Filed 6/21/22 Kravchuk v. Beck CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified 

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publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MARIIA KRAVCHUK,

Plaintiff and Appellant,

 v.

TAYLOR BECK,

Defendant and Respondent.

 H049559

 (Santa Clara County

 Super. Ct. No. 18CV322457)

This action arose out of a failed San Jose residential sales transaction involving 

appellant Mariia Kravchuk, as buyer, and Taylor Morrison of California, LLC (Taylor), 

as developer/seller. Respondent Taylor Beck (Beck) was an employee of Taylor. The

suit was initially filed in January 2018 in which one cause of action for breach of contract 

was alleged against Taylor, only. In July 2020, Kravchuk filed a second amended 

complaint alleging seven causes of action, naming Taylor and eight additional 

defendants, including Beck. In November 2020, Kravchuk filed a third amended 

complaint alleging the same seven causes of action and naming all nine defendants. Beck

filed a demurrer to the third amended complaint as to each of the five claims asserted 

against him, which was opposed by Kravchuk. The court sustained Beck’s demurrer 

without leave to amend as to each of the five causes of action, and a judgment of 

dismissal in Beck’s favor was thereafter entered. 
2

On appeal, Kravchuk contends that the trial court erred by denying her leave to 

amend to afford her the opportunity to state viable causes of action against Beck. She 

contends further that the court committed procedural error by entering the judgment of 

dismissal, and that there was no good cause for granting Beck’s request for entry of such 

judgment through an ex parte application. We conclude that because there was no 

reasonable possibility Kravchuk could amend her pleading to state viable causes of action

against Beck, the court did not abuse its discretion in denying leave to amend the third 

amended complaint. We conclude further that the trial court did not commit procedural 

error in entering the judgment of dismissal and did not abuse its discretion in granting 

Beck’s ex parte application. We will affirm the judgment.

I. PROCEDURAL BACKGROUND

A. Prior Pleadings

On January 24, 2018, Kravchuk, then represented by counsel, filed a Judicial 

Council form complaint against Taylor alleging a claim for breach of written contract. 

She alleged that on or about March 9, 2017, she and Taylor entered into a written contract 

(the Agreement) involving the purchase and sale of 73 Montecito Vista Drive, Unit #1 in 

San Jose (the Property), which contract was attached to the complaint. Kravchuk alleged 

that on or after October 31, 2017, Taylor breached the contract by failing to sell the 

Property to her. 

On July 27, 2020, Kravchuk, as a self-represented litigant, filed her second 

amended complaint, alleging seven causes of action and naming nine defendants: Taylor; 

Joyce Lee; Attorney James M. Ganion; law firm Collinsworth, Specht, Calkins & 

Giampaoli, LLP (CSCG); law firm Ulich Balmuth Fisher LLP (UBF); First American

Financial Corporation (First American); Olivia Trelles; Tina Longo; and Beck. Taylor 

filed a demurrer to the second amended complaint. By order of November 12, 2020, the 
3

court sustained with leave to amend the demurrer to two causes of action, and overruled 

the demurrer as to one cause of action.

1

B. Third Amended Complaint

On November 30, 2020, Kravchuk, as a self-represented litigant, filed her third 

amended complaint (hereafter, the Complaint) against the same nine defendantssued in 

the second amended complaint. The Complaint alleged seven causes of action and

contained over 200 pages of exhibits. The causes of action alleged were (1) breach of 

contract (against Taylor); (2) breach of implied covenant of good faith and fair dealing 

(against Taylor); (3) deceit (against all defendants); (4) civil conspiracy (against all 

defendants); (5) aiding and abetting deceit (against all defendants); (6) intentional 

interference with economic advantage (against all defendants except Taylor); and (7) 

negligent interference with economic advantage (against all defendants except Taylor). 

In her Complaint, Kravchuk alleged, among other things, the following facts, 

which are admitted for purposes of demurrer to be true (Committee on Children’s 

Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214 (Committee on 

Children’s Television), superseded by statute as stated in Californians For Disability 

Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227):

Beck is a real estate Community Sales Manager of Taylor, and he is a licensed real 

estate salesperson. On March 9, 2017, Kravchuk and Taylor entered into a contract (i.e., 

the Agreement) to purchase the Property for $669,745. Under the terms of the 

Agreement, the date of closing was when the certificate of occupancy (hereafter, COO) 

1 Beck states in his respondent’s brief that he filed a demurrer to the second 

amended complaint, which was to be heard after the hearing on Taylor’s demurrer, and 

that Beck’s demurrer “was withdrawn as a result of [Kravchuk’s] Third Amended 

Complaint having been filed.” Although these statements are not accompanied by the 

requisite citation to the appellate record (see Cal. Rules of Court, rule 8.204(a)(1)(C)), 

