Case Number: BC587290??? Hearing Date: September 02, 2016??? Dept: 58
JUDGE JOHN P. DOYLE
DEPARTMENT 58
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Hearing Date: Friday, September 2, 2016
Calendar No: 4
Case Name: Bi, et al. v. Quezada, et al.
Case No.: BC587290
Motion: Demurrer to Second Amended Cross-Complaint
Moving Party: Cross-Defendant Re/Max Dynasty, Inc.
Responding Party: Cross-Complainant Philip Quezada
Tentative Ruling: Demurrer to the SACC is moot and is overruled. Remax to answer within 15 days.
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Background ?
On 7/8/15, this action was filed for trespass and fraud arising out of a dispute concerning real property located at 2063 Redding Ave., Rosemead, CA 91770 (?Bi/Wu Property? ). On 8/10/15, Plaintiffs Shiqing Bi and Wenling Wu filed the operative First Amended Complaint against Defendants Philip Quezada, Lorena Quezada, and Sophia Jimenez (collectively ?Defendants?) for (1) trespass, (2) fraud against Philip only, and (3) quiet title. Bi and Wu allege that Philip transferred the Bi/Wu Property to them but continued to enter onto the Bi/Wu Property, using the pool and cutting down vegetation and disrupting Bi and Wu?s boundary markers.
On 10/23/15, Philip filed a cross-complaint against Bi, Wu, Re/Max Dynasty, Inc., Denese Clark, and Orange Coast Title Company. Philip alleges that the Bi/Wu Property is south of 2057 Redding Ave., Rosemead, CA 91770 (?Philip Property? ). The adjacent properties were previously owned by a common owner who established a physical wall that did not coincide with the property line. Bi/Wu Property?s driveway is located on the Philip Property, Philip Property?s pool is located on the Bi/Wu Property, and Philip Property?s utilities run through the Bi/Wu Property. In 2012, Philip sold the Bi/Wu Property to Bi and Wu, through Clark and Remax, with an amended escrow instruction in which Bi agreed to honor the physical property line. In 2015, Bi began to assert a claim of ownership and access to the pool area and has attempted to build a fence.
On 1/13/16, Philip filed a First Amended Cross-Complaint asserting causes of action for (1) quiet title, (2) declaratory relief, (3) trespass, (4) intentional infliction of emotional distress, (5) breach of contract, (6) breach of covenant of good faith and fair dealing, (7) breach of fiduciary duty, (8) fraud, (9) negligence, (10) nuisance, (11) injunctive relief, and (12) defamation. On 5/12/16, Philip dismissed Orange Coast from the FACC without prejudice. On 6/13/16, Philip filed the operative Second Amended Cross-Complaint.
Trial is set for 12/5/16; FSC for 11/28/16; status conference and mediation setting for 9/2/16.
Demurrer to the SACC ?
Remax demurs to the 1st, 3rd, and 8th COAs in the SACC.
1. Quiet Title and Trespass
Preliminarily, the Court notes that the demurrer to the 1st and 3rd COAs are moot. On 5/26/16, the Court sustained Remax? demurrer to these claims without leave to amend based on Philip?s opposition asserting that Remax was erroneously named as to these claims. Although the 1st and 3rd COAs in the SACC continue to technically be asserted against Remax because they are directed at all cross-defendants, the Court concludes that this is a mere scrivener?s error that fails to reflect the Court?s 5/26/16 ruling. The demurrer to the 1st and 3rd COAs is moot.
2. Fraud
Philip?s fraud claim is based on the 2012 representations by Clark and Remax that Philip?s interests in the pool area and Philip?s use based on the physical wall would be protected by apprising such to potential and ultimate buyers (SACC ? 15), with Remax representing that the amended escrow instructions prepared by Remax were sufficient (id. ? 16).
Remax demurs to the 8th COA for fraud on the ground that Philip fails to allege facts with particularity. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (requiring pleading facts which ?show how, when, where, to whom, and by what means the representations were tendered); Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 (requiring a plaintiff to ?allege the names of the persons making the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.?). The Court previously sustained the demurrer on this ground, concluding that no facts were alleged to support who made the representations, by what means the representations were made, and when the representations were made (beyond a general year), the relationship between Clark and Remax, and who made representations on behalf of Remax.
The SACC now alleges the additional following facts. In January 2012, Philip talked with Clark about selling the Bi/Wu Property but maintaining Philip?s interests in the pool area. Clark, on behalf of herself and Remax, stated that Philip?s interests would be protected. SACC ? 61. In February 2012, Clark represented that appropriate language would be added to the purchase agreement to maintain Philip?s interests and that she would consult with Rmeax to create and add the necessary language. Id. ? 62. When Philip discussed the possibility of backing out of the sale in June 2012, Clark reiterated that she and Remax would craft language that would protect Philip?s interests. Id. ? 63. Clark also stated that she and Remax drafted amended escrow instructions which were sufficient for such purpose. Id. ? 64. Clark and Remax are alleged to be the real estate brokers handling the sale. See id. ?? 64-65.
At the pleading stage, these additional factual allegations are sufficient to allege facts with particularity as to Philip?s fraud claim. Remax? demurrer fails to consider these additional factual allegations, instead focusing only on the same general allegations in both the FACC and SACC ?? 15-16. Therefore, the demurrer is overruled as to the 8th COA.