Judge: Alison Mackenzie, Case: 23STCV29660, Date: 2024-05-23 Tentative Ruling
Case Number: 23STCV29660 Hearing Date: May 23, 2024 Dept: 55
NATURE OF PROCEEDINGS:
Defendant Serena Mo’s Demurrer to First Amended Complaint.
BACKGROUND
SHAWKY SAAD (“Plaintiff”) filed a First Amended Complaint
(FAC) against SERENA MO (“Defendant”), alleging that Defendant breached the
parties’ agreements made in a romantic relationship, whereby Defendant would provide
the capital, Plaintiff would provide household services, real estate expertise,
labor, oversight, supplies, and counseling, and they would both equally share
in a purchased home’s ownership and appreciation. The causes of action are (1) Breach of Contract, (2) Breach of Joint Venture, (3)
Breach of Implied Contract, (4) Promissory Estoppel, (5) Quantum Meruit, (6)
Conversion, and (7) Financial Elder Abuse [Welf. & Inst. Code, §
15657.5].
Defendant brings a demurrer to each Cause of Action of
the FAC. Plaintiff opposes the demurrer.
LEGAL STANDARD
Demurrers are to be sustained where a pleading fails
to plead adequately any essential element of the cause of action. Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880. In ruling upon
demurrers, courts treat as being true “not only the complaint’s material
factual allegations, but also facts that may be implied or inferred from those
expressly alleged.” Poseidon Development, Inc. v. Woodland Lane Estates, LLC
(2007) 152 Cal.App.4th 1106, 1111-1112.
ANALYSIS
1. First
Cause of Action - Breach of Contract
Defendant contends that the claim for breach of
express contract fails because it does not contain the required allegations to
establish an agreement under Marvin v. Marvin (1976) 18 Cal.3d 660. Defendant contends that a Marvin agreement
requires pleading a de facto marriage, an agreement to pool earnings and
to hold property acquired during the relationship like community property, and
that the agreement is not based on meretricious consideration, i.e., that it is
not an agreement for prostitution.
The holding in Marvin v. Marvin (1976) 18
Cal.3d 660 (Marvin) does not support Defendant’s position that a Marvin
claim requires the specific allegations cited above. In that case, the Supreme
Court held at the outset that “courts should enforce express contracts between
nonmarital partners except to the extent that the contract is explicitly
founded on the consideration of meretricious sexual services.” 18 Cal.3d 660 at
665. Later on the Court notes that such an agreement might include an
agreement to pool earnings and the other items noted by Defendant, but also
notes that “a great variety of other arrangements are possible.” Id. at 674,
n.10. Thus, Marvin agreements may be enforced even where parties have not
specified the terms of their agreement or the consideration. Byrne v. Laura
(1997) 52 Cal.App.4th 1054, 1066. And “express or implied contracts between
unmarried cohabitants to share in property accumulations during the
relationship [are] enforceable under general principles of contract law.” In
re Marriage of Gagne (1990) 225 Cal.App.3d 277, 287.
Defendant seeks to rely on Alderson v. Alderson
(1986) 180 Cal.App.3d 450 to bolster her argument that a Marvin express
contract claim requires pleading specifics about agreeing to pool resources and
jointly own property. But this case is inapposite because it involved a court
trial based on evidence, and not an evaluation of the sufficiency of the
pleadings, as is the case here. pleading evaluating as here. Id., at 461
(“Our review of these findings, necessarily begins and ends with the question
of whether or not they are supported by substantial evidence.”).With regard to
ruling upon demurrers, courts have found unsupportive counsel’s citations to
authorities that did not address pleading standards. E.g., Alch v. Superior
Court (2004) 122 Cal.App.4th 339, 382, fn. 37 (“Both ... were appeals from
a grant of summary judgment ..., and did not address pleading requirements.”).
Here, the FAC adequately alleges that the parties
entered into a “serious, stable romantic relationship” that lasted more than
four years and “conducted their relationship as though married.” FAC, ¶¶ 6-7. Also, it alleges that Plaintiff would provide
home and childcare services while Defendant would provide income. E.g., FAC, ¶¶
9-13. Additionally, the parties spent the contributed income towards family
needs and benefits. FAC, ¶ 15. Plaintiff alleges the parties’ agreement to buy and
to improve a family home as being only one of other aspects of their verbal
agreements. Allegedly, agreements also were implied by the conduct of
performing them. E.g., FAC, ¶¶ 16-45. While the demurrer lists further detail
sought about the alleged agreements, the authorities have held that specific
terms need not be pleaded to enforce agreements under Marvin.
