Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/06/2021 at 02:56:20 (UTC).

ASATUR GALADJIAN, ET AL. VS INTER VALLEY ESCROW, INC., ET AL.

Case Summary

On 06/19/2019 ASATUR GALADJIAN filed a Property - Other Property Fraud lawsuit against INTER VALLEY ESCROW, INC . This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judge overseeing this case is CURTIS A. KIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0819

  • Filing Date:

    06/19/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Glendale Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CURTIS A. KIN

 

Party Details

Plaintiffs and Cross Defendants

GALADJIAN ASATUR

GALADJIAN ARMENUHI

Defendants and Not Classified By Court

INTER VALLEY ESCROW INC.

JCP LP

REDIGER INVESTMENT CORPORATION

TOTAL LENDER SOLUTIONS INC.

LOPEZ K HERNANDEZ

BANK OF THE WEST

STEWART TITLE OF CALIFORNIA INC.

FIDELITY FUNDING CAPITAL CORPORATION

KHACHATOURIAN RENEE

JCP LP A CALIFORNIA LIMITED LIABILITY PARTNERSHIP

REDIGER INVESTMENT CORPORATION A CALIFORNIA CORPORATION

LOPEZ AN INDIVIDUAL K. HERNANDEZ

TOTAL LENDER SOLUTIONS INC. A CALIFORNIA CORPORATION

INTER VALLEY ESCROW INC. A CALIFORNIA CORPORATION

TRAVELERS CASUALTY ASSRETY COMPANY OF AMERICA

BANK OF THE WEST A CALIFORNIA CORPORATION

KHATCHATOURIAN RENE

LIZARRAGA ANNA MARIE

Defendant and Cross Plaintiff

JCP LP A CALIFORNIA LIMITED LIABILITY PARTNERSHIP

8 More Parties Available

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

KAMARIAN GARABED

ALKANA EUGENE

ALKANA EUGENE STEVEN

Defendant and Cross Plaintiff Attorneys

TRAVER WALTER JOHANNES

RICH DONALD

BARTELSTONE DAVID

DAVIS MATTHEW

LUCZON DIANE

RICH DONALD EARL

BARTELSTONE DAVID SCOTT

LUCZON DIANE MYINT

DAVIS MATTHEW STEPHEN

SOSA CARLOS

ROBINSON MICHAEL S

WRIGHT WILLIAM A.

HOWARD ELMIRA

HOWARD ELMIRA REZAEI

TAHMAZIAN JILBERT

Defendant and Not Classified By Court Attorneys

LUCZON DIANE MYINT

WRIGHT WILLIAM A.

 

Court Documents

Notice of Settlement

1/14/2021: Notice of Settlement

Proof of Personal Service

1/25/2021: Proof of Personal Service

Declaration - DECLARATION DECLARATION OF ELMIRA R. HOWARD IN SUPPORT OF APPLICATION FOR PUBLICATION OF ARTAK BABAKHANYAN

1/29/2021: Declaration - DECLARATION DECLARATION OF ELMIRA R. HOWARD IN SUPPORT OF APPLICATION FOR PUBLICATION OF ARTAK BABAKHANYAN

Application for Publication

1/29/2021: Application for Publication

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES) OF 12/04/2020

12/4/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES) OF 12/04/2020

Amendment to Complaint (Fictitious/Incorrect Name)

9/9/2020: Amendment to Complaint (Fictitious/Incorrect Name)

Answer

7/20/2020: Answer

Case Management Statement

6/11/2020: Case Management Statement

Reply - REPLY DEFENDANT STEWART TITLE OF CALIFORNIA, INC.S REPLY IN SUPPORT OF MOTION TO STRIKE POTIONS OF PLAINTIFFS SECOND AMENDED COMPLAINT

6/19/2020: Reply - REPLY DEFENDANT STEWART TITLE OF CALIFORNIA, INC.S REPLY IN SUPPORT OF MOTION TO STRIKE POTIONS OF PLAINTIFFS SECOND AMENDED COMPLAINT

Declaration - DECLARATION DEMURRER DECLARATION IN COMPLIANCE WITH C.C.P. 430.41

3/30/2020: Declaration - DECLARATION DEMURRER DECLARATION IN COMPLIANCE WITH C.C.P. 430.41

Request - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER OF JCP AND REDIGER INVESTMENT CORPORATION TO SECOND AMENDED COMPLAINT

3/30/2020: Request - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER OF JCP AND REDIGER INVESTMENT CORPORATION TO SECOND AMENDED COMPLAINT

Case Management Statement

3/23/2020: Case Management Statement

Notice - NOTICE OF NON-OPPOSITION TO PLAINTIFF'S MOTION & MOTION TO BE RELIEVED AS COUNSEL

12/11/2019: Notice - NOTICE OF NON-OPPOSITION TO PLAINTIFF'S MOTION & MOTION TO BE RELIEVED AS COUNSEL

Notice - NOTICE OF ASSOCIATION OF COUNSEL

11/15/2019: Notice - NOTICE OF ASSOCIATION OF COUNSEL

Declaration - DECLARATION DECLARATION OF MATTHEW S. DAVIS RE: INABILITY TO COMPLY WITH MEET AND CONFER REQUIREMENT OF CCP 430.41 AND 435.5 AND 30-DAY EXTENSION OF TIME

7/23/2019: Declaration - DECLARATION DECLARATION OF MATTHEW S. DAVIS RE: INABILITY TO COMPLY WITH MEET AND CONFER REQUIREMENT OF CCP 430.41 AND 435.5 AND 30-DAY EXTENSION OF TIME

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (NON-APPEARANCE CASE REVIEW) OF 07/02/2019

7/2/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (NON-APPEARANCE CASE REVIEW) OF 07/02/2019

Proof of Personal Service

7/3/2019: Proof of Personal Service

Amended Complaint

6/21/2019: Amended Complaint

291 More Documents Available

 

Docket Entries

  • 06/20/2022
  • Hearing06/20/2022 at 09:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Jury Trial

    Read MoreRead Less
  • 06/09/2022
  • Hearing06/09/2022 at 10:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Final Status Conference

    Read MoreRead Less
  • 08/27/2021
  • Hearing08/27/2021 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion to Compel Discovery (not "Further Discovery")

    Read MoreRead Less
  • 07/02/2021
  • Hearing07/02/2021 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion to be Relieved as Counsel

    Read MoreRead Less
  • 06/01/2021
  • DocketProof of Publication; Filed by Armenuhi Galadjian (Cross-Defendant); Asatur Galadjian (Cross-Defendant)

    Read MoreRead Less
  • 05/21/2021
  • Docketat 2:00 PM in Department E; Hearing on Motion for Summary Judgment

    Read MoreRead Less
  • 05/17/2021
  • DocketProof of Personal Service; Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
  • 05/17/2021
  • DocketProof of Personal Service; Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
  • 05/05/2021
  • DocketProof of Publication; Filed by Asatur Galadjian (Cross-Defendant)

    Read MoreRead Less
  • 05/04/2021
  • DocketRequest for Entry of Default / Judgment; Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
341 More Docket Entries
  • 06/24/2019
  • DocketDeclaration (Of Asatur Galadjian In Support of Ex Parte Application for Temporary Restraining Order); Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
  • 06/24/2019
  • DocketEx Parte Application (For Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction); Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
  • 06/21/2019
  • DocketFirst Amended Complaint; Filed by Asatur Galadjian (Plaintiff); Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff) et al.

