On 05/14/2018 JUDITH TUZSON PAAL filed a Property - Other Real Property lawsuit against PAL VICZIAN. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judge overseeing this case is MARK C. KIM. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Governor George Deukmejian Courthouse
Los Angeles, California
MARK C. KIM
JUDITH TUZSON PAAL AN INDIVIDUAL BY AND
JUDITH TUZSON PAAL AN INDIVIDUAL BY D
JUDITH TUZSON PAAL AN
DOES 1 THROUGH 25
ALL PERSONS UNKNOWN CLAIMING ANY LEGAL
LAW OFFICES OF GABOR SZABO
DARREN P. TRONE LAW OFFICES OF
TRONE DARREN PAUL
TRONE DARREN P
LAW OFFICES OF GABOR SZABO
10/30/2019: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROPOSED ORDER
7/19/2019: Objection - OBJECTION TO THE DECLARATION OF RITA TUZSON SUBMITTED IN OPPOSITION TO DEFENDANT'S PETITION TO REMOVE GUARDIAN AD LITEM
7/19/2019: Objection - OBJECTION TO PLAINTIFF'S REQUEST TO TAKE JUDICIAL NOTICE
7/29/2019: Order - ORDER ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; TEMPORARY RESTRAINING ORDER
8/30/2019: Declaration - DECLARATION OF GABOR SZABO IN SUPPORT OF DEFENDANT'S DEMURRER, MOTION TO STRIKE, AND REQUEST FOR JUDICIAL NOTICE
9/17/2019: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROPOSED ORDER ON OSC RE PRELIMINARY INJUNCTION
4/15/2019: Case Management Statement
5/10/2019: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGMENT OF PROPOSED VERIFIED FIRST AMENDED COMPLAINT
5/13/2019: Declaration - DECLARATION OF GABOR SZABO IN SUPPORT OF DEFENDANT'S PETITION TO REMOVE GAL
5/13/2019: Case Management Statement
6/5/2019: Opposition - OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
5/14/2018: Civil Case Cover Sheet
6/6/2018: Application - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM
7/30/2018: Minute Order - MINUTE ORDER ENTERED: 2018-07-30 00:00:00
11/2/2018: Notice - Notice of Motion and Motion to Strike Defendant Pal Viczian;s Answer to the Complaint; Points and Authorities in Support of Thereof
10/11/2018: Minute Order - (Case Management Conference)
7/16/2018: Notice of Continuance -
Hearing08/06/2020 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Hearing on Motion - Other NOTICE OF MOTION AND MOTION TO SUBSTITUTE RITA TUZSON AS SUCCESOR IN INTEREST FOR DECEDENT PLAINTIFF JUDITH T. PAALRead MoreRead Less
Hearing03/18/2020 at 08:30 AM in Department S27 at 275 Magnolia, Long Beach, CA 90802; Case Management ConferenceRead MoreRead Less
DocketNotice (notice of motion and motion to substitute rita tuzson as successor in interest for decedent plaintiff judith t. paal); Filed by an JUDITH TUZSON PAAL (Plaintiff)Read MoreRead Less
DocketAmended Complaint; Filed by an JUDITH TUZSON PAAL (Plaintiff); an JUDITH TUZSON PAAL (Plaintiff)Read MoreRead Less
DocketNotice (NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE); Filed by an JUDITH TUZSON PAAL (Plaintiff)Read MoreRead Less
DocketNotice (NOTICE OF RULING ON DEMURRER AND MOTION TO STRIKE FIRST AMENDED COMPLAINT); Filed by an JUDITH TUZSON PAAL (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held - Motion DeniedRead MoreRead Less
Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Case Management Conference - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10); Cas...)); Filed by ClerkRead MoreRead Less
DocketTentative Ruling and Final Order; Filed by ClerkRead MoreRead Less
DocketNoticeRead MoreRead Less
DocketApplication (and Order for appointment of Guardian ad litem)Read MoreRead Less
DocketOrd Apptng Guardian Ad LitemRead MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil CaseRead MoreRead Less
DocketOrder (To Show Cause Hearing)Read MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketComplaint; Filed by an JUDITH TUZSON PAAL (Plaintiff)Read MoreRead Less
Case Number: NC061789 Hearing Date: January 30, 2020 Dept: S27
Defendant Pal Viczian (“Defendant”) demurs to Plaintiff Judith Tuzson Paal’s entire First Amended Complaint (“FAC”).
