Demurrer to the Second Amended Complaint (Judge William J. Elfvling)

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Case Name: Robinson v. Skar

Case No.: 16-CV-293597

Defendant Mike Skar (?Defendant?) demurs to the second amended complaint (?SAC?) filed by plaintiffs Stephen Robinson and Sheila Robinson (collectively, ?Plaintiffs?) and moves to strike portions contained therein.

This is an action for conversion and constructive fraud arising out of Defendant?s alleged possession and conversion of property purportedly owned by Plaintiffs.? Plaintiffs allegedly defaulted on their loan secured by a deed of trust on a property located at 486 Churchill Park Drive in San Jose (the ?Property?), resulting in the sale of that property at a trustee?s sale on April 11, 2008.? Plaintiffs subsequently filed an action to set aside the trustee?s sale based on their contention that the Property was unlawfully sold, additionally asserting claims for fraud and breach of contract. On June 2, 2011, the Court granted the defendants? motion for summary judgment in that action.? Plaintiffs filed an appeal over two years later which was dismissed as untimely.? In October 2015, Plaintiffs were evicted from the Property, which was then purchased by Kingdom Property Investments, LLC (?Kingdom?) on February 16, 2016.? (See Defendant?s Request for Judicial Notice (?RJN?), Exhibit C.)

On April 15, 2015, Plaintiffs filed their original complaint in this action. On June 16, 2016, after Defendant filed a demurrer to the complaint, Plaintiffs filed the first amended complaint, asserting the following causes of action: (1) conversion; (2) constructive fraud; (3) abuse of process; (4) malicious prosecution; and (5) trespass to chattel.? Defendant subsequently demurred to the first amended complaint in its entirety on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.? On September 13, 2016, the Court sustained the demurrer without leave to amend as to the malicious prosecution claim, sustained it with leave to amend as to the constructive fraud and abuse of process claims, and overruled it as to the remaining claims.

Ten days later on September 23, 2016, Plaintiffs filed the SAC asserting claims for: (1) conversion; (2) constructive fraud; (3) abuse of process; (4) slander of title; and (5) trespass to chattel.? On October 28, 2016, Defendant filed the instant demurrer to the SAC in its entirety and the second, third, and fourth causes of action on the ground of failure to state facts sufficient to constitute a cause of action.? (Code Civ. Proc., ? 430.10, subd. (e).)? Defendant also demurs to the second cause of action on the ground of misjoinder of parties.? (Code Civ. Proc., ? 430.10, subd. (d).)? That same day, Defendant filed the motion to strike portions of the SAC.? (Code Civ. Proc., ?? 435 and 436.)? Plaintiffs oppose both motions.

Defendant?s request for judicial notice of the Trustee?s Deed Upon sale, the grant deed recorded on the Property on February 26, 2016 and various court documents filed in this court and the Court of Appeal is GRANTED.? (Evid. Code, ? 452, subds. (d) and (h); see also Alfaro Community Housing System & Planning Assn., Inc. (2009) 171 Cal.App.4^th 1356, 1382; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4^th 256, 264-265 [stating that ?a court may take judicial notice of the fact of a document?s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document?s legally operative language ?[and, f]rom this, the court may deduce and rely upon the legal effect of the recorded document?].)

Defendant moves to strike Plaintiffs? fourth cause of action for slander of title as well as their requests for sanctions (?? 107-109) and the imposition of a constructive trust (? 133c) on the ground that Plaintiffs? inclusion of these items in the SAC exceeds the scope of permissible amendment.? This contention is well taken.? Generally, when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action or unrelated allegations.? (Patrick v. Alacer Corp. (2008) 167 Cal.App.4^th 995, 1015.)? The addition of a new cause action or allegations is proper only where they directly respond to the court?s reasoning for sustaining the earlier demurrer.? (Id. at 661.)? As articulated above, Defendants? demurrer to the preceding pleading, the FAC, was sustained with leave to amend as to Plaintiffs? claims for constructive fraud and abuse of process.? Plaintiffs? new claim for slander of title and requests for sanctions and the imposition of a constructive trust do not relate to the foregoing causes of action or correct the deficiencies in those claims that compelled the sustaining of Defendant?s demurrer in the first place.? Consequently, Defendant?s motion to strike these items is GRANTED.

