Judge: Anne Richardson, Case: 21STCV03905, Date: 2023-03-09 Tentative Ruling

Case Number: 21STCV03905    Hearing Date: March 9, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Facts and Procedural History

Disputed and Undisputed Facts

In June 1991, Virginia Banuelos gifted the duplex real property located at 1805-07 Workman St., Los Angeles, CA 90031 (“Workman Ave. Property”) to herself, Defendant Ruperta Banuelos, Ruperta’s husband Jose S. Banuelos, Ruperta’s daughter Plaintiff/Cross-Defendant Olga Banuelos, another daughter named Carmen A. Quezada, and Carmen’s husband Jorge L. Quezada, all as joint tenants.

In July 1991, the owners of the Workman Ave. Property, including Virginia Banuelos, as joint tenants, gifted the Subject Property to Ruperta, her husband Jose S. Banuelos, and their daughter Olga Banuelos (hereafter, in conjunction with the June 1992 deed, the “1991 Grant Deeds”). (For clarity, the Court occasionally refers to Ruperta Banuelos as “Ruperta” and to Olga Banuelos as “Olga.”  No disrespect is intended.)

In 2001, Jose and Ruperta Banuelos decided to refinance the Workman Ave. Property and borrowed the sum of $170,926.00 from M-1 Capital Corp. On summary judgment, Ruperta Banuelos argues that because Olga Banuelos did not want to be co-borrower on the loan, Olga voluntarily agreed to divest herself of any ownership interest in the Workman Ave. Property because the lender insisted that the names of the borrowers and the owners had to match. Olga Banuelos, in contrast, argues that Jose and Ruperta Banuelos did not inform Olga about their plans to refinance the property at all.

On June 5, 2001, a Grant Deed (the “2001 Grant Deed”) was executed wherein Ruperta, Jose, and Olga Banuelos as joint tenants, purportedly gifted the Workman Ave. Property to Jose S. and Ruperta Banuelos, as joint tenants. On summary judgment, Ruperta argues that she, Jose, and Olga appeared before a former notary—Defendant Melissa Solgonick—presented their identifications, and signed the 2001 Grant Deed. Olga Banuelos, in contrast, argues that she did not sign the 2001 Grant Deed divesting her of her ownership in the Workman Property and that she was in Arizona at the time the deed was allegedly executed.

Notary Melissa Solgonick has testified to the effect that based on her pattern and practice, on June 5, 2001, Jose, Ruperta, and Olga would have appeared in front of her to sign the 2001 Grant Deed, and that while they may have appeared at different times they all would have appeared that day. Olga Banuelos disputes this testimony, arguing that she did not sign a grant deed divesting herself of her ownership in the Workman Ave. Property and that Olga never met Melissa Solgonick before this lawsuit was initiated.

The Workman Ave. Property was refinanced by Jose and Ruperta Banuelos again in October 2002 and in September 2004. The parties disagree as to whether Olga Banuelos had knowledge of these transactions.

In 2014, Jose Banuelos died. The same year, Ruperta Banuelos refinanced the Workman Ave. Property as an unmarried single woman. The parties disagree as to whether Olga Banuelos had knowledge of this transaction.

In 2018, Ruperta decided to sell the Workman Ave. Property. Olga Banuelos argues that she did not want to sell the property and told Ruperta that Ruperta could not sell the house without Olga’s consent.

In September 2020, the Workman Ave. Property was listed for sale. The parties dispute whether Olga was also informed over the phone and in-person regarding the offers on the home by Defendant/Cross-Complainant Pyramid Investments, Inc. (“Pyramid”) and other potential purchasers.

Ruperta argues that Olga offered to buy the Workman Ave. Property from Ruperta as to the portion she and Ruperta lived in (1807 Workman Ave.) for $250,000.00, showing Olga knew that she had been divested of her interest in the property. Olga argues that Olga merely offered to buy out her mother’s share of the home to become the sole title holder in the Workman Ave. Property and that Olga did not know about Pyramid’s offer to purchase it.

