Judge: Michael Shultz, Case: 21CMCV00076, Date: 2022-07-28 Tentative Ruling

Case Number: 21CMCV00076    Hearing Date: July 28, 2022    Dept: A

21CMCV00076 Anthony Martin, Samuel Martin v. Jarvis Martin [TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS Thursday, July 28, 2022, 8:30 a.m.

I.        BACKGROUND

            This action arises from an alleged breach of contract between Plaintiff, Samuel Martin (“Father”), and Defendant, Jarvis Martin (“Jarvis”). Father alleges he owns the residential real property at issue (the “Fernrock property”). Father agreed to convey an interest in the real property to Jarvis to enable Jarvis to obtain a loan using the property as collateral. Jarvis agreed to be responsible to repay the loan totaling $189,000. Jarvis allegedly failed to repay the loan. Plaintiffs allege claims for (1) financial elder abuse, (2) physical elder abuse, (3) fraud, (4) conversion, (5) breach of contract, and (6) constructive eviction.

II.      MOTION FOR JUDGMENT ON THE PLEADING

A.      Motion filed on July 1, 2022

      Defendant requests judgment on the pleading on both claims for elder abuse, fraud, breach of contract, and constructive eviction based on res judicata. Plaintiff Father and Defendant settled a prior action bearing case number 19CMCV00072 Jarvis Martin v. Samuel Martin, Jr (the “First Action”). That action arose from the parties’ agreement to repay a loan for which the property served as collateral. Jarvis alleged he conveyed an interest in the property to Father, who obtained a loan using Fernrock as collateral, and then failed to give the proceeds to Jarvis. In settling that action, both parties released any and all causes of action related to the Fernrock property.

      Additionally, Father filed a cross-complaint in the First Action which alleged the similar claims based for relief that Father now asserts in this action. Defendant contends these claims are also barred by the statute of limitations.

      The claims for financial elder abuse and fraud are defective as alleged since Plaintiffs did not allege specific facts necessary to meet the heightened pleading requirement. The claims for financial elder abuse, fraud, and constructive eviction have no merit and are blatantly false as established by the recorded chain of title. Plaintiff Anthony does not have standing to assert any of the claims alleged since he was not a party to the agreement.

B.      Opposition filed on July 18, 2022

            Plaintiffs argue that the court cannot take judicial notice of the settlement agreement, since it is hearsay and not subject to judicial notice. Plaintiff Anthony has standing to pursue the fourth cause of action for conversion of his personal property and the claims for fraud and constructive eviction.  Anthony was not a party to the settlement agreement, nor was he a party in the First Action.

C.      Reply filed July 21, 2022

            Defendant argues that the opposition was untimely filed three days late and should not be considered. Plaintiffs do not address the issues of res judicata or the fact that Father settled his claims. Plaintiffs concede the settlement agreement is authentic. The court can take judicial notice of the contents of an agreement where there is no dispute about those contents. Plaintiffs’ arguments are undeveloped and should not be considered.

III.       LEGAL STANDARDS

            A motion for judgment on the pleadings may be granted on grounds the complaint fails to state a cause of action or the court lacks jurisdiction over the matter. Code Civ. Proc., § 438(b). A non-statutory motion for judgment on the pleading can be made at any time either prior to the trial or at the trial itself. Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, 650. The motion performs the same function as a general demurrer and attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064. “Judicial notice” is the recognition and acceptance by the court of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.

            The general rules that apply to demurrers also apply to motions for judgment on the pleadings. All facts alleged in the complaint are deemed admitted, the complaint is given a reasonable interpretation, and is in its entirety.  Ludgate v. Lockheed (2000) 82 Cal.App.4th 592, 602. The court is “not concerned with a plaintiff's possible inability to prove the claims made in the complaint, the allegations of which are accepted as true and liberally construed with a view toward attaining substantial justice. [Citations.]” Ludgate at 602.

            The court may not consider contentions, deductions, or conclusions of fact or law. Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638. Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must demonstrate that the complaint alleges facts sufficient to establish every element of each cause of action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.

            Sufficient facts are the essential facts of the case alleged "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644. Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.

            A demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).

