Judge: Cherol J. Nellon, Case: 22STCV35490, Date: 2023-11-22 Tentative Ruling

Case Number: 22STCV35490    Hearing Date: November 22, 2023    Dept: 14

(1)       Demurrer

            Defendant Golden Valley now demurs to the FAC on the grounds that it fails to state facts sufficient to support any cause of action and is uncertain.

Decision

            The demurrer is SUSTAINED, with 10 days leave to amend.

Discussion

            Plaintiff filed his initial complaint on November 3, 2022. He served Defendant Golden Valley, who demurred. Plaintiff did not oppose the demurrer and it was sustained by this court on March 23, 2023, with leave given to amend.

            Plaintiff did not timely amend. Defendant Golden Valley brought an ex parte application to dismiss, as permitted by Code of Civil Procedure § 581(f)(2) and California Rules of Court Rule 3.1320(h). This court granted Plaintiff one extension of time to amend.

            Plaintiff filed his First Amended Complaint on May 17, 2023, the last day of the extension. Defendant Golden Valley demurred. Plaintiff opposed. On August 2, 2023, this court issued an order sustaining the demurrer to the first cause of action for breach of contract without leave to amend, overruling the demurrer as to the second and fourth causes of action for fraud and unjust enrichment, and sustaining the demurrer to the third cause of action for constructive trust with leave to amend on the basis that it might be an available remedy but is not a cause of action.

            On August 14, 2023, Plaintiff filed his Second Amended Complaint (“SAC”). This document abandons the two causes of action (fraud and unjust enrichment) which the court permitted to proceed. Instead, the SAC offers a single cause of action for constructive trust, which this court expressly held was a remedy, not a cause of action. See Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4^th 1018, 1023 fn.3. Plaintiff offers no explanation for his choice to proceed in this manner.

            To this, Defendant Golden Valley naturally demurs. And since nothing has occurred to change this court’s analysis, the court must sustain the demurrer. However, for the same reason, the court must find a probability that Plaintiff can state a viable cause of action – he has already done so once. Therefore, the court must offer Plaintiff, yet again, leave to amend.

Conclusion

            Constructive trust is not a cause of action. It is a remedy that requires a viable cause of action to impose. Plaintiff’s SAC pleads no other cause of action. Nevertheless, a prior pleading of his did successfully plead causes of action for fraud and unjust enrichment.

            Therefore, the demurrer is SUSTAINED, with 10 days leave to amend.

(2)       Motion to Strike

            Defendant Golden Valley now moves this court for an order striking portions of the SAC. That motion is TAKEN OFF-CALENDAR as MOOT.