Kravchuk in her reply brief does not dispute the accuracy of this statement. We will 

therefore treat Beck’s statement as a representation to this court of the procedural history 

relating to the second amended complaint.
4

issued for the Property.2 After repeated attempts by Taylor to obtain a COO were 

rejected by the City of San Jose (City), a COO was issued on January 31, 2018. Taylor 

claimed on multiple occasions in November 2017 that the City had issued a COO, and 

Taylor stated that it would begin charging a daily extension fee of $1,000 if Kravchuk 

failed to conclude the transaction. Kravchuk alleged that Taylor wrongfully terminated 

the contract on November 28, 2017, stating that the termination was the result of 

Kravchuk’s failure to close escrow by November 22. Also on November 28, Lee and 

Taylor notified Kravchuk that she had not complied with the request to close escrow, and 

they falsely claimed that the City had issued the COO for the Property. On that same 

date, Beck and Taylor sent an e-mail to Kravchuk “with a purported ‘notice of 

cancellation due to buyer default.’ ” Kravchuk was ready and willing to close escrow, 

but Taylor sold the Property to a third party on January 25, 2018, for $832,842, or 

$163,097 more than the price in the Agreement.

C. Demurrer to Third Amended Complaint

Beck filed a demurrer to the (Third Amended) Complaint. He asserted that the 

third through seventh causes of action of the Complaint each failed to state facts 

sufficient to constitute a cause of action (Code Civ. Proc., § 430.10, subd. (e).)3 As to the 

third cause of action for deceit, Beck argued in his demurrer, inter alia, that Kravchuk had 

failed to plead fraud with the requisite specificity, and she had not alleged that Beck

made any specific statements to Kravchuk before the latter signed the Agreement. 

Kravchuk filed opposition to the demurrer. 

2 As pointed out by Beck, this allegation in Kravchuk’s Complaint is incorrect. As 

provided in the Agreement—a copy of which was attached to Kravchuk’s Complaint—

the closing date or close of escrow was defined as “following substantial completion of 

the Home on a date to be specified in a notice to be provided by Seller to Buyer. 

Substantial completion of the Home shall be deemed to have occurred when a certificate 

of occupancy (or its equivalent) has been issued.” (Italics added.) 

3 All further statutory references are to the Code of Civil Procedure unless 

otherwise stated.
5

The matter was called for hearing on August 26, 2021. The record reflects that 

there were no appearances and that no party contested the court’s tentative ruling. The 

court adopted the tentative ruling at that time. 

The formal order sustaining Beck’s demurrer to the Complaint was filed on 

August 26, 2021. The court sustained without leave to amend the demurrer as to each of 

the five causes of action alleged against Beck. As summarized below, the court ruled as 

follows:

Third Cause of Action (Deceit): Kravchuk, to successfully plead fraud/deceit, was 

required to allege five elements: “ ‘(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.’ 

[Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “[F]raud must be 

[pleaded] specifically; general and conclusory allegations do not suffice. [Citations.]” 

(Id. at p. 645.) The court held that Kravchuk had failed to plead fraud with the required 

specificity. The only nonconclusory allegation in the Complaint of a misrepresentation 

by Beck was the claim that on November 28, 2017, he and Taylor “ ‘sent an e-mail to 

[Kravchuk] with a purported “notice of cancellation due to buyer default.” ’ ” The email, attached as an exhibit to the Complaint, simply stated that it was attaching a 

cancellation letter signed by defendant Lee, which Kravchuk would also receive by 

Federal Express and by certified mail. Lee’s notice of cancellation letter made no 

mention of the issuance of a COO or state that the Property was habitable. Rather, the 

cancellation letter from Lee indicated that Kravchuk was in default under the Agreement. 

There were several other letters and e-mails by Beck to Kravchuk that were attached as 

exhibits to the Complaint; the court concluded that none of them showed “any 

misrepresentations to Plaintiff by Beck concerning the issuance of a certificate of

occupancy or his concealment of any material facts pertaining to the Property or its 

habitability, much less any such representations/concealment having taken place before
6

Plaintiff signed the purchase agreement such that Beck’s actions induced her to do so.” 

Kravchuk also alleged that Beck intentionally concealed from her that Taylor had sold 

the Property to a third party, but she included “no specific, factual allegations as to how 

Beck concealed such information.” 

The court held further that Kravchuk had not alleged justifiable reliance. 

