Judge: Michelle Williams Court, Case: 21STCV44625, Date: 2022-09-07 Tentative Ruling
Case Number: 21STCV44625 Hearing Date: September 7, 2022 Dept: 74
21STCV44625 ARMANDO
LIRA vs MARISELA SANDS
Plaintiff/Cross-Defendant Armando Lira’s Demurrer and Motion
to Strike
TENTATIVE RULING: Plaintiff and Cross-Defendant Armando Lira’s
Demurrer to Defendants’ and Cross Complainants’ Cross-Complaint is SUSTAINED
with leave to amend as to the first, second, fifth, sixth, and seventh causes
of action and OVERRULED as to the third and fourth causes of action. Cross-Defendant Armando Lira’s Motion to
Strike Portions of the Cross-Complaint is DENIED.
Background
On December 6, 2021, Plaintiff Armando Lira filed this action against
Marisela Sands, Nationstar Mortgage, LLC, and all unknown persons claiming any
interest in the property. The complaint asserts causes of action for: (1)
partition of real property; (2) unjust enrichment; and (3) accounting. The
complaint alleges Plaintiff Lira and Defendant Sands own real property located
at 727 Saybrook Avenue, Los Angeles, CA
90022 as joint tenants. Plaintiff and Defendant’s “mother transferred the
interest in the real property to Plaintiff wherein Plaintiff was to refinance
and provide a certain sum of money in the amount of $30,000/each for their
interest in the Subject Property. Plaintiff has already provided to each of his
seven (7) siblings half (1/2) of that interest and intends to provide each
sibling the remaining half (1/2) when he is able to refinance the Subject
Property once again to obtain the additional funds.”
On March 7, 2022, Marisela Sands,
Hermelinda Olvera, Rosa Balderas, Dolores Lira Vasquez, Maria C. Delgado, and
Jesus Jim Lira filed a cross-complaint against Armando Lira, Ma. Ema Lira
Almanza, and all
unknown persons claiming any interest in the property. The cross-complaint
asserts causes of action for: (1) quiet title; (2) imposition of constructive
trust; (3) fraud and deceit; (4) constructive fraud; (5) declaratory relief;
(6) partition by appraisal; and (7) accounting.
Demurrer and Motion to Strike
On
May 13, 2022, Cross-Defendant Armando Lira demurrer to each cause of action
asserted in the cross-complaint arguing that the cross-complaint is not
properly verified, and the claims violate the statute of frauds as well as the
statute of limitations.
Cross-Defendant
also moves to strike the exemplary damages allegations contained in paragraphs
35 and 39 as well as the prayer for relief.
Opposition
In opposition, Cross-Complainants contend the
cross-complaint is properly verified, pleads facts demonstrating an exception
to the statute of frauds as well as delayed discovery precluding the
application of the statute of limitations, and the allegations are sufficient
to support a claim for punitive damages.
Reply
In reply, Cross-Defendant argues Cross-Complainants
have not demonstrated or alleged any exceptions to the statute of frauds or
statute of limitations and failed to allege facts supporting their punitive
damages claim.
Cross-Defendant Failed to Satisfy the Meet
and Confer Requirements
Pursuant to Code of Civil Procedure sections 430.41
and 435.5, a demurrer and motion to strike must be accompanied by a meet and
confer declaration.
Cross-Defendant did not file the required
declaration in support of either the demurrer or motion to strike.
Demurrer
Standard
A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. In a demurrer proceeding,
the defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code Civ.
Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege
ultimate facts sufficient to apprise the defendant of the factual basis for the
claim against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts
noting plaintiff’s proof. (C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A
“demurrer does not, however, admit contentions, deductions or conclusions of
fact or law alleged in the pleading, or the construction of instruments
pleaded, or facts impossible in law.” (S.
Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)
A
special demurrer to a complaint is appropriate when the grounds of the pleading
are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f);
Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor
demurrers based on uncertainty, which the court strictly construes even when
the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14
Cal.App.4th 612, 616.)
If
the demurrer is sustained, plaintiff must prove the possibility of cure by
amendment. (Czajkowski v.
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004)
120 Cal.App.4th 72, 78-79).) Leave to amend must be allowed where there is
a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007)
152 Cal.App.4th 86, 92.)
The Cross-Complaint is
Properly Verified
Cross-Defendant contends the
cross-complaint is not properly verified because only two of the
Cross-Complainants verified the cross-complaint. (Dem. at 2:18-26.) Pursuant to
Code of Civil Procedure section 761.020, a quiet title complaint must be
verified. (See e.g. Deutsche Bank National Trust Co. v. Pyle (2017) 13
Cal.App.5th 513, 524 (“The quiet title plaintiff must file a verified
complaint.”).)
As argued by Cross-Complainants, only
one of the Cross-Complainants must verify the pleading. (See e.g. Claiborne
v. Castle (1893) 98 Cal. 30, 33; Brochtrup v. Intep (1987) 190
Cal.App.3d 323, 330 (“Where there are several parties, verification by one is
sufficient.”).) Cross-Defendant appears to concede this point by not addressing
verification in the reply.
