Superior Court, State of California
DATE: November 19, 2020 TIME: 9:00 A.M.
In light of the shelter-in-place order due to COVID-19, all appearances MUST be made by Court Call, unless the Court otherwise authorizes. If any party wishes to use a court reporter, the appropriate form (CV-5100) must be submitted to the Court for approval and the reporter must work remotely and cannot be physically present in the courtroom. If the Court permits someone to personally appear for a hearing, that person must observe appropriate social distancing protocols and must wear a face covering, unless the Court authorizes otherwise.
Any person entering Department 6 must observe appropriate social distancing protocols and must wear a face covering, unless the Court authorizes otherwise.
The public may access hearings in this department. Please check the court website for Department 6’s public access phone number.
As a reminder, state and local court rules prohibit recording a court proceeding without a court order. This includes members of the public listening in on the public access line.
Judge Folan WILL PREPARE ORDER unless counsel/prevailing party is instructed otherwise.
(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))
EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE OFFICIAL COURT REPORTERS FOR CIVIL TRIALS OR LAW AND MOTION HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS.
TROUBLESHOOTING TENTATIVE RULINGS
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|LINE # |CASE # |CASE TITLE |RULING |
|LINE 1 | 2014-1-CV-268527 | X. Lai vs A. Huang |Order of Examination continued from October 29, 2020. Personal |
| | | |appearance required. |
|LINE 2 | 18CV333664 |SBH Camden Properties, Ltd., LP vs Ann |Click Control Line 2 for Tentative Ruling |
| | |Mirassou et al | |
|LINE 3 | 18CV334906 | Jie Liu vs Siqi Fan et al |Click Control Line 3 for Tentative Ruling. |
|LINE 4 | 18CV334364 |SERAPHIM SOLAR USA MANUFACTURING, INC. et|The Court conducted an informal discovery conference with counsel and |
| | |al vs CSUN Trading (Hong Kong) CO. LTD. |supplemental discovery responses were provided. Consequently, this |
| | |et al |discovery motion is OFF CALENDAR |
|LINE 5 | 18CV334364 |SERAPHIM SOLAR USA MANUFACTURING, INC. et|The Court conducted an informal discovery conference with counsel and |
| | |al vs CSUN Trading (Hong Kong) CO. LTD. |supplemental discovery responses were provided. Consequently, this |
| | |et al |discovery motion is OFF CALENDAR |
|LINE 6 | 18CV334364 |SERAPHIM SOLAR USA MANUFACTURING, INC. et|The Court conducted an informal discovery conference with counsel and |
| | |al vs CSUN Trading (Hong Kong) CO. LTD. |supplemental discovery responses were provided. Consequently, this |
| | |et al |discovery motion is OFF CALENDAR |
|LINE 7 | 18CV334364 |SERAPHIM SOLAR USA MANUFACTURING, INC. et|The Court conducted an informal discovery conference with counsel and |
| | |al vs CSUN Trading (Hong Kong) CO. LTD. |supplemental discovery responses were provided. Consequently, this |
| | |et al |discovery motion is OFF CALENDAR |
|LINE 8 | 18CV334364 |SERAPHIM SOLAR USA MANUFACTURING, INC. et|The Court conducted an informal discovery conference with counsel and |
| | |al vs CSUN Trading (Hong Kong) CO. LTD. |supplemental discovery responses were provided. Consequently, this |
| | |et al |discovery motion is OFF CALENDAR |
|LINE 9 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 10 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 11 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 12 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 13 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 14 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 15 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 16 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 17 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 18 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 19 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 20 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 21 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 22 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 23 | 19CV359691 |MIGUEL OLVERA et al vs HYUNDAI MOTOR |Counsel participated in an informal discovery conference with the |
| | |AMERICA et al |court and did an excellent job resolving the issues connected with |
| | | |this discovery motion. Consequently, this discovery motion is OFF |
| | | |CALENDAR. |
|LINE 24 | 2011-1-CV-193595 |CACH, LLC vs Q. Okoronkwo |This matter was continued from the November 3, 2020 calendar as |
| | | |defendant appeared at the hearing but did not notify the Court or |
| | | |opposing counsel she was contesting the tentative ruling. Defendant |
| | | |Okoronkwo’s Motion to Set Aside Entry of Default and Default Judgment|
| | | |and to Recall Writ of Execution and Abstract of Judgment is DENIED. |
| | | |Unfortunately, defendant’s motion is untimely under Code of Civil |
| | | |Procedure Sections 473 (d) and 473.5 which have an outer limit of 2 |
| | | |years after entry of default judgment to file a motion for relief. |
| | | |See, Trackman v. Kenney (2010) 187 CA 4th 175, 180. The subject |
| | | |default judgment was entered on April 13, 2011 and more than 10 years |
| | | |have passed before defendant filed this motion. Moreover, the |
| | | |aforementioned statutes apply when defendant has not been properly |
| | | |served or has not received actual notice of the lawsuit. The proof of |
| | | |service in this case shows defendant was personally served by a |
| | | |registered process server on February 20, 2011 at 12:50 pm at the |
| | | |address where defendant is still living today, triggering a |
| | | |presumption that service was valid. Evidence Code 647; Rodriquez v. |
| | | |Cho (2015) 236 CA4th 742. Defendant has not rebutted that presumption |
| | | |or provided evidence in support of any of her other theories for |
| | | |relief. Defendant may wish to file for a claim of exemption if she is|
| | | |having financial difficulties as a result of the wage garnishment. The|
| | | |Court will prepare the order. |
|LINE 25 | | | |
|LINE 26 | | | |
|LINE 27 | | | |
|LINE 28 | | | |
|LINE 29 | | | |
|LINE 30 | | | |
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Calendar line 2
Case Name: SBH Camden Properties, L.P. v. Mirassou, et al.
