Judge: Melvin D. Sandvig, Case: 24CHCV00543, Date: 2024-07-19 Tentative Ruling

Case Number: 24CHCV00543    Hearing Date: July 19, 2024    Dept: F47

Dept. F47

Date: 7/19/24

Case #24CHCV00543

 

DEMURRER TO THE FIRST AMENDED COMPLAINT

 

Demurrer filed on 6/7/24.

 

MOVING PARTY: Defendant Lori Johnson

RESPONDING PARTY: Plaintiffs Madeline Depin and Raymond Depin

NOTICE: ok

 

Demurrer is to the entire First Amended Complaint:

            1.  Breach of Contract

            2.  Financial Elder Abuse

            3.  Declaratory Relief

 

RULING: The demurrer is sustained with 30 days leave to amend. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of the purchase of a home in Valencia, California by Defendant Lori Johnson (Defendant) with funds partially obtained from her parents, Plaintiffs Madeline Depin and Raymond Depin (Plaintiffs). 

 

Plaintiffs allege that in or around April 2019, Defendant and Plaintiffs entered into an oral agreement by which Plaintiffs and Defendant would pool their funds to purchase a home where they would live together for an indefinite period of time.  (FAC ¶5).  Plaintiffs also allege that Defendant promised them that she would repay them, on demand, the amount they contributed to the purchase of the property.  (FAC ¶6).  In the original complaint, Plaintiffs alleged that Defendant promised she would transfer an ownership interest in the property to them in proportion to their contributions to purchase the property.  (Complaint ¶7).  In the First Amended Complaint, Plaintiffs allege that they and Defendant created an oral partnership to own the property.  (First Amended Complaint ¶7).  Additionally, Plaintiffs allege that they agreed to pay for half of the mortgage payments, property taxes, utilities and HOA fees.  (FAC ¶15).  Plaintiffs and Defendant moved into the property in August of 2019.  (FAC ¶14).  In November of 2023, Plaintiffs moved out of the property to live with their son in Massachusetts.  (FAC ¶15). 

 

Plaintiffs allege that despite their demands for repayment of the funds contributed to the property, Defendant has refused to repay any portion.  (FAC ¶¶18-21).  Plaintiffs also allege that Defendant committed financial elder abuse by hiding the fact that she never intended to repay them or give them an ownership interest in the house.  (FAC ¶¶27-28, 30-31).  Plaintiffs also seek a declaration of their rights under the alleged oral partnership agreement with Defendant.  (FAC ¶¶37-39).

 

On 2/22/24, Plaintiffs filed this action against Defendant for: (1) Breach of Contract, (2) Financial Elder Abuse and (3) Declaratory Relief.  After meet and confer efforts regarding deficiencies Defendant perceived in the complaint, on 4/26/24, Plaintiffs filed the subject First Amended Complaint alleging the same three causes of action.  Although no declaration has been filed attesting to the fact as is required, Defendant claims that her counsel’s efforts to contact Plaintiffs’ counsel to meet and confer regarding the deficiencies in the First Amended Complaint were unsuccessful.  (See Demurrer, p.3:15-17); CCP 430.41(a)(3).

 

Therefore, on 6/7/24, Defendant filed and served the instant demurrer to the entire First Amended Complaint.  Plaintiffs have opposed the demurrer and Defendant has filed a reply to the opposition. 

 

ANALYSIS

 

The opposition requests leave to file a Second Amended Complaint which withdraws allegations regarding a partnership between Plaintiffs and Defendant and which re-alleges the terms of the contract with Defendant as alleged in the original complaint.  (See Opposition, p.1:18-p.2:18, p.3:19-p.4:3).    

 

The alleged oral partnership allegations permeate the entire First Amended Complaint and each of the causes of action alleged therein.  (FAC ¶¶7, 13, 16, 17, 23, 28-29, 31, 36-39).  As such, the withdrawal of such allegations effects each cause of action alleged in the First Amended Complaint.  Despite the foregoing, Plaintiffs confusingly request that the Court overrule the demurrer as to the 1st and 2nd causes of action and allow them to withdraw/amend their 3rd cause of action without indicating whether they concede that the demurrer as to that cause of action should be sustained.  (See Opposition, p.6:9-19).   

 

Additionally, to the extent that Plaintiffs contend that Defendant is estopped from arguing the statute of frauds defeats their breach of (oral) contract cause of action, Plaintiffs have failed to allege sufficient facts to support the claim of estoppel.

 

Plaintiffs have also failed to plead sufficient specific facts to support the fraud which allegedly underlies their financial elder abuse cause of action.  (FAC ¶¶27-28).  Since the terms of the alleged contract are not sufficiently pled, it is not clear how, when, where, etc. Defendant allegedly hid her intent not to repay Plaintiffs and/or to not provide them an ownership interest in the property.  Similarly, Plaintiffs have not pled sufficient facts to support a finding of undue influence.  Plaintiffs conclude, without supporting facts, that Defendant “manipulated” them “by use of excessive persuasion” “by leading them to believe she was in need of funds to purchase the Valencia Property…”  (FAC ¶31).

 

CONCLUSION

 

The demurrer is sustained.  Due to the liberal policy of allowing leave to amend and since this is the first time Plaintiffs’ pleading is before the Court, Plaintiffs are given an opportunity to try to cure the defects in their First Amended Complaint. 

 

A Second Amended Complaint is due to be filed and served within 30 days.