Judge: John J. Kralik, Case: 23BBCV00638, Date: 2024-02-23 Tentative Ruling
Case Number: 23BBCV00638 Hearing Date: February 23, 2024 Dept: NCB
North Central District
VAHE BONOUGHOUNIAN DBA AUTO OUTLET, Plaintiff, v. ROBERT WAYNE COLLINS, et al., Defendants.
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Case No.: 23BBCV00638 Hearing Date: February 23, 2024 [TENTATIVE] ORDER RE: DEMURRER; MOTION TO STRIKE |
BACKGROUND
A. Allegations
Plaintiff Vahe Bonoughounian dba Auto Outlet (“Plaintiff”) alleges that on August 26, 2022, he entered into a Motor Vehicle Sale by Transfer of Title agreement with Defendants Robert Wayne Collins and Michael Robert Collins. He alleges that he paid Michael Robert Collins $28,600 by negotiable instrument and Michael Robert Collins delivered to Plaintiff the keys and possession of a 2019 Chevrolet Colorado model pick-up truck and a written Certificate of Title, executed by Defendants. Plaintiff alleges that Robert Wayne Collins complained to the Simi Valley Police Department that his son, Michael Robert Collins, sold the vehicle without his consent, disavowing the sale and causing the police to seize the vehicle from Plaintiff. Plaintiff seeks a return of the vehicle or a full monetary refund.
The complaint, filed March 21, 2023, alleges causes of action for: (1) breach of contract; (2) common counts; (3) fraud; (4) intentional tort; and (5) exemplary damages.
B. Cross-Complaint
On December 20, 2023, Michael Collins (a self-represented litigant) filed a first amended cross-complaint (“FAXC”) against Robert Collins for: (1) breach of oral agreement; (2) specific performance; (3) declaratory judgment; (4) unlawful eviction; (5) claim and delivery; (6) conversion; and (7) unjust enrichment.
Michael Collins alleges that in 2002, the parties entered an oral agreement whereby Robert Wayne Collins would purchase the property located at 6913 White Oak Ave. in Reseda under his name in order to obtain a low-interest rate for Michael Collins’s exclusive benefit, while Michael Collins would renovate the property and eventually have the property title registered under his own name. (FAXC, ¶¶12-15.) Michael Collins alleges that he made the down payment on the property, the monthly mortgage payments, and performed all the repairs and improvements. (Id., ¶17.) Michael Collins alleges that in 2005, he requested that Robert Wayne Collins list the property for sale in order to liquidate the $300,000 equity that had accrued; the parties stipulated that the property would not be sold for a price less than its market value of $500,000. (Id., ¶¶18-20.) Michael Collins alleges that the property was sold, but Robert Wayne Collins did not provide the proceeds of the sale to Michael Collins as expected. (Id., ¶21.) To avoid a lawsuit, they executed an oral agreement that the proceeds would be deposited in Robert Wayne Collins’ retirement account and/or other financial accounts and Michael Collins was to be designated as the sole beneficiary. (Id., ¶¶22-23.) In 2019, Michael Collins and Robert Wayne Collins lived together and procured a used truck from the sale of the property held in trust by Robert Wayne Collins, but the truck had issues and so it was sold in April 2019 for $6,000. (Id., ¶¶24-27.) The proceeds from the sale were used by Michael Collins to purchase a new 2019 Chevy Colorado Z71 truck, but Robert Wayne Collins’ name was on the registration because he chose to finance his portion of the purchase instead of paying cash like Michael Collins. (Id., ¶¶27-29.) Michael Collins’ name was added as the registered owner on the new title and Michael Collins took possession of the vehicle. (Id., ¶¶30-31.) Michael Collins alleges that he was terminated from his employment and attempted to sell the truck to Plaintiff around August 29, 2022, he and his father had a dispute, and Robert Wayne Collins told Michael Collins that he could no longer reside at the property. (Id., ¶¶32-36.) Michael Collins alleges that he attempted to retrieve his personal property, but Robert Wayne Collins threatened to call the police, such that he has been deprived of $40,000 of his possession. (Id., ¶38.) Michael Collins alleges that he attempted to sell the truck, but the transaction was nullified due to seizure of the vehicle by the police department, which was caused by Robert Wayne Collins’ report on August 30, 2022. (Id., ¶¶42-43.)
C. Motions on Calendar
On January 24, 2024, Defendant/Cross-Defendant Robert Wayne Collins filed a demurrer to the FAXC. Concurrently, Robert Wayne Collins filed a motion to strike portions of the FAXC.
The Court is not in receipt of an opposition brief.
