Judge Michael P. Linfield, Case 22STCV35145 2023-01-24 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV35145, Date: 2023-01-24 Tentative Ruling

Case Number: 22STCV35145 Hearing Date: January 24, 2023 Dept: 34

SUBJECT: Demurrer and Motion to Strike

Moving Party: Defendants Frank M. Bacino and Perry M. Bacino

Resp. Party: None

Defendants’ Demurrer is SUSTAINED in part. The Demurrer is sustained without leave to amend the Complaint as to the first and second causes of action. The Demurrer is overruled as to the third through seven causes of action.

Defendant’s Motion to Strike is DENIED.

BACKGROUND:

On November 4, 2022, Plaintiff Inna Ashchyan filed her Complaint against Defendants Frank M. Bacino and Perry M. Bacino on the following causes of action:

(1) Imposition of Constructive Trust;

(2) Imposition of Resulting Trust;

(3) Fraud;

(4) Quiet Title;

(5) Nonpayment of Wages;

(6) Waiting Time Penalties; and

(7) Failure to Pay Minimum Wages and Overtime Compensation.

On December 19, 2022, Defendants filed their Demurrer and their Motion to Strike.

Plaintiff has not filed an opposition or other response to the Demurrer and/or the Motion to Strike.

ANALYSIS:

I. Demurrer

A. Legal Standard

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. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for the purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)

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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

B. Discussion

Defendants demur as to each of the seven causes of action, stating that they fail to state a cause of action. (Demurrer, pp. 2–3.)

1. Imposition of Constructive Trust

a. Legal Standard

“One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” (Civ. Code, § 2223.)

“A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990, citations omitted.)

“Under these statutes and the case law applying them, a constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. (Id., emphases in original)

The Court of Appeal has clearly ruled that a resulting trust and a constructive trust are only remedies, not causes of action. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76, citation omitted.)

b. Analysis

Plaintiff pleads a cause of action that in California is only a remedy. Although imposition of a constructive trust may be available later as a remedy, it is not available as a cause of action based on the allegations made.

Although not necessary for its ruling, the Court notes that Defendants’ arguments regarding the interplay between the statute of frauds and the imposition of trusts are not a complete and accurate recitation of the law. Specifically, Defendants argue that Plaintiff’s causes of action must fail because her allegations fail to meet the statute of frauds. (Demurrer, p. 3:10–23.) Defendants then cite Ward v. Wrixon (1959) 168 Cal.App.2d 642, 654–55 for the proposition that “an agreement by a housekeeper that would entitle the housekeeper to a life estate in the subject property on the basis of an alleged oral contract is barred by the statute of frauds.” Yet the holding in Ward is the complete opposite of what Defendants claim. Indeed, in Ward — a case with many similar facts to this one — the Court of Appeal affirmed the Trial Court’s judgment that the owner of the property was estopped from asserting the statute of frauds and that the housekeeper was entitled to a life estate in the property. (Ward, supra, at 643–44, 657.) Defendants’ quotation from the case was incomplete and arguably misleading. Without reaching any further to issues that may be at hand in this matter, the Court simply notes that as a matter of law “[t]here is a long line of authorities in this state to the effect that under the proper circumstances a party may be estopped to plead the statute of frauds.” (Notten v. Mensing (1935) 3 Cal.2d 469, 474.)

The Court SUSTAINS the Demurrer without leave to amend the Complaint as to the first cause of action for imposition of a constructive trust.

2. Imposition of Resulting Trust

a. Legal Standard

“A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. Such a resulting trust carries out and enforces the inferred intent of the parties.” (Lloyds Bank Cal. v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 1042, citations omitted.)

b. Analysis

Just as with the first cause of action for imposition of a constructive trust, Plaintiff pleads another cause of action that in California is only a remedy. Although imposition of a resulting trust may be available later as a remedy, it is not available as a cause of action based on the allegations made.

The Court SUSTAINS the Demurrer without leave to amend the Complaint as to the second cause of action for imposition of a resulting trust.

3. Fraud

a. Legal Standard

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)¿¿

The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645.)¿¿

b. Analysis

Plaintiff alleges: (1) that Defendant Frank Bacino promised Plaintiff that he would convey to Plaintiff a life estate interest in the subject property measured by her life in exchange for her provision of daily, around-the-clock caretaking and household services for him; (2) that this was an intentional misrepresentation, deceit, or concealment of a material fact; (3) that this was known to Defendants; (4) that Defendant Frank had no intent of performing his promise and made the promise with the intent to induce Plaintiff to provide him with free caretaking and household services; (5) that in reliance on the promise, Plaintiff provided caretaking and household services; and (6) that Plaintiff has been deprived of property or legal rights or otherwise caused injury. (Complaint, ¶¶ 25–31.)

