Hearing DemurrerCal. Super. - 6th Dist.June 2, 2017SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Rhonda Merritt- Tinsley vs David Merritt Hea ring Sta rt Time: 9:00 AM 17CV311288 Hearing Type: Hearing: Demurrer Date of Hearing: 07/05/2018 Comments: Heard By: Zayner, Theodore C Location: Department 6 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appeara nce. Tentative ruling adopted. Currently before the Cou rt is the demurrer by defenda nt David Merritt ( Defenda nt ) to the first amended complaint ( FAC ) of plaintiff Rhonda Merritt-T'Insley ( Plaintiff ). Factual a nd Procedu ral Backgrou nd This action arises out of the alleged fraudulent tra nsfer of real property located at 1679 East San Fernando Street, San Jose, California, 951|6 ( Property ). Plaintiffand her husband, Henry Tinsley ( Tinsley ), originally owned the Property asjoint tena nts. (FAC, 3.) When Mr. Tinsley passed away in February 2016, Plaintiff became the sole owner of the Property as the su rvivingjoint tena nt. (FAC, 4.) Subsequently, Plaintiff moved to Nevada and secu red Defenda nt to manage the [P]roperty for her since she no longer lived in California. (Id. at 1 and 5.) The agreement was for Defenda nt to rent the [P]roperty, with rents payable to Plaintiff, and Defenda nt was to generally maintain the [P] roperty. (Id. at 5.) Plaintiff alleges that [she] does not recall, nor did she ever sign any deed docu ments for the Property to be transferred outside of her possession. (Id. at 6.) With the help of a nota ry, David Nguyen, Defenda nt allegedly forged or caused to be forged[ ] [Plaintiff s] signature on deeds tra nsferring her ownership of the [P] roperty to himself. (FAC, 7.) Plaintiff alleges that her actual signatu re and fingerprints do not match the signatu re and fingerprints attributed to her on the forged deeds of trust. (Id. at 11.) Plaintiff further alleges that a witness, Eric Merritt, admits that she was not present when the deeds of trust were nota rized. (Id. at 16.) Thereafter, Defendant evicted tenants from the Property. (FAC, 8.) During the eviction process, a notice issued that fraudulently identified Defenda nt as trustee of Tinsley s trust. (|bid.) Plaintiff alleges that her husba nd na med her as the trustee of his trust ancl granted her durable power of attorney over his assets. (|bid.) Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - i7CV3] 1288 Page 1 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Based on the foregoing allegations, Plaintiff filed a complaint against Defendant, alleging causes of action for: (1) fraud and deceit; (2) forgery; (3) and breach of fiducia ry duty. Subsequently, Defenda nt demurred to the complaint. On February 20, 2018, the Court issued its order on Defenda nt s demurrer, sustaining the demurrer as to each cause of action of the complaint with leave to amend. On March 2, 2018, Plaintiff filed the operative FAC against Defenda nt, alleging causes of action for: (1) fraud; (2) forgery; (3) conversion; (4) trespass to chattels; (5) promissory fraud; and (6) breach of fiducia ry duty. Defenda nt filed a demurrer to the FAC. Plaintiff filed papers 'In opposition to the demurrer in late June 2018. A few clays later, Defendant filed a reply. Discussion Defenda nt demurs to each ancl every cause of action of the FAC on the grounds of uncertainty, failure to allege facts sufficient to constitute a cause of action, and that 'It cannot be ascertained from the pleading whether the alleged contract 'Is written, 'Is oral, or implied by conduct. (See Code Civ. Proc., 430.10, subds. (e), (f), and (g)-) l. Procedural Issue As a preliminary matter, though not raised by the parties, the Court notes that the FAC includes new claims for conversion, trespass to chattels, and promissory fraud. Following an order sustaining a demurrer with leave to amend, the plaintiff may amend his or her complaint only as authorized by the cou rt s order. [Citation.] 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. [Citation.] (Ha rris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.) As previously stated, the Cou rt sustained Defendant s demurrer to the original complaint, which alleged three causes of action for fraud ancl deceit, forgery, ancl breach of fiduciary duty. The February 20, 2018 order on Defenda nt s demurrer did not permit Plaintiff to amend the pleading to include entirely new causes of action. In addition, Plaintiff did not seek permission to add new claims. The third and fourth causes of action for conversion ancl trespass to chattels, respectively, are entirely new claims that do not fall within the scope of the prior order gra nting Plaintiff leave to amend her complaint. Thus, the third ancl fou rth causes of action were filed in violation of the requirement of prior leave of cou rt. The fifth cause of action for promissory fraud is, in actuality, an extension of the first cause of action for fraud. It simply asserts an additional factual basis for Plaintiff s fraud claim. Therefore, the Cou rt finds that the fifth cause of action falls within the scope of the prior order gra nting leave to amend the claim for fraud. Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - i7CV3] 1288 Page 2 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Accordingly, the Court, on its own motion, strikes the third and fourth causes of action as not having been filed 'In conformity with the law. (See Code C'Iv. Proc., 436, subd. (b) [a court may, 'In 'Its discretion, strike new causes of action when they are not drawn in conformity with its prior order]; see also Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 [ [Section 436] is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court ].) The demurrer to the third and fou rth causes of action is, therefore, MOOT. ||. Meet and Confer Though not raised by the parties, the Court notes that Defenda nt failed to file a meet and confer decla ration as required by Code of Civil Procedure section 430.41. Code of Civil Procedure section 430.41 requires a demurring party to meet ancl confer with the party who filed the challenged pleading to seek informal resolution of the demurring pa rty s objections. (Code Civ. Proc., 430.41, subd. (a) [ If an amended complaint, cross-complaint, or answer is filed, the responding party sha|| meet ancl confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading. ].) The meet and confer must be conducted in person or by telephone, and must address each cause of action or defense to be included in the demurrer. (|bid.) If these efforts fail, the demurring party must file ancl serve a declaration regarding the meet ancl confer process with the demurrer. (Code Civ. Proc., 430.41, subd. (a)(3).) While a court may not overrule a demurrer for insufficient meet and confer efforts (see Code Civ. Proc., 430.41, subd. (a)(4)), it may continue the hea ring and order the pa rties to meet ancl confer as required (see Assem. Com. on Judiciary, Rep. on Sen. Bill No. 383 (2015-2016 Reg. Sess.), p. 2). Here, in furthera nce ofjudicial economy, the Court will overlook Defendant s failure to comply with Code of Civil Procedure section 430.41 in this instance only. Defendant is admonished that all futu re filings should comply with the Code of Civil Procedure. |||. Request for Judicial Notice In connection with his moving pa pers, Defendant asks the Cou rt to take judicial notice of: a grant deed recorded by Sa nta Clara Cou nty Recorder on August 12, 2015 ( Grant Deed ),- ancl website printout of an online records search conducted on the Santa Cla ra County Recorder s website. In connection with his reply, Defenda nt asks the Cou rt to take judicial notice of: proofs of service filed with the Cou rt,- a document purportedly attached to Defenda nt s declaration as Exhibit C; the February 20, 2018 court order on Defenda nt s demurrer to the original complaint; and the Grant Deed. First, as articulated above, Defenda nt did not file his declaration with the Cou rt. Consequently, the Court does not have a copy of Exhibit C that is pu rportedly attached to Defendant s decla ration. A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court with a copy of the material. (Cal. Rules of Ct., rule 3.1306 (c).) Because Defenda nt did not provide the Cou rt with a copy of Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - 17CV3] 1288 Page 3 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Exhibit C, it is not a proper subject ofjudicial notice. Second, the website printout from the Sa nta Clara Cou nty Recorder s website 'Is not a proper subject of judicial notice. Although it might be appropriate to ta ke judicial notice of the existence of the website itself, the same is not true of its factual content eSpeciaIIy since Defenda nt does not establish that the content is not reasonably subject to dispute. (See Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [refusing to ta ke judicial notice of website pages of the American Coal Foundation and the U.S. Dept. of Energy]; see also Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737 [refusing to ta ke judicial notice of information on the Cal. Bd. of Registered Nursing website]; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760 61 [judicial notice of the contents of webpages is permitted only if the information is not reasonably subject to dispute].) Third, the proofs of service and February 20, 2018 order are proper subjects ofjudicial notice because they are cou rt records releva nt to the pending demurrer. (See Evid. Code, 452, subd. (cl) [permittingjudicial notice of court records]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Ca|.4th 415, 422, fn. 2 [There is a precondition to the taking ofjudicial notice in either its mandatory or permissive form any matter to bejudicially noticed must be relevant to a material issue. ]; People v. Woodell (1998) 17 Cal.4th 969B, 455 [Evidence Code sections 452 ancl 453 permit the trial court to ta ke judicial notice of the existence ofjudicial opinions and court documents, along with the truth of the results reached-in the docu ments such as orders, statements of decision, and judgments-but [the cou rt] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact. 1-) Fourth, the Grant Deed is a proper subject ofjudicial notice as recorded property docu ments are generally proper subjects ofjudicial notice. Evidence Code section 452, subdivision (h) allows a court to take judicial notice of facts ancl propositions that are not reasonably subject to dispute ancl are ca pable of immediate ancl accu rate determination by resort to sou rces of reasonably indisputable accu racy. Cou rts have taken judicial notice of recorded property instru ments under this provision. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265, disapproved of on other grou nds in Yva nova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.) A cou rt may take judicial notice of certain facts in a recorded docu ment, including the fact of a document s recordation, the date the document was recorded and executed, the pa rties to the tra nsaction reflected in a recorded document, ancl the document s legally operative Ia nguage, assuming there is no genuine dispute rega rding the document s authenticity. (Fontenot, supra, 198 Cal.App.4th at p. 265.) Here, the Court may ta ke judicial notice ofthese facts as it does not appear that Plaintiff diSputes the Grant Deed s authenticity. Accordingly, Defenda nt s request forjudicial notice is DENIED IN PART ancl GRANTED IN PART. The request is DENIED as to Exhibit C and the website printout. The request is GRANTED as to the existence of the subject court records, the truth of the results reached in the February 20, 2018 order, and the fact of the Gra nt Deed s recordation, the date it was recorded ancl executed, the parties to the tra nsaction reflected in it, ancl its legally operative |a nguage. IV. Service of the Demurrer Plaintiff asserts that she was not timely served with the demurrer. Plaintiff states that her cou nsel was notified by Defenda nt that he had filed a demurrer and cou nsel then pull[ed] the file from the records Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - i7CV3] 1288 Page 4 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER office herselfin orderto reply to [this] demurrer. (Opp n., p. 12:18-22.) Moving pa pers must be served 16 cou rt clays before the noticed hearing date, and the notice period increases by an additional 5 calendar clays ifthe motion papers are served by mail. (Code Civ. Proc., 1005, subd. (b).) Thus, with a hearing date ofJuIy 5, 2018, timely service on Plaintiffvia mail would have been no later than June 8, 2018. On Ma rch 12, 2018, Defenda nt filed a proof of service executed by Marreon G. Sta rks, providing that the moving pa pers were mailed to Plaintiff s cou nsel on March 11, 2018. Additionally, on June 4, 2018, Defenda nt filed a proof of service executed by Christopher Espanola, stating that the moving papers were personally delivered to the front desk receptionist at the office of Plaintiff s counsel on May 30, 2018. These proofs of service demonstrate that Plaintiff s cou nsel was served with the moving papers well before June 8, 2018, ancl create a rebuttable presumption that the service was proper. (See Dill v. Berqu'lst (1994) 24 Cal.App.4th 1426, 1441 [It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. ].) In opposition, Plaintiff does not present any evidence rebutting this presumption. The mere assertion in Plaintiff s opposition pa pers that her cou nsel was not timely served with the moving pa pers does not constitute evidence. Consequently, Plaintiff s argu ment rega rding service is unsubsta ntiated ancl lacks merit. V. Legal Standard on Demurrer The fu nction of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Ca pital Wholesale Elec. Etc. Fu nd v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice. (South Shore, supra, 226 Cal.App.2d at p. 732, internal citations and quotations omitted; see Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary fu nction of a demurrer to test the truth of the [] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant s conduct. [ ] Thus, [] the facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations ancl quotations omitted.) However, while [a] demurrer admits a|| facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120) VI. Whether the Alleged Contract is Written, is Oral, or Implied by Conduct In his demurrer, Defenda nt states that the Court should sustain the demurrer to the FAC because Plaintiff fails to demonstrate [that a] contract existed, be it written or otherwise. (Dem., p. 2:1-2.) However, Defendant does not proffer any argument supporting this grou nd for demurrer in his memora ndum of points and authorities. Consequently, the demurrer on this grou nd lacks merit. (See Badie v. Bank ofAmerica (1998) 67 Cal.App.4th 779, 784-85 (Baclie); see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [ [A] point which is merely suggested by a pa rty s Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - i7CV3] 1288 Page 5 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion. ].) Furthermore, the FAC does not allege a claim for breach of contract. Thus, it is unclear to the Court how the ground set forth in Code of Civil Procedure section 430.10, subdivision (g) is applicable in this