Case Number:?BC713936????Hearing Date:?May 07, 2019????Dept:?24
Defendants Ray B. Bowen, Jr. and Richard C. Jones?s?demurrer to the First Amended Complaint is SUSTAINED without leave as to first, second, fourth, fifth, and sixth causes of action; and OVERRULED as to the third cause of action. Defendants? motion to strike is GRANTED without leave as to punitive damages and attorneys? fees, and DENIED as to the remainder.
This suit arises out of allegations of fraud and wrongful foreclosure by Plaintiff Marvell Lenox Tell, Jr. against Defendants Ray B. Bowen, Jr. (?Bowen?); Construction Loan Company, Inc. (?CLC?); and Richard C. Jones (?Jones?). Plaintiff alleges that he was the occupant and owner of the property located at 1836 Kenneth Way, Pasadena, California (?Property?).
On February 2, 2008, Plaintiff obtained a construction loan from CLC in the amount of $102,626.07 (?Loan?), and signed a Promissory Note that provided for Loan payments of $1,261.45 to commence on April 15, 2008, with a 10-day grace period, until February 20, 2009 when the balance would be due in full (?Note?). The Loan was secured by a Deed of Trust that named Plaintiff as the trustor, and CLC as both the lender and beneficiary, instead of Rubin (?DT?). On February 21, 2008, Plaintiff and CLC entered into a Construction Loan Agreement that provides that the loaned amount would be placed in a trust account, solely under the control of CLC, from which CLC will draw upon to pay the invoices presented to it by Plaintiff for the construction of the Property (?Loan Agreement?). Also on February 21, 2008, Plaintiff and CLC entered into a Funds Control Agreement describing how the loaned funds would be handled. Among other things, the agreement provides that the money in trust was controlled solely by CLC and that any funds not used would be released back to CLC (?Funds Agreement?).
From February 21, 2008 until March 31, 2008, Plaintiff presented invoices to CLC and CLC paid those invoices. In or about early April 2008, before the first payment was due, CLC stopped paying the invoices submitted by Plaintiff. After repeated demands for CLC to honor the terms of the agreements, Plaintiff was forced to obtain financing from another source in order to complete the renovations to the Property. At the time CLC stopped paying the invoices Plaintiff had received the benefit of only $41,880.21 of the $102,626.07 that had been held in trust for Plaintiff?s project, leaving a balance of $60,745.86 that was under the sole control of CLC.
Unbeknownst to Plaintiff, on May 19, 2009, CLC purportedly assigned all of its beneficial interest in the DT to its attorney Bowen, notwithstanding that CLC had no beneficial interest in the DT, and that all beneficial interest was vested with an alleged Trust. Also, on May 19, 2009, CLC served a Notice of Default claiming Plaintiff was in default in the amount of $102,626.07, notwithstanding that CLC remained in possession of $60,745.86.
Plaintiff was unaware of the legal ramifications of CLC?s actions and so requested an extension of time to pay the indebtedness. On August 18, 2009, Jones, on behalf of CLC, and Plaintiff entered into a Modification Agreement extending the maturity date to February 23, 2009.
On August 28, 2009, CLC, as the purported beneficiary of the DT, caused to be recorded a Rescission of the May 26, 2009 Notice of Default.
On October 6, 2011, CLC began foreclosure proceedings and on January 13, 2012, recorded a Notice of Trustee Sale. Plaintiff immediately filed Chapter 13 bankruptcy. On June 7, 2012, CLC filed a Proof of Claim stating that it was a creditor of the secured Loan and that the amount of the secured claim was $103,552.61. Bowen signed the Proof of Claim as ?the attorney and authorized representative? of CLC. Plaintiff filed an opposition asserting that any indebtedness should be about $41,880.21. The bankruptcy was dismissed on September 26, 2012, without prejudice.
