Judge Ashfaq G. Chowdhury, Case Number: 23GDCV02561, Date: 2024-05-31 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV02561, Date: 2024-05-31 Tentative Ruling

Case Number: 23GDCV02561 Hearing Date: May 31, 2024 Dept: E

Hearing Date: Friday, May 31, 2024

Case No: 23GDCV02561
Trial Date: None

Case Name: Joe Ramirez v. Trinidad Ramirez, et al.

DEMURRER TO FAC AND MOTION TO STRIKE

Moving Party: Defendants Trinidad Ramirez and Beatriz Ramirez

Responding Party: Plaintiff Joe Ramirez

Proof of service timely filed (CRC 3.1300(c)): ok

Correct Address (CCP §§ 1013, 1013(a)): ok

16/+5 day lapse (CCP §1005): ok

RELIEF REQUESTED:

Defendants demur to each of the causes of action in Plaintiff’s FAC and asks that the demurrer be sustained without leave to amend. Defendants also ask that the Court strike the request for punitive damages at ¶53 of the FAC.

BACKGROUND:

Plaintiff alleges he is the true owner of the property located at 1533 Bunker Ave., South El Monte, CA 91733 (the “Property”). Plaintiff began leasing the Property from nonparties, Leonel and Heladia Marquez, in 1986. In July 1989, Plaintiff purchased the property from the Marquezes with the financial assistance of his father, Javier Ramirez, for $145,000.

Javier’s financial assistance was as follows: (1) $25,000 for the downpayment on the Property and (2) a loan in Javier’s name in the amount of $100,000. Plaintiff supplied the remaining $20,000 for the downpayment.

Javier placed title to the Property in his name with the understanding and agreement that Plaintiff was the true owner of the property. Plaintiff made each mortgage payment on the mortgage to Javier. Plaintiff alleges Javier agreed to transfer title to Plaintiff when the mortgage in Javier’s name was paid off. Plaintiff alleges his mother, Defendant Beatriz Ramirez, agreed to this arrangement and at all times acknowledged that Plaintiff was the true owner of the Property.

Plaintiff alleges he made all mortgage payments to from July 1989 through 2019, paying of the mortgage in 2019. Thereafter, he continued to make payments towards the $25,000 loan Javier made to him for the downpayment. Plaintiff alleges that, unbeknownst to him during that time, (1) Javier paid the mortgage off in August 2012; (2) Javier transferred the Property to the Javier Ramirez Living Trust, with himself and Beatriz as co-trustees in 2012; and (3) Javier transferred the Property to the Ramirez Family Trust on April 9, 2020. Javier died on April 5, 2022 before he could transfer title to the Property to Plaintiff.

Since Javier’s passing, Defendant Trinidad Ramirez has assumed the role of sole trustee of the Ramirez Family Trust. Defendant Trinidad denies Plaintiff’s ownership interest in the Property and insists that Plaintiff must lease the Property from the Trust if he is to remain in possession. Defendant Trinidad has commenced unlawful detainer proceedings against Plaintiff.

Plaintiff maintains he is the true owner of the Property. Plaintiff alleges Defendant Beatriz continues to recognize him as the true owner. Plaintiff alleges Defendant Trinidad does not recognize him as the true owner.

Plaintiff filed a complaint on December 24, 2023 against Defendant Trinidad and Defendant Beatriz. The operative complaint is the First Amended Complaint (“FAC”) filed on March 4, 2024 alleging (1) promissory estoppel; (2) breach of contract; (3) fraud; and (4) quiet title.

RECOMMENDED RULING:

Defendants’ demurrer to (1) the entire FAC based on statute of limitations per CCP §430.10(e); (2) the 2^nd cause of action for breach of contract based on failure to allege whether the contract was oral, written or implied in fact per CCP §430.10(g); and (3) the 4^th cause of action for fraud based on failure to plead with specificity per CCP §430.10(e) is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. The motion to strike is moot.

ANALYSIS:

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, the defects must be apparent on the face of the pleading or via proper judicial notice. (Code Civ. Proc., §§ 430.30, 430.70; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

A “demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred.” (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear clearly and affirmatively from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.)

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP §436.)

Pursuant to CCP §436, the Court may strike out “any irrelevant, false, or improper matter inserted in any pleading” and/or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP §436.) In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true: “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.)