Case No.: 18CV333664
This is a dispute among owners and possessors of adjoining land over competing rights of first refusal. According to the allegations of the second amended complaint (“SAC”), plaintiff SBH Camden Properties, L.P. (“SBH”) owns one parcel (parcel 5) in a shopping center at 5415 Camden Avenue, while members of the Mirassou family own the neighboring parcel (parcel 6) at 5431 Camden Avenue. (See SAC, ¶¶ 6-7.) Since February 2, 2001, defendant Taco Bell Corporation (“Taco Bell”) has operated a restaurant at the Mirassou family’s property under a 20-year lease (that was recorded in this county). (See SAC, ¶ 8.) The lease includes a right of first refusal giving Taco Bell the option to purchase the Mirassou family’s property. (See SAC, ¶ 8, Exh. B, § l9.1.) SBH claims that—without knowledge of Taco Bell’s option—it also subsequently acquired a right of first refusal for the Mirassou family’s property. (See SAC, ¶ 15.) SBH seems to allege that the Mirassou family gave it the right of first refusal as consideration for its assent to renovation of the Taco Bell restaurant, especially installation of a drive-through window impacting parking. (See SAC, ¶¶ 9-15.)
On October 22, 2003, the point of contact for Vincent & Murphy, Hugh Murphy (“Murphy”), and real estate manager for Yum! Brands, Inc. (“Yum”), Alan R. Greengard (“Greengard”), communicated with SBH limited partner David Bider (“Bider”) and SBH’s counsel to negotiate the terms of SBH’s right of first refusal. (See SAC, ¶ 16, Exh. D.) On October 29, 2003, Murphy emailed Bider, stating that stating that he called Clovis Mirassou and asked if the right of first refusal documents were signed, and Mirassou stated that he needed to strikeout a couple of items dealing with timeframe allowed and buyout amount and indicated that the signed documents were forwarded to the other partners for their signatures. (See SAC, ¶ 17, Exh. E.) Based on these emails, Taco Bell was on notice that Plaintiff was negotiating a right of first refusal with Mirassou through Murphy. (See SAC, ¶ 18.) SBH contends that Murphy was acting as an agent for both Taco Bell and Mirassou, and that Taco Bell was an intended third party beneficiary of the executed right of first refusal since Taco Bell would benefit by obtaining a drive-thru window on the project. (See SAC, ¶¶ 18-19.) As an intended third party beneficiary, SBH asserts that Taco Bell owed SBH a duty to disclose the existence of Taco Bell’s superior right of first refusal. (See SAC, ¶ 19.) Taco Bell breached said duty to disclose as it never notified SBH of its superior right of first refusal. (See SAC, ¶¶ 19-20.)
In 2014, nonparty Golden Gate Bell, LLC purchased the restaurant business and took over the lease of the Mirassou family’s property. (See SAC, ¶ 21.) In July 2018, the Mirassou family informed SBH of its intention to sell the property. (See SAC, ¶ 22.) SBH alleges it exercised its right of first refusal and opted to purchase the property but was informed that the Mirassou family sold the property to an entity affiliated with Golden Gate Bell, LLC. (See SAC, ¶¶ 22-23.) On May 28, 2020, the Court [Hon. Kirwan] sustained Taco Bell’s demurrer to the third cause of action of the first amended complaint on the ground that it failed to state facts sufficient to constitute a cause of action, with leave to amend.
On June 2, 2020, SBH filed the SAC against the Mirassou family members and Taco Bell, asserting causes of action for:
1) Breach of contract (against Mirassou);
2) Fraud (against Mirassou); and,
3) Conspiracy (against all defendants).
Defendant Taco Bell demurs to the third cause of action of the SAC.
DEMURRER TO THE THIRD CAUSE OF ACTION OF THE SAC
Taco Bell demurs to the third cause of action for conspiracy, asserting that the SAC fails to allege facts supporting a duty to disclose owed by Taco Bell to SBH. In its May 28, 2020 order regarding Taco Bell’s demurrer to the first amended complaint, the Court stated:
The essential elements of a fraudulent concealment claim are: (1) the defendant concealed or suppressed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted in the same manner if he or she knew of the fact; (5) the plaintiff suffered damages as a result of the defendant’s concealment or suppression of the fact. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Ca1.App.4th 115, 131, citing Civ. Code, § 1710, subd. (3).) A duty to disclose may arise from a fiduciary or confidential relationship. (Linear Technology Corp., supra, 152 Ca1.App.4th at p. l31.) Additionally, “[i]n transactions which do not involve fiduciary or confidential relations,” a duty arises when “(1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Ibid. [internal quotation marks and citations omitted].)