In October 2020, Ruperta finally sold the Workman Ave. Property to Pyramid for the sum of $615,000.00. As part of the transaction, Ruperta executed a Grant Deed transferring fee simple title to Pyramid Investments (“2020 Grant Deed”). Olga Banuelos argues that this grant deed is invalid because she did not, as a half-owner of the property, consent to sale, where the 2001 Grant Deed removing her interest in the property was fraudulently executed.

Sometime after the sale, Olga contacted Ruperta and demanded that she pay Olga half of the net sale proceeds Ruperta received from Pyramid, which Ruperta refused on the grounds that she was the sole owner of the Workman Ave. Property by operation of Olga’s 2001 divestment in the property and Jose Banuelos’s death in 2014. Olga disputes this position, presenting herself as half owner of the Workman Ave. Property based on the 1991 Grant Deeds and Jose Banuelos’s death.

Procedural History

On February 1, 2021, Olga filed this lawsuit against Ruperta, notary Melissa Solgonick, and Pyramid Investments on the grounds that the 2001 Grant Deed was forged and that Pyramid had wrongfully taken the Workman Ave. Property. These allegations, inter alia, supported claims of (1) Quiet Title against Pyramid based on acquisition of the Workman Ave. property through the fraudulent 2001 Grant Deed, (2) Cancellation of Instrument against Pyramid and Ruperta as to the 2001 and 2021 Grant Deeds, (3) Money Had and Received against Ruperta based on non-sharing of half the proceeds from sale of the Workman Ave. Property, (4) Accounting against Ruperta with regard to the proceeds from the sale of the Workman Ave. Property, (5) Notary Public Liability against notary Melissa Solgonick based on her work on the 2001 Grant Deed, (6) Trespass of the Workman Ave. Property by Pyramid, and (7) Invasion of Privacy in the Workman Ave. Property by Pyramid.

On April 8, 2021, Olga filed an amended First Amended Complaint, which was stricken by the Court on April 21, 2021, thus leaving the original Complaint as the operative pleading.

Also on April 21, 2021, the Court sustained a demurrer to the fifth cause of action by notary Melissa Solgonick, without leave to amend.

Later, on August 5, 2021, the Court ruled on a demurrer filed by Pyramid as to the first, second, sixth, and seventh causes of action alleged in the Complaint, overruling the demurrer as to the first and second causes of action and sustaining the demurrer as to the sixth and seventh causes of action. The record shows that the Court did not specify whether leave was granted to amend the Complaint and that Olga Banuelos did not in fact file an amended complaint in response to the August 5, 2021 ruling, thereby removing the sixth and seventh causes of action from this suit as a matter of law.

On October 31, 2022, Pyramid made a Motion for Summary Judgment or, in the Alternative, Summary Adjudication, attacking the sufficiency of evidence as to the Complaint’s first and second causes of action for Quiet Title and Cancellation of Instrument, i.e., the only two operative claims against Pyramid. Pyramid’s motion was supported by points and authorities, a separate statement, four declarations, and a request for judicial notice.

On November 1, 2022, Ruperta filed a Joinder to Pyramid’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication, attacking the sufficiency of evidence as to the Complaint’s second through fourth causes of action (the latter two claims being Money Had and Received and Accounting). Ruperta’s motion was supported by points and authorities, a separate statement largely reading the same as that of Pyramid, and, in the way of evidence, a request for judicial notice for incorporation of the four declarations and judicial notice request filed by Pyramid in support of its motion.

On December 29, 2022, Department 1 granted an ex parte application by Plaintiff Olga Banuelos to move the hearing on the motions by Pyramid and Ruperta from January 19, 2023 to March 9, 2023.

On January 5, 2023, Pyramid made a motion for leave to file a cross-complaint against Olga Banuelos, which this Court granted on February 15, 2023. Pyramid filed its Cross-Complaint the same day, alleging (1) Imposition of an Equitable Lien and (2) Declaratory Relief against Olga.

On February 23, 2023, Olga Banuelos filed an opposition to Ruperta’s motion, briefly noting that Pyramid’s motion was or would soon be taken off calendar by Pyramid.

On March 3, 2023, Ruperta Banuelos filed a reply to Olga’s opposition to Ruperta’s joinder motion.