Kravchuk alleged “that the [P]roperty was sold to another buyer[;] she cannot allege that 

she justifiably relied on Beck’s alleged misrepresentation or concealment of th[e] fact 

[that the Property could not be used or occupied before a COO issued] to induce her into 

purchasing the [P]roperty because she never closed escrow. Plaintiff essentially claims 

damage by not being able to close escrow, but also damage from being forced to close 

escrow (with Beck purportedly attempting to deceive her into doing so). These 

inconsistencies are fatal to this claim as it relates to Beck, and Plaintiff’s theory of 

liability only gets more convoluted with each new iteration of the complaint.” 

Lastly, the court held that Kravchuk had failed to allege damage: “Plaintiff never 

parted with anything because she did not fund escrow and her deposit was returned to 

her, and while she discusses efforts by various defendants to impose contractual sanctions 

and penalties on her in the [Complaint], she does not actually allege that she paid such 

sanctions and penalties. In sum, even assuming Plaintiff had properly pleaded all of the 

other elements of her fraud claim against Beck, she has not pleaded resulting damages. 

This alone is fatal to her claim.” 

Fourth Cause of Action (Civil Conspiracy): Kravchuk alleged that Beck was a 

co-conspirator of Taylor “in its purported plot to deceive Plaintiff by making false 

promises that the [P]roperty was habitable and that a certificate of occupancy had been 

issued.” But “there are no facts pleaded which establish that [Beck] made any 

misrepresentations to or concealed material facts from Plaintiff, i.e., committed acts in 

furtherance of a common plan with [Taylor].” Further, there is no liability for civil 

conspiracy if the individual “was not personally bound by the duty violated by the 
7

wrongdoing and was acting only as the agent or employee of the party who did have that 

duty.” (Doctors’ Co. v. Superior Court (1989) 49 Cal.3d 39, 44 (Doctors’ Co.).) Since it

was alleged in the Complaint that Beck was an agent and employee of Taylor, and that he 

acted within the scope of that agency and employment, Kravchuk, the court concluded,

did not allege a civil conspiracy claim against Beck. 

Fifth Cause of Action (Aiding and Abetting): Since the claim for aiding and 

abetting the commission of tortious acts was based upon the predicate that there were

actionable fraudulent misrepresentations or concealment, and Kravchuk’s allegations in 

support of her claim for deceit “have been shown to be defective,” the court concluded 

that the claim for aiding and abetting also failed. 

Sixth/Seventh Causes of Action (Intentional/Negligent Interference with 

Prospective Advantage): The subject of the two claims appeared to be the Agreement 

between Kravchuk and Taylor. Kravchuk alleged, and the exhibits to the Complaint 

demonstrated, that Beck acted “solely in his role as Community Sales Manager for 

[Taylor] when he purportedly committed the acts alleged by Plaintiff.” Because, the 

court reasoned, corporate agents and employees acting on behalf of the entity cannot be 

held liable for inducing a breach of the corporation’s contract (Shoemaker v. Myers 

(1990) 52 Cal.3d 1, 24 (Shoemaker)), Kravchuk’s claims against Beck for interference 

with prospective advantage were not maintainable as a matter of law. 

After entry of the court’s order, in October 2021, Beck filed an application for 

entry of judgment in his favor against Kravchuk, which was opposed by Kravchuk. 

Judgment of dismissal after sustaining of demurrer to the Complaint was filed 

October 13, 2021. Kravchuk filed a timely notice of appeal from the judgment.

II. DISCUSSION

A. Demurrers and Standards of Review

A party against whom a complaint or cross-complaint has been filed may file a 

demurrer to the pleading on particular grounds specified by statute, including the ground 
8

that the challenged pleading fails to allege facts sufficient to constitute a cause of action. 

(§ 430.10, subd. (e).) A demurrer does not “test the truth of the plaintiff’s allegations or 

the accuracy with which he describes the defendant’s conduct. A demurrer tests only the 

legal sufficiency of the pleading.” (Committee on Children’s Television, supra, 35 

Cal.3d at p. 213; see Chavez v. Indymac Mortgage Services (2013) 219 

Cal.App.4th 1052, 1057 [question of plaintiff’s ability to prove allegations not relevant 

on demurrer].)

We perform an independent review of a ruling on a demurrer and decide de novo 

whether the challenged pleading states facts sufficient to constitute a cause of action. 

(Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 

48 Cal.4th 32, 42.) “In reviewing the sufficiency of a complaint against a general 

demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all 

material facts properly pleaded, but not contentions, deductions or conclusions of fact or 

law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] 

Further, we give the complaint a reasonable interpretation, reading it as a whole and its 

parts in their context. [Citation.] When a demurrer is sustained, we determine whether 

the complaint states facts sufficient to constitute a cause of action. [Citation.]” (Blank v. 

Kirwan (1985) 39 Cal.3d 311, 318 (Blank); see also Randi W. v. Muroc Joint Unified 

School Dist. (1997) 14 Cal.4th 1066, 1075.)

