Judge Christian R. Gullon, Case Number: 22PSCV00580, Date: 2023-09-20 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV00580, Date: 2023-09-20 Tentative Ruling

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CROSS-DEFENDANT WENDY LIN’S DEMURRER TO BO SUN’S VERIFIED FIRST AMENDED CROSS-COMPLAINT is TBD; court is inclined to ask for supplemental briefing as to the SOL issue.

This is a quiet title action stemming from a 2007 arbitration agreement in cases BC330493 and BC335624.

On June 14, 2022, Plaintiff Wendy Lin (“Lin” or “Plaintiff”) filed the complaint against BO SUN, an individual (“Sun” or “Defendant”); ALL PERSONS UNKNOWN, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in this Complaint Adverse to Plaintiff’s title, or any Cloud upon Plaintiff’s Title Thereto; and DOES 1 through 20, inclusive for:

On August 24, 2022, Defendant filed a Demurrer, which on October 4, 2022 the court sustained with leave to amend.

On December 5, 2022, Plaintiff filed a FAC for 1. Breach Of Fiduciary Duty 2. Quiet Title 3. Fraud 4. Declaratory Relief 5. Injunctive Relief 6. Unjust Enrichment/ Constructive Trust 7. Quantum Meruit.

On January 12, 2023 Defendant filed its demurrer to the FAC, which on 2/28/23 the court sustained with leave to amend as to the fraud and quiet title causes of action, and overruled as to the others.

On June 14, 2023, the parties filed a stipulation for leave for Plaintiff to file a proposed third amended complaint (TAC). That same day, Plaintiff filed a TAC, alleging the following COAs:

On August 3, 2023, Defendant filed a demurrer and motion to strike (MTS) to the TAC, which the court (on 9/20/23) sustained in its entirety without leave to amend, meaning that the 2^nd and 3^rd COAs were stricken. According to the minute order, Defendant was given until October 20, 2023 to file a responsive pleading.

On October 24, 2023, Defendant filed his answer along with a cross-complaint (CC) against Plaintiff Wendy[1] for:

On November 21, 2023, Plaintiff filed a demurrer to the CC, which on 1/9/24, the court sustained with leave to amend.

At the outset, it appears that only the 16482 Monte Cristo property is at issue in this CC. (See CC p. 4:7-14.)

The CC alleges that Plaintiff transferred her interest in the 16485 Monte Cristo property to Defendant and that the 12368 Valley property sold, and Plaintiff’s share of net proceeds was directly paid to Defendant. That leaves the 16482 Monte Cristo property at issue wherein Defendant alleges that despite the court determining that both have a 50% ownership interest in the property, “Plaintiff never transferred the 50% ownership interest in 16482 Monte Cristo to [Defendant]” (CC ¶14) and based thereon an actual controversy exists as to the “legal title of 16482 Monte Cristo.” (¶16; see also 3^rd COA for partition focuses on the 16482 Monte Cristo property.)

Thus, it is unclear why the demurrer references the 16485 Monte Cristo property. (See demurrer p. 4:5-6; p. 7:3-5.) Accordingly, any arguments referencing the 16485 Monte Cristo property will be disregarded.

1. Defendant did not file a petition to confirm the arbitration award within 4 years after the award was entered (Demurrer p. 4:7-10; p. 6:25-26)[2]

2. The CC is barred by the statute of limitations (SOL) because he failed to file this action more than 16 years after the 2007 arbitration judgment, and he has failed to allege any facts to demonstrate his inability to use due diligence and to claim ownership of the 16482 Property (Demurrer p. 6:21-27; Reply pp. 2-6.)

To enforce an arbitral award under the CAA, a petition to confirm must be filed no earlier than ten days after, but not later than four years from, the date of service of a signed copy of the award on the petitioner (Cal. Civ. Proc. Code §§ 1288, 1288.4).

In Opposition, Defendant maintains that as alleged in paragraph 5 in the complaint, on April 17, 2007, a judgment confirming an arbitration award was entered by a Los Angeles County Court in the case entitled Lin v. Sun, et al., case number BC330493, together with a consolidated case number BC335624.

Indeed, according to Ex. 1 found in the request for judicial notice (RJN), the arbitration award was issued on 2/23/2007 and confirmed by the court on 4/27/2007. The Reply is silent as this argument.

Therefore, the court OVERRULES the demurrer as it relates to the first argument.

Plaintiff conclusively argues that the quiet title COA is barred by the three-year SOL governing fraud or mistake. (Demurrer p. 8, citing to Salazar v. Thomas (2015) 236 Cal.App.4th 467.)

While the Reply may offer an elaboration such as that Defendant was “well aware of the ownership interest in the property in 2007 at the time of the arbitration judgment and in 2010/2011 when the other Monte Cristo property was sold and distributed,” raising new arguments in a reply is impermissible.

That said, the court is somewhat persuaded that the basis of the CC may be time barred. In fact, it appears Defendant concedes that he knows he’s been an equitable title holder since the 2007 arbitration judgment. For example, Defendant avers that “[t]here is no [SOL] problem here because [Defendant] had an equitable claim on 16482 Monte Cristo dating back to April 27, 2007” (Opp. p. 3:27-28, italics added) or that he “never had reason to believe that he had a title problem…because it had been awarded to him in the arbitration award” (Opp. p. 3:23-25, italics added.).[5] To the extent that Defendant is arguing that Plaintiff has been obstructing Defendant’s efforts from obtaining legal title from the get-go (Opp. p. 4:1-3) because Plaintiff “never placed [Defendant’s] name on the title” (Opp. p. 3:20-21), then Defendant has, contrary to his assertion, been aware of the problem since 2007.

With that, the court is inclined to allow for supplemental briefing as to whether the CC is time-barred.

[1] Though by the cross-complaint the plaintiff is also deemed a cross-defendant, for clarity purposes, the court will continue to refer to Wendy as Plaintiff.

[2] The majority of the demurrer is as to this issue and then the Reply pivots to focus more on the SOL issue.

[3] Plaintiff conclusively sets forth this argument thus it is unclear what element Defendant hasn’t pled. Therefore, the court will not address this argument. In any event, the partition COA is derivative of the quiet title COA.

[4] This argument is also unclear in that Plaintiff’s own complaint is based upon the same arbitration award. Thus, for Plaintiff to argue that a petition to confirm the arbitration award was not filed would, presumably, render her own claims meritless.

[5] And if Defendant is a title holder, then a declaratory COA appears moot.