Judge: Barbara M. Scheper, Case: 21STCV20310, Date: 2023-04-04 Tentative Ruling

Case Number: 21STCV20310    Hearing Date: April 4, 2023    Dept: 30

Dept. 30

Calendar No.

Gaviola vs. Canlobo, et. al., Case No. 21STCV20310

Tentative Ruling re:  Defendant’s Motion for Judgment on the Pleadings

Defendant Margie D. Canlobo (Defendant) moves for judgment on the pleadings on the first, second, and fourth causes of action in the First Amended Complaint (FAC) of Plaintiff Myla D. Gaviola (Plaintiff). The motion is granted.

A motion for judgment on the pleadings may be made after the time to demur has expired and an answer has been filed. (Code Civ. Proc., § 438, subd. (f).) A motion by a defendant may be made on the grounds that the complaint or cross-complaint “does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(B)(ii).) A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

Like a general demurrer, “ordinarily, a [motion for judgment on the pleadings] does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the [motion] will be overruled.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations—assumed to be true and liberally construed—are sufficient to constitute a cause of action. (Stone Street Capital, LLC v. Cal. State Lottery Com’n (2008) 165 Cal.App.4th 109, 116.)

This action concerns the real property located at 2708 Newell Street, Los Angeles, CA (the Property). (FAC ¶ 3.) Plaintiff’s FAC alleges that on January 18, 2007, the parties, who are sisters, and their mother, Estrella Del Rosario (Rosario), entered into a written agreement (the Agreement) to equally divide the proceeds of the sale of the Property. (FAC ¶ 5, Ex. A.) The Property was sold on July 3, 2018, but Defendant failed to divide the proceeds of the sale with Plaintiff. (FAC ¶ 7.)

Plaintiff’s first cause of action alleges that Defendant breached the Agreement by failing to divide the sale proceeds with Plaintiff. (FAC ¶ 7.) The total proceeds of the sale were $770,000, and so under the alleged contract, Defendant owes Plaintiff half of that amount plus interest. (FAC ¶ 8.) Plaintiff’s second cause of action for Specific Performance seeks an order compelling Defendant to equally distribute the sale proceeds with Plaintiff. (FAC ¶ 10.) Plaintiff’s fourth cause of action for Disgorgement of Unjust Enrichment requests disgorgement of Plaintiff’s portion of the proceeds. (FAC ¶ 14.)

As an initial matter, the Court disagrees with Plaintiff that this motion is barred based on Defendant’s prior demurrer. Defendant demurred to only the third cause of action for breach of fiduciary duty, and the demurrer was sustained to that claim. Code Civ. Proc. § 438, subd. (g), does not apply here.

Defendant first moves for judgment on the pleadings on the basis that Plaintiff has released any and all interest in the Property via quitclaim deed. (RJN, Ex. C [10].) The Court takes judicial notice of the quitclaim deed, as “a court may take notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading. [Citation.] This includes recorded deeds. [Citation.]” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1118.) The quitclaim deed shows that Plaintiff remised, released, and quitclaimed her interests in the Property to Defendant on January 21, 2010, as a bona fide gift. (RJN, Ex. C.)

“[A] quitclaim passes whatever interest, legal or equitable, that the grantor then possesses.” (Rosenthal v. Landau (1949) 90 Cal.App.2d 310, 313.) But the right to the proceeds from a sale of real property is a right to personal property, not an interest in the real property sold. (See Mission Valley East, Inc. v. County of Kern (1981) 120 Cal.App.3d 89, 97 [“The underscored language literally restricts the assignment to whatever rights the assignor had in the real property at the time of the assignment; it does not include personal rights such as the right to claim the excess proceeds from the tax sale”].) Consequently, Plaintiff’s alleged interest under the Agreement to a portion of sale proceeds of the Property was not subject to the quitclaim deed she executed.

However, the Court agrees with Defendant that the Agreement lacks consideration. “The general rule is that a past consideration is not sufficient to support a contract.” (Blonder v. Gentile (1957) 149 Cal.App.2d 869, 874–875.) The parties’ contract to divide the sale proceeds is dated January 18, 2007, and states, “I, ESTRELLA G. DEL ROSARIO, MOTHER OF [Defendant] and [Plaintiff], AGREED THAT THE [Property], TRANSFERRED TO THEIR NAMES, IN AGREEMENT OF WHEN WE SELL THIS PROPERTY WE WILL DEVIDED [sic] EQUALLY TO THREE OF US ANY AMOUNT TO THIS PROPERTY MENTIONED ABOVE.” (Comp., Ex. A.) The only consideration offered in support of the Agreement is Rosario’s transfer of the Property to the parties. The Court takes notice of a Grant Deed for the Property, showing that it was transferred from Rosario to the parties on January 3, 2007. (RJN, Ex. A.)  Rosario’s transfer of the Property, because it took place two weeks prior to the execution of the Agreement, constituted only past consideration, and so was insufficient to create an enforceable contract. The lack of consideration supporting the Agreement precludes each of Plaintiff’s remaining claims, and so the motion is granted.