    Read MoreRead Less
  • 06/21/2019
  • DocketSummons (on Complaint); Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
  • 06/20/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

    Read MoreRead Less
  • 06/20/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 06/19/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 06/19/2019
  • DocketCivil Case Cover Sheet; Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
  • 06/19/2019
  • DocketSummons (on Complaint); Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less
  • 06/19/2019
  • DocketComplaint; Filed by Asatur Galadjian (Plaintiff); Armenuhi Galadjian (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: 19GDCV00819    Hearing Date: February 26, 2021    Dept: E


Case Number: 19GDCV01085    Hearing Date: February 26, 2021    Dept: E

DEMURRER

[CCP §430.10 et. seq.]

Date: 2/26/21 (10:00 AM)

Case: Nicholas Glaros v. Cal. Depart. of Transportation et al. (19GDCV01085)

TENTATIVE RULING:

Defendant California Dept. of Transportation’s (Caltrans) Demurrer to Third Amended Complaint is SUSTAINED.

Plaintiff’s objection to the Request for Judicial Notice is OVERRULED. Defendant California Department of Transportation’s (“Caltrans”) request for judicial notice as to Exhibit A is GRANTED, pursuant to Evidence Code § 452(a). Defendant’s request for judicial notice as to Exhibit B is GRANTED, pursuant to Evidence Code § 452(b). Defendant’s request for judicial notice as to Exhibit C is GRANTED, but only for the existence of the Third Amended Complaint, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) With respect to taking judicial notice of the Third Amended Complaint, the Court notes that plaintiff did not file with it any of the exhibits referenced therein, including the CC&Rs upon which Caltrans relies in making certain arguments in support of its demurrer. (See Demurrer at 3: 3-6.) The Court thus does not consider any arguments based on judicial notice having been taken of such exhibits. (See CCP § 430.30(a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].)

Plaintiff’s request for judicial notice as to Exhibits A, C, and H is GRANTED, pursuant to Evidence Code § 452(a). Defendant’s objections to the other requests for judicial notice are SUSTAINED because plaintiff included incomplete case law and the interpretations of the legislative history and the definition of discretion are reasonably subject to dispute.

With respect to the first cause of action for “Breach of Contracts through the breach of an obligation not arising from contract,” plaintiff simultaneously and inconsistently alleges that Caltrans breached a contract and an obligation not arising from contract. This cause of action is therefore uncertain.

Plaintiff also bases the first cause of action on Civil Code § 3333, which does not provide for any cause of action. Rather, the statute discusses the extent to which a prevailing plaintiff can recover for the breach of an obligation not arising from contract. Accordingly, plaintiff fails to allege a statutory basis for liability against Caltrans, as is required by Government Code § 815(a). (See Gov. Code § 815(a) [“Except as otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person”.)

The demurrer to the first cause of action is SUSTAINED based on uncertainty. (CCP § 430.10(f).)

With respect to the second through fourth causes of action, these causes of action are barred by Government Code § 818.8, which states: “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” This statute applies to both intentional misrepresentations and fraudulent concealment. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 867.) The second through fourth causes of action are based on fraudulent misrepresentations or concealment by Caltrans’ employees. (TAC ¶¶ 41, 43, 45, 49, 50, 54, 57, 64.) Plaintiff does not dispute that the Third Amended Complaint is defective. (Opposition at 2:7-8.) Accordingly, the demurrers to the second through fourth causes of action are SUSTAINED based on Government Code § 818.8.

As to whether leave to amend shall be allowed, CCP § 430.41(e)(1) provides a three-amendment limit, not including amendments made without leave of court pursuant to CCP § 472 before the filing of a demurrer to the original complaint. The Court will give plaintiff his one final opportunity to file a Fourth Amended Complaint limited to the opportunity to attempt to cure the defects in his first cause of action insofar as plaintiff seeks to assert liability against Caltrans based in contract. There appears to be no reasonable possibility that plaintiff may otherwise escape the bar of Government Code § 818.8.

Fifteen (15) days leave to amend.

Case Number: 19GDCV00819    Hearing Date: January 22, 2021    Dept: E

DEMURRER (2)

[CCP §430.10 et. seq.]

Date: 1/22/21 (10:00 AM)

Case: Asatur Galadjian v. Inter Valley Escrow, Inc. et al. (19GDCV00819)

TENTATIVE RULING:

Defendants JCP, L.P. and Rediger Investment Corporation’s Demurrer to Third Amended Complaint is OVERRULED IN PART and SUTAINED IN PART.

Defendant Stewart Title of California, Inc. Demurrer to Third Amended Complaint (“TAC”) is OVERRULED IN PART and SUSTAINED IN PART.

I. DEFENDANTS JCP, L.P. AND REDIGER INVESTMENT CORPORATION’S DEMURRER TO THIRD AMENDED COMPLAINT

Sixth Cause of Action – Slander of Title

The elements of slander of title include “(a) a publication, (b), which is without privilege or justification and thus with malice, express or implied, and (c) is false, either knowingly so or made without regard to its truthfulness, and (d) causes direct and immediate pecuniary loss.” (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 264, citations omitted.)

JCP, L.P. (“JCP”) and Rediger Investment Corporation (“Rediger”) argue that Stewart Title recorded the purportedly fraudulent Deed of Trust. (TAC ¶ 39.) However, JCP is listed as the beneficiary of the Deed of Trust. (TAC Ex. D.) Rediger allegedly controls JCP, is JCP’s General Partner, and was the loan broker in the transaction that resulted in the Deed of Trust. (TAC ¶¶ 4, 5.) JCP and Rediger enforced the Deed of Trust and initiated the foreclosure of the subject property. (TAC Ex. E.) JCP and Rediger allegedly knew or should have known the Deed of Trust was forged. (TAC ¶ 88.) Accordingly, plaintiffs sufficiently allege that JCP and Rediger caused the Deed of Trust to be recorded based on their role as the lender in the allegedly fraudulent transaction. (TAC ¶¶ 38, 87.)

JCP and Rediger next argue that the recording of the Deed of Trust was privileged. They argue that they were able to rely on the signature of the notary on the Deed of Trust because the notary’s signature was entitled to a presumption of genuineness. Indeed, a notary that signs a certificate of acknowledgment is presumed to have verified the genuineness of the signatures on an instrument. (Bernd v. Eu (1979) 100 Cal.App.3d 511, 517 [citing Evid. Code § 1451].) However, such a presumption is rebuttable. (Jacobson v. Gourley (2000) 83 Cal.App.4th 1331, 1334.) Based on JCP and Rediger’s alleged failure to perform reasonable due diligence to verify plaintiffs’ identity before funding the loan, discussed below, JCP and Rediger may not have been entitled to rely on the notary’s signature.

Further, JCP and Rediger fail to cite any authority supporting their contention that that the recording of a false deed of trust is privileged. Their citations to Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406 and Taus v. Loftus (2007) 40 Cal.4th 683 are inapposite because these cases are defamation cases, not slander of title cases. Their citations to Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331 and Civil Code § 2924 are inapposite because these authorities pertain to the recording of foreclosure-related documents like a notice of default, notice of sale, and a trustee’s deed upon sale. Here, the Deed of Trust is not a foreclosure-related document.

To the extent that the recording of a Deed of Trust may be privileged, based on JCP and Rediger’s failure to conduct a personal interview of plaintiffs or communicate with plaintiffs, failure to perform an appraisal or inspection of plaintiffs’ property, and failure to recognize that the address reflected on the Uniform Residential Loan Application was incorrect based on a Transunion address mismatch alert, plaintiffs sufficiently allege that JCP and Rediger knew or should have known that the Deed of Trust was forged but caused the Deed of Trust to be recorded anyway. (TAC ¶¶ 29, 31, 34, 36, 38, 46, 60, 61.) This is sufficient to allege malice to defeat any privilege and support a slander of title cause of action. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1337 [malice can be shown through “lack of reasonable grounds for believing in the truth” of the recorded documents]; Gudger v. Manton (1943) 21 Cal.2d 537, 544, overruled on other grounds by Albertson v. Raboff (1956) 46 Cal.2d 375 [“if there is an absence of privilege or justification, and the other elements necessary are present, an implication of malice in law is proper” for slander of title]; Phillips v. Glazer (1949) 94 Cal.App.2d 673, 677 [“actual malice or ill will is unnecessary” for slander of title].)

