Judge Bruce G. Iwasaki, Case Number: 23STCV06418, Date: 2023-09-01 Tentative Ruling

Responding Party: Plaintiffs Raymundo Ortega and German Ignacio Hernandez Santos

Tentative Ruling: The Demurrer to the First Amended Complaint is sustained with leave to amend.

This action arises from the formation of an event-services business between Plaintiffs Raymundo Ortega and German Ignacio Hernandez Santos (Plaintiffs) and Defendant Rebeca Espinoza Gonzalez (Defendant). On March 22, 2023, Plaintiffs filed a Complaint. Defendant filed a demurrer. On July 14, 2023, Plaintiffs filed a First Amended Complaint (FAC) containing a single cause of action for forcible entry.

On July 26, 2023, Defendant filed a demurrer the FAC. Plaintiffs filed an opposition to the demurrer. No reply was filed.

The demurrer to the forcible entry cause of action is sustained with leave to amend.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. Code Civ. Proc. § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc. § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Defendant argues the FAC fails to state a claim for forcible entry because Plaintiffs did not “hire” the real property.

The FAC is confusing. Most of its allegations appear to allege claims for breach of contract – which is not pleaded – yet omits facts essential to plead forcible entry. Plaintiffs fail to allege that they have any right to possession of the property in question. The FAC avers that Plaintiffs and Defendant entered into a business arrangement to start an events-services business, Paris de Noche Banquet Hall, LLC. (FAC ¶¶ 4-5.) The FAC alleges that Plaintiffs, on the one hand, and Defendant (and her husband, non-party Glendria Galan), on the other hand, would each contribute $40,000 to this new business venture. The combined funds would pay the lease for the real property located at 1848 E. 58^th Place, Los Angeles CA 90001 (Premises) that would be used as the events space, and to purchase furnishings for the business. (FAC ¶¶ 8-10.)

Thereafter, the FAC alleges, Defendant engaged in a series of bad acts that form the basis of the forcible entry claim. First, Plaintiffs allege Defendant induced the landlord of the Premises to omit Plaintiffs’ names for the lease by suggesting Defendant’s non-party spouse was not comfortable with Plaintiffs’ names on a lease because Plaintiffs were homosexual. (FAC ¶¶ 12-13.) Thereafter, Plaintiff discovered Defendant had failed to contribute her share of the $40,000 that was to be used for securing the Premises and furnishings. (FAC ¶¶ 15-18.) As the relationship grew more contentious, Defendant changed the lock to the premises to exclude Plaintiffs from the Premises and further interfered with the business. (FAC ¶¶ 27-35.)

On demurrer, Defendant argues the FAC fails to state a claim for forcible entry because Plaintiffs are not a party to the lease for the Premises. (FAC ¶¶ 11-12.) As such, the allegations do not show Plaintiffs “hired” the real property as required by statute.[1]

In opposition, Plaintiff argues that they have sufficiently alleged facts showing they are “hirers” under the relevant statute.

Code of Civil Procedure section 1159 – the relevant statute for forcible entry – provides, in full:

(1) By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property.

(2) Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.

(b) For purposes of this section, “party in possession” means any person who hires real property and includes a boarder or lodger, except those persons whose occupancy is described in subdivision (b) of Section 1940 of the Civil Code.”

First, Plaintiffs point to allegations that they paid the electrical, gas, water, and other utilities for the Premises. (FAC ¶ 21.) In arguing that these allegations are sufficient to show Plaintiffs are “hirers,” Plaintiffs cite Code of Civil Procedure section 1159, subdivision (b).

But this statute contains no language indicating that payment of utilities bills is sufficient to deem someone a “hirer” of real property. Rather, in Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, the court explained that “[t]he forcible entry statute protects a ‘party in possession’” and “‘party in possession’ refers to any person who ‘hires’ real property.” (Id. at p. 1037.) In Spinks—which was a case decided after the 1976 amendment of section 1159 and thus has bearing on this question—the court cited Civil Code section 1925 during the only portion of the opinion that mentions the concept of “the party in possession.[2] Thus, in interpreting “party in possession,” the Court here applies the definition in Civil Code section 1925, which provides: “Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time.”

Based on the allegations in the FAC, the only contract for the possession and use of the property before this Court makes Defendant the hirer of the premises within the meaning of Civil Code section 1925 and “the party in possession” under section 1159, subdivision (2).

Plaintiff also contends that they have a property interest in Premises because the FAC contains allegations establishing that Plaintiffs have, at minimum, a resulting trust in the lease.

“A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. [Citations.] Such a resulting trust carries out and enforces the inferred intent of the parties. [Citations.] ‘Ordinarily a resulting trust arises in favor of the payor of the purchase price of the property where the purchase price, or a part thereof, is paid by one person and the title is taken in the name of another. [Citations.] “The trust arises because it is the natural presumption in such a case that it was their intention that the ostensible purchaser should acquire and hold the property for the one with whose means it was acquired.” [Citations.]’ ” (Lloyds Bank California v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 1042–1043.)

In support of this resulting trust theory, Plaintiffs point to allegations that show Defendant induced the landlord to omit Plaintiffs’ names from the lease and Defendant failed to pay her portion of the business venture investment that ultimately went to pay rent. (FAC ¶¶ 11-13, 16-18.) As with Plaintiffs’ utilities argument, this legal argument is also undeveloped.

Plaintiffs cite Hidden v. Jordan (1862) 21 Cal. 92 and Byers v. Doheny (1930) 105 Cal.App. 484, 494; neither case is apposite.

Plaintiffs cite Hidden v. Jordan apparently for the proposition that, when land is purchased, for which one party pays the consideration and another party takes the title, a resulting trust immediately arises in favor of the party paying the consideration, and the other party becomes his trustee. (Id. at 100.) Plaintiffs also cite Byers v. Doheny (1930) 105 Cal.App. 484 which involved the creation of a resulting trust over an oil leasehold.

Neither case discussed whether a resulting trust makes a party a “party in possession” for the purposes of Section 1159. Plaintiff merely relies on the existence of the legal concept of resulting trust but provides no analysis of its application.

In opposition, Plaintiff also includes a discussion of Forcible Detainer under Civil Code section 1160. (Opp. 9:26-10:22.) Plaintiffs seem to contend that they also have a claim for forcible detainer, despite pleading only forcible entry in the FAC. Plaintiff’s argument is unsupported by its pleading. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [noting the general rule that statutory causes of action must be pleaded with particularity].)

In another poorly articulated argument, Plaintiffs insist that the FAC supports a claim for forcible detainer because it alleges “violent beatings, false imprisonments, and continued threats of violence.” (Opp. 10:16-19.) While this argument may support granting leave to amend to state a new claim, it does not defeat the demurrer when the FAC alleged solely a claim for forcible entry.

The demurrer is sustained. Plaintiff shall have leave to amend. The second amended complaint shall be served and filed on or before September 21, 2023.

[1] Defendant also suggests there is a sham pleading issue with respect to Plaintiffs omitting the relevant lease in the FAC, noting that this lease was attached in the original Complaint. However, Plaintiffs have alleged that they are not a party to the lease so there is no contradiction to support a sham pleading finding.

[2] Plaintiffs cites only a single post-1976 case, which did not involve Code of Civil Procedure section 1159.

[3] Plaintiffs advance another poorly thought through argument based on Civil Code 51.5. But Plaintiffs have not alleged any violation of the Unruh Civil Rights Act, so their argument is irrelevant.

Judge Bruce G. Iwasaki

Department 58