While it is true that a fraudulent concealment claim must be pleaded with specificity, Taco Bell misstates the level of specificity required. (See Alfaro v. Community Housing Improvement System & Planning Assn. (2009) 171 Cal.App.4th 1356, 1384.) With respect to an intentional misrepresentation, a plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v, Super. Ct. (1996) 12 Cal.4th 631, 644-45 [internal quotation marks and citation omitted].) This same maxim does not apply to a claim based on concealment or nondisclosure. (Alfaro, supra, 171 Cal.App.4th at p. 1384.) “‘How does one show “how” and “by what means” something didn’t happen, or “when” it never happened, or “where” it never happened?” (Ibid.) And so, while fraudulent concealment must still be pleaded with specificity, less specificity is required as to facts presumptively within the defendant’s knowledge. (Ibid.)
Here, Camden Properties fails to allege sufficient facts with specificity to state a claim for fraudulent concealment. Camden Properties does not allege facts giving rise to a duty to disclose by Taco Bell. Although Camden Properties alleges the Mirassou family and Taco Bell negotiated the right of first refusal in paragraph 33, this allegation is inconsistent with the prefatory allegation that Camden Properties and the Mirassou family negotiated the right of first refusal while Taco Bell and Camden Properties discussed guidelines for protecting customer parking (FAC, ¶¶ 14-15). Even accepting that Taco Bell somehow was involved in a conversation with Camden Properties, this is insufficient to plead the existence of a duty to disclose on the part of Taco Bell. For example, there are no facts pleaded that reflect Taco Bell made an incomplete disclosure that obligated it to disclose the existence of its right of first refusal. In sum, Camden Properties fails to allege facts (general or specific) sufficient to plead the existence of a duty to disclose.
In reaching this conclusion, the Court clarifies that a conspiracy theory may not be used as a bootstrap for an otherwise incomplete claim. (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 514.) To be liable on a conspiracy theory, the tortfeasor must be legally capable of committing the underlying tort. (Ibid.) Accordingly, even when a conspiracy theory is pleaded, there must still be allegations that the conspirator owed the duty breached. (Ibid.) Thus, here, Camden Properties must still allege facts showing Taco Bell had a duty to disclose irrespective of whether it also intends to proceed on a conspiracy theory.
(May 28, 2020 order re: Taco Bell’s demurrer to first amended complaint, exh. A, pp.3-4.)
The SAC’s primary new allegations are amendments to paragraph 15 and the addition of paragraphs 16-20. In opposition to the demurrer, SBH argues that:
As set forth the sole cause of action against Taco Bell is for conspiracy and that Taco Bell acted as a co-conspirator with Mirassou to entice Plaintiff to agree to the CUP conditions required by the City by providing Plaintiff a worthless RFR. The conspiracy claim against Taco Bell is simply that Taco Bell was the beneficiary of the CUP since Taco Bell was the party who ultimately benefited from obtaining the drive through window. The RFR was negotiated by Hugh Murphy on behalf of Mirassou with the email correspondence copied to Taco Bell personal Alan Greengard and Dean DeNardi, who failed to bring to plaintiff’s attention that there was already a right of first refusal in place….
(Pl.’s opposition to demurrer (“Opposition”), pp.3:27-28, 4:1-5.)
The SAC newly alleges that “[a]s an intended third party beneficiary to the RFR, Taco Bell owed a duty of disclosure and a duty not to conceal facts to Plaintiff related to Taco Bell’s prior right of first offer on the Mirassou Property.” (SAC, ¶ 19.) The SAC further alleges that Taco Bell breached this purported duty “by intentionally failing to disclose and concealing the fact that Taco Bell had a right of first offer on the Mirassou Property which was prior in time and superior in terms of enforcement than the RFR which Plaintiff was acquiring.” (Id.)
As the Court stated in its prior order, the Sixth District has identified three instances in transactions which do not involve fiduciary or confidential relations where a cause of action for nondisclosure of material facts may arise: “(1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Linear Technology Corp., supra, 152 Ca1.App.4th at p. l32.) Here, the SAC plainly alleges that Taco Bell has not disclosed any information and is thus relying on a nondisclosure theory such that the first option is not available. Further, the SAC also alleges that Mirassou knew of the right of first offer on the Mirassou property that was prior in time, rendering the second option available. Finally, the SAC does not allege facts supporting Taco Bell’s active concealment of discovery of its right of first refusal. In opposition, SBH admits that “[t]he RFR was negotiated by Hugh Murphy on behalf of Mirassou with the email correspondence copied to Taco Bell personal Alan Greengard and Dean DeNardi, who failed to bring to plaintiff’s attention that there was already a right of first refusal in place.” (Opposition, p.4:3-6; see also FAC, ¶ 18 (alleging that “Plaintiff was negotiating a RFR with Mirassou through Murphy”).) Further, it states that “Taco Bell was in the loop regarding the negotiations with plaintiff as evidenced by Murphy’s email that Murphy wanted Taco Bell to be on notice as to ‘what we are doing.’” (Opposition, p.6:15-16.) These facts and the October 23, 2003 email in which Murphy cc-ed Greengard and DeNardi, stating “I am copying Yum Brands also so they can be in the loop as to what we are doing” neither supports any active concealment by Taco Bell, nor any involvement of Taco Bell in the negotiations between Mirassou and SBH.