            A pleading is required to assert general allegations of ultimate fact. Evidentiary facts are not required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. However, unlike federal courts, California state courts are not a notice-pleading jurisdiction; notice alone is not a sufficient basis for any pleading. California is a fact-pleading jurisdiction. Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.

IV.       DISCUSSION

A.      The court has discretion to consider the motion although Defendant did not submit a declaration describing the parties’ efforts to meet and confer.

            Prior to filing a motion for judgment on the pleadings, the moving party is required to meet and confer in person or by telephone with the opposing party to determine whether an agreement can be reached that would resolve the objections raised. Code Civ. Proc., § 439. However, a determination by the court that the meet and confer process was insufficient “shall not be grounds to grant or deny the motion for judgment on the pleadings.” Code Civ. Proc., § 439(a)(4). The statute does not contain any penalties for the failure to follow the meet and confer process. Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515 [The failure to comply with the meet and confer process does not result in the court’s loss of jurisdiction over the pleadings].

            The court has discretion to order counsel to meaningfully discuss the pleadings if “a court learns no meet and confer has taken place or concludes further conferences between counsel would likely be productive.” Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356, fn.3. Although, Defendant did not file the required declaration, given the parties’ positions, the court exercises its discretion to hear the motion as it does not appear that an informal conference will be productive.

B.      The court considers Plaintiffs’ late-filed opposition over Defendant’s objection.

            Plaintiff filed his opposition on July 18, 2022, although it was due on July 15, 2022 (nine court days before the hearing). Code Civ. Proc., § 1005.  Absent any showing of prejudice resulting from the late filing, the court has discretion to consider late-filed papers in favor of the strong policy favoring disposition of the case on the merits and to avoid “the

expenditure of unnecessary time and money for the preparation of later section 473 motions.” Kapitanski v. Von’s (1983) 146 Cal.App.3d 29, 32. Defendant has not shown any prejudice resulting from the late opposition. Defendant was able to file a timely reply brief which the court has considered. 

C.      Defendant’s request for judicial notice (“RJN”)

            The court grants Defendant’s request to take judicial notice of court records in the First Action filed on March 8, 2019, including the request for dismissal with prejudice entered on August 9, 2021. Declaration of Kashfian, Exs. 1-6; Evid. Code, § 452(d) [permits judicial notice of court records]. The court also grants Defendant’s request for judicial notice of the recorded deeds for the Fernrock property. Evid. Code, § 452(c) [permits judicial notice of official acts of state or federal agencies]. Declaration of Foster, Exhibit 8.

            The court grants judicial notice of the existence and contents of a settlement agreement entered into by the parties in the First Action and signed by Jarvis and Father. Declaration of Jarvis, Ex. 7; Evid. Code, § 452 (h) [permits judicial notice of matters that “are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.“]. Judicial notice can be taken of the contents of a settlement agreement although the agreement is outside the four corners of the complaint, “as there is and can be no factual dispute concerning the contents of the agreements." Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666 fn. 2.

            In his opposition, Father admits that “there was a Settlement Agreement between Defendant, Jarvis Martin, and [Father].” Opp. 4:16-17. Father does not assert that he did not sign the agreement. Accordingly, the court takes judicial notice of the agreement and its contents to determine whether res judicata applies. 

D.     Defendant has established the existence of a prior litigation between identical parties that was dismissed after settlement.

            In its primary aspect, res judicata, or claim preclusion, prevents relitigation in a second suit of the same cause of action previously decided on the merits between the same parties or parties in privity with them. Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, 206. Three elements must be established: (1) the present proceeding is on the same cause of action as the prior proceeding; (2) there was a final judgment on the merits; (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceedings. Id. Moreover, claim preclusion bars issues that were actually litigated and those issues that “could have been litigated.” Id.  Privity requires the “sharing of an identity or community of interest, with adequate representation of that interest in the first suit, and circumstances such that the nonparty should reasonably have expected to be bound by the first suit.” Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 672.

            The second aspect of res judicata known as collateral estoppel, or issue preclusion, prohibits the relitigation of issues argued and decided in a previous case, although the second suit raises different causes of action. Issue preclusion applies "(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party." DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.