Plaintiffs have alleged specific pecuniary loss. In paragraph 64, incorporated into the sixth cause of action by paragraph 86, plaintiffs allege: “Plaintiffs have had foreclosure proceedings instituted against their home, have lost the equity they had in the Subject Property, have had their good credit destroyed, and have been damaged in the sum of $720,000 together with interest at the rate provided in the Note from January 14, 2019 up through and including the date of judgment.” (TAC ¶¶ 64, 86.)

The demurrer to the first cause of action is OVERRULED.

Tenth Cause of Action – Money Had and Received

“A cause of action for money had and received is stated if it is alleged the defendant ‘is indebted to the plaintiff in a certain sum “for money had and received by the defendant for the use of the plaintiff.” ’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [uoting Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623].)

JCP and Rediger are allegedly indebted to plaintiffs in the amount of $35,243.79 based on the amount from the loan proceeds they kept for themselves from the origination of the loan. (TAC ¶¶ 104, 106-108.) Plaintiffs allege that this amount constitutes a lien on plaintiffs’ property. (TAC ¶ 105.)

A plaintiff may plead in the alternative and make inconsistent allegations that survive demurrer. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [“When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations”].) Here, however, it is difficult to envision any scenario under which plaintiffs would be entitled to the $35,243.79 defendants received in connection with the subject loan. If plaintiffs were to prevail on their theory that the $720,000 loan was fraudulently procured, their obligation to pay back the loan would disappear, but they would not be entitled to a windfall of receiving the $35,243.79 the demurring defendants received in connection with the fraudulent loan. In other words, if the loan was invalid, there may be some question as to whom the $35,243.79 belongs, but it would not belong to plaintiffs under any theory. And, if plaintiffs were not to prevail, the loan would remain valid, in which case JCP and Rediger would be entitled to retain their share of the $35,243.79 in loan costs.

Accordingly, the demurrer to the tenth cause of action is SUSTAINED without leave to amend.

Eleventh Cause of Action - Unfair Business Practice in Violation of Business and Professions Code § 17200

JCP and Rediger contend that plaintiffs fail to allege fraudulent, unlawful, or unfair activity upon which liability for a UCL claim can be based. The recording of a forged Deed of Trust without performing reasonable due diligence to verify the identity of the borrower is an unfair business practice upon which a UCL cause of action can be maintained. (TAC ¶¶ 29, 31, 34, 36, 38, 46, 60, 61; Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 719, quoting State Farm Fire & Casualty Co. v. Superior Court (Allegro) (1996) 45 Cal.App.4th 1093, 1103-04 [“[A]n ‘unfair’ business practice occurs . . . when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’”].)

The demurrer to the eleventh cause of action is OVERRULED.

Ten (10) days to answer.

II. DEFENDANT STEWART TITLE OF CALIFORNIA, INC.’S DEMURRER TO THIRD AMENDED COMPLAINT

First Cause of Action – Negligence

With respect to defendant Stewart Title of California, Inc. (“Stewart Title”), plaintiff alleges that this defendant opened a title order, issued a title report and insurance policy, and recorded the forged Deed of Trust without plaintiffs’ knowledge or consent. (TAC ¶¶ 27, 28, 57.) Stewart Title also allegedly had constructive knowledge that plaintiffs’ current address listed in the loan documents was incorrect, including prior deeds of trust reflecting plaintiffs’ current address as 2040 Chilton Drive in Glendale, not the 658 W Dryden St address listed on the loan application. (TAC ¶¶ 34, 58.) As the entity charged with recording the Deed of Trust (see TAC ¶ 10), plaintiffs’ allegations concerning Stewart Title are sufficient to allege negligence. (See Seeley v. Seymour (1987) 190 Cal.App.3d 844, 860-862 [liability of title insurance company to property owner for negligent recording of document].)

The demurrer to the first cause of action is OVERRULED.

Sixth Cause of Action – Slander of Title

Stewart Title argues that plaintiffs fail to plead malice to support a slander of title cause of action. (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 264, citations omitted [elements of slander of title includes a public “which is without privilege or justification and thus with malice, express or implied”].) Plaintiffs sufficiently allege that Stewart Title recklessly disregarded the truth or falsity of the allegedly forged Deed of Trust because it had constructive knowledge that the address on the Deed of Trust was incorrect. (TAC ¶¶ 34, 58; CACI 1730(4); Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1337 [malice can be shown through “lack of reasonable grounds for believing in the truth” of the recorded documents].)

The demurrer to the sixth cause of action is OVERRULED.

Ninth Cause of Action – Unjust Enrichment

Stewart Title contends that unjust enrichment is not a cause of action. The Second District Court of Appeal, which would hear any appeal regarding a dismissal based on a demurrer, has held that unjust enrichment is not a cause of action, only a remedy. (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 955, quoting McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 [“‘Unjust enrichment is not a cause of action, ... or even a remedy, but rather “ ‘ “a general principle, underlying various legal doctrines and remedies.” ’ ” .... [Citation.] It is synonymous with restitution. [Citation.]’”]; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [“[T]here is no cause of action in California for unjust enrichment . . . . Unjust enrichment is ‘ “a general principle, underlying various legal doctrines and remedies,” ’ rather than a remedy itself.”]; Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911 [holding same, citing Melchior].)

Because plaintiffs did not file an opposition and because plaintiffs appear to be amenable to dismissal of the unjust enrichment cause of action (Wright Decl. ¶ 2), the demurrer to the ninth cause of action is SUSTAINED without leave to amend.

Tenth Cause of Action – Money Had and Received

The TAC alleges that Stewart Title is indebted to plaintiffs in the amount of $35,243.79 based on the amount from the loan proceeds they kept for themselves from the origination of the loan. (TAC ¶¶ 104, 106-108.) Plaintiffs allege that this amount constitutes a lien on plaintiffs’ property. (TAC ¶ 105.) For the reasons explained above with respect to JCP and Rediger’s demurrer to this cause of action against them, the Court finds the claim for money had and received against Steward Title lacking as well.

The demurrer to the tenth cause of action is SUSTAINED without leave to amend.

Ten (10) days to answer.

Case Number: 19GDCV00819    Hearing Date: December 04, 2020    Dept: E

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET ONE

[CCP § 2031.310]

Date: 12/4/20 (10:00 AM)

Case: Asatur Galadjian v. Inter Valley Escrow, Inc. et al. (19GDCV00819)

TENTATIVE RULING:

Defendant/Cross-Complainant JCP, LP’s Motion to Compel Further Responses to Requests for Production, Set One is GRANTED IN PART and DENIED IN PART.

Defendant JCP, LP’s request for judicial notice as to Exhibits 1, 2, 4, 6, and 7 is GRANTED, pursuant to Evidence Code §§ 452(g) and (h), but only for the limited purposes set forth in Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265. Defendant’s request for judicial notice as to Exhibits 8, 11, 12, 14, and 16 is GRANTED, pursuant to Evidence Code § 452(d). Defendant’s request for judicial notice as to Exhibits 9 and 15 is GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Defendant’s request for judicial notice as to Exhibits 3, 5, 10, and 13 is DENIED because no provision of Evidence Code § 452 allows the Court to take judicial notice of these documents. Defendant has not demonstrated that the documents are not reasonably subject to dispute.

