Judge: Lee W. Tsao, Case: 22NWCV00072, Date: 2023-04-13 Tentative Ruling


Case Number: 22NWCV00072    Hearing Date: April 13, 2023    Dept: C

LUCAS v. VELEZ

CASE NO.:  22NWCV00072

HEARING:  04/13/23

 

#4

TENTATIVE ORDER

 

     I.        Plaintiffs/Cross-Defendants ROBERTO LUCAS and MARIA LUCAS’ Demurrer to Defendant/Cross-Complainant MARIA VELEZ’s First Amended Cross-Complaint is OVERRULED in part; SUSTAINED with 30 days leave to amend as to the 5th cause of action; and MOOT as to the 6th cause of action.

 

    II.        Plaintiffs/Cross-Defendants ROBERTO LUCAS and MARIA LUCAS’ Motion to Strike Portions of Defendant/Cross-Complainant MARIA VELEZ’s First Amended Cross-Complaint is DENIED.

 

Opposing Party to give notice.

 

This quiet title action was filed on January 27, 2022. On November 7, 2022, the subject First Amended Cross-Complaint (“FAXC”) was filed.

 

The FAXC alleges the following relevant facts: “Since Cross-Complainant did not qualify to refinance the property in order to remove her husband’s name from the mortgages as per the judgment of dissolution, on or about January 18, 2013 it was agreed between the parties that Cross-Defendants Lucas will take loan on the property in refinance process in their name only. Cross-Complainant will execute a grant deed transferring the property in Cross-Defendants Lucas’ names for that purpose only. It was agreed between the parties that Cross-Defendants Lucas’ would transfer Cross-Complainant’s half interest in the subject property to her at a later time when Cross-Complainant’s financial condition would improve, and she would qualify to refinance the subject property and to ensure that a Grant Deed was executed by Cross-Defendants Lucas, as Joint Tenants to Cross-Defendants Lucas Husband and Wife, and Cross-Complainant an unmarried woman, all as Joint Tenants with instructions not to record until Cross-Complainant qualifies herself to refinance the mortgages on the subject property.” (FAXC ¶10.) “After years of paying her share of the mortgage, property tax, insurance, repairs and improvements to Cross-Defendants Lucas and receiving her share of the tenant’s rent on the property from Cross-Defendants Lucas, on or about June 2021 for the first time, Cross-Complainant learned that Cross-Defendants doesn’t want to re-instate cross-Complainant’s one half interest of the Property as agreed and at that time Cross-Complainant recorded the grant deed executed by Cross-Defendants Lucas on January 18, 2003.” (FAXC ¶13.)

 

The FAXC asserts the following causes of action: (1) Misrepresentation; (2) Restitution; (3) Constructive Trust; (4) Quiet Title; (5) Partition; and (6) Negligence.

 

Plaintiffs/Cross-Defendants ROBERTO LUCAS and MARIA LUCAS (“Cross-Defendants”) specially and generally demur to each cause of action.

 

Uncertainty

Cross-Defendants argue that the claims are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.) Here, it is clear from Cross-Defendants’ other arguments that they understand what the FAXC at least attempts to allege, and there is no true uncertainty. The Demurrer is not sustained on the basis of uncertainty.

 

Statute of Limitations

Cross-Defendants argue that all claims are barred by the statute of limitations.

 

“A demurrer on the ground of the bar of statute of limitations will not lie where the action may be but is not necessarily barred.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) Here, Cross-Complainant sufficiently alleges: “After years of paying her share of the mortgage, property tax, insurance, repairs and improvements to Cross-Defendants Lucas and receiving her share of the tenant’s rent on the property from Cross-Defendants Lucas, on or about June 2021 for the first time, Cross-Complainant learned that Cross-Defendants doesn’t want to re-instate cross-Complainant’s one half interest of the Property as agreed and at that time Cross-Complainant recorded the grant deed executed by Cross-Defendants Lucas on January 18, 2003.” (FAXC ¶13.)

 

This action was filed on January 27, 2022. The allegations are sufficient to withstand demurrer against a statute of limitations defense.

 

Statute of Frauds

Cross-Defendants argue that all claims are barred by the statute of frauds because they concern the sale/transfer of real property.

 

“An agreement for the sale of real property or an interest in real property comes within the statute of frauds. (Civ. Code §1624, subd. (a)(3).)” (Secrest v. Security National Morg. Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552.)