On appeal, we will affirm a “trial court’s decision to sustain the demurrer [if it] 

was correct on any theory. [Citation.]” (Kennedy v. Baxter Healthcare Corp. (1996) 

43 Cal.App.4th 799, 808, fn. omitted.) Thus, “we do not review the validity of the trial 

court’s reasoning but only the propriety of the ruling itself. [Citations.]” (Orange 

Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 

54 Cal.App.4th 750, 757.)

“Where the complaint is defective, ‘[i]n the furtherance of justice great liberality 

should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily 
9

constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is 

a reasonable possibility that the defect can be cured by amendment. [Citations.]’ 

[Citation.]” (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549 (Scott).) 

An appellate court reviews the denial of leave to amend after the sustaining of a 

demurrer under an abuse of discretion standard. (Schifando v. City of Los Angeles (2003) 

31 Cal.4th 1074, 1081 (Schifando).) Denial of leave to amend is reviewable “even 

though no request to amend [the] pleading was made” in the trial court. (§ 472c, 

subd. (a).) When a demurrer is sustained without leave to amend, the reviewing court 

must determine whether there is a reasonable possibility that the complaint could have 

been amended to cure the defect; if so, it will conclude that the trial court abused its 

discretion by denying the plaintiff leave to amend. (Quelimane Co. v. Stewart Title 

Guaranty Co. (1998) 19 Cal.4th 26, 39.) “ ‘[W]here the nature of the plaintiff’s claim is 

clear, and under substantive law no liability exists, a court should deny leave to amend 

because no amendment could change the result.’ ” (Buchanan v. Maxfield Enterprises, 

Inc. (2005) 130 Cal.App.4th 418, 421.) 

The burden of establishing that there is a reasonable possibility that the complaint 

could have been amended to cure the defect “is squarely on the plaintiff. [Citation.]” 

(Blank, supra, 39 Cal.3d at p. 318; see also Campbell v. Regents of University of 

California (2005) 35 Cal.4th 311, 320 (Campbell).) The plaintiff must “identify specific 

facts showing the complaint can be amended to state a viable cause of action. 

[Citation.]” (Minnick v. Automotive Creations, Inc. (2017) 13 Cal.App.5th 1000, 1004

(Minnick).)

B. No Error by the Trial Court 

We initially observe that in her appellate briefs, Kravchuk does not challenge the 

correctness of the trial court’s order that Kravchuk failed to allege facts sufficient to state 

viable claims against Beck as to the third through seventh causes of action of the 
10

Complaint. She has therefore abandoned any such claim of error. (Tiernan v. Trustees of 

Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)

We will address below the two claims raised by Kravchuk on appeal: (1) the court 

abused its discretion by denying leave to amend; and (2) the court erred by granting 

Beck’s ex parte application for entry of judgment and by entering judgment on the order 

sustaining demurrer. 

1. Denial of Leave to Amend

Kravchuk contends that the court abused its discretion in sustaining without leave 

to amend the demurrer filed by Beck. As we perceive her position, Kravchuk contends 

there are additional facts not contained in the (Third Amended) Complaint that could be 

alleged in an amended pleading to cure the defects as found by the trial court. We have 

identified (and discuss below) nine additional facts that Kravchuk asserts could be 

alleged in an amended pleading against Beck to address the defects in the Complaint.

Kravchuk cites a declaration she filed in opposition to a discovery motion by 

Taylor on May 18, 2020, as supportive of the additional facts she claims will permit her 

to amend the Complaint to cure its defects. Preliminarily, we note that Beck contends 

that because Kravchuk’s declaration was not presented by her in opposing the demurrer, 

it is improper for her to raise it now on appeal to show additional facts that could be 

alleged in an amended pleading.4 Beck’s position is without merit. The “abuse of 

discretion in sustaining a demurrer without leave to amend is reviewable on appeal even 

in the absence of a request for leave to amend. [Citation.]” (Scott, supra, 6 Cal.3d at p. 

550; see also § 472c, subd. (a).) The appellant may satisfy his or her burden of 

demonstrating a reasonable possibility that the complaint can be amended to state a 

4 Beck cites no legal authority to support her claim that Kravchuk’s argument is 

improper. (See People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc.