Assuming as true these allegations for the purpose of the Demurrer, Plaintiff provides sufficient and certain allegations for the cause of action for fraud to survive.

The Court OVERRULES the Demurrer as to the third cause of action for fraud.

4. Quiet Title

a. Legal Standard

An action for quiet title may be brought “to establish title against adverse claims to real or personal property or any interest therein.” (Code Civ. Proc., § 760.020, subd. (a).)

“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.

(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.”

(Code Civ. Proc., § 761.020, subds. (a)–(c).)

b. Analysis

Plaintiff alleges: (1) that the property is 1117 Oberlin Drive, Glendale, CA 91205, and she also provides a more detailed description of the property; (2) that Plaintiff has a life estate in the property, measured by her life; (3) that Defendant Perry is holding her title in constructive trust and/or as a resulting trust, as his name is exclusively shown on the title only through fraud and wrongdoing; (4) that Defendant Perry claims he is the owner of a fee simple in the property, and that his title is not subject to Plaintiff’s life estate; (5) that Plaintiff seeks a determination as of the date she filed her Complaint; and (6) that Plaintiff prays for the Court to quiet title to her life estate interest in the subject property, measured by her life, against all adverse claims of all claimants, known and unknown. (Complaint, ¶¶ 2, 33–34, 36–38.)

Assuming as true these allegations for the purpose of the Demurrer, Plaintiff provides sufficient and certain allegations for the cause of action for quiet title to survive.

The Court OVERRULES the Demurrer as to the fourth cause of action for quiet title.

5. Nonpayment of Wages

a. Legal Standard

“If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” (Lab. Code, § 201.)

“If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.” (Lab. Code, § 202, subd. (a).)

b. Analysis

Plaintiff alleges: (1) that Plaintiff was owed wages for over 15,000 hours of work; (2) that at the time of termination, Defendant Frank Bacino failed to pay Plaintiff any of the amounts due to her; and (3) that Defendant continue to fail and refuse to pay the amount due. (Complaint, ¶¶ 40–41.)

Assuming as true these allegations for the purpose of the Demurrer, Plaintiff provides sufficient and certain allegations for the cause of action for nonpayment of wages to survive.

The Court OVERRULES the Demurrer as to the fifth cause of action for nonpayment of wages.

6. Waiting Time Penalties

a. Legal Standard

“If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” (Lab. Code, § 201, subd. (a).)

“If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6, 201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.” (Lab. Code, § 203, subd. (a).)

b. Analysis

Assuming as true these allegations for the purpose of the Demurrer, Plaintiff provides sufficient and certain allegations for the cause of action for waiting time penalties to survive.

The Court OVERRULES the Demurrer as to the sixth cause of action for waiting time penalties.

7. Failure to Pay Minimum Wages and Overtime

a. Legal Standard

“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” (Lab. Code, § 1194, subd. (a).)

“The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful. This section does not change the applicability of local minimum wage laws to any entity.” (Lab. Code, § 1197.)

“The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” (Lab. Code, § 1198.)

b. Analysis

Plaintiff alleges: (1) that Plaintiff should have been paid the minimum wage for hours worked; (2) that Plaintiff should have been paid time and one half for hours worked in excess of eight hours per day; and (3) that Defendant has failed and refused and continues to fail and refuse to pay Plaintiff the amounts owed. (Complaint, ¶ 50.)

Assuming as true these allegations for the purpose of the Demurrer, Plaintiff provides sufficient and certain allegations for the cause of action for failure to pay minimum wage and overtime to survive.

The Court OVERRULES the Demurrer as to the seventh cause of action for failure to pay minimum wage and overtime.

C. Conclusion

II. Motion to Strike

A. Legal Standard

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)¿¿

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)¿¿

B. Discussion

Defendants request that the Court strike the following items from the Complaint:

(1) Paragraph 31, page 7, lines 6 through 11, regarding allegations of the elements of fraud;

(2) Prayer as to the third cause of action, page 11, line 16, regarding general damages; and

(3) Prayer as to the third cause of action, page 11, lines 17 through 18, regarding punitive damages.

(Motion to Strike, p. 2:1–18.)

Whether Defendants acted in a way that constitutes the elements of fraud alleged is relevant to this matter. Moreover, if these elements are proven to be true, they might be sufficient for a grant of general damages and punitive damages.

In addition, the Court must disregard any defect in the pleadings which does not affect the substantial rights of the parties. (Code Civ. Proc., § 475.) As it relates to the prayers for relief, whether those items are stricken will make absolutely no difference to the parties. Plaintiff has merely referenced general damages and punitive damages. It will still ultimately be her burden to prove that she is entitled to them.

The Court DENIES Defendants’ Motion to Strike.

C. Conclusion

Defendant’s Motion to Strike is DENIED.