Defendant also demurs to the 1st through 7th causes of action in the FAC:
Cancellation of Deed and Quiet Title
Elder Abuse – Welfare & Institutions Code § 15610.30(a)(1)
Additionally, Defendant moves to strike the FAC.
Plaintiff owned real property at 247 Roycroft Avenue in Long Beach, California. The case concerns a joint tenancy grant deed recorded on March 7, 2016, which purports that Plaintiff, for valuable consideration, conveyed a joint tenancy between herself and Defendant. Plaintiff alleges Defendant is not related to her but acted as a “personal chauffer” to Plaintiff and her husband. After the death of Plaintiff’s husband, Defendant continued to act as “a purported chauffer, friend and confidant” to Plaintiff.
The complaint alleges Plaintiff is over age 75, an elder within the statutory definition in the Welfare & Institutions Code. Defendant allegedly “exercised both physical and mental controlling influences over the mind and actions of Plaintiff.”
Defendant allegedly prepared the deed, travelled with Plaintiff to Hungary, and “induced and persuaded” Plaintiff to execute the deed at the United States Embassy in Budapest. The deed was then recorded in Los Angeles County. Defendant allegedly concealed the nature of the deed Plaintiff executed. Defendant is also alleged to have obtained control of Plaintiff's checking account and used the funds for his personal expenses.
On May 14, 2018, Plaintiff filed the initial complaint, alleging the first seven causes of action. On July 26, 2019, Plaintiff filed the First Amended Complaint to add the eighth cause of action for partition of real property.
MP: Defendant demurs to the entire FAC on the ground that the person who filed the pleading does not have the legal capacity to sue under Cal. Civ. Proc. Code § 430.10(b).
Defendant demurs to the first, second, third, fourth, and seventh causes of action on the ground that they do not state facts sufficient to constitute causes of action under CCP § 430.10(e).
Defendant demurs to the fifth and sixth causes of action on grounds that they do not state facts sufficient to constitute causes of action under CCP § 430.10(e), and that the pleadings are uncertain, ambiguous, and unintelligible under CCP § 430.10(f).
Defendant also moves to strike the FAC on the ground that a quiet title complaint must be verified under penalty of perjury and with personal knowledge.
OP: Plaintiff only filed an opposition to the motion to strike, arguing that the quiet title complaint is properly verified pursuant to statute.
TR: Defendant’s demurrer to the entire FAC should be overruled.
Defendant’s demurrer as to the fifth and sixth causes of action should be sustained with leave to amend, and overruled as to the first, second, third, fourth, and seventh causes of action.
Defendant’s motion to strike the FAC should be denied.
I. JUDICIAL NOTICE
Defendant requests judicial notice of Exhibits 1-5 attached to Defendant’s Request to Take Judicial Notice filed concurrently with the instant motions. The request is granted per Evidence Code § 452(f).
A demurrer tests the sufficiency of the pleading at issue as a matter of law. (City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719.) A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action, the pleading is uncertain, or the court has no jurisdiction of the subject of the cause of action alleged in the pleading. (CCP § 430.10(a), (e), (f).) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 (stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”)) However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)
If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79 (internal quotations omitted.)))
Demurrer to Entire FAC
Defendant maintains that Rita Tuzson has no standing to sue on behalf of Plaintiff Judith Tuzson Paal, and therefore, the entire FAC should either be dismissed for lack of legal capacity to sue under CCP § 430.30(b), or the action should stay until the legal incapacity of Plaintiff is proven to the Court with “credible evidence, not by translated hearsay letters.”