Thus, that leaves the possibility that Taco Bell owed a fiduciary duties to, or was in a fiduciary or confidential relationship with SBH. SBH does not cite to any authority suggesting that a fiduciary or confidential relationship exists as a result of Taco Bell’s status as “an intended third party beneficiary.” Moreover, it appears that SBH concedes that no fiduciary relationship exists between it and Taco Bell. (See Opposition, p.5:3-5 (stating that “Taco Bell alleges that such non-fiduciary co-conspirator is forever insulated from liability based upon their non-fiduciary status… Plaintiff disputes this contention”); see also American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1474 (stating that “[a] nonfiduciary cannot conspire to breach a duty owed only by a fiduciary”).) Regardless, “[b]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.” (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386; see also Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 246 (stating same; also stating “the mere placing of a trust in another person does not create a fiduciary relationship”).) In City of Hope National Medical Center, supra, the California Supreme Court stated that no fiduciary relationship existed where “[t]here is no indication in the contract that Genentech entered into it with the view of acting primarily for the benefit of City of Hope… [such] that Genentech had undertaken a fiduciary obligation ‘to act on behalf of and for the benefit of another’… [n]or is there a factual basis showing that Genentech through its conduct ‘knowingly’ undertook the obligations of a fiduciary.” (City of Hope National Medical Center, supra, 43 Cal.4th at p. 386.) “The remaining question then is whether [the particular agreement] … is the type of relationship ‘which imposes that undertaking [fiduciary obligation to act on behalf of and for the benefit of another] as a matter of law.’” (Id.) “They include relationships between: (1) principal and agent [citation], including real estate broker/agent and client [citation], and stockbroker and customer [citation]; (2) attorney and client [citation]; (3) partners [citation]; (4) joint venturers [citation]; (5) corporate officers and directors, on the one hand, and the corporation and its shareholders, on the other hand [citation]; (6) husband and wife, with respect to the couple’s community property [citation]; (7) controlling shareholders and minority shareholders [citation]; (8) trustee and trust beneficiary[citation]; (9) guardian and ward [citation]; (10) pension fund trustee and pensioner beneficiary [citation], (11) executor and decedent's estate [citation]; and (12) trustee and trust beneficiaries.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 632-633.) Here, none of the relationships apply to Taco Bell as to SBH.
Nonetheless, SBH argues that CACI 3600 states the elements of a conspiracy cause of action, which SBH asserts is alleged. (See Opposition, pp.5:4-28, 6:1-19.) However, as Taco Bell asserts, SBH selectively quotes from CACI 3600, ignoring the quote from Doctors’ Co. v. Super. Ct. (Valencia) (1989) 49 Cal.3d 39, which states that “[a] cause of action for civil conspiracy may not arise, however, if the alleged conspirator, though a participant in the agreement underlying the injury, was not personally bound by the duty violated by the wrongdoing….” (Id. at p.44; see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514 (stating that “[c]onspiracy is not an independent tort; it cannot create a duty or abrogate an immunity… [i]t allows tort recovery only against a party who already owes the duty”); see also Chavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 611 (stating same); see also Everest Investors 8 v. Whitehall Real Estate Limited Partnership XI (2002) 100 Cal.App.4th 1102, 1107 (stating same); see also 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 592 (stating that “one cannot be liable for conspiracy if one is legally incapable of committing the underlying tort”).) As previously stated, SBH fails to allege that Taco Bell was personally bound by any duty violated by the purported wrongdoing. Accordingly, Taco Bell is correct that the third cause of action as alleged fails to state facts sufficient to constitute a cause of action.
In opposition, Plaintiff neither requests leave to amend, nor suggests any means of amending the SAC so that it could state a viable cause of action against Taco Bell. (See Goodman v. Kennedy (1976)18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).) Instead, Plaintiff apparently rests on the allegations set forth in the SAC. Taco Bell’s demurrer to the third cause of action of the SAC for conspiracy is SUSTAINED without leave to amend.
The Court will prepare the Order.
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Case Name: Liu v. Fan, et al.