            Defendant has established that there was a prior litigation between Father and Jarvis  and that the parties settled the First Action pursuant to a written settlement agreement. RJN Exs. 1 and 7.  Father signed the agreement on March 25, 2021. The parties agreed to release the other “from any and all causes of action … arising in connection with any matter related to the Subject Property… .” RJN Ex. 7, page 4. The First Action was dismissed with prejudice on August 9, 2021. RJN, Ex. 6. A dismissal with prejudice following a settlement constitutes a final judgment on the merits for purposes of res judicata. Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533. Accordingly, Defendant has established the second and third elements of res judicata. Whether the same issues asserted in the present action were actually litigated or could have been litigated in the First Action is discussed in more detail below.

E.      Defendant has established that the first cause of action for financial elder abuse is barred by res judicata.

            The First Amended Complaint (“FAC”) in the First Action between Jarvis and Father alleges that Jarvis conveyed to Father a one-half interest in the Fernrock property to enable Father to pay for Jarvis’ daughter’s college tuition and to pay off an existing loan that Father owed to a third party. FAC ¶¶ 7, 8. Father obtained a loan for less than the agreed amount, refused to repay the loan, and refused to reconvey his one-half interest back to Jarvis as agreed. FAC ¶ 11-12. Jarvis alleged claims for fraud, negligent misrepresentation, promissory estoppel, and declaratory relief for a lien presented by Father and for repayment of an alleged loan owed to Father. As noted previously, the First Action was dismissed with prejudice on August 9, 2021, after settlement. RJN Ex. 8.

            Father’s first cause of action alleged here for financial elder abuse arises from the breach of an agreement for Father to convey an interest in the property to Jarvis to facilitate a loan taken out by Jarvis using the Fernrock property as collateral. Complaint, ¶ 8-9. Both actions concern the same primary right between the same parties, namely the parties’ right to ownership of and/or interest in the property and the repayment of the same debt encumbering the same real property. Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202. ["Two proceedings are on the same cause of action if they are based on the same ‘primary right.’"].

            Father filed a cross-complaint in the First Action contending it was Father who placed Jarvis back on title so that Jarvis could refinance the mortgage and use the money to pay off his daughter’s college tuition. First Action, Cross-complaint, ¶ 9. However, Jarvis allegedly failed to make any payments on the loan. Id. at ¶ 10. Father alleged cross-claims for partition and for an accounting.

            Res judicata bars Father’s competing claim for repayment of the loan encumbering the real property. That issue was settled and dismissed in the First Action. Father could have asserted the financial elder abuse claim in the first action since it is alleged to have arisen from the parties’ dispute about the loan on the property. While the elder abuse claim seeks different statutory remedies, it arises from the same transaction. Res judicata applies to bar claims actually litigated or could have been litigated. Central Delta Water Agency v. Department of Water Resources, supra, 69 Cal.App.5^th at 206.

F.       Res judicata also bars the second cause of action for physical elder abuse.

            The second cause of action for physical elder abuse incorporates the previous paragraphs by reference. Complaint, ¶ 25. The previous paragraphs concern the general facts surrounding the parties’ contractual dispute. Complaint, ¶25.  The physical elder abuse claim alleges that on November 10, 2019, Jarvis abused Father by twisting his arm and pushing him into a door. Complaint, ¶ 26. Jarvis also used pepper spray that caused Father to suffer an asthma attack. Id. 28. This claim concerns Father’s personal injury claim, arising from the same factual context related to the parties’ contract dispute. Because the physical abuse is alleged to have arisen in the context of the parties’ loan agreement, it could have been asserted in the First Action, and is barred by res judicata.

G.     The third cause of action for fraud is barred by res judicata.

            This claim is also based on the same contract dispute. Complaint, ¶ 32. Father alleges that at the time he conveyed an interest in the property to Jarvis, he relied on Jarvis’ representation that Jarvis would repay the loan. Id. ¶ 33.

            Father made the same claim in his cross-complaint in the First Action, although the agreement is framed differently. Father asserts that he and Jarvis agreed that Father would be placed back on title to refinance the property, but that Jarvis alone would be responsible for paying back the loan. First Action, Cross-complaint, ¶ 25. The same issue was finally determined in the First Action namely, the determination of either party’s obligations for the loan repayment. Accordingly, this claim has been actually litigated in the First Action.

