Judge: George F. Bird, Jr., Case: 22CMCV00193, Date: 2023-02-07 Tentative Ruling

“INSTRUCTIONS:
If the parties wish to submit on the tentative ruling and avoid a court
appearance on the matter, the moving party must:

1. Contact the opposing party and all other
parties who have appeared in the action and confirm that each will submit on the
tentative ruling.

2. No later than 4:00 p.m. on the court day
before the hearing, call the Courtroom (310-761-4302) advising that all parties
will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all
parties entitled to receive service.

If this procedure is followed, when the case is
called the Court will enter its ruling on the motion in accordance with its
tentative ruling. If any party declines to submit on the tentative ruling, then
no telephone call is necessary, and all parties should appear at the hearing.
If there is neither a telephone call nor an appearance, then the matter may
either be taken off calendar or ruled on. 

Case Number: 22CMCV00193    Hearing Date: February 7, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

            The First Amended Complaint (“FAC”), filed on October 19, 2022, by Plaintiff Gregorio Rodriguez (“Plaintiff”) alleges that Defendant Filiberta Flores (“Defendant”) and Plaintiff were cohabitating as boyfriend and girlfriend when Defendant falsely accused Plaintiff of abusing the couple’s daughter, Carolina Rodriguez. (FAC, ¶ 7.) Plaintiff alleges that Defendant sought a restraining order and forced Plaintiff to vacate the property located at 1358 East Glencoe Street, Compton, California 90221 (the “Property”). (Ibid.) Title to the Property is held solely by Defendant. (FAC, ¶ 8.)

            Though the restraining order was dismissed, Plaintiff remains dispossessed from the Property. (FAC, ¶ 7.) Plaintiff alleges he invested significant amounts into improvements in the Property. (FAC, ¶ 8.) Plaintiff also alleges that Defendant has transferred funds from a joint bank account holding tax returns to a bank account solely in Defendant’s name. (FAC, ¶ 9.) Defendant allegedly refuses to provide Plaintiff an accounting. (Ibid.) Finally, Plaintiff alleges that when Defendant forced Plaintiff to move out, Defendant dispossessed Plaintiff of approximately $9,000.00 in cash that Defendant kept on the Property. (FAC, ¶ 10.) Plaintiff alleges causes of action for (1) conversion, (2) fraud – misrepresentation, (3) fraud – concealment, (4) common count – money had and received, and (5) declaratory relief.

II.       DEMURRER

A.    Defendant filed the Demurrer on December 20, 2022.

            Defendant’s Demurrer alleges that all of Plaintiff’s causes of action fail to state facts sufficient to state a cause of action under Code of Civil Procedure section 430.10, subdivision (e), and that all of Plaintiff’s causes of action are fatally vague or uncertain under Code of Civil Procedure section 430.10, subdivision (f).

B.     Plaintiff filed the Opposition on January 24, 2023.

            Plaintiff argues that Defendant’s Demurrer is procedurally deficient under California Rules of Court rule 3.1113, subdivision (f), because the memo exceeds 10 pages and does not include a table of contents and table of authorities. (Opposition, p. 5:9-16.) Plaintiff argues that the allegations contained in the FAC are sufficient and support the causes of action alleged. Plaintiff correctly argues that the alternative factual allegations made by Defendant should not be considered on a 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.)

            A party may demurrer to a complaint for being uncertain, but “demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Internal quotations omitted.) (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 [251 Cal.Rptr.3d 423, 439, 38 Cal.App.5th 677, 695], as modified (Aug. 13, 2019).)

IV.       DISCUSSION

A.    Procedural defects.

While California Rules of Court rule 3.1113, subdivision (f), does require that a memo exceeding 10 pages have a table of contents and table of authorities, the Court does not believe this procedural defect warrants disregarding the Demurrer. The Court will excuse this procedural error and continue to decide this matter on the merits.

B.     Conversion.

The elements that a plaintiff must plead to demonstrate a cause of action for conversion are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240 [191 Cal.Rptr.3d 536, 548, 354 P.3d 334, 344].)

The FAC alleges that “plaintiff had a right to possess and enjoy the improvements to real property, cash and bank deposits maintained solely in the name of defendant FILIBERTA FLORES.” (FAC, ¶ 12.) Plaintiff allege that on or about April of 2022, Defendant “substantially interfered with plaintiff's right to possession of the aforementioned improvements to real property, to the cash plaintiff maintained at such real property, and to the bank deposits maintained solely in the name of FILIBERTA FLORES, by knowingly and intentionally depriving plaintiff of the use and enjoyment of such improvements, by depriving plaintiff of access to the cash he maintained on hand at the real property, and by depriving plaintiff of access to any of the bank deposits consisting of plaintiff's tax refunds, all in an approximate sum of at least $169,000.00….” (FAC, ¶ 13.) Plaintiff finally alleges that Plaintiff did not consent to the conversions and that Plaintiff has suffered damages. (FAC, ¶¶ 14, 16.) Plaintiff has made sufficient allegations in the FAC to support a cause of action for conversion.