On March 8, 2023, Olga Banuelos filed a Notice of Partial Settlement, indicating that on March 7, 2023, Olga and Pyramid had resolved all claims advanced in Olga’s Complaint and Pyramid’s Cross-Complaint pursuant to an unconditional settlement, with requests for dismissal to be filed within 45 days.

Also on March 8, 2023, Pyramid contacted court staff to indicate that it was taking its motion off calendar.

Request for Judicial Notice, Ruperta Banuelos: GRANTED.

The Court GRANTS Ruperta Banuelos’s Request for Judicial Notice of the four declarations and judicial notice request filed in support of Pyramid’s summary judgment or adjudication motion on October 31, 2022. (See Ruperta Joinder Mot., RJN [based on Evid. Code, §§ 452 subd. (d), 453.)

Defendant Olga Banuelos objects to the taking of such notice on the grounds that “Defendant RUPERTA cannot take judicial notice of these documents as they have been (or will be) withdrawn by Defendant PYRAMID, who has (or will) take their motion for summary judgment off-calendar.” (Opp’n to Ruperta Joinder Mot., 10:12-14; see id. at pp. 9:27-11:7.)

The Court disagrees.  Section 437c, subdivision (b)(7), allows for incorporation by reference of any matter in the court’s file if the matter being referenced is set forth with specificity.  Here, the notice of motion, as well as the separate statement of undisputed material facts, specified the evidence to be incorporated, namely the same evidence submitted in support of the first motion. It is well settled that where other documents on file in the same action are incorporated by reference on a summary judgment motion, the trial court may examine those documents in ruling on the motion. (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 496 [court could consider documents that were incorporated by reference into pleadings where notice of motion indicated reliance on all the files in the action]; People ex rel. Mosk v. Lynam (1967) 253 Cal.App.2d 959, 964-965 [court properly considered depositions and documents in the file where notice of motion stated it was made on all documents in the file, the deputy attorney general’s declaration in support of the motion referred to the documentary evidence in the file, and prior request for preliminary injunction and motions for partial summary judgment also referred to such materials and evidence]; Newport v. City of Los Angeles (1960) 184 Cal.App.2d 229, 234-235 [since an affidavit may incorporate by reference other papers on file in the same action, court must examine previously filed documents which the affidavit incorporates].)

Here, the separate statement filed by Ruperta Banuelos admittedly borrows many undisputed material facts alleged by Pyramid in its separate statement and therein makes references to four declarations and a request for judicial notice submitted by Pyramid in its motion for summary judgment or adjudication. Nevertheless, such conduct is statutorily compliant and may be considered by the Court in ruling on Ruperta’s motion.

Pyramid’s Motion for Summary Judgment or Adjudication: MOOT.

Because Pyramid Investments, Inc. contacted the Court on March 8, 2023 to indicate that it was taking its motion off calendar, Pyramid’s motion is MOOT and taken off calendar.

Ruperta Banuelos’s Motion for Summary Judgment or Adjudication: DENIED.

Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of an entire a cause of action or, under certain circumstances, parts thereof, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t); see Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-55; see also Public Utilities Com. v. Superior Court (2010) 181 Cal.App.4th 364, 380.) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make converse prima facie showing that a triable issue of material fact exists. (Ibid.) The evidence of the moving party is strictly construed, and the evidence of the opposing party liberally construed. (Crouse v. Brobeck, Phleger & Harrison (1988) 67 Cal.App.4th 1509, 1524.) Doubts as to the propriety of granting the motion must be resolved in favor of the party resisting the motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417.)

Second Cause of Action, Cancellation of Instrument: DENIED.

The mechanism for cancellation of a deed or other written instrument is codified at Civil Code section 3412, stating that a “written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” “To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one’s position.” (U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778.)

The second cause of action alleges Cancellation of Instrument—i.e., the 2001 and 2021 Grant Deeds—against Pyramid and Ruperta on the grounds that (1) the 2001 Grant Deed is void because Olga Banuelos never executed the deed and (2) Ruperta had no right to convey the Workman Ave. Property to Pyramid because Olga was a co-owner of the property, was still alive, and did not consent to the transfer, where the transaction was only completed through the existence of the void 2001 Grant Deed. (Complaint, ¶¶ 21-25.)