With respect to Request Nos. 5, 19, 20-23, and 48-49, which seek evidence of plaintiffs’ ownership of the properties located at 2040 Chilton Dr. and 658 W. Dryden St., including payments for property tax, utilities, and insurance, defendant demonstrates good cause for production of the requested documents. Because plaintiffs assert a quiet title cause of action, plaintiffs’ basis for title is at issue. (CCP § 761.020(2).) Plaintiffs’ payments relating to the Chilton and Dryden Properties are probative of plaintiffs’ basis for title. The relevance of the requested documents outweighs any privacy interest plaintiffs may have in the financial information contained in the documents.

With respect to Request Nos. 5, 19, and 20-23, after the motion was filed, plaintiff Asatur Galadjian provided Code-compliant second supplemental responses on November 9, 2020. (Alkana Decl. ¶ 4 & Ex. A.) In compliance with CCP § 2031.220, plaintiff affirms that after a diligent search, all documents in his possession, custody, or control were produced. Defendant contends that production by other parties is irrelevant. However, documents that are publicly available, including documents produced by other parties and documents retrievable by subpoena, or documents that are public record, do not have to be produced. (Bunnell v. Superior Court of Alameda County (1967) 254 Cal.App.2d 720, 724 [“[W]hen the material to be ‘discovered’ consists, as here, solely of information available to both parties, it defeats the purpose of the Discovery Act to compel one party to perform another party's research, whether such be laborious or not.”].) Defendant provides no evidence, other than speculation, that plaintiff did not produce all documents in his possession, custody, or control. (See Reply at 5-6.) Because plaintiff’s second supplemental responses to Request Nos. 5, 19, and 20-23 comply with CCP § 2031.220, no further response to these requests is required.

With respect to Request Nos. 48 and 49, which ask for documents relating to utility services and insurance for the Dryden Property, respectively, plaintiff contends that the motion is ambiguous as to whether defendant seeks further responses to these requests. Although the notice of motion and the last paragraph of the Introduction section of the motion omit Request Nos. 48 and 49, the separate statement and section III.A of the points and authorities make clear that defendant seeks further responses to these requests. (See Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125 [while trial court may generally consider only the grounds stated in the notice of motion, an omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought].)

The second supplemental response to Request No. 48 does not comply with CCP § 2031.220 because plaintiff has not stated whether the documents he previously produced were responsive “in whole or in part” and that he produced all responsive documents in his possession, custody, and control and to which no objection is being made. Plaintiff objects to Request No. 49 based on a purported lack of relevance. However, given plaintiffs’ position allege that defendants should have known that the address of the Dryden Property, as listed in the loan documents, was not plaintiffs’ residential address, the insurance records relating to the Dryden Property are probative of the reasonableness of defendants’ funding of the loan.

Based on the foregoing, the motion is DENIED as moot as to Request Nos. 5, 19, and 20-23 and GRANTED as to Request Nos. 48 and 49.

With respect to Request Nos. 54-67, 71, 74 and 75, which seek documents relating to deeds of trust placed on plaintiffs’ properties to secure bail bonds for individuals charged with criminal identity theft and bank fraud, defendant demonstrates good cause for production of the requested documents. Defendant presents evidence that plaintiff allowed the Chilton and Dryden Properties to secure bail bonds provided to individuals who were charged with and/or convicted of criminal identity theft and bank fraud. (RJN Exs. 1, 4, 8, 9, 14, 15.) Given defendant’s contention that plaintiffs participated in a conspiracy with the individuals who requested the subject $720,000 loan to obtain the funds and then later seek the cancellation by claiming identity theft, the requested documents are reasonably calculated to lead to admissible evidence concerning defendants’ theory of the case, including plaintiffs knowledge of or role in the execution of the alleged scheme and the identification of any third parties who may have participated in the scheme.

Plaintiff’s second supplemental responses comply with CCP §§ 2031.220 and 2031.230 because plaintiff affirms that, after a diligent search, either plaintiff either does not have any responsive documents in his possession, custody, or control; plaintiff does not have documents other than those received by defendant pursuant to subpoena or produced by co-defendant Stewart Title of California, Inc. in discovery; or the requested documents never existed. As stated above, plaintiff is not obligated to produce documents equally available to defendant. (Bunnell, 254 Cal.App.2d at 724.) Accordingly, the motion is DENIED as moot as to Request Nos. 54-67, 71, 74 and 75.

Plaintiff Asatur Galadjian is ordered to serve verified further responses, without objection, to defendant/cross-complainant JCP, LP’s Requests for Production, Set One, Nos. 48 and 49 within ten (10) days hereof.

Because plaintiff did not provide code-compliant responses until after defendant filed the instant motion, the Court finds that monetary sanctions are appropriate. (Cal. Rule of Court 3.1348(a).) For failing to comply with discovery obligations and thereby forcing defendant/cross-complainant JCP, LP to file this motion, the Court imposes a total of $2,510 in monetary sanctions on plaintiff/cross-defendant Asatur Galadjian and counsel of record, jointly and severally, based on 7 hours to prepare the moving papers (instead of the 12 hours claimed) and 3 hours to prepare the reply and attend the hearing (instead of the 4 hours claimed), at an hourly rate of $245, plus $60 for the motion filing fee. Such monetary sanctions shall be paid to JCP, LP’s counsel of record within thirty (30) days hereof.

Case Number: 19GDCV00819    Hearing Date: October 09, 2020    Dept: E

MOTION FOR LEAVE TO FILE VERIFIED THIRD AMENDED COMPLAINT

[CCP §472 et. seq.]

Date: 10/9/20 (8:30 AM)

Case: Asatur Galadjian v. Inter Valley Escrow, Inc. et al. (19GDCV00819)

TENTATIVE RULING:

Plaintiffs’ Motion for Leave to File Verified Third Amended Complaint is GRANTED.

Defendant Inter Valley Escrow, Inc.’s (“Inter Valley Escrow”) requests to take judicial notice of its demurrer to the Second Amended Complaint, plaintiffs’ opposition to the demurrer, and its reply to plaintiffs’ opposition are DENIED as unnecessary in determining the merits of the instant motion. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed”].)

Inter Valley Escrow’s request to take judicial notice of the June 26, 2020 minute order regarding Inter Valley Escrow’s demurrer is GRANTED, pursuant to Evidence Code § 452(d).

Inter Valley Escrow’s evidentiary objections to the declaration of Eugene S. Alkana in support of the reply are SUSTAINED. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers . . . . Defendants' decision to wait until the reply briefs to bring forth any evidence at all, when the limited partners would have no opportunity to respond, was simply unfair.”].)

The Court finds that plaintiffs adequately complied with Cal. Rule of Court 3.1324(a) and (b). The Court notes that plaintiffs’ “Separate Statement” is not particularly useful because plaintiffs proposed to delete entire sections and replace them with reworded versions describing the same wrongful conduct with added illustrations of the wrongful conduct. Accordingly, it is difficult to ascertain which allegations are new. Nevertheless, plaintiffs’ “Separate Statement” states by page, paragraph, and line number the allegations which plaintiffs proposes to add and delete.

Plaintiffs’ counsel does not expressly state why the proposed amendments are necessary and proper, but it can be inferred that the amendments are necessary to state how defendants failed to prevent the loan from being fraudulently executed in plaintiffs’ name and to add causes of action based on the same wrongful conduct alleged in the Second Amended Complaint. (Alkana Motion Decl. ¶ 3.) Plaintiffs also seek to describe the conduct of the entities who allegedly used plaintiffs’ identities to obtain the loan. (Alkana Motion Decl. ¶ 3.)

Plaintiffs’ counsel also does not expressly state when the facts giving rise to the allegations were discovered, but counsel avers that new information was obtained after the filing of the Second Amended Complaint. (Alkana Motion Decl. ¶ 10.)