Defendant is making reference to the document that this Court granted judicial notice for on July 23, 2019, entitled “Authority Certificate” issued by the “Government Office in Szabalocs-Szatmar—Bereg County District Office in Nyiregyhaza.” The document is dated September 20, 2017 and is in the Hungarian language accompanied by a certified translation. It recites that Plaintiff’s “legal capacity is seriously decreased” and places Plaintiff “under full wardenship. Rita Tuzson is appointed as warden.”
Defendant cites provisions of the Hague Convention, to which the U.S. and Hungary are signors of, in arguing that it expressly prohibits the recognition of foreign court's decision to determine the status or capacity of natural persons.
However, on June 6, 2018, prior to the judicial notice of the above-referenced Hungarian-language document, this Court already granted Plaintiff’s ex parte application for Ruth Tuzson to represent Plaintiff’s interests as guardian ad litem due to Plaintiff being an incompetent person. Therefore, Ruth Tuzson has been established as having standing to bring suit as the guardian ad litem of Plaintiff under CCP § 430.10(b).
Accordingly, the demurrer to the entire FAC is overruled.
COA 1: Cancellation of Deed and Quiet Title
A complaint for quiet title shall be verified and shall include all of the following: (1) description of the property; (2) plaintiff’s title or interest and the basis; (3) defendant’s asserting adverse claim or antagonistic property interest; (4) date as of which the determination is sought; and (5) prayer for determination of title. (CCP § 761.020)
Defendant contends that a quiet title action must be properly verified, and references his arguments in the concurrently filed motion to strike to allege that Plaintiff’s FAC was not properly verified according to statute.
CCP § 446 expressly authorizes an attorney’s verification of a pleading where the parties are absent from the county where he has his office. Here, in Plaintiff’s counsel’s declaration included with the opposition to the motion to strike, he states that Plaintiff and her guardian ad litem were absent from the county of his office and residing in Hungary. (Trone Decl. ¶ 3.) This is sufficient to allow attorney verification of a pleading under CCP § 446. Plaintiff’s counsel properly verified the FAC under CCP § 446, as evidenced in the signed Verification form attached to the FAC.
Furthermore, the FAC properly identifies (1) the description of the property, (2) plaintiff’s title or interest and the basis, (3) defendant’s asserting adverse claim or antagonistic property interest, (4) date as of which the determination is sought; and (5) prayer for determination of title. (FAC ¶¶ 21-28.) This is sufficient to allege a cause of action for quiet title under CCP § 761.020.
Accordingly, the demurrer to the 1st cause of action is overruled.
COA 2: Undue Influence
Undue influence consists of: (1) the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; (2) taking an unfair advantage of another's weakness of mind; or, (3) a grossly oppressive and unfair advantage of another's necessities or distress. (Cal. Civ. Code § 1575.)
“The rule which requires allegations of facts where undue influence is the issue does not require the allegation of evidentiary facts but only that ultimate facts be pleaded; it does not exclude conclusions of fact but only conclusions of law.” (Krug v. Meeham (1952) 109 Cal.App.2d 274, 277.)
Defendant argues that demurrer should be sustained as to the undue influence claim because Plaintiff repeats the same “unverified allegations” of the first cause of action and requests the same relief. Defendant further argues that these are “only conclusory statement of facts and law, no specific facts alleged to support these conclusions.”
Defendant contends that a cause of action that contains allegations of other causes and “add[s] nothing to the complaint by way of fact or theory of recovery” is a basis for sustaining a demurrer, citing Rodrigues v. Campbell Indus. (Ct. App. 1978) 87 Cal. App. 3d 494. Defendant misapplies or misconstrues Rodrigues. In Rodrigues, the plaintiff filed a complaint alleging five causes of action against a manufacturer. (Rodrigues at 497.) The first four causes of action were for negligence, breach of warranty, strict liability, and breach of contract. (Id.) The fifth cause of action combined the four preceding causes, alleging that they were joint and concurrent causes of the plaintiff’s damages. (Id.)