REQUEST FOR JUDICIAL NOTICE
With the moving papers, Robert Wayne Collins requests judicial notice of: (1) Plaintiff’s complaint filed in this action; and (2) Michael Collins’ original cross-complaint. The request is granted. (Evid. Code, § 452(d).)
DISCUSSION RE DEMURRER
Robert Wayne Collins demurs to the 1st to 7th causes of action alleged in Michael Collins’ FAXC on the grounds that they fail to state sufficient facts and are uncertain.
A. 1st cause of action for breach of oral agreement
The essential elements of a cause of action for breach of contract are: “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
In the FAXC, Michael Collins alleges that an oral contract to set up an account for proceeds from a real property sale upon Robert Wayne Collins’ death was made. (FAXC, ¶5.) In the 1st cause of action, Michael Collins alleges that in 2008, he and Robert Wayne Collins entered into an oral agreement whereby they stipulated that the proceeds from the sale of the real property would be deposited into Robert Wayne Collins’ IRA and financial accounts with Michael Collins as the sole beneficiary. (Id., ¶¶51-53.) Michael Collins alleges that Robert Wayne Collins also agreed to establish an account to make funds available to Michael Collins to withdraw as needed. (Id., ¶54.) Michael Collins alleges that he performed all conditions, but Robert Wayne Collins breached the oral contract by falsely reporting to the police that Michael Collins had withdrawn funds without permission, refusing the provide proof that the proceeds from the sale of the real property were deposited, and because “[t]hese accounts list Cross-Complainant as the sole beneficiary with transfer on death payment terms.” (Id., ¶¶55-56.)
In the general allegations, Michael Collins alleges oral agreements that occurred in 2002, possibly in 2005, and possibly in 2019. The 1st cause of action describes a different oral agreement. It is unclear what the terms of the oral agreement are and what Michael Collins was required to perform. In other words, Michael Collins has not alleged the element of “consideration,” which is a foundational element of whether a contract even existed in the first place. To the extent that the 1st cause of action is based solely on a 2008 oral agreement, the terms of the agreement have not been adequately pled and are uncertain.
The demurrer to the 1st cause of action is sustained. The Court will allow Michael Collins an opportunity to amend the 1st cause of action.
B. 2nd cause of action for specific performance
“Specific performance of a contract may be decreed whenever: (1) its terms are sufficiently definite; (2) consideration is adequate; (3) there is substantial similarity of the requested performance to the contractual terms; (4) there is mutuality of remedies; and (5) plaintiff's legal remedy is inadequate.” (Union Oil Co. of California v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 134.)
In the 2nd cause of action, Michael Collins alleges that in May 2019, Robert Wayne Collins promised to pay the difference for a new truck if Michael Collins traded in his old one. (FAXC, ¶59.) Michael Collins alleges that he relied on this promise and sold his truck for $6,000 and use the amount to buy a new truck, and Robert Wayne Collins paid the remaining balance through an installment agreement with the dealership. (Id., ¶¶60-61.) He alleges that because Robert Wayne Collins financed his portion of the balance, the dealership registered the vehicle in his father’s name instead of his own name. (Id., ¶62.) Michael Collins alleges that he sold the vehicle, but the sale was nullified because Robert Wayne Collins falsely reported to law enforcement that Michael Collins had sold the vehicle without his permission. (Id., ¶¶63-64.) Michael Collins alleges that the purchase of the vehicle by Robert Wayne Collins was intended as a non-revocable gift. (Id., ¶65.) He seeks specific performance to enforce the law, fulfill the original agreement, obtain Robert Wayne Collins’ acknowledgement that he has no ownership interest in the vehicle, and transfer the vehicle’s registration into his name. (Id., ¶¶66-68.)
The allegations of the 2nd cause of action are lacking in facts. It is unclear what the nature or material terms of the agreement are. It is unclear if this particular agreement regarding the new truck was oral or written. The allegations also fail to allege consideration as an element of forming a contract. Rather, Michael Collins alleges that Robert Wayne Collins intended to cover the remaining balance of the new truck as a “gift.” As Michael Collins has alleged that this was a gift, he has not alleged that a contract exists as the element of consideration is lacking. (See Civ. Code, § 1146 [“A gift is a transfer of personal property, made voluntarily, and without consideration.”].) Finally, for specific performance, Michael Collins must allege that a legal remedy is inadequate. However, he alleges in the prayer for damages for the 2nd cause of action that he be transferred title and that he be paid the value of the vehicle. (FAXC, at p.18.)
Thus, by his own allegations, the cause of action for specific performance fails. As such, the demurrer to the 2nd cause of action is sustained without leave to amend.
