Case Number: NC060002??? Hearing Date: July 12, 2016??? Dept: S27
INTRODUCTION
Nancy Downs demurs to Causes of Action 2 and 3 in the Third Amended Cross-Complaint for Norby Acevedo and Mercedes Villeda:
1. Financial Elder Abuse;
2. Promissory Fraud; and
3. Concealment.
In the underlying complaint Ms. Downs seeks specific performance of a written agreement to sell real estate property.
The Court previously sustained a demurrer to the First Cause of Action for Financial Elder Abuse without leave to amend. The demurrer indicates that during the meet and confer process, Cross-Complainants? counsel indicated that the First Cause of Action was included by error. It appears to the Court that this is corroborated by the caption of the Third Amended Cross-Complaint which does not list Financial Elder Abuse as one of the claims. The Cause of Action does appear in the body of the complaint.
The Court incorporates and adopts its ruling on Financial Elder Abuse in the Second Amended Cross-Complaint and sustains the demurrer without leave to amend. Alternatively, the Court strikes the First Cause of Action on its own motion pursuant to CCP section 436. It was not filed in conformity with law because the Court denied leave to amend that claim.
The Court previously sustained a demurrer to the Second Cause of Action because fraud must be plead with particularity and the facts as alleged did not satisfy that requirement.
DEMURRER
It is very difficult to ascertain what changes have been made. The Second Cause of Action maintains allegations against parties (realtors and agents) whose demurrers were previously sustained without leave to amend. However, after careful review of the allegations the Court finds that paragraph 60 adequately alleges the promises which were not performed. Cross-Defendant argues that there are no facts regarding lack of intent to perform. Failure to perform does not by itself establish an absence of intent to perform. Nevertheless the intent or lack of intent may be pled generally because there is no way to ascertain another person?s state of mind. Reading the Cross-Complaint as a whole, there are sufficient facts from which to infer an absence of intent. Paragraph 9 alleges Ms. Downs was not creditworthy, and that although she promised to execute a Second Trust Deed, that document was never drafted. CCP section 452 compels liberal construction of a pleading with a view to substantial justice between the parties. Part of Ms. Downs? own case in chief will be proof that she was ready, willing and able to perform the contract. The gravamen of the Second Cause of Action, liberally construed, is that she did not have the ability to perform and hence no intent to perform.
The demurrer is overruled.
The Third Cause of Action is for fraudulent concealment. The Court finds that there has been no substantial amendment after leave to amend was granted. The cause still contains allegations as t parties who have been previously dismissed after demurrer. The Court again notes that a failure to disclose facts is not the same thing as concealment of the facts. Cross-Complainants allege at paragraph 65 that Ms. Downs failed to disclose ?important facts known only to her? about her financial condition. There are no allegations which establish any duty to disclose her financial condition. There are not factual allegations that she actively concealed anything.
The demurrer is sustained without leave to amend.
MOTION TO STRIKE
There is a companion motion to strike the entire Third Amended Cross-Complaint on grounds that it was not filed within the 10 days window for leave was granted. The face page of the pleading filed on May 9, 2016 indicates it was amended pursuant to stipulation. Whether or not that is true, the law prefers resolution of disputes on their merits. The Court denies the motion.
ORDER
Cross-Defendant is ordered to answer within five court days.
MOTIONS TO COMPEL
There are motions to compel initial responses to special interrogatories and production of documents and one to deem Requests for Admission. From the meet and confer letter in evidence, Ms. Dobson takes the position that she was never served with the discovery (or never received the discovery). It would be premature of the Court to make a determination until a declaration is filed and the Court hears argument.