Judge: Douglas W. Stern, Case: 22STCV21494, Date: 2022-12-13 Tentative Ruling
Case Number: 22STCV21494 Hearing Date: December 13, 2022 Dept: 68
Anthony Ross vs. Lee Drasin, Case No. 22 STCV21494
MOTION: Demurrer to Complaint
Plaintiff and Defendant purchased a property together in 2003. The relationship between the parties has ended long ago. Plaintiff now seeks to end that real estate relationship and the economic ties that remain. This action was filed by Plaintiff on July 1, 2022. Plaintiff alleges three causes of action; (1) partition; (2) accounting; and (3) constructive trust. Defendant filed this Demurrer on October 27, 2022, challenging the validity of the third cause of action for constructive trust on the ground that a constructive trust is a remedy, not a cause of action. Plaintiff has not filed any opposition to the Demurrer.
“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
Third Cause of Action for Constructive Trust
Defendant argues that Plaintiff has failed to state facts sufficient to maintain a cause of action against Defendant for constructive trust. A constructive trust is not a cause of action; it is a remedy. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 277, fn. 4; American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485 (constructive trust is not a substantive claim for relief).)
““A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.]” (Communist Party v. 522 Valencia, Inc.(1995) 35 Cal.App.4th 980, 990 [41 Cal.Rptr.2d 618].) Imposition of “[a] constructive trust is an equitable remedy to compel the transfer of property by one who is not justly entitled to it to one who is. [Citation.]” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332 [96 Cal.Rptr.3d 813]; accord, Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 457 [61 Cal.Rptr.2d 707].) It is not “a substantive claim for relief.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 398, [58 Cal.Rptr.3d 516]; see Embarcadero Mun. Improvement Dist. v. County of Santa Barbara (2001) 88 Cal.App.4th 781, 793, 107 Cal.Rptr.2d 6 [“[a] constructive trust is not a substantive device but merely a remedy...”].) The issue of whether to impose a constructive trust is an equitable issue for the court. (See Fowler v. Fowler (1964) 227 Cal.App.2d 741, 747 [39 Cal.Rptr. 101] [“it is for the trial court to decide whether” the plaintiff has proven entitlement to a constructive trust].) The trial court erred by submitting the issue of whether to impose a constructive trust to the jury.” American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485 [171 Cal.Rptr.3d 548, 575], as modified (May 27, 2014)
The Court admits that it does not understand Defendant to claim that the remedy of a constructive trust is not proper should Plaintiff prove the allegations of the Complaint, as no such assertion is made by Defendant. Thus, all that appears to be accomplished by this demurrer is to remove the heading “Third Cause of Action” and “Constructive Trust and Appointment of a Receiver” but otherwise allow Plaintiff to include the allegations in paragraphs 32-34 and the prayer for those remedies listed in the Prayer, paragraphs 10-14.
Assuming that the Court has understood the Demurrer, it is SUSTAINED with 20 days leave to amend to merely remove the labels to the Third Cause of Action and continue to plead the same facts and Prayer for the relief of constructive trust and appointment of a receiver.