Judge: Andrew E. Cooper, Case: 23CHCV01792, Date: 2023-10-17 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV01792    Hearing Date: October 17, 2023    Dept: F51

DEMURRER

Demurrer Filed: 7/12/23

MOVING PARTY: Defendant Michelle Dizon (“Defendant”)

RESPONDING PARTY: Plaintiff Jack O’Dell (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire complaint.

TENTATIVE RULING: The demurrer is overruled, and Defendant’s request for judicial notice is denied. Defendant to file and serve her answer to Plaintiff’s complaint within 30 days.

Defendant is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND 

This is a quiet title action in which Plaintiff alleges that he and Defendant, his ex-partner, co-owned certain real property located at 15956 Live Oak Springs Canyon Road, Santa Clarita California 91387 from 2018 until the couple’s breakup in August 2021. (Compl. ¶¶ 10, 13, 17.) Plaintiff further alleges that because he was finalizing a divorce, the parties “agreed that Dizon alone would be the name on title until Plaintiff’s divorce issues were resolved and then he would be added to the title.” (Id. at ¶ 14.) “Plaintiff primarily paid the down payment, closing costs, monthly mortgage payments, taxes, utilities and renovation costs.” (Id. at ¶ 16.)

“Since August 2021, Plaintiff has lived at the Home, while Dizon has not.” (Id. at ¶ 18.) “On several instances since the purchase, Dizon has stated in writing that she wanted to put Plaintiff on title, but has failed to do so.” (Id. at ¶ 20.) Plaintiff alleges that the home has “appreciated significantly since the original purchase.” (Id. at ¶¶ 19, 22.)

On 6/20/23, Plaintiff filed his complaint against Defendant and the mortgage lender, alleging the following causes of action: (1) Quiet Title; (2) Fraud; (3) Breach of Contract; (4) Breach of Implied Covenant of Good Faith and Fair Dealing; and (5) Unjust Enrichment.

On 7/12/23, Defendant filed the instant demurrer and request for judicial notice. On 9/29/23, Plaintiff filed his opposition. On 10/6/23, Defendant filed her reply.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Defendant demurs to Plaintiff’s entire complaint, arguing that Plaintiff fails to state facts sufficient to constitute any of the causes of action therein.

A.    Meet and Confer

Before filing its demurrer, “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.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Defendant’s counsel declares that on 7/3/23, he sent Plaintiff’s attorney a meet and confer letter regarding the issues raised in the instant demurrer, but the parties were unable to come to a resolution. (Decl. of Joel Glaser ¶¶ 3–7.) The Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

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B.     Breach of Contract

The third cause of action in Plaintiff’s complaint alleges Breach of Contract against Defendant. To state this cause of action, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) However, if a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)

Here, Plaintiff alleges that the parties “agreed to purchase a home under Dizon’s name alone so that Plaintiff could work out any remaining divorce issues,” that Plaintiff performed “all parts of the Agreement,” and that Defendant “has never put Plaintiff on title of the Home, notwithstanding many representations of doing so,” thereby causing Plaintiff damages. (Compl. ¶¶ 39–43.)

On demurrer, Defendant argues that “all five causes of action, resting on the alleged oral promise to put him on title, are barred under the Statute of Frauds, and for uncertainty of the agreement.” (Dem. 2:4–5.)

1.      Statute of Frauds

An oral agreement made “for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein” is invalid absent a written and signed “note or memorandum thereof.” (Civ. Code § 1624, subd. (a)(3).) “No estate or interest in real property, other than for leases for a term not exceeding one year, nor any power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by the party’s lawful agent thereunto authorized by writing.” (Code Civ. Proc. § 1971.)

