Judge Lee W. Tsao, Case Number: 23NWCV02768, Date: 2024-06-04 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV02768, Date: 2024-06-04 Tentative Ruling

Case Number: 23NWCV02768 Hearing Date: June 4, 2024 Dept: C

Sandra Green vs Rose Marie Leary

Case No.: 23NWCV02768

Hearing Date: June 4, 2024 @ 10:30 a.m.

Tentative Ruling

Defendant Rose Marie Leary’s Demurrer is SUSTAINED as set forth below.

Defendant to give notice.

Defendant Rose Marie Leary (“Defendant”) demurs to Plaintiff Sandra Green’s (“Plaintiff”) Complaint on the ground that it fails to state facts sufficient to constitute a cause of action.

Background

The parties are sisters who inherited property located at 13614 Behrens Avenue, Norwalk, CA 90650 (“Subject Property”) through their mother, Betty J. Green. On August 28, 2023, Plaintiff filed her Complaint against Defendant for 1) Partition by Sale, 2) Constructive Trust, and 3) Resulting Trust. The Complaint alleges in pertinent part: “Plaintiff and Defendant currently co-own the Subject Property. Plaintiff and Defendant are on legal title to the Subject Property as tenants in common.” (¶ 7.) “At all times mentioned herein, Plaintiff was at least 33.333% owner of the Subject Property and Defendant only held her interest in the Subject Property and any income from the Subject Property as constructive trustee for the benefit of Plaintiff. (¶ 16.) Defendant has breached the trust by refusing to tender proportionate income to Plaintiff. (¶ 17.)

Legal Standard

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)

Discussion

I. Partition Cause of Action

A complaint seeking partition of real property shall set forth the following:

(a) A description of the property that is the subject of the action … In the case of real property, the description shall include both its legal description and its street address or common designation, if any. (b) All interests the plaintiff has or claims in the property. (c) All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff. (d) The estate as to which partition is sought and a prayer for partition of the interests therein. (e) Where the plaintiff seeks sale of the property, an allegation of the facts justifying such relief in ordinary and concise language. (CCP § 872.230.)

Here, Plaintiff’s complaint is uncertain because it alleges that the parties co-own the Subject Property as tenants in common (¶ 7), but it also alleges that Defendant only held her interest in the Subject Property as constructive trustee for the benefit of Plaintiff. (¶ 16.) The Court notes that the Grant Deed attached to the Complaint as Exhibit 1 indicates that Betty J. Green, Marie Leary, and Sandra Green are joint tenants. (Complaint, Ex. 1.)

Additionally, the Complaint fails to allege “all interests of record … that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action …” (CCP § 872.230, subd. (c).) Plaintiff alleges she has at least a one-third interest in the Subject Property, but she does not allege the ownership interest of Defendant Rose Marie Leary.

Accordingly, the demurrer as to the First Cause of Action for Partition is SUSTAINED with 20 days leave to amend.

II. Constructive and Resulting Trust

The Courts of Appeal have explicitly stated that a constructive and resulting trust is an equitable remedy, not a cause of action. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76.) Plaintiff presents no authority to the contrary.

Accordingly, the demurrer to the Second Cause of Action for Constructive Trust and the Third Causes of Action for Resulting Trust is SUSTAINED without leave to amend.