 

Given the Court?s ruling on the motion to strike, Defendant?s demurrer to the fourth cause of action for slander of title is MOOT.

 

Turning to the remainder of the demurrer, Defendant?s second cause of action for constructive fraud is based on allegations that Defendant committed such an action by intentionally breaching an agreement between the parties not to take possession of the Property until the resolution of the ?underlying suit? concerning its ownership.? (SAC,???? ? 32.)? Constructive fraud is defined by Civil Code section 1573 to consist of ?any breach of duty, which, without actual fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; or, any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.?? Constructive fraud depends on the existence of a fiduciary or confidential relationship of some kind, and this must be alleged.? (Feeney v. Howard (1889) 79 Cal. 525, 529; Peterson Dev. Co. v. Torrey Pines Bank (1991) 233 Cal.App.3d 103, 116 [?[i]t is essential to the operation of the doctrine of constructive fraud there exists a fiduciary or special relationship?].)? The specific fact pleading requirement applies to constructive fraud as it does to fraud in general and every element must be pleaded with specificity.? (See Schauer v. Mandarin Gems of California (2005) 125 Cal.App.4^th 949, 960-961.)

 

The Court previously sustained Defendant?s demurrer to this claim on the ground that Plaintiffs failed to plead the special relationship necessary to state a cause of action for constructive fraud.? Plaintiffs have added additional factual allegations regarding such a relationship, but as it exists between them and non-party Scott Mitchell and not Defendant.? Consequently, they still have not pleaded the special relationship necessary to state a claim for constructive fraud against Defendant and therefore his demurrer to this cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

 

Plaintiffs? third cause of action for abuse of process alleges that on April 5, 2016, after Defendant expressed his desire to obtain the parking space Plaintiffs? vehicle occupied in front of the Property, Defendant applied for a temporary restraining order against Plaintiffs and any vehicles owned by them which was ultimately granted by the Court on April 11, 2016.? (SAC, ?? 43-45.)? It is further alleged that on April 13, 2016, Defendant contacted the San Jose Police Department claiming that plaintiff Stephen Robinson was in front of the Property in violation of the restraining order.? (Id. at ? 49.)? The police arrived at the Property, where Mr. Robinson was not present, and unlawfully broke into his vehicle and had it towed it to a spot in front of the home adjacent to the Property.? (Id.)? The alleged abuse of process by Defendant is the filing of an action for a civil harassment restraining order for the improper purpose of forcing Plaintiffs to vacate the public parking space that their vehicle occupied in front of the Property.? (Id. at ? 47.)? Defendant is alleged not to have been motivated by fear of Plaintiffs or the need to be protected from them but rather from his hatred or dislike of them and his desire to have their vehicle moved.? (Id.)

 

In order to establish a cause of action for abuse of process, a plaintiff must plead the following two essential elements: that the defendant (1) entertained an ulterior motive using the process, and (2) committed a willful act in a wrongful manner.? (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792.)? Abuse of process is not another name for malicious prosecution; instead, it concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place).? (Bidna v. Rosen (1993) 19 Cal.App.4^th 27, 40.)? Thus, such claims typically arise for improper or excessive attachments or improper use of discovery.? (Id.)

 

The Court previously sustained Defendant?s demurrer to this claim in the FAC on the ground that there were no facts pleaded which establish that Defendant acted with a wrongful purpose in requesting and obtaining a civil harassment order.? In demurring to this claim in the SAC, Defendant insists that he did not have an improper motive in filing for the civil harassment restraining order and used that process properly.? However, this argument is easily disposed of because it relates to the merits of the claim and not what is actually pleaded.?? The merits of a claim are not appropriately addressed on demurrer.? Defendant?s remaining arguments (which suggest that Plaintiffs still have not pleaded the necessary facts) are similarly without merit as Plaintiffs have sufficiently alleged the missing element of this claim- that Defendant applied for and obtained a harassment order not for the stated proper purpose of protection but in order to force the removal of Plaintiffs? car from in front of the Property due to his personal dislike of them.?? Accordingly, Defendant?s demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

 

Based on the foregoing rulings, Defendant?s demurrer to the SAC in its entirety on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.