Plaintiffs seek leave to file a Third Amended Complaint to add causes of action for Slander of Title, Unjust Enrichment, Money Had and Received, and Unfair Business Practice in Violation of Business & Professions Code § 17200. Plaintiffs also seek to name defendant Does 5 through 10, who were named in previously filed Amendments to Complaint and identify their wrongful conduct.

Plaintiffs were arguably dilatory in filing this motion on August 17, 2020 if they received the information supporting the amended pleading from April through June 2020, as plaintiffs contend in their reply to the oppositions of defendants Inter Valley and K. Hernandez Lopez. (Reply at 5:1-2.) Nevertheless, absent a showing of prejudice, delay in seeking an amendment alone does not justify denial of leave to amend. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.)

Defendants are not unduly prejudiced with the allegations of the Third Amended Complaint (“TAC”). The Third Amended Complaint mostly clarifies the scheme in which defendants allegedly played a role in causing, facilitating, and/or allowing an allegedly fraudulent loan to be funded and plaintiffs’ property to be encumbered. While plaintiffs did not allege in the Second Amended Complaint (“SAC”) that defendants JCP, L.P. (“JCP”) and Rediger Investment Corporation (“Rediger”) failed to appraise or inspect the property before funding the loan, plaintiffs alleged in the SAC and TAC that JCP and Rediger failed to conduct due diligence in verifying plaintiffs’ identities before funding the loan and encumbering the residence. (Compare SAC ¶¶ 20, 46, 47 with TAC ¶¶ 29, 60.) Plaintiffs recount in both the SAC and the TAC that a JCP agent claimed that he personally visited plaintiffs’ property before approving the loan despite not being able to provide details about the visit, thereby suggesting the agent’s claim was false. (Compare SAC ¶ 31 with TAC ¶ 46.) In the SAC and TAC, plaintiffs allege that Inter Valley Escrow failed to verify that plaintiffs were willing parties to the escrow and failed to deliver the loan proceeds to plaintiffs, in contravention of the escrow instructions. (Compare SAC ¶¶ 40-42 with TAC ¶¶ 40, 56.) In the SAC and TAC, plaintiffs allege that Stewart Title of California, Inc. (“Stewart Title”), previously named as Doe 3, caused a forged Deed of Trust to be recorded against plaintiffs’ property. (Compare SAC ¶¶ 10, 48 with TAC, ¶ 57.) In the SAC and TAC, plaintiffs allege that Lopez notarized the signatures of the individuals purporting to be plaintiffs on the Deed of Trust. (Compare SAC ¶¶ 24, 68 with TAC ¶¶ 38, 74.)

The TAC also adds causes of action for Slander of Title, Unjust Enrichment, and Money Had and Received against all opposing defendants, as well as Unfair Business Practice in Violation of Business & Professions Code § 17200 against JCP and Rediger. However, the Slander of Title cause of action arises from the recording of the allegedly forged Deed of Trust, which was alleged in the SAC. (Compare SAC ¶ 48 with TAC ¶ 87.) The Unjust Enrichment and Money Had and Received causes of action arise from Inter Valley Escrow’s distribution of the loan proceeds, $30,345.00 to JCP and Rediger and $4,894.79 to Stewart Title, which was also alleged in the SAC. (Compare SAC ¶ 40 with TAC ¶¶ 102, 104, 107.) Because the Slander of Title, Unjust Enrichment, and Money Had and Received causes of action are based on wrongful acts alleged in the SAC, it would not appear that defendants would be forced to start discovery anew as to these causes of action.

With respect to the Business and Professions Code § 17200 cause of action against JCP and Rediger, plaintiffs did not allege that JCP and Rediger had a history of funding fraudulent loans in the SAC. Nevertheless, JCP and Rediger is not unduly prejudiced with having to defend against one cause of action containing new allegations. JCP and Rediger have time to conduct discovery regarding this cause of action.

While defendants may have to rework portions of any contemplated motions for summary judgment, because they have not been filed yet, defendants have ample time to make any necessary revisions. Further, the trial date may be continued to accommodate any demurrers or other incidents of litigation that may be occasioned by the filing of the TAC. In any event, continuing the trial date may be necessary because certain defendants and cross-defendants still have yet to appear in this matter. Moreover, in the reply, plaintiffs do not oppose any trial continuance.

Even though the Court previously sustained the demurrer to the Slander of Title cause of action asserted in the prior Second Amended Complaint without leave to amend, this was because plaintiffs never asserted this cause of action before. Plaintiffs exceeded the scope of leave to amend allowed after the Court sustained the demurrer to the First Amended Complaint by adding a new Slander of Title cause of action. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend”].) If, in connection with sustaining the demurrer, the Court had granted leave to amend a cause of action plaintiffs never had leave to assert in the first instance, so doing would have amounted to granting plaintiffs leave to add a new cause of action without plaintiffs ever making the appropriate request and showing to bring that cause of action. But, the Court did not rule that the Slander of Title cause of action could never be added. Here, plaintiffs now properly seek leave to add the Slander of Title cause of action before adding it to their pleading.

Defendants also argue that plaintiffs fail to adequately state their proposed causes of action and are not entitled to certain damages claimed in the proposed pleading. There may be good reason to believe that a plaintiff cannot, for example, bring a stand alone cause of action for unjust enrichment or maintain a claim for slander of title without any allegations of malice, but “the preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

The motion is GRANTED. The proposed Verified Third Amended Complaint lodged on August 18, 2020 is deemed filed as of today and accordingly file stamped.

The Court will hear from the parties regarding a trial continuance and the status of any unserved defendants and cross-defendants.

Case Number: 19GDCV00819    Hearing Date: June 26, 2020    Dept: E

DEMURRER (4)

MOTION TO STRIKE (4)

[CCP §430.10 et. seq.]

Date: 6/26/20 (8:30 AM)

Case: Asatur Galadjian v. Inter Valley Escrow, Inc. et al. (19GDCV00819)

TENTATIVE RULING:

I. DEMURRERS

The Court rules as follows concerning the Demurrers to Plaintiffs Asatur Galadjian and Armenuhi Galadjian’s Second Amended Complaint (“SAC”) by the following defendants: (1) K. Hernandez Lopez (“Lopez”); (2) JCP, LP (“JCP”) and Rediger Investment Corporation (“Rediger”); (3) Inter Valley Escrow, Inc. (“Inter Valley”); and (4) Stewart Title of California, Inc. (“Stewart Title”).

JCP and Rediger’s requests to take judicial notice of plaintiffs’ notice of ruling on the demurrers to the First Amended Complaint filed on February 11, 2020 in support of their demurrer and motion to strike is GRANTED, pursuant to Evidence Code § 452(d).

A. FIRST CAUSE OF ACTION: NEGLIGENCE

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

With respect to Inter Valley, “no liability attaches to the escrow holder for his failure to do something not required by the terms of the escrow or for a loss incurred while obediently following his escrow instructions.” (Hannon v. Western Title Ins. Co. (1989) 211 Cal.App.3d 1122, 1128.) Plaintiffs here allege that “Defendant[] Inter Valley Escrow . . . owed a duty to carry out the terms of the escrow agreement which required, among other things, that Seven Hundred Twenty Thousand Dollars ($720,000.00) be delivered to Plaintiffs Asatur Galadjian and Armenihu [sic] Galadjian.” (SAC ¶ 42.) Inter Valley failed to do so by instead delivering the funds to individuals other than plaintiffs. (SAC ¶ 42.)

Accordingly, the demurrer to the first cause of action by Inter Valley Escrow, Inc. is OVERRULED.