Defendant also cites Award Metals, Inc. v. Superior Court (Ct. App. 1991) 228 Cal. App. 3d 1128, in arguing that a demurrer should be sustained as to duplicative causes of action. In Award Metals Inc., the plaintiff filed five causes of action against his employer. (Award Metals Inc. at 1134.) The first cause of action was for negligence, but the plaintiff relied on the language of Labor Code § 4558 in alleging the claim instead of using the traditional elements of simple negligence. (Id.) Because the plaintiff’s fifth claim was also for a violation of Labor Code § 4558 and relied on identical language as his negligence claim, the Court held his first cause of action as “duplicative pleading which adds nothing to the complaint by way of fact or theory” and stated that the demurrer should have been sustained for it. (Id. at 1135.)
Here, unlike in Rodrigues or Award Metals Inc., Plaintiff is not combining other causes of action into this claim for undue influence, nor is she filing a duplicative pleading by restating the same legal language between her claims. Rather, she is pleading a distinct cause of action for undue influence and supporting it with its own relevant allegations. Plaintiff alleges that she “reposed trust and confidence in Defendant,” “Defendant exercised both physical and controlling influences over the mind and actions of Plaintiff,” and “[t]aking advantage of this trust, confidence, and influence, Defendant VICZIAN caused a deed to be prepared for Plaintiff’s signature and induced and persuaded Plaintiff to execute the deed...” (FAC ¶¶ 31-32.) This is sufficient to allege a cause of action for undue influence under Cal. Civ. Code § 1575.
Accordingly, the demurrer to the 2nd cause of action is overruled.
COA 3: Rescission
A party to a contract may rescind the contract if the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party. (Cal. Civ. Code § 1689.)
Defendant combines his arguments for demurrer of the rescission claim and the undue influence claim. Thus, the case law he cites in support of this argument has been addressed under the undue influence analysis herein.
Here, Plaintiff alleges that she “was over 75 years of age and was subjected to undue influence and substantially unable to manage her own financial resources or resist fraud or undue influence and was otherwise of unsound mind.” (FAC ¶ 34.) Further, “VICZIAN used the confidence reposed in him to gain an unfair advantage of Plaintiff, in that Defendant induced and caused Plaintiff to sign the deed giving VICZIAN a substantial interest in Plaintiff’s residence without receiving any consideration for it by falsely telling Plaintiff that the Real Property needed to be placed into VICZIAN’s name so he could care for the property while Plaintiff was on an extended stay overseas.” (FAC ¶ 35.) This is sufficient to allege the elements of a cause of action for rescission under Cal. Civ. Code § 1689.
Accordingly, the demurrer to the 3rd cause of action is overruled.
COA 4: Elder Abuse – Welfare & Institutions Code § 15610.30
Cal. Welf. & Inst. Code § 15610.30: (a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both ... (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
Defendant contends that a civil elder or dependent adult cause of action can only be alleged against a defendant who has “care or custody” of the elderly or dependent adult, citing Winn v. Pioneer Med. Grp., Inc. (2016) 63 Cal. 4th 148. Defendant argues that Plaintiff did not allege she was in Defendant’s “care or custody” in the FAC, only alleging that Defendant stood in a position of “trust and confidence” to her, thereby failing to meet this element of the cause of action. Defendant also argues that Plaintiff was not a dependent adult as defined in § 15610.23.
First, Defendant cites Winn in arguing that Plaintiff was not properly in Defendant’s “care or custody” under § 15610.30. However, Winn dealt with a cause of action for neglect between an elderly patient and her physician under Welf. & Inst. Code § 15610.57, a separate statute. The language of § 15610.57 includes the phrase “care or custody” as an element, and the Winn opinion goes to lengths to interpret its meaning.
Unlike Winn, the present cause of action is for alleged financial abuse under § 15610.30. This statute does not use the phrase “care or custody” anywhere in its body, and Defendant’s reliance on the phrase as an element in arguing against this cause of action is misleading. As cited above, § 15610.30 merely requires that a “person or entity” commit an alleged act against an elder or dependent adult, resulting in the loss of the victim’s real or personal property.
Second, § 15610.23(a) limits the definition of a “dependent adult” to persons between the ages of 18 and 64. Defendant is correct that Plaintiff, being over age 75, would not fall under this definition. However, Plaintiff does fall under the definition of an “elder” under § 15610.27, defined as “any person residing in this state, 65 years of age or older.” Consequently, because the language of § 15610.30 applies to both elders and dependent adults, it is applicable to Plaintiff.