C. 3rd cause of action for declaratory judgment
“Any person interested under a written instrument … or under a contract, or … 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 … 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.” (CCP §1060.) Declaratory relief is allowed if the seeking party presents two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) “Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs” and is a remedy in the interests of “... preventative justice, to declare rights rather than execute them.” (Id.; Babb v. Superior Court (1971) 3 Cal.3d 841, 848.)
In the 3rd cause of action, Michael Collins seeks a judicial determination regarding the parties’ respective rights and duties concerning the vehicle. (FAXC, ¶77.) Specifically, Michael Collins asserts that Robert Wayne Collins’ purchase of the vehicle was a gift and cannot be revoked. (Id., ¶78.)
Here, Michael Collins has not alleged what written instrument or contract he seeks declaratory relief. At most, he alleges that he argues that Robert Wayne Collins offered to pay the remainder of a balance for a new truck as a gift, but this appears to be an oral statement. As such, the subject matter of Michael Collins’ claim in the 3rd cause of action is not proper.
The demurrer to the 3rd cause of action is sustained without leave to amend.
D. 4th cause of action for unlawful eviction
In the 4th cause of action, Michael Collins alleges that Robert Wayne Collins unlawfully evicted him from the premises located at 3708 Martz Street in Simi Valley on August 5, 2022. (FAXC, ¶82.) He alleges that he has been a lawful tenant for 1.5 years, but was informed by Robert Wayne Collins that he would be locked out and not allowed to reside at the premises. (Id., ¶¶83-84.) He alleges that he has been unable to retrieve his personal property. (Id., ¶86.)
“A tenant who is wrongfully evicted by his landlord before the expiration of the lease term may maintain a wrongful eviction action for tort damages and punitive damages, if appropriate.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 294.)
Here, there are no terms regarding whether Michael Collins was a tenant paying rent to his father for use of the premises. At one point, Michael Collins alleges that he was making mortgage payments for the real property located at 6913 White Oak Avenue, but that property was sold. (FAXC, ¶¶12, 17, 21.) It appears that Michael Collins then moved in with his father, but there are no allegations that there was any lease agreement to reside at his father’s house in exchange for payment of rent. Thus, as currently alleged, there is no claim for wrongful eviction.
The demurrer to the 4th cause of action is sustained with leave to amend so that Michael Collins may allege the terms of a lease agreement if one existed.
E. 5th cause of action for claim and delivery
In the 5th cause of action, Michael Collins seeks claim and delivery of the “above mentioned property” which has a value of $32,000. (FAXC, ¶¶90-91.)
However, to the extent that Michael Collins seeks a writ of possession, he should file an application for writ of possession pursuant to CCP § 512.010 et seq. For the same reasons above regarding the defects in the pleading and the lack of contract entered by the parties for the vehicle, the demurrer to the 5th cause of action is sustained without leave to amend.
F. 6th cause of action for conversion
The elements of a conversion claim are the following: (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, interfering with plaintiff’s possession; and (3) damages. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240; PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)
In the 6th cause of action, Michael Collins alleges that he was illegally evicted by Robert Wayne Collins, such that he lost all of his possessions and was unable to retrieve them. (Id., ¶¶98-99.) He also alleges that Robert Wayne Collins took the new truck and failed to honor the oral agreement regarding the White Oak property funds. (Id., ¶¶100-101.)
To the extent that Robert Wayne Collins changed the locks and prevented Michael Collins from retrieving his personal property, Michael Collins has sufficiently alleged facts for a conversion claim on this basis. However, a claim for conversion based on the proceeds of the sale of the White Oak property and based on the new vehicle are not adequately alleged. Regardless, a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047.) Thus, the Court will overrule the demurrer to the 6th cause of action as a portion of the claim may go forward.
G. 7th cause of action for unjust enrichment
DISCUSSION RE MOTION TO STRIKE
Robert Wayne Collins moves to strike the allegations for exemplary/punitive damages from the FAXC. Michael Collins seeks punitive damages in connection with the 1st cause of action (prayer for damages), 4th cause of action (prayer for damages), 5th cause of action (paragraph 96 and prayer for damages), and the 7th cause of action (prayer for damages).
In light of the ruling on the demurrer, the motion to strike is taken off-calendar as moot.
CONCLUSION AND ORDER
Cross-Defendant Robert Wayne Collins’ demurrer to the first amended cross-complaint is sustained with 20 days leave to amend as to the 1st and 4th causes of action. The demurrer to the 2n, 3rd, 5th, and 7th causes of action is sustained without leave to amend. The demurrer to the 6th cause of action is overruled.
In light of the ruling on the demurrer, the motion to strike is taken off-calendar as moot.