Case No.: 18CV334906
After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:
According to the allegations of the first amended complaint (“FAC”), on August 11, 2017, plaintiff Jie Liu (“Liu”) entered into an agreement to purchase a condominium at 1996 Nevets Lane in San Jose. (See FAC, ¶¶ 1-2.) On March 27, 2018, Liu asked defendant Siqi Fan (“Fan”) to marry him, and she initially accepted but then rescinded, making any engagement conditional on certain financial conditions being met and her parents’ approval. (See FAC, ¶ 3.) Liu and Fan’s parents began negotiating the pre-marriage financial requirements, including adding Fan as a co-owner on the property before the marriage, Liu purchasing wedding rings and an engagement ring prior to marriage, preparing a wedding with a minimum budget of ¥200,000 RMB at a five-star hotel, and a betrothal price of ¥100,000 RMB for Fan’s family. (See FAC, ¶ 4.) When Liu did not initially agree to put Fan on the title to the subject property, Fan represented that if Liu put her on the title for a one-half interest, Fan and her parents would reimburse him for 50% of the down payment. (See FAC, ¶ 5.) In reliance on this representation, Liu took steps to add Fan to the title documents on July 6, 2018. (See FAC, ¶ 6.) To close, Liu made an additional payment of $126,630.17 so that the total payment by Liu was $159,186.17. (Id.) Liu’s down payment was paid by his own funds, and Liu is the only borrower on the loan. (See FAC, ¶ 7.) On June 24, 2018, Fan added additional pre-marriage financial conditions, including that: Liu deposit all his income into a joint account; Fan was entitled to deposit $18,000 into a separate account controlled solely by Fan; Liu allocate a minimum $10,000 for a travel budget. (See FAC, ¶ 8.) Liu obtained a loan from Pulte Mortgage, LLC (“Pulte”); the loan is the sole obligation of Liu, but Fan is on title to the deed of trust. (See FAC, ¶ 9.) Fan did not sign a loan application and did not provide any financial information to the lender and did not sign the financing agreement for the loan. (Id.) On July 20, 2018, Liu and Fan ended their relationship. (See FAC, ¶ 10.) Neither Fan nor her family reimbursed Liu for 50% of the down payment. (Id.) In August 2018, the rights to the loan were assigned to defendant Alliant Credit Union (“Alliant”). (See FAC, ¶ 11.) Since the relationship ended and Fan had not contributed to the purchase of the property, Fan agreed to quitclaim title to the property to Liu. (See FAC, ¶ 12.) Liu obtained approval from Bank of America to refinance the loan and Fan initially agreed to execute the necessary documents to finalize the refinancing, but then refused and requested that Liu pay her $2,000 so that she can pay an attorney to prepare the quitclaim deed. (See FAC, ¶¶ 13-14.) Liu paid the $2,000; however, Fan never provided a quitclaim deed nor a receipt or contact information for an attorney to prepare a quitclaim deed. (See FAC, ¶ 14.) Fan then called the Fremont Police Department falsely claiming that Liu was harassing her in an attempt to destroy Liu’s reputation and look like a victim. (See FAC, ¶ 15.)
On July 2, 2020, Liu filed the FAC against Fan, Pulte, and Alliant (collectively, “Defendants”), asserting causes of action for:
1) Quiet title (against all defendants);
2) Cancellation of instrument (against all defendants);
3) Specific enforcement (against Fan);
4) Intentional interference with economic relations (against Fan); and,
5) Declaratory relief (against all defendants).
Fan demurs to the entirety of the FAC on the ground that it is barred by Civil Code sections 43.4 and 43.5, to the first and second cause of action on the ground of misjoinder, and to the first through fourth causes of action on the ground that they fail to state facts sufficient to constitute a cause of action.
Demurrer to the entirety of the FAC on the ground that it is barred by Civil Code sections 43.4 and 43.5.
Fan asserts that the FAC fails to state any cause of action against her because it “violates California’s prohibition against lawsuits to assuage a broken heart.” (Def.’s memorandum of points and authorities in support of demurrer to FAC (“Def.’s memo”), p.8:8.) Citing Askew v. Askew (1994) 22 Cal.App.4th 942, Fan argues that Civil Code section 43.5 prohibits the claims. Section 43.5 states that “[n]o cause of action arises for: (a) Alienation of affection. (b) Criminal conversation. (c) Seduction of a person over the age of legal consent. (d) Breach of promise of marriage.” (Civ. Code § 43.5.)
In Askew, supra, the court discussed the history of section 43.5: to prevent potential abuse of brokenhearted plaintiffs claiming damages from the breakup of a relationship, thereby resulting in the redistribution of a large portion of the defendant’s wealth, in 1939, the California Legislature added section 43.5 to the Civil Code. (See Askew, supra, 22 Cal.App.4th at pp. 945-947 (also stating that “[t]he California anti-heart-balm statutes which long ago did away with breach of promise actions establish a public policy against litigation of the affairs of the heart”; also stating that “t).) Section 43.5, subdivision (d) prohibited “actions seeking ‘compensation for outraged affection or loss of companionship,’… [as well as] actions seeking ‘loss of expected support.’” (Id. at p.956.) With Civil Code section 43.4, which states that “[a] fraudulent promise to marry or to cohabit after marriage does not give rise to a cause of action for damages,” the Askew court stated that “the policy behind the anti-heart-balm statutes bears some elaboration… these statutes not only preclude certain ‘old fashioned’ causes of action, but also embody a basic reluctance on the part of both the Legislature and the judiciary to allow recovery for promises of love... [t]his reluctance stems, no doubt, from the sheer unseemliness of litigating tender matters of romantic or sexual emotion in courts of law.” (Id at pp.957-958.)
The plaintiff in Askew asserted that his wife, prior to marriage, “told him she felt sexual attraction for him… ‘loved, desired, and cared for’ him, and wanted to marry him ‘solely because of the affection and desire she had for him.’” (Id. at pp.946-947.) At trial, the husband’s opening statement “referred to [the wife’s] lack of passion and sexual attraction for [the plaintiff] at the inception of the marriage, and how [the plaintiff] would never have married her or put any of his property in her name if he had known of it,” and the husband testified that “he would not have transferred the properties if he had ‘known the truth’ (referring to the revelations from the 1991 counseling session) that he knew ‘now’-i.e., that she really had no desire for him ‘physically’ or ‘sexually,’ that she had no ‘passion’ for him prior to the marriage, or ‘during’ the marriage.” (Id. at pp.949-950.) At trial, the wife “admitted that she did not have sexual desire for Ronald prior to or during the marriage, even though she ‘may,’ at one point ‘early on in the relationship,’ have told Ronald that the two of them had a ‘very satisfying’ sexual relationship.” (Id. at p.950.) After the husband was awarded $240,000 in damages, the wife appealed. (Id. at p.952.) In reversing the judgment, the Askew court stated that the wife’s “false statements that she loved and sexually desired [the husband] thus clearly come within the legal category of a fraudulent promise to ‘cohabit’ after marriage… [the husband’s] act of arranging property to be taken in joint tenancy was without doubt inextricably related to the fact that he married [the defendant] in reliance on her false statement that she had sexual desire for him… [t]he very nature of the ‘fraud’ is bound up in [the defendant’s] sincerity concerning some of her most intimate feelings and desires.” (Id at pp.957-959.) “Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit.” (Id. at p.959 (also stating that “[t]he courts should stay out of the bedroom”).) Further, “breach of promise suits are fundamentally incompatible with a statutory scheme of no-fault divorce.” (Id. at pp.959-960 (also stating that “[t]he limited recovery available in dissolution actions is easily circumvented if spouses are allowed to sue each other because of love-related promises”).)
