On 04/09/2018 a Other case was filed by TICOR TITLE COMPANY OF CA against LINA MINKOVITCH in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
WILLIAM F. FAHEY
TICOR TITLE COMPANY OF CALIFORNIA
UNITED STATE OF AMERICA
DOES 1 TO 25
4/30/2018: PROOF OF SERVICE OF SUMMONS
5/14/2018: NOTICE OF FILING OF NOTICE OF REMOVAL OF CIVIL ACTION [COMPLAINT IN INTERPLEADER] TO THE UNITED STATES DISTRICT COURT
6/8/2018: Minute Order
6/15/2018: NOTICE OF RULING AT ORDER TO SHOW CAUSE HEARING RE NO RETURN OF SERVICE
6/19/2018: Minute Order
7/9/2018: ORDER TO WITHDRAW THE FUNDS INTERPLEADED BY PLAINTIFF TICOR TITLE COMPANY OF CALIFORNIA FOR DEPOSIT WITH UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
7/9/2018: Minute Order
7/13/2018: NOTCE OF ENTRY OF JUDGMENT OR ORDER
5/28/2019: Notice of Remand from Federal Court
6/28/2019: Certificate of Mailing for
7/1/2019: Memorandum of Points & Authorities
7/2/2019: Minute Order
4/23/2018: PROOF OF SERVICE SUMMONS
4/17/2018: ORDER TO SHOW CAUSE HEARING
4/9/2018: SUMMONS IN INTERPLEADER
4/9/2018: TICOR TITLE COMPANY OF CALIFORNIA'S DEPOSIT OF FUNDS IN INTERPLEADER ACTION AND REQUEST FOR FUNDS TO BE PLACED IN AN INTEREST BEARING ACCOUNT PURSUANT TO C.C.P. 386(C)
Ex Parte Application (for an Order Restraining Order All Parties from Proceedings in any Other Court and for an Order that Plaintiff Re-Deposit the Interpleaded Funds)Read MoreRead Less
Declaration ( of Lina Minkovitch in Opposition to Defendant Yan Minkovitch's Ex Parte Application); Filed by Lina Minkovitch (Defendant)Read MoreRead Less
Memorandum of Points & Authorities; Filed by Lina Minkovitch (Defendant)Read MoreRead Less
at 08:30 AM in Department 69, William F. Fahey, Presiding; Hearing on Ex Parte Application (for An Order Restraining All Parties From Proceeding in Any Other Court and for an Order that Plaintiff Re-Deposit the Interpleaded Funds) - HeldRead MoreRead Less
Ex Parte Application (for An Order Restraining All Parties From Proceeding in Any Other Court and for an Order that Plaintiff Re-Deposit the Interpleaded Funds); Filed by Yan Minkovitch (Defendant)Read MoreRead Less
Declaration (Regarding Notice of Ex Parte Application for Restraining Order); Filed by Yan Minkovitch (Defendant)Read MoreRead Less
Minute Order ( (Hearing on Ex Parte Application for An Order Restraining All ...)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Hearing on Ex Parte Application for An Order Restraining All ...) of 06/28/2019); Filed by ClerkRead MoreRead Less
Notice of Remand from Federal Court; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 69; Case Management Conference (Conference-Case Management; Vacated) -Read MoreRead Less
NOTICE OF RELATED CASERead MoreRead Less
Notice of Related Case; Filed by Ticor Title Company of California (Plaintiff)Read MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
TICOR TITLE COMPANY OF CALIFORNIA'S COMPLAINT IN INTERPLEADERRead MoreRead Less
SUMMONS IN INTERPLEADERRead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
Complaint; Filed by Ticor Title Company of California (Plaintiff)Read MoreRead Less
TICOR TITLE COMPANY OF CALIFORNIA'S DEPOSIT OF FUNDS IN INTERPLEADER ACTION AND REQUEST FOR FUNDS TO BE PLACED IN AN INTEREST BEARING ACCOUNT PURSUANT TO C.C.P. 386(C)Read MoreRead Less
Case Number: BC701437 Hearing Date: March 05, 2020 Dept: 26
TICOR TITLE COMPANY OF CALIFORNIA;
LINA MINKOVITCH, et al.;
Case No.: BC701437
Hearing Date: March 5, 2020
[TENTATIVE] order RE:
cross-defendant’s Demurrer to THE cross-complaint
On April 9, 2018, Cross-Defendant Ticor Title Company of California (“Ticor”) filed the underlying complaint in interpleader with funds from the purchase and sale of real property against each of the following who had a claim in interest in said funds: Lina Minkovitch, Cross-Complainant Yan Minkovitch (“Cross-Complainant”), the United States of America. and Does 1 through 25. On August 16, 2019, Cross-Complainant filed the instant cross-complaint against Ticor for (1) Negligence, (2) Breach of Fiduciary Duty, and (3) Interference with Prospective Economic Advantage.
