Judge: Cherol J. Nellon, Case: 23STCV11682, Date: 2024-01-22 Tentative Ruling
Case Number: 23STCV11682 Hearing Date: January 22, 2024 Dept: 14
Case Background
Plaintiff and Defendant own a piece of property. Plaintiff seeks a partition by sale.
On May 23, 2023, Plaintiff filed his verified Complaint for (1) Breach of Contract, (2) Partition, (3) Quiet Title, and (4) Accounting against Defendants Mohamed Aboselim (“Aboselim”) and DOES 1-10.
On November 6, 2023, Plaintiff filed an “Amendment to Complaint” substituting Defendant Bobby G. Gossai (“Gossai”) in lieu of DOE 1. No proof of service has been filed as to Defendant Gossai.
No trial date has yet been set.
Instant Pleading
Defendant Aboselim now demurs to the entire Complaint on the grounds that it fails to state facts sufficient to support any cause of action.
Decision
Plaintiff’s Objections to the Declaration of Mohamed Aboselim are SUSTAINED. A demurrer is not an evidentiary hearing.
The demurrer to the first and third causes of action is SUSTAINED, with 20 days leave to amend.
The demurrer to the second and fourth cause of action is OVERRULED.
First Cause of Action: Breach of Contract
“’A cause of action for damages for
breach of contract is comprised of the following elements: (1) the contract,
(2) plaintiff's performance or excuse for nonperformance, (3) defendant's
breach, and (4) the resulting damages to plaintiff.’ (Careau & Co. v.
Security Pacific Business Credit, Inc. (1990)
Plaintiff pleads an oral contract to buy the property, develop it, and split the expenses. (Complaint ¶¶ 11-15). The alleged breach is Defendant’s failure to pay his share of expenses. (Complaint ¶¶ 19-22). The alleged damages are at least $45,000.00. (Complaint ¶ 24). However, as Defendant points out, Plaintiff has not expressly pled his own performance.
Furthermore, the nature of the contract raises potential issues as to the statute of frauds. Civil Code § 1624. Plaintiff may wish to consider and address whether the contract is enforceable, given that it was not in writing. In any event, Plaintiff should include more details regarding the terms of the contract, as well as performance.
Second Cause of Action: Partition
Code of Civil Procedure § 872.230 governs the contents of a complaint for partition. It requires:
“(a) A description of the property that is the subject of the action…In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) All interests the plaintiff has or claims in the property.
(c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.
(d) The estate as to which partition is sought and a prayer for partition of the interests therein.
(e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language.”
Plaintiff has met these requirements. The property description appears at paragraph 3 of the Complaint. Plaintiff’s interest appears at paragraph 4, as do other interests of record. The estate is described at paragraph 12 and Exhibit A. Finally, paragraph 28 alleges that the property cannot be equally divided between the parties and therefore must be sold.
The demurrer refers the court to Code of Civil Procedure § 752. But Section 752 was repealed in 1976. It can no longer be applied.
Third Cause of Action: Quiet Title
Code of Civil Procedure § 761.020 governs the contents of a complaint for quiet title. It requires:
“(a) A description of the property that is the subject of the action…In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.
(c) The adverse claims to the title of the plaintiff against which a determination is sought.
(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.
(e) A prayer for the determination of the title of the plaintiff against the adverse claims.”
Here, Plaintiff has not alleged any adverse claims to title. Plaintiff claims 50%, and concedes Defendant Aboselim’s ownership of 50%. The complaint does not describe any dispute or adverse claims to adjudicate. The court cannot “quiet” title unless there is a dispute about title.
Fourth Cause of Action: Accounting
“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and 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.
“The right to an accounting is derivative and depends on the validity of a plaintiff's underlying claims.” Duggal v. G.E. Capital Communications Services, Inc. (2000) 81 Cal.App.4th 81, 95.
The parties share ownership of the same property, which Plaintiff seeks to partition. Plaintiff alleges that the property has expenses to which Defendant has not contributed. That is sufficient to state a claim for an accounting, which will assist in determining the final payment to which each party is entitled.
Conclusion
Plaintiff has not yet clearly and completely pled a claim for breach of contract, or for quiet title. However, Plaintiff has fulfilled the pleading requirements for partition, and a derivative accounting action. Therefore, the demurrer to the first and third causes of action is SUSTAINED, with 20 days leave to amend, and the demurrer to the second and fourth cause of action is OVERRULED.