In the FAC, Plaintiff alleges that Defendant’s actions toward Plaintiff constituted elder financial abuse under § 15610.30. (FAC ¶ 41.) Plaintiff alleges that Defendant stood in a position of “trust and confidence” to Plaintiff, deliberately causing a deed to be prepared for Plaintiff’s signature and execution in order to convey her real property to him. (FAC ¶ 40.) Plaintiff also alleges that Defendant gained access to Plaintiff’s account and other items of Plaintiff’s personal property. (Id.) This is sufficient to allege a cause of action for financial abuse under Cal. Welf. & Inst. Code § 15610.30.
Accordingly, the demurrer to the 4th cause of action is overruled.
COA 5: Conversion
Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.)
Defendant contends that Plaintiff has not alleged sufficient facts to establish the interference element in a claim for conversion, citing Moore v. Regents of the Univ. of Cal. (1990) 51 Cal.3d 120, 136 (“To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession..."). Defendant also argues that money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LIP (2007) 150 Cal.App.4th 384, 395.)
Here, Plaintiff alleges that in November 2015, Defendant misappropriated most of Plaintiff’s personal items at her home, by destroying, selling, disposing, and converting various items for his own use, including but not limited to furniture, furnishings, appliances, antiques, jewelry, clothing, and personal effects. (FAC ¶ 17.) Plaintiff alleges that Defendant took “affirmative steps” to assume title and exercise dominion and control over Plaintiff’s personal property in a manner inconsistent with Plaintiff’s right of ownership or in repudiation of her ownership rights. (FAC ¶ 45.) In regard to the listed personal items, this is sufficient to allege the elements of a cause of action for conversion.
However, under this cause of action, Plaintiff also alleges that Defendant exercised dominion and control over her bank account. (Id.) Under PCO, Inc., if Plaintiff intends for the money in her bank account to be subject to the conversion claim, Plaintiff must plead a specific, identifiable sum. In the FAC, Plaintiff only alleges that Defendant “was able to obtain control over the Account and has been converting and dissipating the Account, using the funds for his own personal expenses and gain.” (FAC ¶ 14.) Plaintiff does not allege that a specific amount was converted.
Accordingly, the demurrer to the 5th cause of action is sustained with leave to amend.
COA 6: Injunctive Relief
An injunction may be granted in the following cases: (2) when it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action, (3) when it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.
(Cal. Civ. Proc. Code § 526(a)(2)-(3).)
Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted. (Shell Oil Co. v. Richter (1942) 52 Cal. App. 2d 164, 168; see also Shamsian v. Atlantic Richfield Co. (2d Dist. 2003) 107 Cal.App.4th 967, 984-985 [“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. However, ... on remand the trial court shall permit the appellants to amend their ... cause of action to include their request for injunctive relief”].)
Defendant contends that Plaintiff makes “boilerplate allegations” unrelated to any factual allegations of the FAC. Defendant argues that Plaintiff has remedies at law available for the other causes of action alleged in the complaint, and that under CCP § 526, none of the situations in which an injunction may be granted are applicable based on the alleged facts of this case.
Here, Plaintiff demands that the Defendants “cease their fraudulent activities” as described in the FAC and that she has no adequate remedy at law for the injuries being and which will be suffered. (FAC ¶ 49.) Plaintiff contends that a reasonable opportunity for further investigation and discovery is likely to yield evidence establishing that the elder abuse and fraudulent activities by the Defendants is “of such magnitude as to cause substantial harm to the public interest by using fraudulent court documents, real estate documents, notary practices, title insurance companies, escrow companies, and banking institutions to further perpetrate their fraud.” (FAC ¶ 48.) Further, “unless restrained, the Defendants’ activities are likely to result in substantial economic harm to not only to Plaintiff but the public at large and numerous citizens of Los Angeles County and other counties within the State of California.” (Id.)