On October 4, 2012, Plaintiff filed a second bankruptcy. On October 22, 2012, CLC filed a Proof of Claim stating that it was a creditor of the secured Loan and that the amount of the secured claim was $120,333.42. Bowen signed the Proof of Claim as ?the creditor?s authorized agent.? Plaintiff filed an opposition asserting that any indebtedness should be about $41,880.21. On November 16, 2012, while the bankruptcy was pending, CLC forfeited its corporate status. Nevertheless, CLC continued to assert a claim against Plaintiff. The second bankruptcy was dismissed on January 11, 2013 without prejudice.
On January 22, 2013, Plaintiff filed a third bankruptcy. On June 3, 2013, CLC filed a Proof of Claim stating that it was a creditor of the secured Loan and that the amount of the secured claim was $103,552.61. Bowen signed the Proof of Claim as ?the creditor?s authorized agent.? On September 3, 2013, while the bankruptcy was pending, CLC forfeited its corporate status. Nevertheless, CLC continued to assert a claim against Plaintiff. The third bankruptcy was dismissed on September 26, 2013 without prejudice.
On July 25, 2017, Bowen caused to be recorded a Notice of Default of the Loan identifying Bowen as the beneficiary. On November 10, 2017, Bowen caused to be recorded a Notice of Trustee Sale setting the sale date for December 15, 2017, stating that the indebtedness of $162,711,27.
On December 6, 2017, Plaintiff filed a fourth bankruptcy. On December 29, 2017, CLC filed a Proof of Claim stating that it was a creditor of the unsecured Loan and that the amount of the unsecured claim was $211,003.05. This was the first-time Bowen asserted that he was the assignee of the DT, notwithstanding that CLC claimed to be the beneficiary of the DT and acted as the creditor of the debt from February 21, 2008 until December 29, 2017. On May 30, 2018, Bowen filed a motion to dismiss the bankruptcy which was granted and the petition was dismissed with a 180-day restriction against refiling.
On June 20, 2018, Bowen caused to be recorded a Notice of Trustee Sale, setting a sale date of July 20, 2018. Plaintiff then commenced this action believing he had exhausted all of his remedies to save his Property.
On July 19, 2018, Plaintiff Marvell Lenox Tell, Jr. (?Plaintiff?) commenced this action against Defendants Ray B. Bowen, Jr. (?Bowen?); Construction Loan Company, Inc. (?CLC?); and Richard C. Jones (?Jones?). The complaint alleged the five causes of action: (1) anticipatory breach of contract; (2) wrongful foreclosure count 1; (3) wrongful foreclosure count 2; (4) fraud; and (5) declaratory relief and injunction. Each cause of action was alleged against all defendants, except the first cause of action which is alleged against CLC and Jones.
On that date granted Plaintiff?s?ex parte?request for a temporary restraining order restraining Defendants from foreclosing on the deed of trust to the Property and issued an order to show cause re: preliminary injunction. On August 15, 2018, at the hearing on the OSC, the Court denied Plaintiff?s request for a preliminary injunction and dissolved the temporary restraining order. On August 30, 2018, Plaintiff recorded a Notice of Pendency of Action, document No. 20180878193 (?lis pendens?), with the Los Angeles County Recorder?s Office, on the real property at issue in this action. The lis pendens was filed with the Court the following day. The proof of service indicates that it was served on Defendants by first-class mail on August 23, 2018.
On December 12, 2018, the Court overruled in part and sustained in part the demurrers by Jones and Bowen (?Defendants?). Jones and Bowen?s?demurrers were sustained with leave to amend as to the fourth cause of action, Jones?s demurrer was sustained without leave as to the first accuse of action, and the demurrers were overruled as to the remainder.
On January 17, 2019, Plaintiff filed the operative first amended complaint (?FAC?), alleging six causes of action for: 1) wrongful foreclosure; 2) conspiracy to defraud; 3) quiet title; 4) set aside trustee sale; 5) cancellation of deed; and 6) injunction. On February 8, 2019, Defendants filed a demurrer and motion to strike the FAC. On April 22, 2019, Plaintiff filed oppositions. On April 30, 2019, Defendants filed reply.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda?(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.?(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP ?? 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie?(1972) 28 Cal. App. 3d 714, 721.) A ?demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.? (S. Shore Land Co. v. Petersen?(1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond?i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.??(Khoury v. Maly?s of Calif., Inc.?(1993) 14 Cal.App.4th 612, 616.)??Moreover, even if the pleading is somewhat vague, ?ambiguities can be clarified under modern discovery procedures.? (Ibid.)
