CASE NAME: PETER CONEY vs. KELLY DOSSA

HEARING ON DEMURRER TO 1st Amended COMPLAINT

FILED BY SCOTT DOSSA, KELLY DOSSA

* TENTATIVE RULING: *

The demurrer filed by defendants Kelly and Scott Dossa (“defendants”) to the First Amended Complaint (“FAC”) is OVERRULED in part and SUSTAINED in part.

Preliminarily, the court notes that defendants filed a Memorandum of Points and Authorities in support of the demurrer that is 17 pages long. CRC 3.1113 (d) prescribes a 15 page limit, absent an order of court. Counsel is admonished to adhere to CRC 3.1113 in the future.

The court grants defendants’ unopposed Request for Judicial Notice filed March 27, 2015 (“RJN”). With respect to Exhibit E of the RJN, the court takes judicial notice that Exhibit E is the Individual Quitclaim Deed that was recorded, but not that the pages 2 and 3 attached to the recorded document are the same as the pages 2 and 3 that were shown to plaintiffs when plaintiffs signed the deed on June 13, 2003. The court denies defendants’ Supplemental Request for Judicial Notice filed May 8, 2015.

The demurrer to the First Cause of Action, Quiet Title, is SUSTAINED in part and OVERRULED in part. The court rejects some of the arguments advanced by defendants. Defendants have not cited any authority which holds that plaintiffs have to name all interested neighbors even if those neighbors do not have claims adverse to those of plaintiffs. CCP § 761.020 (c) only requires that plaintiffs name those persons who have adverse claims to plaintiffs’ title. Therefore the demurrer for a defect or misjoinder of parties (CCP § 430.10 (d)) is OVERRULED.

The court was prepared to overrule the demurrer for uncertainty as well. A complaint is sufficient to withstand a special demurrer for uncertainty “where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” Gressley v. Williams (1961) 193 Cal. App. 2d 636, 643-644. Any uncertainty that does not rise to that level can be cleared up through discovery. As it appeared before the court granted the unopposed Motion to Strike, the FAC was sufficiently clear that the cause of action for quiet title concerned the express right of way easement described as Parcel Two in Exhibit A to the FAC. Given that the Motion to Strike must be granted because plaintiffs have not opposed it, however, the FAC is now missing any description of property other than the common designation, 4403 Walnut Blvd. (See deletions of Ex. A and on page 2 of FAC per defendants’ Motion to Strike.) Further, no property description is attached any longer that lists the three parcels and makes clear that the dispute concerns the easement described as Parcel Two. CCP § 761.020 requires that a cause of action to quiet title allege, among other things, “(a) A description of the property that is the subject of the action [including in the case of real property] both its legal description and its street address or common designation, if any; (b) The title of the plaintiff as to which a determination . . . is sought and the basis of the title. . . . [and] (c) The adverse claims to the title of the plaintiff against which a determination is sought.” Because some of this information is missing after the Motion to Strike is granted, the first cause of action is now both uncertain and incomplete. Therefore the special and general demurrers (CCP § 430.01 (e) and (f)) are SUSTAINED.

Should plaintiffs choose to amend this cause of action, they should (1) attach the full deed by which they took title to 4403 Walnut Blvd., if possible, and not just the property description attached to that deed; (2) re-allege the basis of plaintiffs’ title; (3) allege clearly, to avoid further disputes, significant or otherwise, that the quiet title cause of action concerns only the right of way easement described as Parcel Two in the property description, if that is the case; and (4) for the same reason make clear that when plaintiffs refer to the “Property” they are referring to their property located at 4403 Walnut Blvd. as a whole or only to the disputed right of way, whichever is the case.

The demurrer to the Fifth Cause of Action, for Trespass, is OVERRULED. The FAC alleges that defendants erected the fence and the “no parking” sign. Defendants know where they placed these items. If the claim is that these items were placed solely where defendants had a right to place them, that is a defense to the allegation that there was a trespass. Defendants have not cited any authority, however, which holds that a person claiming trespass must allege exactly where on his or her property the trespass occurred.

 

The demurrer to the Sixth Cause of Action is SUSTAINED. Again, the court rejects some of defendants’ arguments. Plaintiffs have adequately alleged when they discovered that defendants recorded the Quitclaim Deed and why discovery was delayed until after plaintiffs filed this lawsuit. The statute of limitations defense cannot be decided on this demurrer. See Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal. App. 4th 984, 1012. The court is also not persuaded that an attorney may never sue for fraud. Whether reliance is reasonable is usually a question of fact (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal. 3d 498, 503; see also Chapman v. Skype Inc. (2013) 220 Cal. App. 4th 217, 232-233 Kantlehner v. Bisceglia (1951) 102 Cal. App. 2d 1, 4), although it may be possible to determine it as a matter of law in a case like this, depending upon the facts. See Guido v. Koopman (1991) 1 Cal. App. 4th 837, 843-844.

 

Also, the law does not permit a party to avoid the impact of the terms of an instrument on the ground that he failed to read the instrument before signing it unless there is fraud. Stewart v. Preston Pipeline Inc. (2005) 134 Cal. App. 4th 1565, 1588 (cited and quoted in the case cited by defendants, Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 93). Further, the court cannot determine, without the benefit of evidence, whether the difference in the property descriptions in Exhibit B to the FAC and Ex. E to the RJN is too insignificant to be material.

 

However, plaintiffs’ explanation why lines appear through the “recorded by” area of the deed appears only in their Opposition, not in the FAC. More importantly, after the Motion to Strike is granted, plaintiffs’ allegation that they justifiably relied on Ms. Dossa’s false representation that the Quitclaim Deed would not be recorded is no longer in the FAC, so the cause of action for fraud is now missing a required element, as least insofar as it relies on that misrepresentation and not on other false representations. Further, more facts should be alleged (e.g., what type of attorney Peter Coney is and whether he was familiar with real property transactions at the time) so the court can determine whether the issue of justifiable reliance can be decided as a matter of law. See Guido, supra.

 

Should plaintiffs elect to amend this cause of action, they should address the defects listed above.

 

Leave to amend is GRANTED. Any amended complaint shall be served and filed on or before May 27, 2015.