Based on Plaintiff’s allegations under this cause of action, is uncertain which specific “fraudulent” activities Defendant is presently committing that Plaintiff seeks to be enjoined, nor why Plaintiff would have no adequate remedy at law for them. Further, under Shell Oil Co. and Shamsian, this cause of action would be more appropriately included as a request for relief under a different cause of action rather than plead as a cause of action on its own.
Accordingly, the demurrer to the 6th cause of action is sustained with leave to amend.
COA 7: Declaratory Relief
Any person claiming rights with respect to property, a contract, or a written instrument (other than a will or trust) may bring an action for a declaration of the party’s rights or duties with respect to another. (CCP § 1060.) However, such declaratory relief requires the existence of an actual, present controversy between the parties over a proper subject. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79; Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513–514.)
Defendant contends that this cause of action is duplicative to the eighth cause of action for partition, and therefore under Rodrigues and Award Metals, Inc., should be the basis to sustain a demurrer. The cited case law has been analyzed under the undue influence analysis herein.
Here, unlike in Rodrigues or Award Metals Inc., Plaintiff is not combining other causes of action into this cause of action for declaratory relief, nor filing a duplicative pleading by restating the same legal language between this and the partition cause of action.
Under the 7th cause of action, Plaintiff alleges that an actual controversy has arisen between the parties over her real property. (FAC ¶¶ 52-53.) This is sufficient to allege the elements of a cause of action for declaratory relief.
Furthermore, under CCP § 872.230, a complaint for partition requires (1) a description of the property, (2) the plaintiff’s interests or claims in the property, (3) all other persons’ interests or claims in the property that the plaintiff reasonably believes will be materially affected by the action, (4) the estate to which partition is sought and a prayer for partition of the interests, and (5) an allegation of the facts justifying the relief in ordinary and concise language.
Under the 8th cause of action, Plaintiff has listed and fulfilled each requirement of CCP § 872.230. (FAC ¶¶ 57-62.) This is sufficient to allege the elements of a cause of action for partition.
Accordingly, the demurrer to the 7th cause of action is overruled.
III. MOTION TO STRIKE
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id. at (b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. at § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. at § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)
Defendant contends that a complaint to quiet title must be verified under penalty of perjury and with personal knowledge contained therein, citing CCP § 761.020. Defendant alleges that Plaintiff’s guardian ad litem, Rita Tuzson, failed to properly verify the FAC personally because it was verified by Plaintiff’s counsel instead. Defendant argues that an attorney verification is insufficient to satisfy the verification requirements of a quiet title action, the first cause of action alleged in the FAC.
CCP § 446 expressly authorizes an attorney’s verification of a pleading where the parties are absent from the county where he has his office. Here, in Plaintiff’s attorney’s declaration included with the opposition, he states that Plaintiff and her guardian ad litem were absent from the county of his office and residing in Hungary. (Trone Decl. ¶ 3.) This is sufficient to allow attorney verification of a pleading under CCP § 446.
Regardless, in the instant motion, Defendant repeatedly makes reference to CCP § 761.020 as expressly requiring a quiet title complaint to be verified “under penalty of perjury with personal knowledge of the information contained therein.” Upon review, the Court has not located this specific requirement within CCP § 761.020, nor does it state that an attorney’s verification would be insufficient.
CCP § 761.020, in describing the pleading requirements for a quiet title complaint, merely states: “The complaint shall be verified and shall include all of the following: (a) A description of the property that is the subject of the action. ... (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. ... (c) The adverse claims to the title of the plaintiff against which a determination is sought. (d) The date as of which the determination is sought. ... (e) A prayer for the determination of the title of the plaintiff against the adverse claims.”
Defendant places the weight of his argument on the notion that the FAC was not properly verified under CCP § 761.020. However, the FAC was properly verified by Plaintiff’s counsel, and there is no statutory or case authority to show that such verification would be insufficient for a quiet title action.
Accordingly, Defendant’s motion to strike the FAC is denied.
Defendant’s demurrer to the entire FAC is overruled.
Defendant’s demurrer as to the fifth and sixth causes of action are sustained with leave to amend, and overruled as to the first, second, third, fourth, and seventh cause of action.
Defendant’s motion to strike the FAC is denied.