The demurrer based upon the sufficiency
of the verification is OVERRULED.
Statute of Frauds
Cross-Defendant contends the entire
cross-complaint violates the statute of frauds. (Dem. at 3:1-25.) Civil Code
section 1624 provides that certain enumerated “contracts are invalid, unless
they, or some note or memorandum thereof, are in writing and subscribed by the
party to be charged or by the party's agent.” Similarly, Probate Code section
15206 provides “[a] trust in relation to real property is not valid unless
evidenced by one of the following methods: (a) By a written instrument signed
by the trustee, or by the trustee's agent if authorized in writing to do so.
(b) By a written instrument conveying the trust property signed by the settlor,
or by the settlor's agent if authorized in writing to do so. (c) By operation
of law.”
Cross-Defendant’s statute of frauds
argument is directed at the entirety of the cross-complaint, but fails to cite
any authority that would apply the contractual doctrine of the statute of
frauds to bar tort claims for fraud, such as the third and fourth causes of
action. In California, fraud causes of action are not barred by the statute of
frauds. (See e.g. Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 31
(“The policies of the statute of frauds will not be subverted by affording plaintiffs
who can prove actual fraud the opportunity to do so.”).) Accordingly,
Cross-Defendant’s statute of frauds argument is inapplicable to the third and
fourth causes of action.
The remainder of the causes of action
are all based upon the contention that, despite the manner in which title was
recorded, the property would be held “in trust for the benefit of Ana M. Lira’s
children, Armando Lira, Marisela Sands Ma. Ema Lira Almanza, Hermelinda Olvera,
Rosa Balderas, Dolores Lira Vasquez, Maria C. Delgado and Jesus Jim Lira which
she intended as a gift to her children with the understanding that she would
acquire a right to occupy the subject property until a time she was unable or
of her passing.” (Cross-Compl. ¶¶ 10-11.)
In opposition, Cross-Complainants cite
general authority regarding various grounds for avoiding the statute of frauds.
(Opp. at 4:27-5:21.) However, Cross-Complainants solely argue they “fully
performed the obligations required of them under the agreement.” (Opp. at
5:22-23.) Cross-Complainants cite their allegation that they “agreed to share
equally in the upkeep and maintenance of the subject property which they
continued to do, until prevented by Armando Lira’s breach of his duties as
trustee of the property under the agreement as alleged herein.” (Cross-Compl.
¶¶ 12, 18.)
The Court agrees with Cross-Defendant’s
arguments in reply that Cross-Complainants rendition of services, of an
undefined character and amount for “upkeep and maintenance, does not bring the
agreement outside the statute of frauds. In Shive v. Barrow (1948) 88
Cal.App.2d 838, the court found:
The
oral agreements alleged were that plaintiffs would pay money, perform services,
and procure the performance of services. The services were the making of
improvements to the property and erecting a building thereon. No facts are
alleged from which it could be concluded that the services were of such a
peculiar character that it was or is practically impossible to estimate their
value by any pecuniary standard. There is a long line of decisions in this
state to the effect that the law gives plaintiffs an adequate remedy for breach
of the agreement, or for the money advanced and for compensation for the
services rendered, and that equity will not grant quasi-specific performance of
the agreement when such remedies are available.
(Id.
at 843–844.) Similarly, in Palmer v. Phillips (1954) 123 Cal.App.2d 291,
the court held:
Plaintiffs
contend, however, that they have alleged sufficient facts to obviate the bar of
the statute. This contention is without substance. The allegations of the
complaint disclose that in reliance on the alleged oral contract, plaintiffs
performed miscellaneous services, some purely impersonal and others of an
intimate and confidential nature, requiring a degree of self-discommoding in
order to accommodate themselves to the specialized needs of the decedents.
Ordinarily, in order to prevent unjust enrichment, the law provides a remedy
wherein the reasonable value of such personal services may be recovered in an
action against the estate of the deceased promisor based upon the theory of
quantum meruit. [Citations]. However, the mere rendition of personal services
is not sufficient to relieve a contract from the operation of the statute in an
action for quasi-specific performance unless they are of “such peculiar,
extraordinary, or exceptional character that it is impossible to estimate their
value by any pecuniary standard or to adequately compensate for them in money
[citations].” [Citation]. An examination of the allegations previously set out
clearly manifests that the services performed are not of such unique or
extraordinary character as would make them noncompensable in money; nor have
plaintiffs subjected themselves to such a detrimental change of position as
would work an unconscionable hardship to leave them to their legal remedy of
quantum meruit.”
(Id. at 295–296.) The same is
true here. Cross-Complainants merely allege the provision of upkeep and
maintenance, which can be compensated by recovery for the reasonable value
thereof.
In reply, Cross-Defendant also
addresses authority related to estoppel, which is a broader, separate issue
from full performance, not raised in the opposition. (See Byrne v. Laura (1997)
52 Cal.App.4th 1054, 1072 (“The doctrines of part performance and equitable
estoppel are, in any event, separate grounds for avoiding a statute of frauds.”).)
