Judge: George F. Bird, Jr., Case: 22CMCV00154, Date: 2023-02-02 Tentative Ruling

Case Number: 22CMCV00154    Hearing Date: February 2, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

            The Third Amended Complaint (“TAC”) alleges that Hazel Anderson (“Defendant”) breached a contract with Cheryl Manuel (“Plaintiff”) wherein Defendant allegedly agreed Plaintiff would own residential real property located at 216 E 136^th St., Los Angeles, CA 90061 (the “Property”) during Plaintiff’s lifetime. In 2014, Plaintiff alleges that Defendant encouraged Plaintiff to “find a house that you like.” (TAC, ¶ 3.) Defendant purchased the Property on December 24, 2014, and Plaintiff moved in that same day. (TAC, ¶ 4.) Plaintiff undertook several renovations to the Property during the eight years Plaintiff resided there. (Ibid.) Plaintiff alleges she paid the initial property taxes, property insurance, and has paid the mortgage. (TAC, ¶  8.)

            Defendant allegedly breached the agreement between the parties by giving Plaintiff a notice by email on April 10, 2022, stating Defendant intended to sell the Property. (TAC, ¶ 7.) In May of 2022, Plaintiff states she received a 30-Day Termination of Tenancy notice. (Ibid.)

            Plaintiff alleges claims for: (1) breach of contract, (2) promissory estoppel, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) unjust enrichment. The caption lists the final cause of action as (6) injunctive relief, but the body of the TAC requests declaratory relief as cause of action six. The Court will analyze cause of action six as a request for declaratory relief.

II.       DEMURRER

A.    Demurrer filed December 27, 2022.

Defendant makes a general demurrer to all causes of action for failure to state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10, subdivision (e). Defendant then specifically objects to each element of each cause of action. Defendant’s main argument is that there is no legally valid contract between Plaintiff and Defendant because Civil Code section 1624, subdivision (a)(3) requires agreements concerning an interest in real property to be evidenced by a signed writing, which Plaintiff has not presented. 

B.     Opposition filed January 6, 2023.

Plaintiff generally argues that the allegations in the SAC are sufficient because they appraise Defendant of the factual basis for the claims made. Plaintiff argues that the part performance exception to the signed writing requirement of Civil Code section 1624 is applicable here, thus the court should overrule the demurrer.

III.       LEGAL STANDARDS

            A demurrer tests the legal sufficiency of the factual allegations in the complaint. (K.G. v. S.B. (2020) 46 Cal.App.5th 625, 630.) “The purpose of a demurrer is to test whether, as a matter of law, the properly pleaded facts in the complaint state a cause of action under any legal theory.” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 516.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint in favor of plaintiff. (Code Civ. Proc., § 452; See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

            The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178; See also Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) For a statutory violation, “facts in support of each of the requirements of a statute” must be “specifically pled,” and simply “parroting the language” of a statute is insufficient to survive a demurrer. (Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 477-478.)

            When a demurrer is based on grounds that the complaint fails to allege a cause of action, “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [77 Cal.Rptr.2d 709, 715, 960 P.2d 513, 519], as modified (Sept. 23, 1998).) Because a demurrer tests the legal sufficiency of a pleading, the plaintiff must show that the pleading alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) Where the pleading fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10, subd. (e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

IV.       DISCUSSION

A.    1^st Cause of Action for Breach of Contract

            The essential elements to be pleaded in an action for breach of contract are (1) the existence of the contract; (2) the plaintiff's performance of the contract or excuse for nonperformance; (3) the defendant's breach; and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Defendant argues that element one, the existence of the contract, is not demonstrated because, “An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein” is “invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent.” (Cal. Civ. Code, § 1624, subd. (a)(3).)