CCP section 430.10(d) allows a special demurrer where there is a defect or misjoinder of parties. This refers to either an absent necessary or indispensable third party, or that plaintiffs lack sufficient unity of interest (CCP ? 378) or that there is no common question of law or fact as to the defendants (CCP ? 379).?A demurrer on ground of misjoinder does?not?lie to challenge allegations that plaintiff is uncertain which defendant caused his or her injuries. (Landau v. Salam?(1971) 4 Cal.3d 901, 908.)
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP ? 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP ?? 436(a)-(b);Stafford v. Shultz?(1954) 42 Cal.2d 767, 782 [?Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded?].)
Meet and Confer
Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP ?? 430.41, 435.5.) Counsel?s declaration satisfies the meet and confer requirement. (Bowen Decl. ?? 2-7.)
Request for Judicial Notice
Defendants request that the Court take judicial notice of various court documents. These requests are GRANTED. (Evid. Code ? 452(d).)
Scope of Leave to Amend
Defendants object, in part, to the inclusion of new causes of action and alterations in the facts between the initial complaint and the FAC. Defendants argue that these alterations violated the scope of leave to amend this Court granted Plaintiff. In particular, Defendants object to the omission of allegations regrading Rubin. In the initial complaint, Plaintiff alleged that in January 1993, CLC entered into an agreement with Gerald Rubin (?Rubin?), a real estate investor, wherein Rubin agreed to loan CLC $5,016,764.00 to use to issue loans to third parties. The agreement provided that CLC would act as servicer on behalf of Rubin and that the third-party loans would be secured by deeds of trust wherein Rubin would be named as the beneficiary under those deeds of trust. In an unrelated action, Rubin sued CLC for breach of their 1993 agreement, fraud and other causes of action and obtained a judgment against CLC in the amount of $5,000,000 (?Rubin Action?).?The petitioners therein sought to confirm an arbitration award against CLC in the amount of $15,137,898.28 plus interest. The award, confirmed on January 18, 2013, ordered CLC to transfer all interest in all assets held by CLC to the petitioners. Attached to the arbitration award is an accounting of the assets held by CLC, which included the Property denoted as ?Kenneth? which CLC pledged to petitioners, effectively assigning all beneficial interest that CLC claimed it had in the Note and DT to the petitioners.?Now, these allegations have essentially been replaced with allegations regarding the existence of a trust. (FAC ?? 22-27.) Plaintiff now contends that the trust held the beneficial interest in the DT as opposed to Rubin.
Strangely, Defendants argue that the Rubin allegations are untrue, but that Plaintiff should be required to plead them. It stands to reason that the omission of these claims would be a positive change for Defendants, considering that the Court overruled Defendants? initial demurrers based on these very allegations. Moreover, if the Court were to invoke the sham pleading doctrine, the Court could only take as true the previous allegations, i.e. the Rubin allegations. If the Court did so, the it would be forced to again overrule the instant demurrer.
True, the Court sustained Defendants? demurrer with leave to amend only as to the fourth cause of action. Plaintiff argues that the allegations are proper because they follow the Court?s demurrer ruling, and that he omits the Rubin allegations because he no longer wishes to pursue that theory, and that he brings the new quiet title, set aside, and cancellation as new legal theories based on the same facts as the complaint. (See?Datig v. Dove Books, Inc.?(1999) 73 Cal.App.4th 964, 983, fn. 19 [where leave to amend is granted, plaintiff is not precluded from adding a new cause of action which supports recovery upon the original obligation sued under a different legal theory].) Plaintiff asserts that a part should be entitled to change alternative remedies until satisfaction of judgment or res judicata or estoppel vindicates one of the inconsistent rights. (Ibid.) Indeed, the changes did not vary or change the core factual basis of the complaint: that the DT was improperly assigned to Defendants, and that they had no authority to foreclose. Plaintiffs? inclusion of thefactual?allegations to support the pled causes of action are therefore not improper under the scope of leave to amend, and the re-arranging of some of the causes of action or allegations was likewise proper.