On October 10, 2019, Ticor filed the instant demurrer to all three causes of action. On February 21, 2020, Cross-Complainant filed an opposition. On February 25, 2020, Ticor filed a reply.
The cross-complaint alleges as follows: On February 15, 2013, the parties agreed that Ticor would provide escrow and title insurance services in support of a real estate transaction entered into by Cross-Complainant and his (then) wife, Lina Minkovitch. (Cross-Complaint (“CC”) ¶ 7.) Cross-Complainant suffered from a depressed credit profile and other problems that jeopardized the couple’s ability to obtain financing. (CC ¶ 9.) However, Minkovitch’s (then) wife, Lina, could qualify for the loan. Thus, the Minkovitch’s, husband and wife, decided to purchase the property in the name of Lina Minkovitch, only. (CC ¶ 9.) Ticor demanded that Cross-Complainant execute and record a real property deed in favor of Lina Minkovitch. (CC ¶ 10.) Cross-Complainant “made clear to [Ticor] that the home was being taken, initially, in the name of Lina Minkovitch alone merely in facilitation of the transaction.” (CC ¶ 11.) Ticor “wanted the extra deed signed only in the interest of their own risk management, and not in protection of [Cross-Complainant] or with any consideration of his interests.” (CC ¶ 12.) Ticor compelled Cross-Complainant to sign an interspousal transfer deed because if Cross-Complainant had refused, it “would cause the whole deal to fall through.” (CC ¶¶ 13-14.) Ticor did not explain to Cross-Complainant all the legal consequences of such a deed. (CC ¶ 15.) Due to this, Cross-Complainant “in a later action in dissolution of his marriage, lost any claim to the property, the payments that he had made to the property, the down payment that he had provided to the property and the proceeds of the sale of the property, all to his damage.” (CC ¶ 17.)
Meet and Confer Requirement
CCP § 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C.C.P. § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at (a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at (a).)
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Ct. (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)
A special demurrer for uncertainty under Code of Civil Procedure § 430.10(f) is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts, or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Meet and Confer
Cross-Defendant Ticor has fulfilled the meet and confer requirement. (Shin Decl. ¶ 3-4.)
Statute of Limitations
Ticor contends that the statute of limitations for each cause of action has run.
“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment...’” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325 [internal citations omitted]; Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 [“a demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred].”)
Here, the statute of limitations for the first cause of action for negligence is two years. (CCP § 335.1.) The statute of limitations for the second cause of action for breach of fiduciary duty is either three or four years, depending on whether the breach was fraudulent or non-fraudulent. (See Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 963.) The statute of limitations for the third cause of action for interference with prospective economic advantage is two years. (See Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168.) “The statute of limitations usually commences when a cause of action ‘accrues,’ and it is generally said that ‘an action accrues on the date of injury.’” (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 743, [internal citations omitted].)
Here the cross-complaint states that the injury occurred during the dissolution of Cross-Complainant’s marriage. (CC ¶ 17.) The Complaint does not allege any date as the date of injury. Accordingly, the statute of limitations does not clearly bar these causes of action.