H.     The fifth cause of action for breach of contract was actually litigated in the First Action.

            This claim arises from the same facts relating to the parties’ dispute about the loan taken out against the property. Complaint, ¶ 44. In the First Action, Jarvis’ claim for fraud is also based on the same agreement. First Action, FAC, ¶ 14.a.-16. Accordingly, this action is barred by res judicata.

I.        The sixth cause of action for construction eviction could have been brought in the first action.

            Constructive eviction is the result of any disturbance of the tenant’s possession by the lessor which has the effect of depriving the tenant of the beneficial enjoyment of the premises provided the tenant vacates the premises within a reasonable time. Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 292. In this action, Father alleges that he was in actual possession of the Fernrock property in March of 2017. However, Jarvis changed the locks to the home on January 3, 2019 without Plaintiff’s permission causing the utility company to turn off the power. Complaint, ¶¶ 51-52. Father alleges that Jarvis again attempted to shut the power off on November 7, 2019. Complaint, ¶ 51-52. Father claims he was constructively evicted in violation of Civ. Code, § Code § 789.3. Complaint, ¶ 52.

            In the First Action, Father’s cross-complaint alleges that Jarvis “ousted” him from the subject property and took his personal belongings. First Action, Cross-complaint, ¶29.  In the context of a tenancy in common an “ouster” is the “wrongful dispossession or exclusion by one tenant of his cotenant from the common property of which they are entitled to possession.” Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128. An ouster is proven by adverse acts such as denial of title, changing the locks, and denying admittance to the premises. Id. at 1128.

            Therefore, the constructive eviction claim, which arises from the same facts between the same parties at issue in the first action, could have been litigated along with Father’s cross-complaint and is, therefore, barred.

J.        The complaint does not allege any facts entitling Plaintiff Anthony to any relief.

            The only claim asserted on behalf of Anthony is the fourth cause of action for conversion of his personal property at the time of his eviction on December 12, 2018, which is not at issue in this motion. Plaintiffs argue in opposition that Anthony states claims in the fifth cause of action for breach of contract and the sixth cause of action for constructive eviction.

            The contract claim specifically alleges a contract between Father and Jarvis only. Even if Anthony was a party to the contract or stood to benefit from it as a third-party beneficiary, the claim could have been litigated in the First Action. While Anthony was not a party in the First Action, res judicata also bars the relitigation of claims by a party in privity. As noted previously, privity requires the “sharing of an identity or community of interest, with adequate representation of that interest in the first suit, and circumstances such that the nonparty should reasonably have expected to be bound by the first suit.” Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 672.

            Therefore, if Anthony shared an interest with Father with respect to the loan agreement between Father and Jarvis and Father’s interest in the real property, then Anthony is in privity with Father. His claim is equally barred by res judicata.

            Anthony’s purported claim for constructive eviction is also barred. In this action, the complaint alleges that Father permitted Anthony to occupy the Fernrock property until December 31, 2019. Complaint, ¶ 10. However, Jarvis commenced eviction proceedings against Anthony and obtained a judgment against him on November 5, 2018. Complaint ¶ 11.

            Father’s cross-complaint in the First Action alleges that Jarvis ousted Father on October 2018 from the same property. First Action FAC ¶ 29. Accordingly, Anthony is in privity with Father since they shared the same asserted right to remain on the premises. Father was represented by counsel in the First Action.

V.      CONCLUSION

            Defendant has established that except for the fourth cause of action for conversion which is not at issue in this motion, all remaining causes of action against both Father and Anthony are barred by res judicata. Leave to amend is ordinarily granted if there is a reasonable possibility that the defect can be cured. However, the burden is on the Plaintiffs to demonstrate how the complaint might be amended and how that amendment will change the legal effect of the pleading. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298, 302.

            Plaintiffs’ opposition did not address the issue of res judicata or any reason why the principle should not apply in this case. Therefore, the court is inclined to grant the motion without leave to amend. However, the court will hear from Plaintiffs at the time of the hearing.