Case Number:?BC551786????Hearing Date:?November 06, 2017????Dept:?37

CASE NAME:???????????????????????Hernandez v. Gutierrez, et al.

CASE NO.:????????????????????????????BC551786

HEARING DATE:?????????????????11/6/17

DEPARTMENT:???????????????????37

CALENDAR NO.:?????????????????6

TRIAL DATE:????????????????????????4/17/2018

NOTICE:????????????????????????????????OK

SUBJECT:?????????????????????????????Demurrer to Cross-Complaint

DEMURRING PARTY:????????Cross-Defendant Caliber Home Loans, Inc.

OPPOSING PARTY:???????????Cross-Complainants Jesus C. Figueroa and Myrna Z. Figueroa

COURT?S TENTATIVE RULING

The court SUSTAINS the demurrer as to Cross-Defendant Caliber Home Loans, Inc. with 20 days leave to amend.??Counsel for Caliber to give notice.

STATEMENT OF THE CASE

This action arises in connection with real property located at 1530 W. Rosecrans Ave., California 90222 (the ?Rosencrans Property?).??In the operative First Amended Complaint (?FAC?) Plaintiff Irma P. Fernandez (?Fernandez?) alleges that she loaned Defendants and Cross-Complainants Jesus C. Figueroa and Myrna Z. Figueroa (collectively the ?Figueroas?) $75,000 and that the Figueroas executed a written promissory note secured by a Deed of Trust on the Rosencrans Property.??(FAC ?? 11, 12.)??Plaintiff further contends that the Figueroas executed and recorded an Interfamily Transfer and Dissolution document of the Rosencrans Property without notice to Plaintiff, and that the Figueroas subsequently transferred ownership of the Rosencrans Property to Gutierrez.??(FAC ?? 14-15.)??According to the FAC, the Figueroas prepared and recorded a deed of Full Reconveyance as to Plaintiff?s short form deed of trust, without Plaintiff?s knowledge, consent, or authorization, on which Plaintiff?s signature had been forged.

On April 19, 2017, the Figueroas filed a cross-complaint against Plaintiff and other individuals alleging eight causes of action for: (1) conversion; (2) fraud; (3) negligent misrepresentation; (4) breach of fiduciary duty; (5) money had and received; (6) unjust enrichment; (7) intentional infliction of emotional distress; and (8) accounting.??The gravamen of the Figueroas? Cross-Complaint is that they were defrauded by Cross-Defendant Jose Luis Legaria, Sr. (?Legaria?) who allegedly sold Jesus Figueroa the Rosencranz property in exchange for Jesus Figueroa?s forgiveness of $75,000 he had paid to Legaria in allegedly fraudulent mortgage payments made on a different property.????(Cross-Compl. ?? 19-25.)

Cross-Defendant Caliber Homeloans (?Caliber?) now demurs to the Cross-Complaint on the grounds that the Cross-Complaint fails to state facts sufficient to constitute a cause of action against Caliber and is uncertain.

DISCUSSION

I.??????????Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.??(Code Civ. Proc., ? 430.30, subd. (a); see also?Blank v. Kirwan?(1985) 39 Cal.3d 311, 318.)??The purpose of a demurrer is to challenge the sufficiency of a pleading ?by raising questions of law.???(Postley v. Harvey?(1984) 153 Cal.App.3d 280, 286.)??The court ?treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .??(Berkley v. Dowds?(2007) 152 Cal.App.4th 518, 525.)???In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.???(Code Civ. Proc., ? 452; see also?Stevens v. Superior Court?(1999) 75 Cal.App.4th 594, 601.)???When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.???(Duval v. Board of Trustees?(2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.??(Doe v. City of Los Angeles?(2007) 42 Cal.4th 531, 550 (Doe).)???All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.???(Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)???Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.??(Goodman v. Kennedy?(1976) 18 Cal.3d 335, 349.)

II.?????????Analysis

Cross-Defendant Caliber specially demurs to the Cross-Complaint on the grounds that it is unspecific to Caliber?s role and is therefore uncertain.??The Cross-Complaint alleges that Caliber is and at all times relevant was ?a business entity of unknown form that is organized in and does business in the County of Los Angeles, State of California.???The Cross-Complaint asserts all causes of action against all Cross-Defendants and prays for judgment in Cross-Complainants? favor against all Cross-Defendants, but does not otherwise allege any conduct by Caliber.??(See Cross-Compl. generally, Prayer.)

On demurrer, a complaint or cross-complaint must ?set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.???(Rannard, supra, 26 Cal.2d at pp. 156-157.)???The allegations in the Cross-Complaint are not sufficient to inform Caliber of ?the nature, source, and extent? of Cross-Complainants? claims as to the demurring Cross-Defendant.

In the opposition, Cross-Claimants contend that Cross-Defendant Portillo was an employee of Cross-Defendant Caliber during all relevant times and liable under principles of respondeat superior.??(Opp. 3.)??These assertions, however, were not raised in the Cross-Complaint and are not facts that may be judicially noticed; thus, they may not be considered for purposes of the subject demurrer.??(See?Code Civ. Proc., ? 430.30, subd. (a).)

As Cross-Complainants have not alleged facts regarding the ?nature, scope, and extent? of the Figueroas? claims against Cross-Defendant Caliber, the court SUSTAINS the special demurrer to the Cross-Complaint as to this Cross-Defendant.??The court grants 20 days leave to amend to allow Cross-Complainants the opportunity to allege facts regarding Caliber?s role in the transactions and events alleged.