The Askew court also discussed In re Marriage of McNeill (1984) 160 Cal.App.3d 548, in which the court upheld a judgment in a fraud action between spouses, distinguishing it from Askew, stating: “both the nature and, for the most part, the time of the misrepresentations in McNeill were different from the misrepresentations here… [t]he statements in McNeill were all made after the marriage and had nothing to do with love, sex or passion.” (See Askew, supra, 22 Cal.App.4th at p.960; see also Marvin v. Marvin (1976) 18 Cal.3d 660, 674 (reversing granting of motion for judgment on the pleadings, addressing argument that contract was barred by section 43.5, stating that “adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights… [o]f course, they cannot lawfully contract to pay for the performance of sexual services, for such a contract is, in essence, an agreement for prostitution and unlawful for that reason… [s]o long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements”).)
Here, Civil Code section 43.4 does not bar the entirety of the causes of action in the FAC as that statute only applies to “cause[s] of action for damages” and the majority of the causes of action of the FAC do not seek damages. As to whether the causes of action are barred by Civil Code section 43.5, subdivision (d), the causes of action are likewise not barred. The FAC alleges that Liu negotiated with Liu’s parents as to certain financial conditions precedent for the possibility of approval of marriage. (See FAC, ¶ 4.) Included in these conditions were that Fan be put on the title for a one-half interest in the property in exchange for 50% of the down payment. (See FAC, ¶ 5.) This is not a contract involving “words of love, passion and sexual desire,” or a “contract to pay for the performance of sexual services.” Also relevant is that the parties did not marry, and that neither party had any belief that a marriage existed. (See Shaw v. Shaw (1964) 227 Cal.App.2d 159, 163-166 (stating that “the law then recognizes the contract and enforces the rights arising out of it”), citing Civ. Code § 1590 (stating that “[w]here either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just”).) Fan’s demurrer to the entirety of the FAC on the ground that it is barred by the “heart-balm statutes” is OVERRULED.
Demurrer to the first cause of action for quiet title and second cause of action for cancellation of instrument on the ground of misjoinder
Fan demurs to the first cause of action for quiet title and the second cause of action for cancellation of instrument on the ground of misjoinder in that MERS is not joined and is a necessary party. (See Def.’s memo, p.10:21-27, 11:1-20.) The FAC attaches the deed of trust, in which the lender is listed as Pulte Mortgage LLC, and states that “MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the beneficiary under this Security Instrument.” (See FAC, exh. 2 (“deed of trust”), pp.2-3, ¶¶ (C), (E); id. at p.4 (stating that “[t]he beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender’s successor and assigns) and the successors and assigns of MERS… [t]his Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note”).) “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.” (Id. at p.5.)
Here, the deed of trust states that MERS is acting solely as a “nominee” for Pulte Mortgage LLC. “‘The word ‘nominee’ in its commonly accepted meaning, connotes the delegation of authority to the nominee in a representative or nominal capacity only, and does not connote the transfer or assignment to the nominee of any property in or ownership of the rights of the person nominating him.” (Born v. Koop (1962) 200 Cal.App.2d 519, 527–528; see also Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1157, fn. 9 (stating that “although identified as a ‘beneficiary’ in a deed of trust, MERS is not acting in the role of a beneficiary as that term is commonly used, and that MERS in fact acts as a nominee, and thus an agent of the beneficiary”); see also Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 125 (stating that “MERS had the right to initiate foreclosure and to instruct the trustee to exercise the power of sale as nominee (i.e., agent) of the original lender and its successors and assigns”); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 270, 273 (stating that “[a] ‘nominee’ is a person or entity designated to act for another in a limited role—in effect, an agent …[t]here is nothing inconsistent in MERS's being designated both as the beneficiary and as a nominee, i.e., agent, for the lender… [t]he legal implication of the designation is that MERS may exercise the rights and obligations of a beneficiary of the deed of trust, a role ordinarily afforded the lender, but it will exercise those rights and obligations only as an agent for the lender, not for its own interests… [MERS] had no interest in the note to assign”), disapproved on other ground by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919; see also Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1003 (stating that “[u]nder the MERS System, however, MERS is designated as the beneficiary in deeds of trust, acting as ‘nominee’ for the lender, and granted the authority to exercise legal rights of the lender”).) Fan’s argument in reply that MERS has the right to foreclose has no import as MERS certainly has the right to foreclose as nominee for the lender, Pulte Mortgage LLC or its assigns. While it may be prudent to add MERS as a defendant for the first two causes of action, as MERS’ rights or obligations may be only exercised as an agent for Pulte and not for its own interests, MERS is not a necessary party. (See Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662, 667 (stating that “[a] person is an indispensable party to litigation ‘if his or her rights must necessarily be affected by the judgment’”).) The demurrer to the first and second causes of action on the ground of misjoinder is OVERRULED.