Here, Defendant argues that “in each cause of action, Plaintiff pleads the basis of his right to relief is the oral agreement to put his name on title after his divorce issues were resolved.” (Dem. 4:22–24, citing Compl. ¶¶ 24, 30, 39, 46 and 51.) The Court agrees and finds that nowhere in the complaint does Plaintiff allege that the agreement between the parties was a written contract. Additionally, Plaintiff has failed to state the terms of the written agreement verbatim within the complaint, nor has he attached a copy of the purported agreement to his complaint. (Harris, 74 Cal.App.4th at 307.) Therefore, the Court finds that the agreement between the parties to add Plaintiff to title of the subject property was oral, and therefore barred from enforcement. In opposition, Plaintiff argues that his factual allegations “meet exceptions to [the Statute of Frauds,] including the existence of writings, estoppel, and performance, so the Statute does not bar enforcement of the agreement.” (Pl.’s Opp. 2:19 – 21.)

a.      Supplemental Writing

The statute of frauds bars enforcement of specified agreements unless confirmed in some form of writing and “subscribed by the party to be charged.” (Civ. Code § 1624, subd. (a).) There is sufficient evidence that a contract has been made if “there is a note, memorandum, or other writing sufficient to indicate that a contract has been made, signed by the party against whom enforcement is sought or by its authorized agent or broker.” (Id. at subd. (b)(3)(D).)

Here, Plaintiff argues in opposition that “the Complaint pled the existence of several writings evidencing the parties’ agreement.” (Pl.’s Opp. 5:1–2, citing Compl. ¶ 20 “on several instances since the purchase, Dizon has stated in writing that she wanted to put Plaintiff on title but has failed to do so.”)

Defendant argues in reply that “neither the Complaint nor the Opposition to Demurrer has attached any writing document.” (Def.’s Reply 3:3–4.) The Court notes that at the demurrer stage, Plaintiff is not required to attach such documents to his complaint. Nevertheless, the Court finds that Plaintiff has not sufficiently alleged that any such writings evidencing the parties’ oral agreement were signed by Defendant. Accordingly, the Court finds that Plaintiff has insufficiently alleged this defense to the Statute of Frauds.

b.      Estoppel

“Where a contract, which is required by law to be in writing, is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief to his prejudice, may enforce it against the fraudulent party.” (Civ. Code § 1623.) “The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract, or in the unjust enrichment that would result if a party who has received the benefits of the other's performance were allowed to rely upon the statute.” (Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623–624 [internal citations omitted].)

Here, Plaintiff argues that estoppel applies as a defense to the Statute of Frauds because he “paid approximately $289,500 as a down payment, mortgage payments of approximately $3,200 for approximately five years along with the property taxes during this time, and undertook, paid for, and completed renovations in the amount of approximately $100,000. (Pl.’s Opp. 5:18–21, citing Compl. ¶¶ 52–55.) Because the subject property has allegedly appreciated in value, Plaintiff asserts that “the facts pled in the Complaint are sufficient to establish that Plaintiff has seriously changed his position in reliance on the parties’ agreement, and that he would be unconscionably injured while Defendant would be significantly and unjustly enriched if she were allowed to rely on the Statute, having benefitted from Plaintiff’s performance.” (Id. at 5:22–26.)

Defendant argues in reply that “Plaintiff neither in the Complaint nor in the Opposition to Demurrer did state any fact which will demonstrate how he changed his position in reliance upon, or in performance of, the agreement.” (Def.’s Reply 4:6–8.) “Plaintiff must show that alleged payments were so valuable to him that unconscionable injury would result from refusing to enforce the alleged agreement with Defendant.” (Id. at 4:12–14.)

The Court disagrees and declines to make a requirement for such an evidentiary showing at the pleading stage. The Court finds it sufficient that Plaintiff has alleged both fraud and unjust enrichment, and that he made various payments in connection with the subject property in reliance on Defendant’s alleged promise. Accordingly, the Court finds that Plaintiff has sufficiently alleged facts to support this defense to the Statute of Frauds.

c.       Part Performance

Part performance of an agreement takes the agreement out of the statute of frauds, at least in part, for purposes of equitable enforcement of the agreement. (Matheron v. Ramina Corp. (1920) 49 Cal.App. 690, 694.) Part performance is founded in estoppel and looks to estoppel principles for its application. (Sutton v. Warner (1993) 12 Cal.App.4th 415, 422.) “Under the doctrine of part performance, the oral agreement for the transfer of an interest in real property is enforced when the buyer has taken possession of the property and either makes a full or partial payment of the purchase price, or makes valuable and substantial improvements on the property, in reliance on the oral agreement.” (Ibid.)