The Court does find it unusual to add completely distinct legal theories, such as the quiet title cause of action. Generally,?if a plaintiff wishes to amend a complaint after he has already amended the complaint, permission of the court must be obtained before the amendment will be allowed. (CCP ?? 473(a)(1), 576.) However, in?the interest of preserving judicial resources, the Court will allow the FAC as it is. (CCP ? 473(a) [?The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading?].)?The Court does not find that these changes somehow violate Defendants? right to due process, and Defendants present no authority that strict compliance with the California Rules of Court is a Constitutional question. In fact,?it is within the Court?s discretion to require compliance with Rule 3.1324 before granting leave to amend. (Hataishi v. First American Home Buyers Protection Corp.?(2014) 223 Cal.App.4th 1454, 1469.) In the future, explicit leave to amend will be required for any additional legal theories.
Demurrer: First Cause of Action ? Wrongful Foreclosure
?A wrongful foreclosure is a common law tort claim. It is an equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, on the basis that the foreclosure was improper. [Citation.]? (Sciarratta v. U.S. Bank Nat?l Assn.?(2016) 247 Cal.App.4th 552, 561.) ?The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale.? (Miles v. Deutsche Bank Nat?l Trust Co.?(2015) 236 Cal.App.4th 394, 408.) The plaintiff must allege that: ?(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering. [Citations.]? (Lona v. Citibank, N.A.?(2011) 202 Cal.App.4th 89, 104.) ?[M]ere technical violations of the foreclosure process will not give rise to a tort claim; the foreclosure must have been entirely unauthorized on the facts of the case.? (Miles,?supra,?236 Cal.App.4th at p. 409.)
?[A] mortgage assignment is void, not merely voidable, where the assignor ?had nothing to assign? or ?no interest to assign?. (SeeSciarratta v. US Bank National Assn.?(2016) 247 Cal. App. 4th 552.) Only the true owner or beneficial holder of a Deed of Trust can bring to completion a nonjudicial foreclosure under California law. (Yvanova v. New Century Mortgage Corp.?(2016) 62 Cal.4th 919.)
Plaintiff alleges that in October 2009, CLC entered into a workout agreement with its investors that created a certain trust for the benefit of its investors (the ?Trust?). (FAC ? 22.) CLC agreed to ?pledge? the notes and deeds of trust it currently held into the Trust, including the instant loan and DT. (FAC ? 23.) On December 14, 2010, CLC assigned the Loan?s note and DT to the Trust. (FAC ? 26.) However, the alleged ?void? assignment occurred on May 19, 2009, when CLC assigned all of its beneficial interest in the DT to its attorney Bowen. (FAC ?? 54-55, Ex. G.) This was before the alleged assignment to the Trust in 2010.
Plaintiff?s theory that Bowen lacked authority because of the assignment to the Trust does not follow from these facts. Plaintiff provides no authority that CLC?s ?pledge? of the DT in October 2009 legally gave their interest to the Trust at that point. The FAC explicitly states that CLC did not actually assign the DT to the Trust until 2010, after the assignment to Bowen. Therefore, the new allegations establish that CLC properly assigned Bowen the interest in the DT and gave no interest to the Trust, as it had none in 2010. Plaintiff provides no authority that because the notarization appeared ?spurious? that the assignment itself was void. This vague commentary is insufficient. Instead, these are legal conclusions with no pled facts in support. Plaintiff would be required to plainly allege the?fact?that there was no actual assignment made. For example, that the assignment was somehow fabricated after the fact and did not actually occur in 2009. Otherwise, under the very principals that Plaintiff relies, the assignment to the?Trust?was void, as CLC could not have given any interest in to the Trust that it had already fully given to Bowen in 2009.