(2000) 86 Cal.App.4th 280, 284 [failure to cite legal authority for position in appellate 

brief “amounts to an abandonment of the issue”].)
11

viable claim “by identifying new facts or theories on appeal. [Citations.]” (Minnick, 

supra, 13 Cal.App.5th at p. 1004.)5

We identify and address Kravchuk’s claimed nine additional facts concerning the 

allegations against Beck as follows:

Additional Fact (1): Kravchuk claims that Taylor was represented in the purchase 

and sale transaction by the brokerage firm, Taylor Morrison Services Inc (hereafter, 

Taylor Morrison). The documents in the record, including those attached to Kravchuk’s

May 2020 declaration, do not support this claim. The Agreement identified Jenny 

Thuong-Flores as Taylor’s sales associate; it did not identify Taylor Services as the 

seller’s broker in the transaction. Further, even were there a factual basis for alleging that 

Thuong-Flores was acting as agent for Taylor Services, which in turn was Taylor’s 

broker in the transaction, this allegation would not cure the defects in the Complaint or 

otherwise offer additional support for the claims against Beck.

Additional Facts (2, 3): Kravchuk asserts that Beck was a sales agent of Taylor 

Services, broker for Taylor, that he represented himself as such in his in communications 

with Kravchuk, and thus acted in such capacity in connection with the transaction. These

contentions are apparently based upon Beck’s October 22, 2017 letter to Kravchuk

(discussed below under “Additional Fact (7)”). The letter, although on Taylor letterhead, 

contained the name Taylor Services and its corporate license number above Beck’s 

signature as a sales agent. Other documents, previously attached to the Complaint, 

identified Beck as the Community Sales Manager of Taylor, and made no mention of 

5 Although Kravchuk is entitled to raise new facts and theories on appeal to 

support her claim that she should have been granted leave to amend, these additional 

facts were available to Kravchuk before she filed her second amended complaint and her 

(Third Amended) Complaint naming Beck, and they were available nearly one year 

before Kravchuk filed opposition to Beck’s demurrer to the Complaint. We question 

Kravchuk’s assertion that these additional facts are critical to her claims, since they were 

previously known to her but not mentioned at these critical junctures of the case. 
12

Taylor Services or the fact that Beck was a sales agent. And Beck’s November 28, 2017 

e-mail to Kravchuk—that was specifically addressed in the court’s order sustaining 

Beck’s demurrer as not supporting Kravchuk’s deceit claim—identified Beck as Taylor’s 

Community Sales Manager. Beck’s October 22, 2017 letter on which Kravchuk relies is 

not a new or additional fact; the letter was attached as an exhibit to the Complaint.

Further, it furnishes little, if any, support for Kravchuk’s assertion that Beck acted as a 

sales agent with Taylor Services in connection with the subject transaction. Moreover, the 

letter contains no misrepresentation of fact and does not evidence an intentional 

concealment of material fact; it merely schedules a walk-through and gives an estimated 

date of close of escrow.

Additional Fact (4): Kravchuk asserts that under California law, licensed real 

estate agents have a duty of disclosure and an obligation to not misrepresent facts or 

conceal material facts. The Complaint included an allegation, specifically addressed to 

Beck, that California law imposes such duties upon licensed sales agents. This allegation 

proposed by Kravchuk would not add anything to cure the defects in the Complaint.

Additional Fact (5): Kravchuk claims that a letter to her dated October 5, 2017, 

from Thuong-Flores, a licensed real estate salesperson affiliated with Taylor Services, 

offers additional support for her claims. In that letter, which was copied to Kravchuk’s 

agent, Thoung-Flores scheduled a walk-through of the Property for October 30 and 

indicated that close of escrow was scheduled for October 31. Thoung-Flores indicated in 

the letter that “[d]ates may also be subject to change due to unforeseen construction 

delays (weather, defective material, back orders, shortage in labor, etc.).” (Boldface 

omitted.) The letter did not mention that a COO had issued for the Property or otherwise 

refer to a COO. Beck was not copied on the letter and there is no indication that he 

played any role in sending the letter.

Additional Fact (6): Kravchuk identifies a letter of October 12, 2017, from Lee to 

Kravchuk as an additional fact for an amended pleading. In that letter, which was copied 
13

to Kravchuk’s agent, Lee, as Vice President of Sales and Marketing for Taylor, stated 

that the Property was near completion and that Taylor had scheduled close of escrow for 

October 31, 2017. Lee expressed confidence that the Property would be ready for movein by that date, although Taylor “retain[ed] the right to postpone the Close of Escrow 

Date.”6 Lee indicated further that Thuong-Flores, “[Kravchuk’s] Taylor Morrison Sales 

Associate,” would contact Kravchuk with additional information about the closing. Lee

did not mention anything in the letter about the COO having issued for the Property. 

Beck was not copied on the letter and there is no indication that he played any role in 

sending the letter.