Demurrer to the first cause of action on the ground that it cannot state facts sufficient to constitute a cause of action because the pleading is a sham
Fan demurs to the first cause of action, arguing that it cannot state facts sufficient to constitute a cause of action because the grant deed states that Fan has an undivided 50 percent interest in the subject property. (See Def.’s memo, pp.11:22-28, 12:1-24.) However, while the Court may take judicial notice of the existence and facial contents of the document, the court may not take judicial notice of disputed or disputable facts stated therein. (See Yvanova, supra, 62 Cal.4th at p.924, fn. 1.) While the grant deed states that Fan has a 50 percent interest in the subject property, whether Fan actually has that interest is in dispute. Here, Fan’s interest may be set aside for fraud, mistake, duress, or other grounds invaliding Liu’s consent. (See Rehbock v. Reservoir Hill Gasoline Co. (1936) 14 Cal.App.2d 233, 237; see also Civ. Code § 3412; see also Miller v. Eisenberg (1949) 90 Cal.App.2d 479, 481-482 (purchasers entitled to cancellation of note due to fraudulent representations).) The demurrer to the first cause of action on the ground that it fails to state facts sufficient to constitute a cause of action is OVERRULED.
Demurrer to the second cause of action for cancellation of instrument
“To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position.” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193–1194.) Fan argues that the second cause of action fails to allege “serious injury” that is “reasonably apprehended,” and that she cannot ascertain why the instrument is evidence of different rights or obligations. The FAC alleges that “Fan then refused to execute the documents and Liu could not complete the Re-financing… [in which] Liu’s payments would have been reduced from what he pays under the Loan.” (FAC, ¶ 13.) As Fan notes in reply, this allegation was incorporated into the second cause of action. The second cause of action sufficiently alleges the serious injury element.
Fan also cites the 1946 case, Ephraim v. Metropolitan Trust Co. of Cal. (1946) 28 Cal.2d 824, in which the court stated that “[i]n a suit to remove a cloud the complaint must state facts, not mere conclusions, showing the apparent validity of the instrument designated, and point out the reason for asserting that it is actually invalid. (Def.’s memo, p.13:15-19, citing Ephraim, supra, 28 Cal.2d at pp. 833–834.) Presumably, Fan argues that the second cause of action also fails to allege a factual basis as to why the deed is void or voidable—the first element of a cause of action for cancellation of instrument. Here, the FAC likewise alleges such facts. (See FAC, ¶¶ 2-15; see also Western Title Guaranty Co., Sacramento County Division v. Sacramento and San Joaquin Drainage Dist. (1965) 235 Cal.App.2d 815, 823 (stating that “[r]eformation is nothing but a remedy to correct a mistake in a written instrument, and a deed may be reformed”); see Civ. Code § 3399 (stating that “[w]hen, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value”); see also Lin v. Coronado (2014) 232 Cal.App.4th 696, 705 (stating that “[w]hen there is a void deed, ‘grantor can reform or rescind the deed against a bona fide purchaser’”).) The demurrer to the second cause of action is OVERRULED.
The demurrer to the third cause of action
The third cause of action for specific performance alleges that Fan agreed to quitclaim her interest in the subject property to Liu for $2,000 so that she would be relieved from responsibility under the deed of trust, and, Liu paid $2,000, but Fan failed to quitclaim her interest. (See FAC, ¶¶ 25-27.) “To obtain specific performance after a breach of contract, a plaintiff must generally show: ‘(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract.’” (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)
Fan demurs to the third cause of action, asserting that: Liu does not claim that he has an inadequate remedy such that money damages are not sufficient; Liu has not delivered as to his end of the bargain since the deed of trust still shows Fan as a borrower; there are no terms which are sufficiently definite to enable the court to know what it is to enforce; and, the agreement is barred by the statute of frauds since it was an oral agreement. (See Def.’s memo, pp.14:6-27, 15:1-19.) In opposition, Liu argues that: Civil code section 3387 presumes no adequate legal remedy in case involving an agreement to transfer title to residential real property; Liu alleges adequate consideration as he provided $2,000; the third cause of action is a simple deal in which all that was required was that Fan execute a quitclaim deed; and, Fan is estopped from relying on the statute of frauds due to part performance. (See Opposition, p.9:3-21.)
Section 3387 states that “[i]t is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation.” (Civ. Code § 3387.) Here, the FAC alleges a breach of an agreement to transfer real property; thus, it is presumed that it cannot be adequately relieved by pecuniary compensation.