Additionally, Defendant can seek any further specifics
via discovery. Regarding uncertainty, "[t]here is no need to require
specificity in the pleadings because 'modern discovery procedures necessarily
affect the amount of detail that should be required in a pleading.'” Ludgate
Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.
Thus, the demurrer is overruled as to breach of
contract.
2. Second
Cause of Action of Breach of Oral Joint Venture
Defendant argues that the claim for breach of oral
joint venture for the acquisition and co-ownership of real estate fails because
it violates the Statute of Frauds requiring a writing because Plaintiff failed
to allege the property would be co-owned in exchange for domestic works and
other services.
Equitable estoppel against the defense of the Statute
of Frauds may apply in a Marvin case, based on seriously changing one’s
position in reliance on another’s promises, or part performance. Byrne v.
Laura (1997) 52 Cal.App.4th 1054, 1069, 1072. See also Marvin, 18
Cal. 3d at 674, n. 9 (noting that most agreements between unmarried partners
are oral and courts have rejected defenses to such agreements based upon the
Statute of Frauds).
Here, the FAC adequately alleges that Plaintiff
seriously changed his position by performing the agreements including by doing
extensive home improvements, in reliance upon Defendant’s promises such as to co-own
the home. E.g., FAC, ¶¶ 16-45.
Therefore, the Court overrules the demurrer as to
breach of joint venture.
3. Third
Cause of Action - Breach of Implied Contract
Defendant asserts that the parties’ alleged conduct
does not indicate that they created an implied contract.
A Marvin agreement is one in which voluntarily
cohabitating adults may impliedly contract concerning their earnings and
property rights, provided that the agreement does not rest solely upon illicit,
meretricious consideration. Bergen v. Wood (1993) 14 Cal.App.4th 854,
857.
The FAC well alleges conduct for an implied contract.
For instance, the parties acted as though they were married, Defendant provided
income while Plaintiff provided many home and childcare services, and they
jointly spent the income, all in support of a community as orally agreed. E.g.,
FAC, ¶¶ 8-45 and 55. Cf., e.g., Gorlach v. Sports Club Co. (2012) 209
Cal.App.4th 1497, 1507 (implied-in-fact contract may be inferred from the
conduct, situation or parties relationship, provided that there is an intent to
promise).
Thus, the Court overrules the demurrer as to breach of
implied contract.
4. Fourth
Cause of Action - Promissory Estoppel
According to Defendant, the promissory estoppel claim
is inconsistent with Plaintiff’s breach of contract claims. Defendant also
contends that the alleged promise to purchase property that Plaintiff relied
upon to his detriment, is vague. Also Defendant reasons that several details
about promissory estoppel are missing, such as what was induced and what was breached.
To allege promissory estoppel, pleadings must allege
facts demonstrating reliance on promises beyond just conclusory allegations of
reasonable reliance upon them. Smith v. City & County of San Francisco
(1990) 225 Cal.App.3d 38, 48. The promise need only be sufficiently clear and
definite enough for a court to determine the scope of the duty, the limits of
performance and a rational basis for assessing damages. West v. JPMorgan
Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804. Promissory estoppel may
be alleged in the alternative with breach of contract. Fleet v. Bank of
America N.A. (2014) 229 Cal. App.4th1403, 1413.
The FAC sufficiently alleges Defendant’s promises
including to provide income and to co-own, and to share appreciation in, a home,
which induced Plaintiff to provide a variety of services, but Defendant disclaimed
Plaintiff’s interest in the property and ousted him from the home, thereby
causing a losses of a property interest and support. E.g., FAC, ¶¶ 9, 16-18, 45, 54, and 59-62.
Hence, the Court overrules the demurrer as to
promissory estoppel.
5. Fifth
Cause of Action - Quantum Meruit
Defendant claims that the FAC is vague as to what
expertise Plaintiff provided and what the reward would be for his services.