Defendant argues that the improvements should be classified as gifts and that Plaintiff consented to giving the improvements and sums of money to Defendant. On a demurrer, the Court will only consider the allegations in the FAC, and the Court will take these allegations as true. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318; McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) Because Plaintiff has alleged that he has a right to possess and enjoy the improvements, cash, and tax returns, and Plaintiff alleges he did not consent to the conversion, the Court will not consider the alternative factual contention that these were gifts.

Defendant also argues that this cause of action is time barred by a three-year statute of limitations. “Under Code of Civil Procedure, section 338, subdivision (c), which applies to the conversion of personal property, there is a three-year limitations period for ‘action[s] for taking, detaining, or injuring any goods or chattels.’ Under California law, the general rule is well established: ‘[T]he statute of limitations for conversion is triggered by the act of wrongfully taking property.’ (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1433, 128 Cal.Rptr.2d 31.)” (AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639 [49 Cal.Rptr.3d 493, 499], as modified (Oct. 30, 2006).) Plaintiff alleges that the interference occurred in April of 2022. (FAC, ¶ 13.) Plaintiff promptly commenced this action on June 30, 2022. This action was brought well within the applicable statute of limitations.

Defendant also argues that Plaintiff fails to allege a specific, identifiable sum of money converted and instead only approximates the sum of money converted. The case cited by Defendant, PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, directly contradicts Defendant’s argument by stating, “The California Supreme Court stated, ‘While it is true that money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved [citation], it is not necessary that each coin or bill be earmarked.’ (Haigler v. Donnelly, supra, 18 Cal.2d at p. 681, 117 P.2d 331.) This statement appears to be in conformity with the modern view of the law.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 396 [58 Cal.Rptr.3d 516, 525].)

            Plaintiff need only allege a sum of money capable of identification. Here, the tax returns deposited into the shared account and the funds specifically kept on the Property by Plaintiff are capable of being determined.

            The Demurrer to the cause of action for conversion is OVERRULED.

C.     Fraud – misrepresentation.

“Fraud must be pleaded with specificity, to provide the defendants with the fullest possible details of the charge so they are able to prepare a defense to this serious attack. To withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 781, as modified (June 15, 1994).) The presented facts must demonstrate “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  

The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage." (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)

Plaintiff alleges “At numerous times during the years that plaintiff and defendant FILIBERTA FLORES cohabited, including up until April of 2022, defendant FILIBERTA FLORES made certain representations to plaintiff, including that they together would have use and enjoyment of the real property for which plaintiff expended substantial sums in improvements, and that funds from tax refunds deposited into an account held solely in defendant FILIBERTA FLORES' name remained on deposit for plaintiff's benefit.” (FAC, ¶ 19.) Plaintiff alleges that these representations were false, Defendant knew that the representations were false and intended to induce reliance to Defendant’s detriment, Defendant reasonably relied on the misrepresentations due to Plaintiff and Defendant’s cohabitating relationship, and that Defendant was injured by relying on Plaintiff’s misrepresentations. (FAC, ¶¶ 21, 22, 23, 24, 25, 26.)

These allegations fail to meet the heightened pleading standard for fraud by misrepresentation. Defendant fails to specify exactly when Defendant made the alleged representations. While Plaintiff attempts to narrow the date of the alleged misrepresentations to when Plaintiff and Defendant were cohabitating, this includes a span of 17 years in which Plaintiff and Defendant likely made thousands of representations to each other. Defendant also fails to allege how and by what means the misrepresentations were made.

Defendant argues that the misrepresentations are not actionable because, “The law is well established that actionable misrepresentations must pertain to past or existing material facts. [Citation.] Statements or predictions regarding future events are deemed to be mere opinions which are not actionable. [Citations.]” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 [169 Cal.Rptr.3d 619, 626].) Here, because Plaintiff fails to specifically allege how the misrepresentations were made to Plaintiff, the Court cannot determine if the statements pertain to existing material facts or were truly only predictions regarding future access to the Property, cash, and tax returns.

The Demurrer to the cause of action for fraud – misrepresentation is SUSTAINED.

D.    Fraud – concealment.

“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (CACI 1901 citing Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) Because this cause of action is still based in fraud, the heightened pleading standard still applies.

Plaintiff alleges, “During the time plaintiff and defendant FILIBERTA FLORES were in a cohabiting relationship, defendant FILIBERTA FLORES concealed from plaintiff her true intention to deprive him of the use and enjoyment of real property on which he expended substantial sums of money in improvements, to deprive him of his money that he held on hand at the real property, and to deprive him of the funds from his tax returns.” (FAC, ¶ 28.)