Additional Fact (7): Kravchuk identifies a letter Beck sent to her dated 

October 22, 2017, as an additional fact to be included in an amended pleading. Beck 

advised Kravchuk in the letter that the walk-through for the Property was scheduled for 

November 8 and close of escrow was “estimated for 11/10/17.” (Original italics.). The 

letter said nothing about the issuance of a COO or regarding the habitability of the 

Property, and it does not support the claim that Beck misrepresented facts to, or 

concealed material facts from, Kravchuk. 

Additional Fact (8): Kravchuk identifies as an additional fact her reliance upon 

the notices from Thuong-Flores, Lee and Beck in traveling, on short notice, with her 

father and child from Ukraine to California to attend a walk-through of the Property in 

anticipation of closing, only to be told by Taylor that she could not access the Property 

and it was not ready for move-in. Assuming a logical basis for the reliance claim,7since 

6 We note that the Agreement contained a provision reading as follows: “Buyer 

has not been promised an exact time for possession, use or occupancy of the Home.”

7 Kravchuk states in her opening brief that she “relied on the first notice” in 

traveling to the United States for the walkthrough and close of escrow “scheduled by 

Beck and Lee.” From the context of the brief, since the preceding paragraph sets forth 

various correspondence by Taylor’s representatives, and the first notice listed was the 

October 5, 2017 notice from Thuong-Flores indicating a walk-through and close of 

escrow scheduled for October 20, and October 31, respectively, it is unclear how 
14

Beck’s October 22, 2017 letter does not provide support for new allegations to cure 

defects to the Complaint, the allegation that Kravchuk relied on statements in the letter, 

similarly, would not assist Kravchuk in curing the existing defects to the Complaint.

Additional Fact (9): Kravchuk identifies a November 9, 2017 e-mail in which a 

real estate agent for Taylor Services allegedly falsely represented to Kravchuk that an 

attachment was a COO for the Property. From a review of Kravchuk’s May 2020 

declaration, it appears that she is referring to an e-mail sent on November 9, 2017 by 

Marjorie Safaie, Community Sales Manager for Taylor, apparently to Kravchuk’s agent, 

indicating “COO is attached.” There is nothing in the record indicating whether a COO 

was or was not attached to Safaie’s e-mail. And there is no indication that Beck was 

copied on the e-mail or had anything to do with it. 

In support of her assertion that she could amend the Complaint to allege a viable 

fraud claim, Kravchuk argues that “Beck concealed from Kravchuk that [the] COO for 

the Property was not issued.” (Original underscoring.) While Kravchuk claims there 

were “ ‘specific’ instances” demonstrating this concealment, the record does not bear this 

out. This type of “vague claim [of concealment] . . . does not satisfy an appellant’s duty 

to spell out in his [or her] brief the specific proposed amendments on appeal.” (People ex 

rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112.)

The proposed amendments stated in Kravchuk’s appellate briefs do not cure the 

defects in the Complaint (as identified by the trial court) with respect to the third cause of 

action for fraud/deceit against Beck. Kravchuk, inter alia, has not shown that she can (1) 

plead fraud perpetrated by Beck with any specificity; (2) present any nonconclusory 

allegations that Beck affirmatively misrepresented any matters to, or intentionally 

concealed any material facts from, Kravchuk; (3) identify any representations—or any 

Kravchuk could have possibly relied on Beck’s October 22 notice (of walk-through and 

close of escrow dates of November 8 and November 10, respectively) in traveling to the 

United States. 
15

contact at all—made by Beck to Kravchuk before she signed the Agreement; or (4) 

support an allegation that she justifiably relied on any alleged misrepresentation or 

concealment of facts by Beck. Furthermore, because the fifth cause of action is 

dependent on alleging a viable fraud/deceit claim, Kravchuk cannot show that she can 

amend the Complaint to plead a viable claim for aiding and abetting against Beck. 

Kravchuk’s proposed amendments similarly fail to address the defects with respect 

to the fourth cause of action against Beck for civil conspiracy. She has not shown that 

she can address her prior failure to plead misrepresentations or concealment of material 

facts in furtherance of the alleged conspiracy. Further, she has not shown that she can 

address the fatal defect in the Complaint that there can be no conspiracy liability because 

Beck “was not personally bound by the duty violated by the wrongdoing and [he] was 

acting only as the agent or employee of the party [Taylor] who did have that duty.” 

(Doctors’ Co., supra, 49 Cal.3d at p. 44.) 

And Kravchuk has failed to show that she could amend to cure the defects in the 

Complaint with respect to the sixth and seventh causes of action for intentional and 

negligent interference with prospective advantage. Her proposed amendments do not 

address the defect that Beck, as a corporate agent and employee of Taylor acting on its 

behalf, cannot be held liable for inducing a breach of Taylor’s contract. (Shoemaker, 

supra, 52 Cal.3d at p. 24.) In addition, Kravchuk has failed to show that she can allege 

facts that Beck committed any acts designed to disrupt Taylor’s relationship with 

Kravchuk. 