Accordingly, Defendant?s demurrer is SUSTAINED. Considering the new allegations, leave to amend?will only be granted if Plaintiff provides sufficient facts that demonstrate a reasonable probability of successful amendment given the deficiencies discussed above. (Goodman v. Kennedy?(1976) 18 Cal.3d 335, 347.)
Demurrer: Second Cause of Action ? Fraud/Conspiracy
Defendants first argue that the fraud cause of action fails as to Bowen because Plaintiff did not make a required pre-filing declaration.
Civ. Code ? 1714.10 requires a plaintiff to obtain a court order before filing an action against an attorney for civil conspiracy with his client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client.?(Civ. Code ? 1714.10(a), (b) [failure to obtain a court order shall be a defense to civil conspiracy].)
Defendants assume the applicability of Civ. Code section 1714.10 without regards to its text. The language of the statute states that it applies in cases ?arising from any attempt to contest or compromise a claim or dispute?? This language suggests that the statute would not apply to the instant case. (See?Stueve v. Kahn?(2013) 222 Cal.App.4th 327, 332 [conspiracy claims against law firm for allegedly siphoning off clients’ assets through fraudulent estate planning did not arise from an ?attempt to contest or compromise a claim or dispute,? and thus were not within the prefiling requirement].)?Here, Bowen?s participation in the alleged fraud does not seem to arise from any attempt to contest or compromise a claim or dispute. Therefore, section 1714.10 is not applicable.
Defendants also demur to the fraud cause of action on the grounds it fails to state the claim with sufficient particularity and fails to allege reliance/damages.
The elements of a claim for fraud are (1) misrepresentation of a material fact; (2) knowledge of falsity or lack of a reasonable ground for belief in the truth of the representation; (3) intent to induce reliance; (4)?actual and justifiable reliance by the plaintiff; and (5) resulting damage. (Orient Handel v. United States Fid. & Guar. Co.?(1987) 192 Cal.App.3d 684, 693.) It is hornbook law that fraud-based claims are subject to a stricter pleading standard then that governing most California causes of action. To advance a cognizable fraud claim, “every element of the cause of action . . . must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a fraud claim deficient in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell?(1986) 186 Cal.App.3d 1324, 1331.) The heightened particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
Plaintiff argues that Bowen made specific misrepresentations that he was the lawful beneficiary of the DT and the beneficial owner of the property by presenting it to the Bankruptcy court. (FAC ?? 52, 56, 61.) These allegations do clearly state the required specificity as to the misrepresentations, as they address the who (Bowen), when (e.g. December 29, 2017), to whom (the Bankruptcy Court), and by what means (a filed Proof of Claim).
Plaintiff?s reliance on this misrepresentation is lacking. Plaintiff does not allege, as he argues in the opposition, that he relied on this to file the bankruptcy proceedings to force Defendants to account for the amount of monies actually loaned. (See FAC ?? 20, 35, 39, 47.) Plaintiff initiated these proceedings before the alleged misrepresentation occurred. (FAC ? 51.) Plaintiff specifically alleges that December 29, 2017 was the first time Bowen asserted that the was the assignee. (FAC ? 52.) How could this misrepresentation thus form the basis of Plaintiff?s filings in the bankruptcy proceedings prior to the misrepresentation?
The new allegations also clarify that Plaintiff brings this action based on privileged conduct, which was previously raised by Defendants in demurrer. (Civ. Code ? 47(b).) This directly states that this was a?communication made in judicial proceedings; by Bowen, a litigant; (3) to achieve the object of the bankruptcy litigation; and (4) that have some connection or logical relation to the action. (See?Silberg v. Anderson?(1990) 50 Cal.3d 205, 212.) The previous complaint was unclear as to what misrepresentations formed the basis of the complaint. Now that it is clear, privilege applies.
Accordingly, Defendants? demurrer is SUSTAINED.?Leave to amend?will only be granted if Plaintiff provides sufficient facts that demonstrate a reasonable probability of successful amendment given the deficiencies discussed above. (Goodman, supra,?18 Cal.3d at 347.)