As to whether Liu failed to deliver on his promise to remove Fan’s name from the deed of trust, the FAC alleges that Liu obtained approval from Bank of America to refinance the loan based on the agreement that Fan would quitclaim her interest to Liu, but after payment of $2,000, Fan refused to provide a quitclaim deed. (See FAC, ¶¶ 12-14.) As the removal of Fan’s name from the deed of trust was contingent on Fan’s quitclaim of her interest, the FAC alleges excuse from performance. (See Civ. Code § 1511, subd. (1) (stating that “[t]he want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused… [w]hen such performance or offer is prevented or delayed by the act of the creditor”); see also Crawford v. Pioneer Box & Lumber Co. (1930) 105 Cal.App. 760, 769 (stating that “[p]revention of performance by the promisee is equivalent to performance by the promisor”); see also Unruh v. Smith (1954) 123 Cal.App.2d 431, 437 (stating same); see also Rains v. Arnett (1961) 189 Cal.App.2d 337, 347 (stating “[a] person cannot take advantage of his own act or omission to escape liability”).)
As to whether there are no terms which are sufficiently definite to enable the court to know what it is to enforce, paragraph 28 states that “Plaintiff requests specific performance of the Agreement, specifically, that Defendant be removed from title for the property… [as] Fan agreed to quitclaim her interest in the Property to Plaintiff.” (FAC, ¶¶ 14, 25, 28.) Paragraph 26 alleges that Liu paid $2,000 and agreed that Fan would be relieved from any responsibility under the deed of trust. (See FAC, ¶¶ 14, 26.) Fan asks a number of questions in lieu of substantive argument, including “[h]ow can the court force… [the removal of Fan] from the deed of trust?” (Def.’s memo, p.15:4-12.) Again, however, the FAC alleges that Liu performed and excuse for nonperformance. (See Ninety Nine Investments v. Overseas Courier Service (Singapore) Private (2003) 113 Cal.App.4th 1118, 1126 (stating that “[t]o obtain specific performance, [a plaintiff] must establish its own performance or excuse for nonperformance”).) “A plaintiff must also show that it was ready, willing and able to perform both at the time the original contract was entered into and during the specific performance action.” (Id.; see also Reyburn v. Young (1936) 11 Cal.App.2d 476, 477 (stating that “[i]t is well settled that, to entitle a party to specific performance, he must have (a) performed, (b) offered to have performed, or (c) proved a sufficient excuse for not performing, all the conditions required of him by the terms of the contract”); see also Beverage v. Canton Placer Min. Co. (1955) 43 Cal.2d 769, 777 (stating same).) Here, Fan may simply be removed from the deed of trust by Liu paying off the loan, or by refinancing the loan in his own name. Thus, Fan is incorrect that specific performance is impossible. (See Civ. Code § 1597 (stating that “[e]verything is deemed possible except that which is impossible in the nature of things”); see also Mineral Park Land Co. v. Howard (1916) 172 Cal. 289, 293 (stating that “a thing is impracticable when it can only be done at an excessive and unreasonable cost”).) Even if the removal of Fan from the deed of trust were impossible, as stated above, the FAC alleges that it was only due to Fan’s refusal to perform that made such removal impossible, which would render such provision void. (See Bewick v. Mecham (1945) 26 Cal.2d 92, 99 (stating that “[a] party who prevents fulfillment of a condition of his own obligation commits a breach of contract [citations] and cannot rely on such condition to defeat his liability”); see also Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 1006 (stating that “[a] party to a contract cannot take advantage of his own act or omission to escape liability thereon… [w]here a party to a contract prevents the fulfillment of a condition or its performance by the adverse party, he cannot rely on such condition to defeat his liability”); see also Civ. Code § 1613 (stating that “[w]here a contract provides an exclusive method by which its consideration is to be ascertained, which method appears possible on its face, but in fact is, or becomes, impossible of execution, such provision only is void”); see also Taylor v. Sapritch (1940) 38 Cal.App.2d 478, 481 (stating that “performance of a contract is excused when it is prevented by the acts of the opposite party, or is rendered impossible by him”).)
Finally, Fan argues that “[a]n agreement for the sale of real property, or of an interest therein is invalid, unless it, or some note of memorandum thereof, is in writing and subscribed by the party to be charged.” (Def.’s memo, p.15:13-16, citing Civ. Code § 1624, subd. (a)(3).) “However, a party’s partial or full performance of an oral agreement… [regarding] real property can take the contract out of the statute of frauds.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1290, fn.4.)
The demurrer to the third cause of action is OVERRULED.
The demurrer to the fourth cause of action for intentional interference with economic relations
The elements for the tort of intentional interference with prospective economic advantage are (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) Fan demurs to the fourth cause of action, asserting that the deed of trust demonstrates that Fan could not have interfered with Liu’s financing efforts because section 13 states that “Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer’s consent.” (See Def.’s memo, pp.15:21-28, 16:1-21.) However, this portion of the deed of trust is not germane to the relationship between Liu and Bank of America. Section 13 of the deed of trust concerns the joint and several liability of the borrower to Pulte Mortgage LLC. The quoted portion of section 13 concerns “Borrower’s” ability to modify the terms of the loan, not to obtain a new loan with a different lender. This argument is without merit.
Fan next argues that “[t]he FAC is devoid of any allegations that FAN’s actions were, in fact, the reason LIU did not complete a refinancing transaction prior to bringing this lawsuit.” (Def.’s memo, p.16:21-23.) However, the FAC alleges that Fan refused to execute the refinancing documents and, as a result, Liu could not complete the refinancing. (See FAC, ¶ 13.) The demurrer to the fourth cause of action is OVERRULED.
The Court shall prepare the Order.
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