The Court finds the allegations in the
Cross-Complaint regarding the first, second, fifth, sixth, and seventh causes
of action fall within the statute of frauds without sufficient allegations of demonstrating
an exception thereto.
The demurrer is SUSTAINED with leave to
amend as to the first, second, fifth, sixth, and seventh causes of action. The
demurrer is OVERRULED as to the third and fourth causes of action.
Statute of Limitations
Cross-Defendant also argues the claims
are barred by the statute of limitations based upon the following brief
argument:
The
Cross-Complaint states that the Property would not pass from the parties’
mother Ana M. Lira until after her passing. Cross-Complaint ¶¶ 10–11.
Cross-Defendants also admit the contract was oral, therefore it is subject to a
two year statute of limitations (Cal. Code Civ. Proc. § 339); Cross-Complaint ¶
11. The Cross-Complaint fails to state that Ana M. Lira passed away less than
two years before the purported agreement between the parties and therefore
should be denied on this basis as well.
(Dem. at 4:1-7.)
“A demurrer on the ground of the bar of
the statute of limitations will not lie where the action may be, but is not
necessarily barred.... It must appear clearly and affirmatively that, upon the
face of the complaint, the right of action is necessarily barred.... This will
not be the case unless the complaint alleges every fact which the defendant
would be required to prove if he were to plead the bar of the applicable
statute of limitation as an affirmative defense.” (Lockley v. Law Office of
Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875,
881.)
As with the statute of frauds argument,
Cross-Defendant seeks to apply the two-year statute of limitations for an oral
contract claim to the third and fourth causes of action for fraud. Fraud claims
are governed by an entirely separate statute providing a three-year statute of
limitations. (Code Civ. Proc. ¶ 338(d).)
In opposition, Cross-Complainants note
they allege they did not discover Cross-Defendant’s fraud and breach of the
alleged agreement until July 13, 2021. (Opp. at 6:26-10:19; Cross-Compl. ¶¶
22-23.)
“In order to rely on the discovery rule
for delayed accrual of a cause of action, a plaintiff whose complaint shows on
its face that his claim would be barred without the benefit of the discovery
rule must specifically plead facts to show (1) the time and manner of discovery
and (2) the inability to have made earlier discovery despite reasonable diligence. In assessing the sufficiency of the
allegations of delayed discovery, the court places the burden on the plaintiff
to show diligence; conclusory allegations will not withstand demurrer.” (Fox v. Ethicon Endo-Surgery, Inc. (2005)
35 Cal.4th 797, 808.) “[A] plaintiff must allege
facts showing the time and surrounding circumstances of the discovery and what
the discovery was.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1472.)
The Court agrees with Cross-Complainants
that the allegations are sufficient to render the action timely. The
Cross-Complaint alleges an agreement to convey the property on demand,
(Cross-Compl. ¶¶ 11, 17), Cross-Defendant demanded that Sands “execute and
record a deed naming him as full owner of the Subject Property” on July 13,
2021, (Id. ¶¶ 22, 23), Cross-Defendant concealed his true intent and no previous
demand had been made upon him to convey the property. (Id. ¶ 23.) Nothing
further is required at the pleading stage.
The demurrer based upon the statute of
limitations is OVERRULED.
Motion to Strike
Cross-Defendant moves to strike paragraphs
35 and 39 as well as the prayers for relief related to exemplary damages.
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 of Civ. Proc. § 435(b)(1); Cal. Rules of Court, rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (Code Civ. Proc. § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782.)
“In order to
survive a motion to strike an allegation of punitive damages, the ultimate
facts showing an entitlement to such relief must be pled by a plaintiff.
[Citations.] In passing on the correctness of a ruling on a motion to strike,
judges read allegations of a pleading subject to a motion to strike as a whole,
all parts in their context, and assume their truth. [Citations.] In ruling on a
motion to strike, courts do not read allegations in isolation. [Citation.]”
(Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “Pleading in the language of the
statute is not objectionable when sufficient facts are alleged to support the
allegation.” (Perkins v. Superior Court (1981) 117
Cal.App.3d 1, 6-7.)
Punitive Damages
Cross-Defendants failed to demur to the
Cross-Complaint based upon the sufficiency of the allegations associated with
the fraud claims. The Cross-Complaint alleges Cross-Defendant agreed to hold
the property in trust for Cross-Complainants and convey the property on demand,
(Cross-Compl. ¶¶ 10-11), Cross-Defendant had no intention of doing so, (Id. ¶¶ 23,
27-29), and Cross-Complainants relied upon the representation of their sibling
to their detriment by contributing to the maintenance of the property. (Id. ¶¶
12, 18, 28.)
Punitive damages are properly supported
by an adequately stated claim for fraud. (Civ. Code § 3294(c)(3) (“‘Fraud’
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.”); Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610 (“A
fraud cause seeking punitive damages need not include an allegation that the
fraud was motivated by the malicious desire to inflict injury upon the victim.
The pleading of fraud is sufficient.”).)
The motion to strike is DENIED in its
entirety.