action. Accordingly, the demurrer to the first, second, fifth, and sixth causes of action on the grou nd that it cannot be ascertained from the pleading whether the alleged contract is written, is oral, or implied by conduct is OVERRULED. VII. Uncertainty Defenda nt demurs to the first, second, fifth, and sixth causes of action of the FAC on the grou nd of uncertainty. But Defendant s argu ments actually pertain to Plaintiff s purported failure to allege sufficient facts to state a claim and do not identify a particular allegation in the FAC that is uncertain, ambiguous, and/or unintelligible. (See e.g., Mem. Ps. & As., p. 2:15-18 [The allegations continue to be conclusory without any specificity. Not only are the allegations unclea r, confusing and uncertain as before, but the legal theories themselves are not supported in any way by the allegations pled 0r circumsta nces of this case. ].) It appears that Defenda nt misu ndersta nds the nature of uncertainty as a grou nd for demurrer. The law is settled that [a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations already made. (Butler v. Sequiera (1950) 100 Cal.App.2d 143, 145-146.) Thus, Defenda nt s demurrer on the grou nd of uncertainty is not weII-taken. Accordingly, the demurrer to the first, second, fifth, and sixth causes of action on the grou nd of uncertainty is OVERRULED. VIII. Failure to Allege Sufficient Facts to State a Claim A. First and Fifth Causes of Action Defenda nt argues that the fraud claims fail because the FAC does not allege that any representation was made to Plaintiff directly and Plaintiff does not plead the elements of fraud with the requisite specificity. The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter ); (c) intent to defraud, i.e., to induce reliance,- (d) justifiable reliance,- and (e) resulting damage. (Lazar v. Super. Ct. (1996) 12 Ca|.4th 631, 638 (Lazar).) Each element must be pleaded with particularity so as to apprise the defendant of the specific grou nds for the charge ancl enable the court to determine whether there is any basis for the cause of action, although less Specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff. (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211; Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Ca|.3d 197, 216 [ Fraud actions are subject to strict requirements of particula rity in pleading. Accordingly, the rule is everywhere followed that fraud must be Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - ]7CV3] 1288 Page 6 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Specifically pleaded. ].) The first cause of action, as pleaded, is based on the allegation that Defenda nt falsely represented to third parties that he was the trustee of Tinsley s trust. (FAC, 14.) There are no allegations showing that any misrepresentation was made to Plaintiff, Defenda nt made a misrepresentation with the intent to induce Plaintiffs reliance, or Plaintiff relied to her detriment on any misrepresentation made by Defenda nt. Because no such allegations appear in the FAC, Plaintiff fails to plead several of the requisite elements of fraud. Furthermore, there are no facts alleged in the FAC demonstrating when and where the alleged misrepresentation to third parties was tendered. (See Lazar, supra, 12 Ca|.4th at p. 645 [this particularity requirement necessitates pleading facts which show how, when, where, to whom, ancl by what means the representations were tendered ].) Consequently, the first cause of action is not adequately pleaded. Regarding whether leave to amend the first cause of action is appropriate, the Court notes that Plaintiff previously had an opportunity to amend this claim, but failed to correct the noted defects. In addition, Plaintiff does not demonstrate that there is a reasonable possibility that she can cure these defects by amendment. Therefore, leave to amend the first cause of action is not wa rra nted. (See Melton v. Boustred (2010) 183 Ca|.App.4th 521, 544 (Melton) [the plaintiff must demonstrate a reasonable possibility that the complaint s defects can be cured by amendment ]; see also Davies v. Sallie Mae, Inc. (2008) 168 Ca|.App.4th 1086, 1097 (Davies) [appellate cou rt determined that trial court did not abuse its discretion in sustaining a demurrer without leave to amend after plaintiff had previous opportunities to amend the complaint].) The fifth cause of action for promissory fraud is based on the allegation that Defenda nt promised Plaintiff that he would ma nage ancl maintain the Property. (FAC, 50.) Plaintiffalleges that Defenda nt had no intention of performing his promise, he made the promise to defraud her and induce her to allow him access to the Property, and she relied on his promise to her detriment. (Id. at 50-54.) These allegations are not pleaded with the requisite specificity as Plaintiff does not allege how, when, where, ancl by what mea ns this alleged promise was tendered to her. (See Lazar, supra, 12 Ca|.4th at p. 645 [this particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered ].) Leave to amend the fifth cause of action is appropriate as Plaintiff