Discussion

I. Defendants fail to establish that the action is clearly and affirmative barred by statute of limitations

Defendants argue that the entire action is time barred by CCP § 366.2. Defendants also argue that each individual cause of action is time-barred by their applicable limitations periods. Defendants argue Plaintiff’s causes of action accrued once he paid off the mortgage, and Javier was allegedly obligated to transfer title to the Property to him. Defendants argue this occurred in 2019 based on the FAC.

A. CCP § 366.2

“If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., § 366.2(a).)

Section 366.2 only applies to the liability of “the person” and it only applies where the complaint or petition pertains to the decedent’s “personal liability.” (Estates of Yool (2007) 151 Cal.App.4^th 867, 875.) Section 366.2 applies to claims brought against a successor trustee based on a debt of a deceased predecessor trustee:

“It appears that whatever its form, the substance of the claims in this case is for the personal misconduct of the settlor/trustee on behalf of and for the benefit of the trust, that was completed entirely before the settlor/trustee died, and for which the settlor/trustee could have been held personally liable. The action is one that could have been ‘brought on a liability of the person’ (§ 366.2, subd. (a)), and is based on a debt of the decedent even though brought against the successor trustee. The successor trustee is the named party defendant only to pursue trust assets for the acts of [decedent predecessor trustee]. Section 366.2 was intended to impose a time limit on such claims, regardless of whom the action was brought against.”

(Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 296–297.)

However, where a petition or complaint alleges a resulting trust, § 366.2 does not apply, because it does not implicate the personal liability of a decedent. (Estate of Yool (2007) 151 Cal.App.4th 867, 870.) “In the context of an action to decree a resulting trust or quiet title based on a resulting trust theory, the matter adjudicated would concern whether the presumption of a resulting trust arose under the facts. Because the trustee holds title, but does not own the property in question, there is no issue of personal liability or resort to the trustee's assets. A resulting trust arises by operation of law and does not implicate the personal liability of the purported trustee. Rather, the trustee's sole purpose is to hold or convey the property according to the beneficiary's demands.” (Id. at 875-876.)

In addition, § 366.2 only applies if a cause of action could have been brought against a person prior to his or her death. (Id. at 876.) “The mere lapse of time, without repudiation, does not affect the beneficiary's rights. Section 366.2 specifically contemplates an action that may be brought against a person prior to his or her death. Under the facts of this case there was no cause of action, accrued or not yet accrued, that existed at the time of decedent's death within the sense of section 366.2 and hence no action that could have been commenced on that cause. Yool had not repudiated the resulting trust or shown any resistance to conveying the property.” (Id. at 877.)

According to Plaintiff’s FAC, Plaintiff would pay all mortgage payments on the Property to Javier, pay for all insurance, property taxes, and maintenance for the Property directly.” (FAC, ¶11.) Javier agreed that “upon full performance by Plaintiff, Javier would convey the Property title to Plaintiff free and clear.” (FAC, ¶11.) Plaintiff alleges that he estimates the mortgage was paid in late 2019. (FAC, ¶19.)

Plaintiff argues title was not to be transferred to him until he completed repayment of the $25,000 loan Javier made to him for the downpayment, citing to ¶37 of the FAC in support. However, ¶37 alleges that “Javier further promises that upon Plaintiff’s remittance of monthly mortgage payments, payment of all property taxes, insurance and regular maintenance, Javier would return title of the Property to Plaintiff.” Plaintiff’s allegation that “in consideration for these promises, Plaintiff promised to pay all mortgage payments, insurance, property tax, and maintenance for the Property, plus repayment of the $25,000 and interest to Javier and Beatriz” does not alter Javier’s alleged obligation to convey title to Plaintiff, as alleged in ¶¶11 and 37. Javier was allegedly obligated to convey title to Plaintiff once the mortgage was paid off, as well as property taxes, insurance and regular maintenance. Based on the FAC’s allegations, Javier was in breach of his obligation to reconvey the Property to Plaintiff as of late 2019.

Javier died on April 5, 2022. (FAC, ¶22.) Plaintiff’s claims therefore existed at the time of Javier’s death and Plaintiff was required to bring his claims within a year of April 5, 2022 or by April 5, 2023. The action was filed on December 4, 2023. Based on the face of the FAC, Plaintiff’s claims are time barred under CCP §366.2.