            Plaintiff alleges that the agreement between the parties is an oral agreement that is evidenced by several writings including a handwritten memo and an excerpt of the Hazel R. Anderson Living Trust. (TAC, ¶ 6.) Because the alleged agreement is oral, Plaintiff argues the part performance exception to the writing and signature requirement of Civil Code section 1624 applies. “Under the doctrine of part performance, the oral agreement for the transfer of an interest in real property is enforced when the buyer has taken possession of the property and either makes a full or partial payment of the purchase price, or makes valuable and substantial improvements on the property, in reliance on the oral agreement.” (Sutton v. Warner (1993) 12 Cal.App.4th 415, 422.)

            Plaintiff alleges that she moved into the Property the day escrow closed and Plaintiff has lived at the Property for eight consecutive years. (TAC, ¶¶ 4, 7.) Plaintiff alleges she made several valuable improvements to the Property including “installing a reliable security system, demolishing the work bench in the garage, I had the interior of the garage dry walled, and painted white, installed new carpet in the middle bedroom and the den, installed ceramic tile in the living room, dining room, both hallways, the kitchen, along with many other home improvements.” (TAC. ¶ 4.) Plaintiff also alleges she “paid the initial property taxes,

property insurance, and paid the mortgage with the belief she's investing in the property.” (TAC, ¶ 8.) Such allegations are sufficient that, if proven at trial, would allow Plaintiff to use the partial performance exception to of Civil Code section 1624. Plaintiff has properly alleged a valid oral agreement.

            Plaintiff explicitly states that Defendant failed to fulfill her promise by listing the Property for sale and giving Plaintiff a 30-Day Termination of Tenancy notice. (TAC, ¶ 9.) Plaintiff alleges that she performed under the agreement by living at the Property, making improvements, and paying the mortgage. (TAC, ¶ 10.)

            The part performance exception is limited to equitable relief and Plaintiff properly seeks an equitable remedy of specific performance of the oral agreement. (See Restatement (Second) of Contracts, § 129 (1981).)

            The Demurrer to the 1^st cause of action for breach of contract is OVERRULED.

B.     2^nd Cause of Action for Promissory Estoppel

            A cause of action for promissory estoppel must provide a “promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 242 citing C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 6.) The elements are commonly expressed as (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416, as modified (Apr. 29, 2015).) Once Plaintiff makes this showing, the promise becomes “binding if injustice can be avoided only by enforcement of the promise.” (Douglas E. Barnhart, Inc, supra, 211 Cal.App.4th at 416.)

            Defendant only argues that Plaintiff does not allege a promise because the writings presented to evidence the contract are legally invalid under Civil Code section 1624, subdivision (a)(3). Defendant incorrectly interprets promissory estoppel to require a valid contract. “The doctrine of promissory estoppel is not premised upon the existence of an enforceable contract” but is an “alternative theory of recovery that enforces promises because the promisee has justifiably and foreseeably relied on the promise and equity demands enforcement to avoid injustice.” (Douglas E. Barnhart, Inc, supra, 211 Cal.App.4th at p. 416.)

            As analyzed above, Plaintiff does allege an oral agreement between the parties evidenced by Defendant’s oral statement “find a house that you like,” a handwritten memo allegedly written by Defendant, and an excerpt from the of the Hazel R. Anderson Living Trust. (TAC, ¶ 6.) The promise is clearly and unambiguously alleged by Plaintiff; Defendant “gave the 136th Street residence to MANUEL to live in for the rest of MANUEL'S life - that the 136th Street residence is granted to MANUEL as a life estate for the rest of her life.” (TAC, ¶ 15.) Plaintiff alleges that Defendant knew or should have known that this promise would “encourage[] MANUEL to occupy, upgrade, improve, provide care, maintenance, upkeep, and to make mortgage payments, [and] to investment …” in the Property. (TAC, ¶ 16.) Plaintiff alleges she did rely on the promise and that Plaintiff was harmed by the reliance. (TAC, ¶ 17.) Plaintiff also seeks a proper remedy of specific performance of the oral agreement. (TAC, ¶ 40(B)(2).)

            The Demurrer to the 2^nd cause of action for promissory estoppel is OVERRULED.