has not yet had an opportunity to rectify the Specificity defects as to this alleged promise. Accordingly, the demurrer to the first cause of action on the grou nd of failure to allege sufficient facts to state a claim is SUSTAINED without leave to amend. The demurrer to the fifth cause of action on the ground of failure to allege sufficient facts to state a claim is SUSTAINED with 10 clays leave to amend. B. Second Cause of Action As Defendant persuasively argues, the second cause of action for forgery fails to state a claim because forgery is not a legally cognizable civil action; rather, it is a violation of the criminal code. Penal Code section 470 creates the crime of forgery. (Pen Code, 470.) It contains no language rega rding a private right of action. Plaintiff does not present any legal authority, ancl the Court is aware of none, demonstrating that the legislatu re intended to create a private right of action for forgery. (See Sohal v. City of Merced Police Dept. Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - ]7CV3] 1288 Page 7 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (E.D. Ca|., Apr. 8, 2009, No. CV F 09-0160 AWI DLB) 2009 WL 961465, at *7 [The court has examined California Penal Code section 470 in its entirety ancl can find no indication of a private right of action ].) Without authority supporting a legislative intent to create a private right of action for forgery, there 'Is no private right of action. (See Animal Legal Defense Fu nd v. Mendes (2008) 160CaI.App.4th 136, 141-42.) Leave to amend this claim is not appropriate as Plaintiff previously had an opportunity to amend this claim ancl failed to correct the noted defect; Plaintiffdoes not demonstrate that there is a reasonable possibility that she can cure this defect by amendment; and the claim is not legally cognizable as a matter of law. (See Melton, supra, 183 Cal.App.4th at p. 544 [the plaintiff must demonstrate a reasonable possibility that the complaint s defects can be cured by amendment ]; see also Davies, supra, 168 Cal.App.4th at p. 1097 [appellate cou rt determined that trial court did not abuse its discretion in sustaining a demurrer without leave to amend after plaintiff had previous opportunities to amend the complaint]; Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 535 [leave to amend should be denied where the nature ofthe claim is clear and no liability exists under substa ntive |aw].) Accordingly, the demurrer to the second cause of action on the grou nd of failure to allege sufficient facts to state a claim is SUSTAINED without leave to amend. C. Sixth Cause of Action Defenda nt argues, among other things, that the sixth cause of action for breach of fiduciary duty fails because Plaintiff does not allege sufficient facts showing that a fiduciary relationship existed between Plaintiff and him. In order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. The absence of any one of these elements is fatal to the cause of action. (Brown v. California Pension Administrators & Consulta nts, Inc. (1996) 45 Cal.App.4th 333, 347-48; see also CACI, No. 605.) While breach of fiduciary duty is a question of fact, the existence of legal duty in the first instance and its scope are questions of law. (Kirschner Brothers Oil, Inc. v. Natomas Co. (1986) 185 Cal.App.3d 784, 790.) In the sixth cause of action, Plaintiff alleges that Defenda nt owed her a fiduciary duty because he was meant to ma nage the property in question by both renting it for Plaintiff s economic benefit and in order to maintain the property, so as not to deplete it s [sic] value or condition. (FAC, 28.) Plaintiff does not present any reasoned argu ment or legal authority, ancl the Court is aware of none, providing that an agreement to manage real property is sufficient to create a fiduciary relationship between two pa rties. (See Badie, supra, 67 Cal.App.4th at pp. 784-85 ,' see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [ [A] point which is merely suggested by a party s counsel, with no supporting argument or authority, is deemed to be without fou ndation ancl requires no discussion. ].) As Plaintiff previously had an opportunity to amend this claim and does not show that there is a reasonable possibility that she can cure these defects by amendment, leave to amend the sixth cause of action is not warranted. Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - l7CV3] 1288 Page 8 0f 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Accordingly, the demurrer to the sixth cause of action on the ground of failure to allege sufficient facts to state a claim is SUSTAINED without leave to amend. (See Melton, supra, 183 Cal.App.4th at p. 544 [ the plaintiff must demonstrate a reasonable possibility that the complaint s defects can be cured by amendment ]; see also Davies, supra, 168 Cal.App.4th at p. 1097 [appellate court determined that trial court did not abuse 'Its discretion in sustaining a demurrer without leave to amend after plaintiff had previous opportunities to amend the complaint].) - ooOoo - Printed: 7/5/20] 8 07/05/20] 8 Hearing: Demurrer - 17CV3] 1288 Page 9 0f 9