Demurrer: Third Cause of Action ? Quiet Title
Defendants demur to the quiet title action on the sole grounds that Plaintiff did not file a procedurally required lis pendens when filing the FAC. (CCP ? 761.010.)
To state a claim for quiet title, the Plaintiff must allege: 1) a description of the property, 2) Plaintiff?s title and the basis of that title, 3) the adverse claims, 4) the date from which the determination is sought and 5) a prayer for the determination of the title against the adverse claims. (CCP ? 761.020;?Stafford v. Ballinger?(1962) 199 Cal.App.2d 289, 292.) To prevail in an action to quiet title, the plaintiff must prove title superior to that of defendant. (Gerhard v. Stephens?(1968) 68 Cal.2d 864, 918.)
Notably absent from the above elements is the requirement to file a lis pendens. (CCP ? 761.020.) Defendants cite no authority that failure to file a lis pendens is grounds for demurrer. (See?Carr v. Rosien?(2015) 238 Cal.App.4th 845 [held that failure to mail lis pendens to landowner rendered it void as to landowner and landowner’s transferees].)
Accordingly, Defendants? demurrer to the third cause of action is OVERRULED.
Demurrer: Fourth and Fifth Causes of Action
Defendants demur to the set aside trustee sale and cancellation of deed on the same grounds as the wrongful foreclosure. Indeed, Plaintiff?s theory as to these causes of action is that the assignment to Bowen was void ab initio, and he therefore lacked authority to foreclosure. However, as discussed above, the plead allegations require the opposite conclusion. Thus, these causes are also not well pled and would additionally require tender. Accordingly, Defendants? demurrer to these causes of action are likewise SUSTAINED.
Further, the Court notes that there is an inconsistency with when the alleged foreclosure sale took place. The FAC alleges that the sale took place on August 23, 2017, but that it did not take place until at least after December 2017. (FAC ?? 49-50 cf. 89.) The Court assumes that this is a simple typographical error. In any potential amended pleading, Plaintiff should clarify when this took place.
Demurrer: Sixth Cause of Action ? Injunction
The sixth cause of action contains no allegations, and appears to have been abandoned by Plaintiff. Accordingly, Defendants? demurrer is SUSTAINED without leave to amend as to this cause.
Motion to Strike- Punitive Damages
Civ. Code section 3294 states in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
Plaintiff basis his claim for punitive damages on the alleged fraudulent conduct. This will rise and fall with the claim for fraud. As discussed above, the Court did not find that the FAC sufficiently stated a cause of action for fraud. Accordingly, Defendants? motion to strike punitive damages is GRANTED.
Motion to Strike ? Attorneys? Fees
Plaintiff asserts that his request for attorney?s fees is based on the DT and loan. However, Plaintiff does not explain how fees would be proper against Defendants, who were not parties to the contract. Accordingly, Defendants? motion to strike the request is GRANTED without leave.
Motion to Strike ? Particular allegations/Exhibits
Defendants move to strike FAC ? 5 because the third cause of action for quiet title fails. As discussed, above in does not. Defendants? motion as to these paragraphs is DENIED.
Defendants move to strike FAC ?? 8-9 because they are irrelevant as there is no cause of action for alter ego. Defendants cite no authority that such a ?cause of action? is necessary, or that that the allegations of alter ego would otherwise be unsupported. Defendants? motion as to these paragraphs is DENIED.
Defendants move to strike FAC ?? 16-21 and the exhibits D and E on the grounds that the exhibits are difficult to read. This is not a basis for a motion to strike. Defendants? motion as to these paragraphs/exhibits is DENIED.
Defendants move to strike FAC ??14-21, 28 and 35, which refer to the prior contract which was sustained without leave. Defendants do not explain why this would render them irrelevant to the instant dispute. These provide critical and significant background facts to the dispute. Defendants? motion as to these paragraphs/exhibits is DENIED.
Defendants argue that the prayer should be stricken because the prayer is not separated as to defendants and causes of action. Defendants supply no authority that this would be a proper basis for a motion to strike. Defendants? motion as to the prayer is DENIED.
Moving party is ordered to give notice.