C.     3^rd Cause of Action for Intentional Infliction of Emotional Distress

            The essential elements to be pleaded for a claim of intentional infliction of emotional distress are (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

            Defendant alleges that Plaintiff fails to point to any outrageous conduct by Defendant. For conduct to be considered outrageous it “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Ibid.) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1122, as modified on denial of reh'g (Dec. 1, 1988).) But liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Id. at 1121.)

            Plaintiff alleges that Defendant, her mother, abused her position by taking advantage of Plaintiff’s love for Defendant, and taking advantage of Defendant’s “far superior financial position” over Plaintiff, when Defendant failed to abide by their oral agreement, sent Plaintiff a notice by email on April 10, 2022, stating Defendant intended to sell the Property, and when Defendant sent a 30-Day Termination of Tenancy notice. (TAC, ¶¶ 7, 25.) Plaintiff also alleges that on April 14, 2022, Defendant sent potential buyers and real estate brokers to the Property, where Plaintiff was residing, which left Plaintiff feeling helpless and humiliated in front of her neighbors. (TAC, ¶ 22.)

            In a typical landlord/tenant situation, when the tenant remains in possession of the property and the landlord accepts monthly rent, the landlord/tenant relationship is deemed a month-to-month tenancy and the landlord is only required to give a 30-day advance notice of termination to evict the tenant. (Cal. Civ. Code, §§ 1945, 1946.) The Court does not find serving a 30-day notice, on its own, to be extreme or outrageous conduct.

            The Court does, however, find the allegations that Defendant abused her position over Plaintiff by sending a notice of intent to sell and a 30-Day Termination of Tenancy notice, in violation of the oral agreement, and sending potential buyers and real estate brokers to the Property are sufficient allegations of an abuse of relation and position to constitute outrageous conduct. (TAC, ¶ 22.)

            Plaintiff alleges that Defendant “authorized and ratified the conduct with full knowledge and intent to cause to Plaintiff emotional and physical distress, with a wanton and reckless disregard for the deleterious consequences to Plaintiff.” (TAC, ¶ 21.) Plaintiff alleges that she has suffered and continues to suffer “significant emotional distress, physical distress, mental anguish, humiliation as a result of the property being listed for sale on the internet, subsequent inquiries by concerned neighbors, injury to mind and body, in a sum to be proven at time of trial, and loss of pay.” (TAC, ¶ 22.) Plaintiff also argues that she is suffering severe emotional distress stemming from the fear of homelessness, including “loss of appetite, unable to hold food, anxiety, massive headaches, and severe insomnia.” (TAC, ¶ 17.) Plaintiff has sufficiently alleged a cause of action for intentional infliction of emotional distress.

            The Demurrer to the 3^rd cause of action for intentional infliction of emotional distress is OVERRULED.

D.    4^th Cause of Action for Negligent Infliction of Emotional Distress

            “The doctrine of negligent infliction of emotional distress is not a separate tort or cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed.” (CACI 1620; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928.) Because the recovery is based on negligence, the traditional elements of duty, breach, causation, and damages apply. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.)

            “Damages for severe emotional distress, rather, are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590 [257 Cal.Rptr. 98, 770 P.2d 278].) Plaintiff alleges that Defendant owed Plaintiff a duty of care based on the oral agreement, special relationship of mother and daughter, and a duty based on Defendant’s superior financial situation to Plaintiff. (TAC, ¶ 22.) The allegations are sufficient to demonstrate a relationship between the parties and a duty owed between them.

            To sustain a claim for negligent infliction of emotional distress, the distress alleged must be severe. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1079.) The California Supreme Court set a high bar for pleading severe emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) The bar for severe emotional distress is distress that “no reasonable person in civilized society should be expected to endure.” (Id. at 1050.) In Hughes, plaintiff alleged that a trustee demanded sex if she wanted her request for funds from the trust to be granted. (Ibid.) The California Supreme Court determined that allegations of “discomfort, worry, anxiety, upset stomach, concern, and agitation” were not enough to support a claim for severe emotional distress. (Ibid.)