First and Second Causes of Action: Negligence and Breach of Fiduciary Duties
Ticor contends that it did not breach any duty owed to Cross-Complainant because as an escrow holder its duties are limited.
“In delimiting the scope of an escrow holder's fiduciary duties, then, we start from the principle that ‘[a]n escrow holder must comply strictly with the instructions of the parties. [Citations.]’ [Citation.] On the other hand, an escrow holder ‘has no general duty to police the affairs of its depositors'; rather, an escrow holder's obligations are ‘limited to faithful compliance with [the depositors'] instructions.’ [Citations.] Absent clear evidence of fraud, an escrow holder's obligations are limited to compliance with the parties' instructions.” (Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 526.)
Here the cross-complaint alleges that Ticor would provide escrow. (CC ¶¶ 7, 19, 25.) However, the cross-complaint does not allege that Ticor failed to comply with any escrow instructions, nor that Ticor committed fraud.
While Cross-Complainant states that Ticor would also provide title insurance services in addition to the escrow services (CC ¶ 7), there are no facts alleged that Ticor violated a duty in providing title insurance. In fact, the alleged harm occurred during the course of the escrow process with regard to the recording of a real property deed -- not with regard to Ticor’s duties as a title insurance company. (See CC ¶¶ 9-15; see also Siegel v. Fidelity Nat. Title Ins. Co. (1996) 46 Cal.App.4th 1181, 1191 [Stating that “[t]itle insurance is a contract for indemnity under which the insurer is obligated to indemnify the insured against losses sustained in the event that a specific contingency, e.g., the discovery of a lien or encumbrance affecting title, occurs.”].) The alleged facts here have no relation to that duty. Moreover, the Cross-Complaint specifies for the second cause of action that the duty is as Cross-Complainant’s escrow agent. (CC ¶ 25.)
Accordingly, Defendants demurrer to these causes of action is SUSTAINED.
Third Cause of Action: Interference with Prospective Advantage
“To establish a prima facie case of intentional interference with prospective economic advantage, a plaintiff must demonstrate (1) an economic relationship between the plaintiff and a third party, with a probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of this relationship; (3) intentional and wrongful conduct on the part of the defendant, designed to interfere with or disrupt the relationship; (4) actual disruption or interference; and (5) economic harm to the plaintiff as a proximate result of the defendant's wrongful conduct.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 713.) “With respect to the third element, a plaintiff must show that the defendant engaged in an independently wrongful act.” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544.) “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard .... an act must be wrongful by some legal measure, rather than merely a product of an improper, but lawful, purpose or motive.” (Id. at p.1545, [internal citations omitted].)
“Such conduct must also be independently actionable [Citation], meaning the legal standards must ‘provide for, or give rise to, a sanction or means of enforcement for a violation of the particular rule or standard that allegedly makes the defendant’s conduct wrongful.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1006.)
Ticor contends that the Cross-Complaint does not allege any independently wrongful act. In opposition, Cross-Complainant contends that he has plead facts to support that Cross Complainant took oppressive advantage of him, and that the “facts pleaded give rise to the implication that [Ticor], who is not a law firm, by selecting, drafting and presenting for Cross-Complainant]’s signature a real property deed attended with serious legal ramifications, was engaged in the unauthorized practice of law, which is an independently actionable wrong for which legal standards provide a sanction.
Cross-Complainant has not cited any authority to support his contention that oppression is an independently actionable wrong. Further, the Cross-Complaint does not allege any facts that give rise to the implication that Ticor engaged in the unauthorized practice of law.
Leave to Amend
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the cross-complainant to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)
Accordingly, Cross-Complainant has the burden of showing that the cross-complaint can be successfully amended.
Conclusion and ORDER
Ticor Title Company of California’s demurrer to the Cross-Complaint is SUSTAINED. Cross-Complainant may address leave to amend at the hearing.
The Moving party is ordered to give notice and file proof of service of such.
DATED: March 5, 2020 ___________________________
Judge of the Superior Court
 The United States has since released its claims to the disputed funds.