Judge Lynette Gridiron Winston, Case Number: 23PSCV03560, Date: 2024-03-26 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV03560, Date: 2024-03-26 Tentative Ruling

The Court SUSTAINS the demurrer to the First Cause of Action with leave to amend. The Court OVERRULES the demurrer to the Second Cause of Action. The Court SUSTAINS the demurrer to the Third Cause of Action without leave to amend, subject to an offer of proof. Plaintiffs must file and serve their amended complaint within 30 days of the Court’s order.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a partition action. On November 14, 2023, plaintiffs Trini Nguyen, Natalie Nguyen, Bryant Nguyen, Patrick Nguyen, and David Lovold (collectively, Plaintiffs) filed this action against defendant Khiem “Kevin” Nguyen (Defendant) and Does 1 through 20, alleging causes of action for partition by sale of real property, constructive trust, and contribution.

On February 6, 2024, Defendant demurred to each cause of action in the complaint. On March 8, 2024, Plaintiffs opposed the demurrer. On March 20, 2024, Defendant filed a late reply.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

The Court DENIES Plaintiff’s request for judicial notice. Defendant’s discovery responses are not subject to mandatory judicial notice, nor are they a court record. (Evid. Code § 451; Id., § 452, subd. (d).)

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer with Plaintiffs before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) It is unclear from counsel Chang’s declaration whether the meet and confer occurred in person or by telephone, (see Chang Decl., ¶¶ 2-3), but Plaintiffs’ opposition appears to indicate that they discussed the demurrer either telephonically or in person, (Opp., 8:25-27). Accordingly, the Court finds Defendant’s meet-and-confer efforts sufficient, but the Court does admonish Defendant going forward to provide sufficient detail in the declaration regarding how the meet and confer occurred. (See Code Civ. Proc., § 430.41, subd. (a)(3)(A).)

To plead a cause of action for partition, the plaintiff must allege facts demonstrating, “(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.” (Code Civ. Proc., § 872.230.) Equitable owners of real property may maintain actions for partition. (Kolis v. Kolis (1951) 104 Cal.App.2d 86, 87.)

Defendant demurs to the First Cause of Action for partition on the grounds that the complaint fails to state a cause of action and is uncertain. Defendant contends Plaintiffs’ claim fails because there is no evidence an agreement memorialized in writing, and thereby fails to satisfy the Statute of Frauds.

In opposition, Plaintiffs contends there are exceptions to the Parol Evidence Rule[1] which allow oral evidence to supply the missing element of ownership under Code of Civil Procedure sections 872.230, subdivision (b), and 872.210, subdivision (a)(2). Plaintiffs further contend that an equitable owner has the right to commence a partition action against an owner with bare legal title.

The Court finds the parties’ discussion regarding the Statute of Frauds and Parol Evidence Rule have no bearing on whether Plaintiffs have alleged sufficient facts to state a cause of action for partition. The Statute of Frauds governs the enforceability of a contract while the Parol Evidence Rule determines the terms of an agreement. (See Sterling v. Taylor (2007) 40 Cal.4th 757, 766.) Partition is a statutory equitable proceeding, not a contract-based cause of action. (Cummings v. Dessel (2017) 13 Cal.App.5th 689, 598-599.) But, the Court does agree with Plaintiffs that equitable owners can bring partition claims. (Kolis, supra, 104 Cal.App.2d at p. 87.)

Nevertheless, the Court notes pleading defects not directly addressed in the parties’ respective briefs. Defendant’s demurrer cites Code of Civil Procedure section 872.230, (Demurrer, 6:15-19), which provides in part that the complaint must allege the legal description of the property sought to be partitioned. (Code Civ. Proc., § 872.230, subd. (a), italics added [“The complaint shall set forth: (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.”]) The complaint does not allege the legal description of the subject property. (See generally, Compl.)

The other pleading defect the Court discovered in the complaint is that it names 20 Doe Defendants whose names are unknown. (Compl., ¶ 7.) Such unknown parties must be named in the manner provided in Code of Civil Procedure section 872.550. (See Code Civ. Proc., § 872.520, subd. (a); Id., § 872.550.) The Court is further obligated to make orders requiring the joinder of additional parties as are necessary or proper. (Id., § 872.520, subd. (c).)

Based on the foregoing, the Court SUSTAINS the demurrer to the First Cause of Action with leave to amend.

Constructive trust is not a cause of action but is instead a remedy for an underlying wrong. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023 fn. 3.) “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” (Civ. Code, § 2224.) For purposes of a demurrer, what matters is the facts alleged, not the label of the cause of action. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1371.)

The statute of limitations for claims based on constructive trust is four years from the defendant’s repudiation of the plaintiff’s interest in the property, (Burns v. Ross (1923) 190 Cal. 269, 277), or the plaintiff discovers the facts that entitle the plaintiff to enforce the trust, (Bainbridge v. Stoner (1940) 16 Cal.2d 423, 429). (See also Marshall v. Marshall (1965) 232 Cal.App.2d 232, 250-251 [holding statute of limitations for a constructive trust was five years].) For a demurrer to lie based on the statute of limitations, the pleading defects must be apparent from the face of the pleading. (United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505.)

Defendant demurs to the Second Cause of Action on the grounds that the complaint fails to state a cause of action and is uncertain, and on the grounds that the statute of limitations has passed. Defendant contends it is unclear what the underlying basis for this claim is, but that it seems to be based on activity from 2014-2015. Defendant further contends this cause of action is also time-barred because it is based on an oral agreement, which has a two-year statute of limitations.