“[A] common count, by long continued practice is not
subject to attack by general demurrer or by a special demurrer for
uncertainty.” Auckland v. Conlin (1928) 203 Cal. 776, 778. "When a
common count is used as an alternative way of seeking the same recovery
demanded in a specific cause of action, and is based on the same facts, the
common count is demurrable if the cause of action is demurrable." Berryman
v. Merit Property Management, Inc.
(2007) 152 Cal.App.4th 1544, 1560.
The elements to allege for quantum meruit are (1)
Plaintiff’s performance of services, work or labor, (2) done at Defendant’s
request and (3) circumstances inferring Defendant’s promise to pay a reasonable
value. E.g., Maglica v. Maglica (1998) 66 Cal.App.4th 442, 449-450.
As a matter of procedure, this is a common count
related to a sufficiently specific cause of action, already addressed above,
such that it is not subject to a demurrer.
Moreover, the FAC sufficiently alleges Plaintiff’s
services done after Defendant’s request, with circumstances inferring that
Defendant would provide income support and a property interest and
appreciation. E.g., FAC, ¶¶ 9, 16 and 63-68. Plaintiff’s experience need not be
alleged as any claim element, but he nonetheless alleges his 50 years of
experience in real estate. See FAC, ¶ 4.
Therefore, the Court overrules the demurrer as to
quantum meruit.
6. Sixth
Cause of Action - Conversion
Defendant contends that the FAC fails to allege the exact
personal property items and values, ownership bases, Plaintiff’s payments for
them, Defendant’s interference, and Plaintiff’s withdrawal of consent to use
the property.
The elements of the claim are (1) Plaintiff's
ownership or right to possession of personal property, (2) defendant's
disposition of the property inconsistent with plaintiff's rights and (3)
resulting damages. PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser,
Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395, 397. See also Plummer
v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45 (complainants need only
allege entitlement to immediate possession or ownership); and Franklin v.
Muni. Ct. (1972) 26 Cal.App.3d 884, 902 (“A general allegation that the
defendant ‘converted the property to his own use’ suffices to allege
conversion….”).
Here, the FAC sufficiently alleges that Plaintiff owns
and has a right to immediate recovery of personal property including furniture,
rugs, art, electronics, gold coins and a gold bar, Defendant converted those to
her own use, and Defendant thereby caused damages. See FAC, ¶¶ 70-72. While
Defendant lists several missing details, the authorities do not require that level
of allegation specificity.
So, the Court overrules the demurrer as to conversion.
7. Seventh
Cause of Action - Financial Elder Abuse
First, Defendant argues that Elder Abuse is not the
basis of a cause of action. Second, she asserts that the FAC is missing
allegations of how Defendant wrongfully and fraudulently used the property. The
reply adds that the claim must be pled with the specificity of punitive
damages. Plaintiff states that the FAC adequately alleges that Defendant
appropriated and retained real and personal property belonging to Plaintiff.
Elder abuse is a cognizable claim. E.g., Perlin v.
Fountain View Management, Inc. (2d Dist. 2008) 163 Cal.App.4th 657, 666
(“We reject plaintiffs’ argument that a violation of the Act does not
constitute an independent cause of action.”).
A claim for financial elder abuse includes taking,
secreting, appropriating, obtaining, or retaining real or personal property of
an elder for a wrongful use, or with intent to defraud. Knox v. Dean
(2012) 205 Cal.App.4th 417, 423, 431. See also Stebley v. Litton Loan
Servicing, LLP (2011) 202 Cal.App.4th 522, 527-528 (“bad faith or intent to
defraud is no longer required in elder or dependent adult abuse cases…. But
they still must allege at least a ‘wrongful use’ of property.”).
Punitive damages must be based on ultimate facts
showing an entitlement to such relief. Clauson v. Superior Court (1998)
67 Cal.App.4th 1253, 1255.
The FAC adequately alleges Defendant’s wrongful
conversion and use of Plaintiff’s personal property, as analyzed above, and
case law does not also require specific allegations of fraudulent intent or
fraud allegations.
Thus, the Court overrules the demurrer as to elder
abuse.
CONCLUSION
The Court overrules the demurrer. Twenty days to
answer.