Case Number: TC029110 Hearing Date: January 29, 2019 Dept: A

# 10. James Britt v. Nicole Tillman, et al.

Case No.: TC029110

Matter on calendar for: demurrer to First Amended Complaint

Tentative ruling:

I. Background

Plaintiff James Britt alleges that the property at 629 W. Myrrh Ln., Compton, California 90020, was sold without his consent and below market value. He seeks to quiet title. Defendant Andres Davis bought the property from defendant Nicole Tillman. Davis later refinanced the property with a loan from defendant Quicken Loans.

Quicken’s motion for judgment on the pleadings with respect to the original complaint was granted on November 15, 2018, with 20 days’ leave to amend. Britt filed a First Amended Complaint (“FAC”) on December 5, 2018. It asserts two causes of action against Quicken: the second, for quiet title, and the fourth, for violation of the federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. This demurrer was filed on December 21, 2018. It is unopposed.

For the reasons set forth below, the Court sustains the demurrer without leave to amend.

II. Standard

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; 2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P. § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) “Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

III. Analysis

The Court grants the request for judicial notice.

a. Quiet title

This cause of action is identical to the quiet title cause of action in the Complaint. Quicken Loans argues that it is a bona fide encumbrancer for value. The viability of this cause of action depends on whether the deed transferring the property from Tillman to Britt is voidable or void. If the deed is voidable, a subsequent encumbrancer for value has a superior claim. (Schiavon v. Arnuado Brothers (2000) 84 Cal.App.4th 374, 378.) A subsequent encumbrancer for value cannot, however, rely on a void deed. (Ibid.) “[A]n improper transfer of community property is not void ab initio, but merely voidable at the instance of the aggrieved spouse. [Citation.]” (Marvin v. Marvin (1976) 18 Cal.3d 660, 673.) Here, Britt alleges an improper transfer of community property, a voidable deed. Based on the allegations in the FAC, Quicken is a bona fide encumbrancer for value.

The demurrer to the quiet title cause of action is sustained.

b. Violation of Truth in Lending Act (“TILA”)

Britt was not a party to the Quicken Loan. He is not a consumer or borrower under the Truth in Lending Act. (15 U.S.C. § 1602.) He lacks standing to assert this cause of action.

The demurrer is sustained as to the TILA cause of action.

IV. Ruling

The demurrer is sustained without leave to amend.