Kirby v. First American Title CA2/6

Filed 4/26/23 Kirby v. First American Title CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SUSAN KIRBY, 2d Civ. No. B322898 (Super. Ct. No. 20CV00913) Plaintiff and Appellant, (Santa Cruz County)

v.

FIRST AMERICAN TITLE, INC., et al.,

Defendants and Respondents.

This action involves an alleged “foreclosure rescue scam” in which defendant Patrick Oliver convinced plaintiff Susan Kirby to transfer title to her home in Watsonville, California (the Property) to his company, defendant Seville Development Group, LLC (Seville). Seville took out a $720,000 loan against the Property and allegedly converted Kirby’s equity to its own benefit. Kirby claims defendants First American Title, Inc. (FirstAm), RushMyFile, Inc. (RMF) and SDC Capital, LLC (SDC) aided the “scam.”

The trial court sustained RMF’s demurrer to Kirby’s fourth amended complaint (4AC) without leave to amend and dismissed RMF from the action. Kirby contends that even if the 4AC did fail to state a cause of action against RMF, the court abused its discretion by denying leave to amend. We agree. The allegations in Kirby’s sixth amended complaint (6AC) and seventh amended complaint (7AC) demonstrate that she can state a valid claim against RMF for conspiracy to commit fraud. We reverse and remand.1 FACTUAL AND PROCEDURAL BACKGROUND In 2018, Kirby had difficulty making her mortgage payments. Unable to qualify for a home renovation loan, Kirby arranged for Oliver to “refinance” the Property. She alleges that “Oliver represented to [her] that: the refinance would bring [Kirby] current on her mortgage obligations and other debts; he would make improvements to the Property; and then . . . sell it; and then divide the remaining equity with [Kirby].” (Italics omitted.) To facilitate the “refinance,” Kirby transferred title to the Property to Seville. RMF brokered a $720,000 loan between Seville and SDC. “Upon closing of the escrow, Seville . . . received approximately $160,000 and [Kirby] received $30,000 since the only consideration paid toward the [transaction] was the $720,000 loan provided by SDC.”