Ruperta moves for summary adjudication of this claim on the grounds that (1) Olga signed the 2001 Grant deed, thereby divesting herself of ownership in the Workman Ave. Property, and (2) if Olga did not sign the 2001 Grant Deed, the statute of limitations of ten years has elapsed because in 2002 and 2014, Olga was made aware that Ruperta had refinanced the Workman Ave. Property without need for Olga to sign off on the transactions as co-borrower, putting Olga on notice that she had no interest in the property. (Ruperta Mot., 9:22-10:13.)

I. 2001 Grant Deed

To support the first position, Ruperta points to the June 5, 2001 Deed, a copy of which is referenced by incorporation as Exhibit 4 to the Declaration of Ruperta Banuelos filed with Pyramid’s summary judgment or adjudication motion. (Ruperta Mot., 9:27-10:4, Separate Statement, UMF No. 6 [citing to RJN, Ex. 4]; see Pyramid Mot., R. Banuelos Decl., ¶ 11, Ex. 4 [reference to and copy of 2001 Grant Deed showing signature of deed by Olga Banuelos].)

The Court finds that a reasonable factfinder could determine that this evidence shows a lack of triable issues of material fact as to cancellation of the 2001 and 2021 Grant Deeds because the copy of the 2001 Deed shows the signature of Olga Banuelos on the 2001 Grant Deed, as executed in the County of Los Angeles, thus showing evidence of Olga’s consent to both the 2001 conveyance, and, by implication, the 2021 transaction.

In opposition, Olga Banuelos denies that she signed the 2001 Grant Deed and argues that she could not have, because she has evidence to show that the deed was purportedly signed by her on a date—June 5, 2001—on which she was not in California, but rather, was working in Arizona, thus undercutting any argument that the signature on the 2001 Grant Deed—purportedly executed in California—was fraudulent. (Opp’n to Ruperta Mot., 6:27-8:18.)

To support this position, Olga submits a declaration to this effect and copies of phone bills, bank statements, and receipts suggesting that she was not in California on June 5, 2001. (Mot., 7:5-8:13.) Olga also argues that Ruperta’s deposition testimony indicates that Ruperta was not in California, but rather, was in Arizona, when the 2001 Grant Deed was signed, further placing doubt on the deed’s veracity. (Opp’n to Ruperta Mot., 8:14-18.)

In reply, Ruperta argues that the evidence provided by Olga is not availing on summary adjudication because the evidence does not conclusively show that Olga was in Arizona on June 5, 2001, permitting an inference that Olga was in California at the time of execution of the 2001 Grant Deed. (Ruperta Reply, 6:20-7:2.)

A review of the phone statements referenced by Olga fails to support her opposition. (See Opp’n to Ruperta Mot., Banuelos Decl., Ex. D, pp. 4-5.) The phone statements highlight that Olga received or made calls in Phoenix, Arizona between May 9 and June 4, 2001 and between July 4 and July 5, 2001. (Ibid.) While the statement shows roaming charges for calls made or received by Olga Banuelos in Los Angeles on June 14, 2001 (Id. at p. 5), this evidence does not lead to an inference that Olga could not have been physically present in the County of Los Angeles on June 5, 2001.  Ruperta points out that there is no portion of the bill that relates to June 5, 2001.

A review of the bank statements provided by Olga also does not support her opposition arguments because the dates of listed transactions in her statement fall between June 7, 2001 and June 26, 2001 (See Opp’n to Ruperta Mot., Banuelos Decl., Ex. C), leaving the door open for Olga’s physical presence in Los Angeles County on June 5, 2001.

A review of the receipts provided by Olga to show physical presence in Arizona on June 5, 2001 also do not avail her position because the receipts involve transactions dated May 3, 2001 and June 4, 2001. (See Opp’n to Ruperta Mot., Banuelos Decl., Exs. E, F.)

A review of the transcript of the deposition of Ruperta is also not sufficiently specific as to lead to an inference that neither Olga nor Ruperta were in California on June 5, 2001 because the deposition merely testifies to Ruperta having visited Olga in Arizona for two or three weeks on unspecified dates in June 2001. (See Opp’n to Ruperta Mot., Lauro Decl., Ex. B, 74:3-9, 75:6-13.)