            Here, Plaintiff claims to be suffering from “stress, anxiety, loss of sleep, loss of appetite, severe emotional distress, mental anguish, loss of time, loss of money, loss of property, severe headaches, and stripped in spirit. Plaintiff suffered humiliation and embarrassment when a neighbor called her while she was in Maryland to inquire why is your house on the market for sale?” (TAC, ¶ 27.) Plaintiff also alleges emotional distress from the fear of homelessness resulting in “loss of appetite, unable to hold food, anxiety, massive headaches, and severe insomnia.” (TAC, ¶ 17.)

            While anxiety and an upset stomach are not sufficient to allege severe emotional distress, as determined by the Supreme Court of California, the additional allegations of humiliation, embarrassment, headaches, and fear of homelessness leading to the inability to hold food and severe insomnia stand out to the Court as sufficiently severe. These allegations go beyond simple discomfort or agitation. Plaintiff alleges that these ailments are a direct result of Defendant’s actions and that Defendant’s “actions were malicious and oppressive. Defendant's breach was such a kind that Defendant should have known that serious emotional anxiety would likely impact Plaintiff.” (TAC, ¶ 28.)

            The Demurrer to the 4^th cause of action for negligent infliction of emotional distress is OVERRULED.

E.     5^th Cause of Action for Unjust Enrichment

            A cause of action for unjust enrichment must provide the “receipt of a benefit and unjust retention of the benefit at the expense of another.” (Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726.) Plaintiff properly alleges a benefit conferred upon Defendant in the form of improvements done to the Property. (TAC, ¶ 4.) Plaintiff alleges that she undertook these improvements under the belief that she had an interest in the Property for her lifetime. (TAC, ¶ 32.) Plaintiff alleges it would be unjust for Defendant to retain the improvements which economically benefit Defendant at Plaintiff’s expense. (TAC, ¶ 33.) Plaintiff properly clarifies that the claim for unjust enrichment is made in the alternative to the contract claims. (See (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388, as modified on denial of reh'g (Feb. 24, 2012) [A cause of action for unjust enrichment is a quasi-contract remedy which a plaintiff may not pursue if the parties have an enforceable contract between them regarding the same subject matter].)

            The Demurrer to the 5^th cause of action for unjust enrichment is OVERRULED.

F.      6^th Cause of Action for Declaratory Relief

            “Any person interested under a written instrument, excluding a will or trust, … contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property… may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.) Plaintiff has requested “a determination and declaration that ANDERSON gave the 136th Street residence to MANUEL to live in for the rest of MANUEL'S life granting to MANUEL as a life estate for the life of MANUEL.” (TAC, ¶ 38.) Defendant argues that Plaintiff has not alleged an actual controversy between the parties.

            To assert a cause of action for declaratory relief, there must be an “actual controversy relating to the legal rights and duties of the respective parties,” not an abstract or academic dispute. (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23.) Here, Plaintiff has alleged a right to remain at the Property under an oral agreement between the parties which allegedly gave Plaintiff a life state in the Property. Defendant contends Plaintiff has no right to remain at the Property. The controversy is not abstract or academic because Defendant has listed the Property for sale, sent potential buyers and real estate brokers to the Property, and served Plaintiff with a 30-Day Termination of Tenancy notice. (TAC, ¶ 7, 22.) There is no abstract dispute here and the determination of the legal status of Plaintiff in relation to the Property addresses the core dispute between the parties.

            Defendant attempts to argue that declaratory relief would require the court to determine rights under a trust. While Plaintiff does offer trust documents to evidence the agreement, the Court is determining rights in the Property allegedly under an oral agreement, not under the trust. Plaintiff only presents the trust documents as evidence of the oral agreement. Plaintiff has properly alleged an actual controversy between the parties and may pursue a claim for declaratory relief.  

            The Demurrer to the 6^th cause of action for declaratory relief is OVERRULED.

V.       CONCLUSION

            The Demurrer is OVERRULED in its entirety.

Dated: February 2, 2023                                             _________________________________

                                                                                                Judge of the Superior Court