Here, Plaintiff asserts that he has sufficiently alleged that he “has been in possession of the property, paid toward the purchase price, and made valuable and substantial improvements to the property in reliance on the parties’ agreement. (Pl.’s Opp. 6:7–9, citing Compl. ¶¶ 16–18, 25, 52–55.) The Court agrees, and notes that Defendant does not address this argument on reply. Therefore, the Court finds that Plaintiff has sufficiently alleged facts to support this defense to the Statute of Frauds.

2.      Uncertainty

An agreement is unenforceable if “the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.” (Civ. Code § 3390, subd. (e).) “In determining whether the material factors in a contract are sufficiently certain for specific performance, the modern trend of the law favors carrying out the parties’ intention through the enforcement of contracts and disfavors holding them unenforceable because of uncertainty. … The defense of uncertainty has validity only when the uncertainty or incompleteness of the contract prevents the court from knowing what to enforce.” (Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 500.)

Here, Defendant argues that “a key term of the agreement is too uncertain for enforcement.” (Dem. 5:8–9.) However, as Plaintiff observes in opposition, Defendant “never specifies what terms or what about the agreement is uncertain or why.” (Pl.’s Opp. 8:3–4.) In reply, Defendant asserts that “the Opposition fails to offer any argument, or point out any facts in the Opposition, that show what ‘Plaintiff's divorce issues were resolved’ … means as was previously stated in the Complaint.” (Def.’s Reply, 4:18–20.)

The Court notes that only on reply does Defendant identify the “uncertain” term of the alleged agreement, which appears to be the condition that Defendant alone would be the owner of record of the subject property “until Plaintiff’s divorce issues were resolved.” (Compl. ¶ 14.) Even if accepting Defendant’s argument, the Court finds that this term is not so uncertain as to prevent the Court from knowing what to enforce. Plaintiff has sufficiently alleged that the parties “agreed to put Petitioner’s name on title after the divorce issues were completed. Plaintiff performed all parts of the Agreement.” (Id. at ¶¶ 40–41.)

Based on the foregoing, the Court finds that Plaintiff has alleged facts sufficient to constitute a cause of action for Breach of Contract. Accordingly, the demurrer is overruled as to Plaintiff’s third cause of action.

C.    Remaining Causes of Action

The Court notes that in her demurrer, Defendant does not argue against the substantive elements of Plaintiff’s remaining causes of action. To the extent that the demurrer against the remaining causes of action derives from Defendant’s Statute of Frauds and uncertainty arguments, the Court reasserts its findings as set forth above.

The Court notes that Defendant substantively argues against Plaintiff’s second cause of action for Fraud on reply but declines to consider them as they are raised for the first time on reply. (Def.’s Reply 5:15–16.) “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794 n. 3.)

Based on the foregoing, the Court overrules the demurrer against Plaintiff’s first, second, fourth, and fifth causes of action.

D.    Request for Judicial Notice

“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” (Cal Rules of Ct., rule 3.1113(l).) Here, Defendant requests within her demurrer that “the Court take judicial notice of the records on file in the Los Angeles County Recorders Officer for the property.” (Dem. 6:6–7.) “These records are evidence of the chain of title of the property and of the fact Plaintiff has never had any ownership interest in the property.” (6:9–10.)

However, as Defendant has failed to properly file a separate request for judicial notice, the Court denies the request. Moreover, as Plaintiff observes, “the proffered deed history is irrelevant because a demurrer tests the allegations of the Complaint, which focus on the agreement between the parties, Defendant’s fraud, and Plaintiff’s reliance to his detriment. Here, at most this report reflects that Defendant never performed as she promised – she never put Plaintiff’s name on the title to their home, which is already known and pled – but that doesn’t mean he had no ownership interest and was not entitled to such an interest so it is irrelevant to the issues on demurrer.” (Pl.’s Opp. to RJN, 3:11–16.)

Based on the foregoing, the Court denies Defendant’s request for judicial notice.

CONCLUSION 

The demurrer is overruled, and Defendant’s request for judicial notice is denied. Defendant to file and serve her answer to Plaintiff’s complaint within 30 days.