However, Olga’s Declaration that she was in Arizona on June 5, 2001 could lead a reasonable factfinder to determine that evidence exists to show a triable issue of material fact as to whether Olga was in Los Angeles County when the 2001 Grant Deed was executed. (See Opp’n to Ruperta Mot., Banuelos Decl., ¶ 9.)

Further, in her deposition, Ruperta testified that Jose Banuelos—Ruperta’s deceased husband and father to Olga—“removed Olga from the [2001 Grant] [D]eed,” evidence which could further lead a reasonable factfinder to determine that triable issues of material fact exist as to whether Jose Banuelos arranged for the fraudulent execution of the 2001 Grant Deed, as containing Olga Banuelos’s signature. (See Opp’n to Ruperta Mot., Lauro Decl., Ex. B, 33:15-18, 36:7-9, 36:19-21.)

In reply, Ruperta argues that this testimony does not allude to fraud, but rather, “only establishes that Jose Banuelos … took the steps to remove P[laintiff] [Olga Banuelos] from title to the Los Angeles property” where “[t]he only step possible for Jose Banuelos to take would have been to have P[laintiff] [Olga Banuelos] sign a Grant Deed removing [her] from title

to the Los Angeles Property.” (Reply, 4:12-10.)

The Court does not find Ruperta’s rebuttal convincing because a reasonable factfinder could determine that Ruperta’s testimony could be read one of two ways: either that Jose Banuelos had Olga Banuelos removed from title of the Workman Ave. Property without Olga’s knowledge (as Olga contends) or that Jose Banuelos was the driving force for asking Olga to sign away her interest in the property (as Ruperta claims).

Summary adjudication of the second cause of action is therefore DENIED as based on evidence related to the signature of Olga Banuelos on the 2001 Grant Deed.

II. Statute of Limitations

Ruperta next argues that the second cause of action fails because Olga had ten years to file her action for cancellation of instrument after discovering that she was not included in refinance transactions of the Workman Ave. Property, first in 2002, and then in 2014, for which reason the statute of limitations has run on this claim. (Ruperta Mot., 9:5-13.)

The Court notes that the statute of limitations for a cancellation of instrument claim is three years for cases involving fraud (Code Civ. Proc., § 338, subd. (d)) and four years for non-fraud actions (Code Civ. Proc., § 343). (See Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 725.)

To support this position, Ruperta cites incorporated evidence from the Pyramid summary judgment or adjudication motion—i.e., Ruperta’s own Declaration—in which Ruperta declares that she informed Olga of a 2002 refinance on the Workman Ave. Property where Olga was not required to sign the transaction as a co-obligor. (Ruperta Mot., Separate Statement, UMF No. 62 [citing to Pyramid Mot., Banuelos Decl., ¶ 15].)

The Court finds that this piece of evidence alone could convince a reasonable factfinder that Olga Banuelos was put on notice as to a transaction that implied that her interest in the Workman Ave. Property had been extinguished because informing Olga that the property was being refinanced without her consent connotes that Olga had no interest in the property itself. If Olga was informed in 2002 of such a possibility, then her filing of this lawsuit in 2021 came either 15 or 16 years too late, thus carrying Ruperta’s burden on summary adjudication to show no triable issues of material fact exist as to Olga’s entitlement to interest in the Workman Ave. Property or cancellation of the 2001 Grant Deed.

In opposition, Olga argues that she only discovered she had been divested of her interest in the Workman Ave. Property in 2020, which, under the discovery rule, would only trigger the statute of limitations for this claim in 2020, not 2002 or 2014. (Opp’n to Ruperta Mot., 8:19-9:1.)

To support this position, Olga provides her declaration, in which she states that she was never informed of the 2001 and 2014 refinancing of the Workman Ave. Property by her father and mother. (Opp’n to Ruperta Mot., Separate Statement, UMF No. 62 [citing to Opp’n to Ruperta Mot., Banuelos Decl., ¶ 7.) Further, Olga provides her declaration to indicate that she did not know about the sale of the house and therefore, her divestment in the property without her consent, until 2020. (Opp’n to Ruperta Mot., Separate Statement, UMF No. 71 [citing to Opp’n to Ruperta Mot., Banuelos Decl., ¶ 13].)