Kravchuk emphasizes in her opening brief that she should not have been denied 

leave to amend because of the liberal policy favoring amendments. We acknowledge, as 

quoted by Kravchuk, that “[i]t is often said that leave to amend a complaint should be 

liberally granted, particularly with respect to a party’s initial complaint.” (City of 
16

Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1091.)8 

This liberal policy notwithstanding, Kravchuk bears the burden of showing that she could 

have amended the (Third Amended) Complaint to cure the numerous defects identified 

by the trial court that rendered the pleading against Beck demurrable. (See Campbell, 

supra, 35 Cal.4th at p. 320.) Kravchuk has failed to meet that burden. Accordingly, 

because Kravchuk has not shown a reasonable possibility that she could cure the defects 

in the Complaint, we find that the trial court did not abuse its discretion in denying leave 

to amend as to the third through seventh causes of action against Beck. (Schifando, 

supra, 31 Cal.4th at p. 1081.)

2. No Error in Granting of Application for Entry of Judgment

The background concerning the entry of judgment here, to the extent disclosed in 

the record, is as follows. It appears that Beck’s counsel advised Kravchuk by e-mail on 

October 8, 2021, that counsel would be appearing in court ex parte on October 13 to 

apply for entry of judgment. The e-mail stated that the application papers would be 

submitted under separate cover. The e-mail also stated that a copy of the proposed 

judgment had been submitted to Kravchuk on October 1 for approval as to form, but she 

had not responded to that request. The ex parte application, dated October 12, was filed 

8 Kravchuk asserts that the demurrer that was sustained here was one involving her 

“initial complaint” because it was the first pleading in which a demurrer involving Beck 

had been sustained by the court. Although Kravchuk is correct, under the circumstances, 

it is difficult to view the (Third Amended) Complaint as her “initial” complaint, when it 

was (1) filed more than two and one-half years after she commenced this action, 

(2) preceded by three other complaints, (3) preceded by the second amended complaint 

that contained the identical five causes of action against Beck, and (4) filed after 

Kravchuk was on notice (through a demurrer by Beck to the second amended complaint 

that was never adjudicated on its merits) that Beck asserted the claims against him were 

legally insufficient. However, whether or not the Complaint was Kravchuk’s initial 

pleading for purposes of considering whether the trial court erred in denying leave to 

amend is not relevant here, because Kravchuk has in any event failed to meet her burden 

of showing a reasonable possibility that she could amend the Complaint to cure its 

deficiencies.
17

with the court on October 13.9 On the first page of the application, it was indicated that 

the matter would be presented in Department 7 before Judge Christopher Rudy. 

Kravchuk filed written opposition to the application on October 12 (i.e., the day before 

the application was to be heard and prior to the actual filing of the application). Her 

opposition—which attached an unfiled version of Beck’s application—indicated that 

Beck had failed to make the requisite showing to proceed on an ex parte basis. Kravchuk 

did not state that she had any specific objection to the form of proposed judgment in 

Beck’s application. Nor did Kravchuk address in her opposition the assertion by Beck’s 

counsel that she had disregarded counsel’s request 11 days earlier that she approve the 

form of judgment proposed by counsel. On October 13, the judgment was signed by the 

Honorable Sunil Kulkarni, with the indication that he had granted the ex parte application 

based upon a showing of good cause. 

Kravchuk contends that the trial court erred in granting Beck’s ex parte application 

for entry of a judgment of dismissal. She asserts three reasons that the court erred in 

granting the application.

First, Kravchuk argues that the ex parte application was defective because it 

misidentified the location where the matter would be heard, erroneously stating that it 

would be heard in Department 7 instead of Department 1. The record does not show the 

reason that the application was granted and judgment signed by Judge Kulkarni instead of 

by Judge Rudy in Department 7, the judicial officer who ruled on Beck’s demurrer to the 

Complaint and who was assigned the case for all purposes. The mere fact that the 

application, submitted to Kravchuk the day before the proceeding, identified a 

department where the matter would be heard that was different from the department to 

which the proceeding was assigned does not establish that the application notice itself 

was erroneous. Kravchuk has failed to demonstrate error. (See In re A.L. (2022) 73 

9 The application for entry of judgment was made on behalf of defendants Beck, 

Lee, Ganion, Longo, and CSCG. 
18

Cal.App.5th 1131, 1161 [appellant bears burden of making affirmative showing of 

error].) 

Second, Kravchuk asserts that obtaining entry of judgment through the ex parte 

application process was improper under section 664.5, subdivision (a) (§ 664.5(a)). She 

quotes from O’Brien v. Cseh (1983) 148 Cal.App.3d 957, 961 (O’Brien), holding that 

“[a]pplications for orders may not be ex parte if a statute or rule requires notice.” 