However, Plaintiff argues in opposition that the obligation to convey title to him was only triggered once he repaid the full $25,000 loan Javier made to him for the downpayment. If this were the case, CCP § 366.2 would not necessarily apply, depending on when the $25,000 was repaid or if it had been repaid at the time of Javier’s death. Plaintiff therefore establishes that he can reasonably cure the time bar if given leave to amend.

In addition, Plaintiff indicates he would like to have leave to amend to plead a resulting trust and to quiet title on that basis. As indicated in Yool, CCP § 366.2 would not apply to a claim seeking to declare a resulting trust.

The demurrer based on CCP § 366.2 is therefore SUSTAINED with 20 days leave to amend.

B. Other applicable limitations periods

Defendants argue that the individual causes of action are time barred based on their respective limitations period. Defendants argue the limitations period applicable to breach of an oral promise, promissory estoppel and quite title is two years under CCP § 339(1). Defendants argue fraud is subject to a three-year limitations period under CCP § 338.

As with the CCP § 366.2 argument, Defendants’ SOL argument under CCP §§ 338 and 338 relies on Plaintiff’s allegation that Javier was obligated to reconvey the Property upon repayment of the mortgage. Plaintiff has explained that the agreement was for Javier to reconvey the Property to him upon full repayment of the mortgage, all insurance costs, maintenance costs, taxes and the $25,000 loan Javier made to him for the downpayment. As such, demurrer is sustained with 20 days leave to amend for the reasons stated in connection with CCP § 366.2.

II. Plaintiff sufficiently alleges that Beatriz Ramirez is an alleged promisor in the 1^st cause of action for promissory estoppel and a party to the alleged agreement in the 2^nd cause of action for breach of contract; however, the 2^nd cause of action fails to allege whether the contract was oral, written or implied in fact

A. Promissory estoppel sufficiently pled as to Beatriz

“The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 225.

“The purpose of this doctrine is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. If the promisee's performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable.” (Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 249.) The doctrine is an equitable doctrine that is only necessary when no actual consideration was given by the promisee. (Id. at 250.)

Plaintiff alleges a clear and unambiguous promise by Javier. Plaintiff also alleges that Beatriz, who was named on the title to the Property initially, was a co-trustee of the Javier Ramirez Living Trust and is a trustor of the Ramirez Family Trust, repeatedly affirmed the same promise to him and ratified Javier’s agreement through her words and actions. (FAC, ¶¶13, 15, 18, 20, 25, 29, 31, 37.) Plaintiff therefore alleges a clear and unambiguous promise by Beatriz in support of his promissory estoppel claim.

B. Breach of Contract is sufficiently stated as to Beatriz

In general, only the parties to a contract are able to either sue or be sued on that contract. (Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 545.) However, when a person voluntarily adopts a contract that was purportedly entered on his or her behalf by an agent, i.e., ratifies the contract, that person may incur liability under that contract despite not being a signatory to it. (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.)

Plaintiff alleges that Beatriz is a party to the agreement between Plaintiff and Javier for the same reasons stated in connection with the promissory estoppel claim. Javier was Beatriz’s husband and a co-owner of the Property. Plaintiff also makes a general allegation of agency, which is sufficient to survive demurrer. (FAC, ¶5; (Skopp v. Weaver (1976) 16 Cal.3d 432, 439 (allegation of agency is a statement of ultimate fact and further allegations explaining how the fact of agency originated are unnecessary to survive demurrer).)

However, Plaintiff fails to allege whether the contract was written, oral or implied by conduct. Defendants’ demurrer to the 2^nd cause of action for breach of contract based on CCP §430.10(g) is sustained with 20 days leave to amend.

III. Plaintiff concedes that the fraud claim is defectively pled

Plaintiff concedes that the fraud claim is defective and asks for leave to amend. Demurrer to the fraud claim for lack of specificity is therefore sustained with 20 days leave to amend.

IV. Motion to Strike moot in light of demurrer to fraud claim

Defendants’ move to strike paragraph 53 from the fraud claim. In light of the Court’s ruling on demurrer to the fraud claim, the motion to strike is moot.

V. Conclusion