These allegations fail to satisfy the heightened pleading standard for fraud. Plaintiff fails to allege when Defendant made these representations. Though Plaintiff again limits the timeframe to when Plaintiff and Defendant were cohabitating, this timeframe encompasses a 17-year period in which thousands of representations were made between the parties. Plaintiff also fails to allege how and by what means Defendant concealed Defendant’s true intentions. Plaintiff also offers no allegations of any duty which Defendant was under to disclose Defendant’s alleged intentions to Plaintiff.

The Demurrer to the cause of action for fraud – concealment is SUSTAINED.

E.     Common count – money had and received.

“The essential elements of an action for money and/or goods had and received are (1) a statement of indebtedness of a certain sum, (2) the consideration made by the plaintiff, and (3) nonpayment of the debt.” (First Interstate Bank v. State of California (1987) 197 Cal.App.3d 627, 635 [243 Cal.Rptr. 8, 12].) Plaintiff alleges that Defendant “became indebted to plaintiff in the sum of $169,000.00 for money had and received by such defendants, for the use and benefit of plaintiff. Specifically, plaintiff expended funds improving the real property based upon defendant FILIBERTA FLORES’ expressed and implied promise that plaintiff and she would continue to use and enjoy the real property, that plaintiff could safely maintain cash at such property, and that she would continue to hold funds from plaintiff's tax refunds in a bank account held solely in her name, but for plaintiff's and her use.” (FAC, ¶ 36.) Plaintiff alleges that several demands for payment have been made and that Defendant has not paid the outstanding sum of $169,000.00. (FAC, ¶¶ 37, 38.) These allegations are sufficient to plead a cause of action for common count – money had and received.

Defendant argues that Plaintiff has failed to allege the common count for goods and services rendered. The elements of a common count on a theory for money had and received differ from the elements of a common count for goods and services rendered. The arguments by Defendant pertaining to goods and services rendered are not applicable to the claim alleged.

Defendant also argues that the allegations are vague and ambiguous. The Court disagrees. Plaintiff specifies the outstanding debt of $169,000.00 is a result of funds expended improving the Property at issue, cash stored at the Property, and tax refunds. (FAC, ¶ 36.) Plaintiff clearly alleges that Defendant forced Plaintiff to vacate the Property in April of 2022. (FAC, ¶ 7.) The FAC is not incomprehensible so that Plaintiff is unable to respond. The Court finds that the FAC is not uncertain or ambiguous.

The Demurrer to the cause of action for common count – money had and received is OVERRULED.

F.      Declaratory relief.

The elements that a plaintiff must allege to maintain a cause of action for declaratory relief are (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights and obligations of a party. (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546 [211 Cal.Rptr.3d 705, 720, 6 Cal.App.5th 527, 546].)

Plaintiff seeks “a judicial determination of both his rights and responsibilities, as well as those of defendant FILIBERTA FLORES, with reference to the return of the money used for the improvements made in the real property, the cash plaintiff maintained at the real property, and the tax refunds deposited into the bank account held solely in defendant FILIBERTA FLORES' name.” (FAC, ¶ 41.) Defendant argues that the allegations fail to specify an actual controversy between the parties.

An actual controversy does not embrace controversies that are “conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court. [Citation.]” (Lee v. Silveira, supra, 6 Cal.App.5th at p. 546.) The allegations demonstrate that Plaintiff was forced to vacate the Property in April of 2022 and that Plaintiff remains dispossessed of the Property, cash, and tax returns. (FAC, ¶¶ 7, 9.) Plaintiff is not alleging a future harm. Plaintiff is alleging a current, active harm by being dispossessed from the Property, cash, and tax returns that Plaintiff alleges an interest in. Though Defendant argues there is simply a difference of opinion between the parties, a demurrer is not the proper motion to consider competing factual arguments. The allegations in the FAC are assumed to be true and the court simply weighs if the allegations provided demonstrate a cause of action. Plaintiff has demonstrated a cause of action for declaratory relief.

While Defendant requests this Court exercise its discretionary power and deny declaratory relief, the Court declines to do so. Because the parties disagree about the statute of the improvements to the Property, the cash, and the tax returns, the Court finds that declaratory relief about the parties’ rights in these items goes to the core of the dispute and Plaintiff should be entitled to pursue this remedy.

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

G.    Leave to amend.

“Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d.) Because the fraud causes of action fail for lack of specificity, the Court finds that amendment may cure the defects.

Plaintiff will be granted leave to amend the causes of action for fraud.

V.       CONCLUSION

             The Demurrer is OVERRULED as to the causes of action for conversion, common court – money had and received, and declaratory relief.

            The Demurrer is SUSTAINED as to the causes of action for fraud – misrepresentation and fraud – concealment. Plaintiff is granted 20 days leave to amend these causes of action.

Dated: February 7, 2023                                             __________________________________

                                                                                                Judge of the Superior Court