Kravchuk argues that, based upon this principle, the judgment of dismissal here could not 

have been entered based upon an ex parte application because section 664.5(a) provides 

that “the party submitting an order or judgment for entry shall prepare and serve, a copy 

of the notice of entry of judgment to all parties who have appeared in the action or 

proceeding and shall file with the court the original notice of entry of judgment together 

with the proof of service.”

Kravchuk did not make this argument in her opposition to the ex parte application. 

Nor is there any evidence that she made the argument to the trial court elsewhere, such as 

in a request to vacate the entry of judgment. The procedural objection is forfeited. (See 

Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [“ ‘appellate 

court will ordinarily not consider procedural defects or erroneous rulings . . . where an 

objection could have been but was not presented to the lower court by some appropriate 

method’ ”].)

Even were we to consider its merits, Kravchuk’s argument fails. Section 664.5(a) 

provides that “the party submitting an order or judgment for entry shall prepare and 

serve, a copy of the notice of entry of judgment to all parties who have appeared in the 

action or proceeding and shall file with the court the original notice of entry of judgment

together with the proof of service.” (Italics added.) Plainly, the statute concerns a 

judgment that has already been entered, not a proposed judgment that is being submitted 

for entry by the court. Section 664.5(a) does not provide that a party submitting a 

proposed order or judgment for signature by a judicial officer must proceed by way of a 
19

noticed motion.10 Kravchuk cites no case law or other authority (aside from 

section 664.5(a)) that prohibits the use of an ex parte application to obtain a judgment of 

dismissal after the sustaining of a demurrer without leave to amend. O’Brien, supra, 148 

Cal.App.3d at page 961, relied on by Kravchuk, concerned an ex parte application for 

sanctions under section 128.5; under that statute, there was a specified notice and motion 

procedure. There is no such statutory requirement of a noticed motion to request the 

entry of judgment of dismissal after the sustaining of a demurrer without leave to amend. 

(Cf. Wilburn v. Oakland Hospital (1989) 213 Cal.App.3d 1107, 1110, fn. omitted

[defendant may seek judgment of dismissal by ex parte application after demurrer 

sustained and plaintiff fails to amend because “the losing party has already been entitled 

to a full hearing on the merits”]; § 581, subd. (f)(1) [court may dismiss complaint as to 

that defendant “after a demurrer to the complaint is sustained without leave to amend and 

either party moves for dismissal”].) 

Third, Kravchuk contends that the trial court erred by entering judgment because 

Beck did not satisfy the requirement of showing good cause in his ex parte application. 

The application included the accompanying declaration of Beck’s counsel that Beck

would suffer irreparable harm if the matter did not proceed on an expedited basis, 

explaining that Beck would continue to incur unnecessary litigation expenses until 

judgment was entered. Kravchuk argues that this statement of counsel was conclusory 

and insufficient. Kravchuk made the same argument to the trial court, and that court, in 

granting Beck’s ex parte application, implicitly rejected Kravchuk’s contentions. (See 

10 That section 664.5 concerns previously entered judgments, not ones that are 

proposed to the court for signature, is demonstrated by the fact that section 659, 

subdivision (a)(2) specifies as a deadline for the filing and service of a notice of intention 

to move for new trial as 15 days after service of a notice of entry of judgment by the clerk 

or by any party is made under section 664.5. (See also Cal. Rules of Court, 

rule 8.104(a)(1)(B) [specifying that notice of appeal must be filed within 60 days after 

notice of entry of judgment is given by any party].)
20

Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 352 [it is presumed that the trial court 

considered both the moving and opposition papers to ex parte application].) 

A trial court’s order granting an ex parte application for dismissal is reviewed for 

abuse of discretion. (Hupp v. Solera Oak Valley Greens Assn. (2017) 12 Cal.App.5th 

1300, 1309.) “ ‘An abuse of discretion must be clearly established to merit reversal on 

appeal. [Citation.]’ [Citation.]” (Id. at p. 1310.) Because the trial court, over the 

opposition by Kravchuk, had previously sustained Beck’s demurrer without leave to 

amend as to all five claims asserted against him, and no substantive reason was presented 

by Kravchuk for the court’s refusing Beck’s request for entry of a judgment of dismissal 

on that order, the trial court did not abuse its discretion here.

III. DISPOSITION

The October 13, 2021 judgment of dismissal on the demurrer of Taylor Beck to 

the Third Amended Complaint is affirmed.
21

_____________________________________

BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________

DANNER, J.

__________________________

WILSON, J.

Kravchuk v. Beck

H049559