B. SECOND CAUSE OF ACTION: NEGLIGENCE

Plaintiffs allege that Doe 3, i.e. Stewart Title, “breached their duty by recording a fraudulent Deed of Trust against Plaintiffs’ property,” which resulted in the wrongful encumbrance of plaintiffs’ property. (SAC ¶ 48.) This was done even though the Deed of Trust did not list plaintffs residential address as their mailing address, which, according to plantiffs, Stewart Title knew or should have known. (SAC ¶ 42.) As the entity charged with recording the Deed of Trust (see SAC ¶ 10), plaintiffs’ allegations concerning Stewart Title are sufficient to allege negligence. (See Seeley v. Seymour (1987) 190 Cal.App.3d 844, 860-862 [liability of title insurance company to property owner for negligent recording of document].)

Accordingly, the demurrer to the second cause of action by Stewart Title is OVERRULED.

C. THIRD CAUSE OF ACTION: FRAUD

As a preliminary matter, defendant Inter Valley demurred to this cause of action, but plaintiffs subsequently dismissed this cause of action against Inter Valley. The Court therefore disregards Inter Valley’s demurrer to the Fraud cause of action.

As to the remaining demurring defendants, the demurrers must be sustained because the SAC fails to plead fraud with the requisite particularity. Instead, the SAC describes in conclusory fashion that various documents related to the loan were “false,” “fraudulent,” and “forged” without identifying what statements therein were false, fraudulent, and/or forged and who allegedly is responsible for any such statements. (See, e.g., SAC ¶ 18 [“false loan documents”]; ¶ 23 [“fraudulent documents”]; ¶ 24 [“fraudulent Deed of Trust”]; ¶ 30 [“fraudulent loan documents”]; ¶ 38 [“Forged Loan”]; ¶ 53 [“Forged Loan and Forged Escrow” and “forged Deed of Trust”]; ¶ 54 [“false and fraudulent Loan Application documents, escrow instructions, and credit information”]; ¶ 56 [“loan application, all related loan documents, and the Deed of Trust were false”]; ¶ 58 [“false and fraudulent loan application and forged Deed of Trust and other loan documents”].) “In California, fraud must be pled specifically, general and conclusory allegations do not suffice. . . . This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means representations were tendered.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 837-838 [citations omitted].) Further, as to the corporate defendants, the SAC fails to allege who, on behalf of those defendants, engaged in the fraud and is responsible for the purported fraudulent representations (whatever they might be). (Id. at p. 838 [“In addition, a plaintiff is held to a higher standard in asserting fraud against a corporate defendant. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written”].) For all these reasons, the demurrers must be sustained.

In addition, even if the SAC alleged fraudulent misrepresentations with the requisite particularity, the claim still fails because plaintiffs’ theory of fraud based on misrepresentations suffers from the fundamental problem that plaintiffs did not rely on any purported misrepresentations contained in the allegedly false and fraudulent loan documents. (See Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513 [elements of fraud include “justifiable reliance”].) In fact, plaintiffs allege in the SAC they had “no actual or constructive knowledge of the false and fraudulent loan application and forged Deed of Trust and other loan documents” until after the loan was consummated and funds obtained. (SAC ¶ 58.) They thus could not have relied—justifiably, or otherwise—on the purported misrepresentations in the loan documents to their detriment.

Alternatively, plaintiffs claim they were defrauded under the theory that the defendants named in the third cause of action concealed the loan or “hid the truth” from plaintiffs. (SAC ¶ 58.) “The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.) Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; or (4) the defendant makes partial representations but also suppresses some material facts. (Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.)

Plaintiffs’ fraudulent concealment theory fails because none of the named defendants had any duty of disclosure to plaintiffs. Indeed, the crux of plaintiffs’ complaint is that they never applied for or obtained the loan for the subject property. As such, there is no relationship between plaintiffs and any of the defendants—fiduciary, confidential, or otherwise—from which a duty to disclose could arise. Rather, it would seem the only potential relationship alleged between plaintiffs and defendants is that of victims and thieves. And while a thief may potentially be liable to his victim for theft under some theory of liability, failing to inform the victim of the theft is not one.

Because plaintiffs fail to state a cause of action for Fraud based on intentional misrepresentations or concealment, because plaintiffs had an opportunity to amend this cause of action previously, and because there appears to be no viable of theory of fraud under a theory of misrepresentation or concealment in light of plaintiffs’ allegations in their complaints, the demurrers to the third cause of action by defendants Lopez, JCP, Rediger, and Stewart Title are SUSTAINED without leave to amend.

D. FOURTH CAUSE OF ACTION: OFFICIAL MISCONDUCT OF NOTARY

With respect to Lopez, notaries have the duty of obtaining “satisfactory evidence” of the identity of the signer before notarizing the instrument, not actually confirming the identity of the signer. (Civ. Code §§ 1185(a), 1185(b)(1)(B); Brown v. Rives (1919) 42 Cal.App. 482, 487 [no liability under Civil Code § 1185 for notary who relied on well-known acquaintance to identify signer, even though signer’s name was not true].) “Satisfactory evidence” includes “the absence of information, evidence, or other circumstances that would lead a reasonable person to believe that the person making the acknowledgment is not the individual he or she claims to be.” (Civ. Code § 1185(b).)

Plaintiffs allege that defendant Lopez “permitt[ed] those documents requiring notarized signatures, including but not limited to the Forged Deed of Trust, to be notarized in violation of law, custom, and practice among notaries.” (SAC ¶ 68.) At the pleading stage, this is sufficient to make out a claim that Lopez did not obtain satisfactory evidence of plaintiffs’ identity before notarizing the loan documents. (SAC ¶¶ 55, 67-68.)

The demurrer to the fourth cause of action by K. Hernandez Lopez is OVERRULED.

E. SEVENTH CAUSE OF ACTION: SLANDER OF TITLE

“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.) Slander of title was not alleged in the First Amended Complaint and therefore was not addressed in the demurrers to the First Amended Complaint. Plaintiffs obtained leave to add Quiet Title and Cancellation of Instruments causes of action. (JCP/Rediger Request for Judicial Notice Ex. 1.) Plaintiffs did not obtain leave to add this cause of action.

Plaintiffs contend that the distinction between a Quiet Title cause of action and Slander of Title cause of action is slim. (Coley v. Hecker (1928) 206 Cal. 22, 27 [“Damages for injury to the real property [i.e. slander of title] are but an incident to the action to remove the cloud wrongfully cast upon respondents' real property [i.e. quiet title] by the filing of said abstract of judgment.”].) Even if the causes of action are related, the order on the demurrers to the First Amended Complaint, as plaintiffs stated in their notice of ruling, stated that plaintiffs had leave to add causes of action for Quiet Title and Cancellation of Instruments. (JCP/Rediger Request for Judicial Notice Ex. 1.) Quiet Title and Slander of Title are separate causes of action.

The demurrer to the seventh cause of action is SUSTAINED without leave to amend.

F. SUMMARY OF RULINGS ON DEMURRERS

With respect to defendant Lopez, the Court OVERRULES the demurrer as to the fourth cause of action (official misconduct of notary) and SUSTAINS the demurrers as to the third cause of action (fraud) and seventh cause of action (slander of title) without leave to amend.

With respect to defendants JCP and Rediger, the Court SUSTAINS the demurrers as to the third cause of action (fraud) and seventh cause of action (slander of title) without leave to amend.

With respect to defendant Inter Valley, the Court OVERRULES the demurrer as to the first cause of action (negligence) and SUSTAINS the demurrer as to the seventh cause of action (slander of title) without leave to amend.

With respect to defendant Stewart Title, the Court OVERRULES the demurrer as to the second cause of action (negligence) and SUSTAINS the demurrer as to the seventh cause of action (slander of title) without leave to amend. Further, the Court notes that, as DOE #3, Stewart Title is named as a defendant in the sixth (quiet title), eighth (cancellation of instruments), and ninth (injunction) causes of action, which were not the subject of the demurrer. It would appear plaintiffs did not intend to assert such causes of action against Stewart Title when adding Stewart Title as DOE #3. (See 4/9/20 Luczon Decl. ¶¶ 2-5 & Ex. A.) At the hearing, the parties should be prepared to discuss the status of these causes of action.