The Court finds that this evidence carries Olga’s burden on summary adjudication. A “statute of limitations [only] begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.’” (Bernson v. Browning–Ferris Industries (1994) 7 Cal.4th 926, 932.) Olga’s evidence—while silent as to the 2002 refinancing of the Workman Ave. Property—could lead a reasonable factfinder to conclude that, when read holistically, her declaration clearly provides prima facie evidence that she was unaware of refinancing on the property by her parents between 2001 and 2014, and that as of 2020, Olga still believed she had an interest in the property. If Olga only discovered in 2020 that deeds existed to show that she did not have an interest in the property, then the statute of limitations would expire, at the earliest, in 2023, as based on fraud allegations. (Civ. Proc. Code, § 338, subd. (d).) However, as the Complaint here was filed in February 2021, Olga’s evidence shows she is within the statute of limitations for summary adjudication purposes as to this claim.

In reply, Ruperta fails to argue statute of limitations. (See Ruperta Reply, 3:15-7:13.)

Summary adjudication of the second cause of action is therefore DENIED as based on evidence related to the statute of limitations running on the Cancellation of Instrument claim.

Third Cause of Action, Money Had and Received: DENIED.

As defined by the court of appeal, “‘[a] cause of action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.’’” (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937 [citing Schultz v. Harney (1994) 27 Cal.App.4th 1611. 1623].)

The third cause of action for Money Had and Received against Ruperta is premised on allegations that Olga was entitled to half the net proceeds of the sale of the Workman Ave. Property pursuant to her interest in the property—$615,000 total—but that Ruperta has refused to disburse such proceeds to Olga. (Complaint, ¶¶ 29-32.)

Ruperta argues that this claim fails on summary adjudication for the same reasons as the arguments advanced against the Complaint’s second cause of action: Olga is shown by the evidence to have signed the 2001 Grant Deed; and the statute of limitations on any interest Olga had to dispute the validity of the 2001 Grant Deed expired long ago. (Ruperta Mot., 10:14-11:7.)

Based on the Court’s discussion as to these issues ante, the Court finds that triable issues of material fact exist as to whether Olga had a one-half interest in the Workman Ave. Property when it was sold in 2020, yielding triable issues of material fact as to whether Olga is entitled to half of the $615,000 proceeds therefrom.

Summary adjudication of the third cause of action is therefore DENIED as based on evidence related to Olga’s signature in the 2001 Grant Deed and the statute of limitations running on the Cancellation of Instrument claim.

Fourth Cause of Action, Accounting: DENIED.

An action for an accounting has two elements: (1) “that a relationship exists between the plaintiff and defendant that requires an accounting” and (2) “that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” (See ibid.)

The Complaint’s fourth cause of action alleges accounting against Ruperta on the grounds that Ruperta must completely account for the money received from the sale of the home without the concurrence, consent, or agreement of Olga Banuelos. (Complaint, ¶¶ 33-35.)

Ruperta argues that this claim fails on summary adjudication for the same reasons as the arguments advanced against the Complaint’s second and third causes of action: Olga is shown by the evidence to have signed the 2001 Grant Deed; and the statute of limitations on any interest Olga had to dispute the validity of the 2001 Grant Deed expired long ago. (Ruperta Mot., 11:8-12:1.)

Based on the Court’s discussion as to these issues ante, the Court finds that triable issues of material fact exist as to whether Olga had a one-half interest in the Workman Ave. Property when it was sold in 2020, yielding triable issues of material fact as to whether Ruperta owes Olga some balance of the proceeds of the 2020 sale of the Workman Ave. Property.

Summary adjudication of the fourth cause of action is therefore DENIED as based on evidence related to Olga’s signature in the 2001 Grant Deed and the statute of limitations running on the Cancellation of Instrument claim.

Conclusion

Defendant/Cross-Complainant Pyramid Investments, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is MOOT because Defendant Pyramid took the motion OFF CALENDAR on March 8, 2022.