encumbrance. (Complaint ¶ 20.) Plaintiff learned on September 27, 2017 that defendants Zarate and Camacho recorded a Grant Deed on September 7, 2017 which purported to convey the property to Sedlar and Rogers. Zarate, Camacho, Sedlar and Rogers had notice of the default and trustee’s sale and therefore the deed is subject to, and was eliminated by, the sale to plaintiff. (Complaint, ¶ 22) However, defendants continue to claim an interest in the real property and challenge the validity of the trustee’s sale. (Complaint ¶ 21, 33.)

Defendants have filed both a general and special demurrer to each cause of action.

A demurrer is a motion on “the pleading alone.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal.App.4th 445,459.) “In determining the merits of a demurrer, all material facts pleaded in the complaint and those that arise by reasonable implication…are deemed admitted by the demurring party.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513,517.) A demurrer does not test either “the truth or accuracy of its factual allegations nor the plaintiffs ability to prove those allegations.” (Progressive West Ins. Co. v. Yolo County Superior Court (2005) 135 Cal.App.4th 263, 269.) A court shall not sustain a demurrer “when the plaintiff has stated a cause, of action under any possible legal

theory.” (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.)

In reviewing the complaint, the Court is to liberally construe all allegations made in order to ensure that substantial justice is achieved between the parties. (Code Civ. Proc. § 452.) “[A] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint.. .are taken.” (Code Civ. Proc. § 430.60.) If a demurer fails to adequately specify the grounds on which objections to the complaint are made, “it may be disregarded.” (Id.)

1st cause of action Specific Performance:

The demurrer to this cause of action is dropped as moot. Plaintiff has dismissed this cause of action.

2nd cause of action Quiet Title

The demurrer is overruled.
To successfully allege a claim for quiet title, the following elements must be pled: (1) a description of the property that is the subject of the action, including both the legal description and the street address or common designation; (2) the title of the plaintiff as to which a determination is sought and the basis of the title; (3) the adverse claims to the title of the plaintiff against which a determination is sought; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. (Code Civ. Proc. § 761.020.) Plaintiff properly pled all of these elements, including facts to support why she seeks to quiet title as of September 11, 2017, the date of the trustee sale.

3rd cause of action Cancellation of Deed

The demurrer is overruled.

Plaintiff seeks to cancel the deed recorded on September 7, 2018 by defendants Zarate and Camacho purporting to transfer the property to Sedlar and Rogers.

Cancellation of deeds may be ordered when “[a] written instrument 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…” (Civil Code § 3412.) A remedy for cancellation of deed is available “where one acts under the influence and domination of another standing in a relation of trust and confidence, and the
conveyance obtained by means of that very relation.” (Fieg v. Gjurich (1912) 163 Cal. 740, 742.) There is no requirement that plaintiff be a party to the grant deed. Civil Code section 3412 only requires “…that if [the written instrument] is left outstanding it may cause serious injury to a person against whom it is void or voidable…” (Civil Code section 3412)

4th cause of action Declaratory Relief

The demurrer is overruled. Plaintiff has alleged a controversy in that she contends she owns the property and defendants contend they own or have an interest in the property. Plaintiff seeks a declaration that she has sole ownership of the property, free and clear of any liens, encumbrances, or deeds. This is sufficient to state a cause of action for declaratory relief.

A complaint for declaratory relief is legally sufficient so long as it states facts showing that an actual controversy exists relating to the legal rights and duties of the parties under a written instrument and includes a request that these rights and duties by adjudicated by the court. (Maguire v. Hibernia S.& L. Soc. (1944) 23 Cal.2d 719, 728.) A plaintiff need not allege facts entitling him to a favorable

decision, and a court should render a judgment in a case seeking declaratory relief no matter who is entitled to the favorable determination, instead of dismissing the case. (Id. at 730-731.)

Defendants shall file and serve an Answer on or before October 29, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.