II. MOTIONS TO STRIKE

The Court rules as follows concerning the Motions to Strike Plaintiffs Asatur Galadjian and Armenuhi Galadjian’s Second Amended Complaint (“SAC”) by the following parties: (1) Defendant K. Hernandez Lopez (“Lopez”); (2) Defendants JCP, L.P. (“JCP”) and Rediger Investment Corporation (“Rediger”); (3) Defendant Inter Valley Escrow, Inc. (“Inter Valley”); and (4) Defendant Stewart Title of California, Inc. (“Stewart Title”).

A. PUNITIVE DAMAGES ALLEGATIONS

All moving defendants seek to strike allegations regarding and prayers for punitive damages.

Facts supporting allegations of oppression, fraud, or malice – not negligence – must be asserted in a pleading to support a claim of punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, citing G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Having sustained the demurrers as to the third cause of action, discussed above, the Court does not find there remain any allegations of oppression, fraud, or malice to support plaintiffs’ claims for punitive damages.

With respect to Lopez, the motion as to items 3, 5, and 6 listed in the notice of motion is GRANTED. With respect to JCP and Rediger, the motion to strike as to paragraphs 65 in the SAC and paragraph 5 in the Prayer for Relief is GRANTED. With respect to Stewart Title, the motion to strike as to items 3 to 5 in the notice of motion is GRANTED. No leave to amend is given

With respect to Inter Valley, on June 8, 2020, pursuant to plaintiffs’ stipulation, the Court struck allegations regarding and they prayer for punitive damages. Accordingly, the motion as to items 1 through 3 listed in the notice of motion is DENIED as MOOT.

B. EMOTIONAL DISTRESS DAMAGE ALLEGATIONS

Lopez, Inter Valley, and Stewart Title seek to strike allegations regarding emotional distress damages.

Where, as here, no claims of fraud remain and plaintiffs’ allegations of negligence relate solely to economic loss, damages for emotional distress are not available. (See Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 799–800 [plaintiff “incurring neither physical impact nor physical damage, and whose loss (other than emotional distress) is solely economic, is entitled neither to punitive damages nor to a recovery for emotional distress”; Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1694-1696 [“Where the interest of the client is economic, serious emotional distress is not an inevitable consequence of the loss of money and, as noted, the precedents run strongly against recovery”].)

With respect to Lopez, the motion as to items 1 and 4 listed in the notice of motion is GRANTED. With respect to Inter Valley, the motion as to items 4 and 5 listed in the notice of motion is GRANTED. With respect to Stewart Title, the motion as to item 9 in the notice of motion is GRANTED. No leave to amend is given.

C. ATTORNEY FEES ALLEGATIONS

All moving defendants seek to strike allegations regarding and prayers for attorney fees.

Plaintiffs allege they are entitled to attorney fees under the “Forged Loans, Escrows, and Deed of Trust,” which contain an attorney fee provision. (SAC ¶ 64.) Even though plaintiffs do not set forth the text of the fee provision or the parties to the contract or contracts, unsupported attorney fee allegations need not be stricken pursuant to a motion to strike, because later discovery may reveal a basis for their recovery. (Camenisch, 44 Cal.App.4th at 1699.)

With respect to Lopez, the motion as to item 2 listed in the notice of motion is DENIED. With respect to JCP and Rediger, the motion to strike as to paragraph 64 in the SAC is DENIED. With respect to Inter Valley, the motion as to items 10 through 12 listed in the notice of motion is DENIED. With respect to Stewart Title, the motion as to items 6 through 8 in the notice of motion is DENIED.

D. SLANDER OF TITLE ALLEGATIONS

JCP, Rediger and Inter Valley seek to strike allegations regarding the seventh cause of action for Slander of Title.

As discussed above, the Court sustained demurrers to the seventh cause of action for Slander of Title because plaintiffs added this cause of action without leave to amend. With respect to JCP and Rediger, the motion to strike as to the seventh cause of action and paragraph 88 within the seventh cause of action concerning punitive damages is DENIED as MOOT. With respect to Inter Valley, the motion as to item 13 is DENIED as MOOT.

E. ESCROW HOLDER STANDARD OF CARE ALLEGATIONS

With respect to allegations of the standard of care of an escrow holder, Inter Valley contends that the alleged standard of care does not conform to California law. As discussed above, plaintiffs sufficiently allege that Inter Valley violated escrow instructions by failing to deliver the $720,000 in funds to plaintiffs and accordingly breached the standard of care. (SAC ¶ 42; Hannon v. Western Title Ins. Co. (1989) 211 Cal.App.3d 1122, 1128.) For pleading purposes, Inter Valley’s alleged failure to contact plaintiffs to confirm the loan and failure to verify the signatures on the loan documents is encompassed in the duty as set forth in the escrow instructions to ensure that $720,000 in funds were delivered to plaintiffs. (SAC ¶¶ 40, 42.) Inter Valley’s motion is DENIED as to items 6 through 9 listed in the notice of motion.

F. CONSPIRACY ALLEGATIONS

Stewart Title contends the allegations concerning a conspiracy are conclusory. “To support a conspiracy claim, a plaintiff must allege the following elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (AREI II Cases (2013) 216 Cal.App.4th 1004, 1022.) “While a complaint must contain more than a bare allegation the defendants conspired, a complaint is sufficient if it apprises the defendant of the character and type of facts and circumstances upon which she was relying to establish the conspiracy.” (Id..)

Here, it is not at all clear what plaintiffs claim the defendants conspired to do, other than to defraud plaintiffs. Because, as discussed above, plaintiffs have no viable theory of fraud, it would appear to the Court that plaintiffs’ allegations of conspiracy are superfluous.

Accordingly, Stewart Title’s motion is GRANTED as to items 1 and 2 listed in the notice of motion. No leave to amend is given.

Case Number: 19GDCV00819    Hearing Date: January 24, 2020    Dept: E

DEMURRER (5)

[CCP §430.10 et. seq.]

Date: 1/24/20

Case: Asatur Galadjian v. Inter Valley Escrow, Inc. et al. (19GDCV00819)

TENTATIVE RULING:

The Court rules as follows concerning the Demurrers to Plaintiffs Asatur Galadjian’s and Armenuhi Galadjian’s First Amended Complaint (“FAC”) by the following parties: (1) Defendant Inter Valley Escrow, Inc. (“Inter Valley”); (2) Defendant K. Hernandez Lopez (“Lopez”); (3) Defendant Bank of the West (“Bank of the West”); (4) Defendants JCP, LP (“JCP”) and Rediger Investment Corporation (“Rediger”); and (5) Defendant Stewart Title of California, Inc. (“Stewart Title”).

 

I. FIRST CAUSE OF ACTION: NEGLIGENCE

 

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

As to Inter Valley, “no liability attaches to the escrow holder for his failure to do something not required by the terms of the escrow or for a loss incurred while obediently following his escrow instructions.” (Hannon v. Western Title Ins. Co. (1989) 211 Cal.App.3d 1122, 1128.) Plaintiffs fail to allege the terms of the escrow instructions that Intervalley negligently breached.

As to Lopez, notaries have the duty of obtaining “satisfactory evidence” of the identity of the signer before notarizing the instrument, not actually confirming the identity of the signer. (Civ. Code §§ 1185(a), 1185(b)(1)(B); Brown v. Rives (1919) 42 Cal.App. 482, 487 [no liability under Civil Code § 1185 for notary who relied on well-known acquaintance to identify signer, even though signer’s name was not true].) Plaintiffs allege Lopez did not “determine the true identity of the person or persons in notarizing documents.” (FAC ¶ 13.) This is not the standard of liability against notaries. Plaintiffs thus did not allege the breach of any duty by Lopez.