 

The demurrer is not sustained on the basis that all claims are barred by the statute of frauds. The Court notes that no claim for breach of contract is alleged. Moreover, equitable estoppel may preclude the use of a statute of frauds defense. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068.) Equitable estoppel applies “where an unconscionable injury would result from denying enforcement after one party has been induced to make a serious change of position in reliance on the contract or where unjust enrichment would result of the party who has received the benefits of the other’s performance where allowed to invoke the statute.” (Chavez v. Indymac Mortgage Svcs. (2013) 219 Cal.App.4th 1052, 1058.)

 

Cross-Complainant’s factual allegations are sufficient to allege that equitable estoppel prohibits Cross-Defendants from asserting the statute of frauds. Whether the doctrine may be applied in a particular case is a question of fact. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068.)

 

First Cause of Action – Misrepresentation  

Cross-Defendants argue that Cross-Complainant fails to plead fraud with the requisite amount of specificity to withstand demurrer. Plaintiff must plead allegations that meet the heightened pleading requirements for fraud claims. Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said, or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

 

The demurrer to the first cause of action is OVERRULED. Cross-Complainant has alleged sufficient facts for the purpose of surviving demurrer. Cross-Complainant sufficiently alleges that Cross-Defendants represented that they would transfer Cross-Complainant a one-half interest in the Subject Property when her financial condition improved. The Court must accept these allegations as true at this stage in the litigation.

 

Second Cause of Action – Restitution

Under the law of restitution, an individual may be required to make restitution if he is unjustly enriched at the expense of another.  A person is enriched if he receives a benefit at another's expense.  (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51.)

 

There is a split of authority across the appellate courts regarding whether unjust enrichment is a cause of action or a principle of law.  Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911 and Melchior v. New Line Prods., Inc. (2003) 106 Cal.App.4th 779, 794 hold that unjust enrichment is a principle underlying various doctrines and remedies, including quasi-contract.  On the other hand, Hirsch v. Bank of America (2003) 107 Cal.App.4th 708, First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, and Lectrodryer v. Seoul Bank (2000) 77 Cal.App.4th 723 view it as a separate cause of action.

 

Regardless of whether unjust enrichment is a cause of action or not, Plaintiff may still allege it as a theory supporting the remedy of restitution.  A complaint may state multiple legal theories upon which recovery might be predicated for one claim for relief.  (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal. App. 4th 334, 351.) 

 

Here, Cross-Complainant alleges that Cross-Defendants  may be liable for restitution to Cross-Complainant based on the mortgage and tax payments she made towards the Subject Property. The demurrer to the second cause of action is OVERRULED.

 

Third Cause of Action – Constructive Trust

Although Constructive Trust is not a separate cause of action (see PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 398), Constructive Trust may be pled a remedy.

The elements are wrongful act; specific, identifiable property or property interest, or excuse for inability to describe it; plaintiff’s right to the property; and defendant has title thereto. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76.)

Here, Cross-Complainant has pled that Cross-Defendants promised to hold her ½ interest in the subject property in trust until Cross-Complainant’s financial position improved. In reliance on that promise, Cross-Complainant contributed to the expenses including mortgage payments, property taxes, and insurance.

The demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action – Quiet Title

The complaint shall be verified and shall include all of the following:  (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any; (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession; (c) The adverse claims to the title of the plaintiff against which a determination is sought; (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought; (e) A prayer for the determination of the title of the plaintiff against the adverse claims.  (CCP § 761.020.) 

 

The FAXC is verified, describes the property, Cross-Complainant’s claims to title, and Cross-Defendants’ adverse claims to title. Moreover Cross-Complainant sufficiently alleges that June 2021 is the date of which determination is sought. (See FAXC &13.)

 

Moreover, “[w]hen legal title has been acquired through fraud any number of remedies are available and appropriate. These remedies include quieting title in the defrauded equitable title holder's name and making the legal title holder the constructive trustee of the property for the benefit of the defrauded equitable titleholder."  (Warren v. Merrill (2006) 143 Cal. App. 4th 96, 114.) 

 

Because Fraud has been alleged, the demurrer is OVERRULED.

 

Fifth Cause of Action – Partition

Cross-Complainant is not alleged to be a “co-owner” of the Property. All Cross-Complainant alleges at this stage, is a potential interest in ½ of the Subject Property. The Demurrer is SUSTAINED with 30 days leave to amend in the interests of justice.

 

Sixth Cause of Action – Negligence

The sixth cause of action for negligence is not asserted against Cross-Defendants ROBERTO LUCAS and MARIA LUCAS. It is only asserted against Cross-Defendant CONNIE. Connie did not file a demurrer to this claim. The demurrer to the sixth cause of action is MOOT.

Motion to Strike

The Motion to Strike is DENIED given the Court’s ruling with respect to Cross-Complainant’s claim for Misrepresentation above. Cross-Complainant has adequately alleged an entitlement to punitive damages.