In opposition, Plaintiffs contend family promises are enforceable by constructive trust. Plaintiffs also reference discovery responses provided by Defendant regarding his income at the time of acquiring legal title to the subject property. Plaintiffs contend they have a claim based on their valuable improvements to the subject property. Plaintiffs also contend constructive trust is a cause of action, but even if not, they have alleged sufficient facts to state a cause of action for wrongdoing against Defendant. Plaintiffs further contend there is no statutory bar based on equitable estoppel and that any statute of limitations is tolled by Defendant’s residing outside of the United States for 10 years per Code of Civil Procedure section 351.

The Court finds Plaintiffs have alleged sufficient facts to state a cause of action and that this claim is not uncertain. While there is no cause of action for constructive trust, that does not mean Plaintiffs have not alleged facts stating a claim against Defendant for wrongdoing. Civil Code section 2224 specifically provides that the violation of a trust provides the basis for imposition of a constructive trust. (Civ. Code § 2224; see also Marshall, supra, 232 Cal.App.2d at pp. 250-251 [addressing statute of limitations for imposing constructive trust].)

Here, the complaint alleges that the parties’ mother told all of them when purchasing the subject property that it would be for all four of her children, and that Defendant took title only because the parties’ mother had no credit rating in the United States. (Compl., ¶ 10.) The complaint alleges that Plaintiffs paid the costs of running the subject property, including the maintenance and repairs, property taxes, and utilities. (Compl., ¶¶ 17, 20.) The complaint then alleges Plaintiff Trini spent over $46,000 improving the subject property, while Plaintiff David spent $1,700 repairing the roof. (Compl., ¶ 18.) The complaint further alleges Defendant violated that trust when he initiated eviction proceedings against Plaintiffs. (Compl., ¶ 21.)

As for the statute of limitations argument, the complaint does not allege sufficient facts on its face to establish that Plaintiffs’ claims are time-barred. (United Western Medical Centers, supra, 42 Cal.App.4th at p. 505.) Defendant’s argument regarding the two-year statute of limitations is also unsupported. (Burns, supra, 190 Cal. at p. 277; Bainbridge, supra, 16 Cal.2d at p. 429). Defendant did not repudiate Plaintiffs’ interest in the subject property until October 23, 2023, when he caused the 60-day Notice to Quit to be served on Plaintiffs. (Compl., ¶ 21.)

Based on the foregoing, the Court OVERRULES the demurrer to the Second Cause of Action.

To enforce a right of support against an adult child for support of the parent, the parent, or the county on behalf of the parent, may bring an action to enforce the duty of support. (Fam. Code, § 4403.) Thus, for a plaintiff to recover under this code section, the plaintiff must allege facts demonstrating that he, she, or it is either the parent of an adult child or the county acting on behalf of that parent.

Defendant demurs to the Third Cause of Action on the grounds that it fails to state a cause of action and is uncertain. More specifically, Defendant contends Plaintiffs do not have the right to bring this cause of action because they are not Defendant’s parent, nor are they the county acting on behalf of Defendant’s parent. Defendant notes the complaint does not allege Plaintiffs are executors of their mother’s estate or otherwise authorized to bring this action on behalf of her estate.

In opposition, Plaintiffs contend they are able to bring this cause of action based on the case of In re Marriage of Drake (1997) 53 Cal.App.4th 1139, which purportedly allowed nephew trustees to recover against the decedent wife’s husband based on the husband’s duty of care for his disabled adult child. Plaintiffs contend Defendant will be unjustly enriched because he has improperly acquired the bank accounts and social security checks of their decedent mother, and that Defendant cannot otherwise escape his obligations to care for his mother.

The Court agrees with Defendant. The statutory language is clear that it is either the parent or the county that can recover for support against the adult child. (Fam. Code, § 4403.) It does not say the other children can recover. The only other means for Plaintiffs to recover under this code section would be for Plaintiffs to be appointed executors or other authorized legal representatives of their deceased mother’s estate. (See, e.g., Code Civ. Proc., § 372, subd. (a)(1).) The complaint contains no allegations that Plaintiffs are such authorized legal representatives. (See generally, Compl.)

The Court further finds Plaintiffs’ citation to In re Marriage of Drake unpersuasive because that case did not address Family Code section 4403. (See generally In re Marriage of Drake (1997) 53 Cal.App.4th 1139.) That case is also factually distinguishable because it involved parental support of a disabled adult child, not an adult child’s support of a disabled parent. (See Id.)

Plaintiffs’ opposition offers no new facts that can be alleged to address these defects. Accordingly, the Court SUSTAINS the demurrer without leave to amend, subject to an offer of proof at the hearing on this demurrer.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] The Court infers Plaintiffs meant to refer to the Statute of Frauds, which is not the same as the Parol Evidence Rule. (See 4. [§ 68] Statute of Frauds Distinguished., 2 Witkin, Cal. Evid. 6th Docu Evid § 68 (2023) [“The object of the statute of frauds is to prevent perjured testimony in proof of purported contracts of important types, and the statute applies only to those enumerated types. [Citation.] The Parol Evidence Rule applies to any type of contract, and its purpose is to make sure that the parties' final understanding, deliberately expressed in writing, shall not be changed. [Citation.]”])