As to Bank of the West, plaintiffs allege that Bank of the West negligently transferred funds by wire by failing to identify to whom it was releasing funds. (FAC ¶¶ 11, 12.) Division 11 of the Commercial Code displaces any common law claims, including negligence, fraud, and conspiracy. (Zengen, Inc. v. Comerica Bank (2007) 41 Cal.4th 239, 252.) Plaintiffs are not alleged to be the sender of the wire issuance instructions or the beneficiary of the incoming wire and therefore cannot allege any statutory breach. (See Comm. Code §§ 11302(a)(1), 11404(a).) Even if a common law cause of action could be alleged by plaintiffs, “a bank does not owe a duty of care to a noncustomer,” like plaintiffs. (Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472, 479.)

As to JCP and Rediger, these defendants contend that lenders do not owe borrowers a duty of care unless their involvement in a transaction exceeds the conventional role as a mere lender of money. (Nymark v. Heart Federal Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) Plaintiffs here are not borrowers, however. Plaintiffs are allegedly the victims of a fraudulently obtained loan secured by real property that they own. “Everyone,” including JCP and Rediger, “is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .” (Civ. Code § 1714(a).) Plaintiffs sufficiently allege that these defendants breached this duty because they failed to ascertain the identity of the person who fraudulently obtained the loan. (FAC ¶¶ 11-13.)

As to Stewart Title, plaintiffs do not allege any relationship between them and Stewart Title from which a duty arises. Because Stewart Title’s duty to plaintiffs is unclear, Stewart Title’s alleged breach is also unclear.

Accordingly, the demurrers to the first cause of action by Inter Valley, Lopez, and Stewart Title are SUSTAINED with 10 days leave to amend. The demurrer to the first cause of action by Bank of the West is SUSTAINED without leave to amend, because such cause of action is displaced by Division 11 of the Commercial Code. The demurrer to the first cause of action by JCP and Rediger is OVERRULED.

II. SECOND CAUSE OF ACTION: FRAUD AND DECEIT

As to all the demurring defendants, plaintiffs fail to allege any misrepresentation or any specific conduct on the part of any defendant or any detrimental and justifiable reliance. (See FAC ¶¶ 11, 16, 17; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513 [elements of fraud]; Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 558 [fraud must be pled with particularity].) Except for with respect to Lopez, plaintiffs failed to allege any specific conduct on the part of any defendant. As to Lopez, plaintiffs only allege that Lopez did not verify the identity of the borrower for the notarized documents; plaintiffs do not specifically allege any fraudulent or deceitful conduct or specific misrepresentation.

Accordingly, the demurrers to the second cause of action by Inter Valley, Lopez, JCP, Rediger, and Stewart Title are SUSTAINED with 10 days leave to amend. The demurrer to the second cause of action by Bank of the West is SUSTAINED without leave to amend, because such cause of action is displaced by Division 11 of the Commercial Code.

III. THIRD CAUSE OF ACTION: CONSPIRACY

The third cause of action is derivative of the second cause of action for Fraud. (See FAC ¶ 21.) Because, as explained above, the fraud cause of action fails as to all five demurring defendants, the demurrers to the third cause of action by Inter Valley, Lopez, JCP, Rediger, and Stewart Title are SUSTAINED with 10 days leave to amend. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11, 514) The demurrer to the third cause of action by Bank of the West is SUSTAINED without leave to amend, because such cause of action is displaced by Division 11 of the Commercial Code.

IV. FOURTH CAUSE OF ACTION: INJUNCTION

"Injunctive relief is a remedy, not a cause of action. [citations omitted] A cause of action must exist before a court may grant a request for injunctive relief.” (Allen v. City of Sacramento (2015) 234 Cal. App. 4th 41, 65; see also Shamsian v. Atlantic Richfield Co. (2003) 107 Cal. App. 4th 967, 984-85 [“Correctly, the respondents state that a request for injunctive relief is not a cause of action . . . . Therefore, we cannot let this ‘cause of action’ stand.”].) Because, as discussed above, the Court has sustained Inter Valley’s demurrer to the first, second, and third causes of action asserted against that defendant, Inter Valley’s demurrer as to the fourth cause of action for injunction is SUSTAINED with 10 days leave to amend.

As to Stewart Title, the Court disregards its demurrer to the fourth cause of action, because that cause of action is not brought by plaintiffs against Stewart Title, which was added as a DOE defendant per amendment on October 2, 2019. (See FAC at p. 6:10-11 [listing specific defendants against whom fourth cause of action is brought].)

V. FIFTH CAUSE OF ACTION: DECLARATORY RELIEF

Stewart Title is the only defendant which has demurred as to the fifth cause of action of declaratory relief. The Court, however, disregards Stewart Title’s demurrer to the fifth cause of action, because that cause of action is not brought by plaintiffs against Stewart Title. (See FAC at p. 7:3-4 [listing specific defendants against whom fifth cause of action is brought].)

VI. SUMMARY OF RULINGS

As to all cause of action asserted against Inter Valley (first, second, third, and fourth), the Court SUSTAINs the Demurrers with 10 days leave to amend.

As to all cause of action asserted against Lopez (first, second, and third), the Court SUSTAINS the Demurrers with 10 days leave to amend.

As to all causes of action asserted against Bank of the West (first, second, and third), the Court SUSTAINS the Demurrers WITHOUT leave to amend.

As to first cause of action against JCP and Rediger, the Court OVERRULES the Demurrer. As to the second and third causes of action against JCP and Redigoer, the Court SUSTAINS the Demurrer with 10 days leave to amend. There was no demurrer to the fourth and fifth causes of action against JCP and Rediger.

As to all causes of action asserted against Stewart Title (first, second, and third), the Court SUSTAINS the Demurrers with 10 days leave to amend.

Case Number: 19GDCV00819    Hearing Date: December 13, 2019    Dept: E

MOTION TO BE RELIEVED AS COUNSEL

[CCP §284, CRC 3.1362]

Date: 12/13/19

Case: Asatur Galadian, et al. v. Inter Valley Escrow, Inc., et al. (19 GDCV00819)

TENTATIVE RULING:

The UNOPPOSED Motion to be Relieved as Counsel by Garabed Kamarain, Esq., Kamarian Law, Inc., counsel for plaintiffs Asatur Galadjian and Armenuhi Galadjian, is GRANTED.

The Court will sign the proposed Order Granting Attorney’s Motion to be Relieved as Counsel-Civil with the following modifications: (1) in paragraph 5a, the Order will indicate it becomes effective upon the filing of the proof of service of the signed order; (2) in paragraph 6, the Order will state the current telephone number of the clients, to be provided to the clerk by counsel; and (3) in paragraph 7, the next scheduled hearing is 1/24/20, at 8:30 am in Department E of the Glendale Courthouse for the following: (1) Case Management Conference; and (2) Demurrers of defendants (a) Bank of the West, (b) K. Hernandez Lopez, (c) InterValley Escrow, Inc., (d) Steward Title of California, and (e) JCP, L.P. and Rediger Investment Corporation. Plaintiffs’ counsel is directed to efile the modified Proposed Order with the Court for signature forthwith.

Counsel for plaintiffs shall only be relieved upon the efiling of the proof of service of the signed order upon the plaintiff clients.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where TRAVELERS CASUALTY ASSRETY COMPANY OF AMERICA is a litigant

Latest cases where INTER VALLEY ESCROW, INC. is a litigant

Latest cases where REDIGER INVESTMENT CORPORATION A CALIFORNIA CORPORATION is a litigant

Latest cases where JCP LP is a litigant