Judge: Olivia Rosales, Case: 21NWCV00557, Date: 2022-08-23 Tentative Ruling

Case Number: 21NWCV00557    Hearing Date: August 23, 2022    Dept: SEC

MEHEA, USA LLC v. GUTIERREZ

CASE NO.:  21NWCV00557

HEARING:  8/23/22 @ 9:30 AM

JUDGE:  OLIVIA ROSALES

 

#1

TENTATIVE RULING

 

I.             Cross-Defendants Mehea, USA LLC and Michael Behzad’s demurrer to the first amended cross-complaint is OVERRULED.

 

II.            Cross-Defendants Mehea, USA LLC and Michael Behzad’s motion to strike is GRANTED as to attorney’s fees and DENIED as to punitive damages.

 

Cross-Defendants are ORDERED to file and serve their Answers within 10 days.

 

Opposing Party to give NOTICE.

 

 

Cross-Defendants Mehea, USA LLC (“Mehea”) and Michael Behzad demur to the 1st cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action.

 

Plaintiff Mehea USA LLC initiated this action on September 1, 2021, alleging that Plaintiff is the owner of a vacant real estate parcel located in Santa Fe Springs, California.  (Complaint, ¶ 1.)  Defendants Silvia Gutierrez and Rafael Maldonado are owners of the adjacent property.  (Id., ¶¶ 3-4.)  Defendants trespassed upon Plaintiff’s property and removed concrete and pavers, among other things without permission to do so.  (Id., ¶ 12.)  While on the property, Defendants constructed a barrier in front of and/or on the property, limiting Plaintiff’s access, thereby depriving Plaintiff of its use of Plaintiff’s property.  Based thereon, the Complaint asserts causes of action for:

 

1.    Trespass

2.    Conversion

 

The operative First Amended Cross-Complaint, alleges that on March 22, 2021, Cross-Defendant Mehea, through its agent Michael Behzad, entered into a contract for the purchase and sale of a parcel of property for $50,000.  (FAXC, ¶ 9, Ex. 1.)  The parcel is landlocked on its western boundary by the 605 Northbound transition road, and adjacent to Cross-Complainants’ residence.  (FAXC, ¶ 10.)  Cross-Complainants performed their obligations under the agreement (Id., ¶ 13), but Cross-Defendant communicated its intention to cancel the sale. Based thereon, the Cross-Complaint asserts causes of action for:

 

1.    Breach of Contract

2.    Trespass

 

1st CAUSE OF ACTION


BREACH OF CONTRACT:  The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages.  (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)  In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct.  (CCP § 430.10(g).)  To plead a written contract, a plaintiff must do one of the following: (1) set forth the contract in haec verba; or (2) plead the contract’s legal effect by alleging the substance of its relevant terms.  (4 Witkin, California Procedure 4th Ed., 479-481.)  In order to plead an oral contract, a plaintiff must plead its legal effect, i.e., allege the substance of the contractual terms.  (Id. at 483.)

 

The following 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… An agreement… for the sale of real property, or of an interest therein. (CC § 1624(a)(3).)

 

The contract attached as Ex. 1 to the FAXC is not signed by Mehea USA, LLC and Michael Behzad.

 

“[W]here assertion of the statute of frauds would cause unconscionable injury, part performance allows specific enforcement of a contract that lacks the requisite writing. The doctrine most commonly applies in actions involving transfers of real property… [part performance available to enforce agreement to convey real property absent writing required under § 1971 of same code]… to constitute part performance, the relevant acts either must “unequivocally refer” to the contract, or “clearly relate” to its terms. Such conduct satisfies the evidentiary function of the statute of frauds by confirming that a bargain was in fact reached.”  (In re Marriage of Benson (2005) 36 Cal. 4th 1096, 1108–09; see Part performance that takes contract outside statute, 2 Cal. Affirmative Def. (2d ed.) § 53:25; Miller & Starr, Agreements required to be in writing—Exception: part performance by the buyer or lessee, 1 Cal. Real Est. (4th ed.) § 1:76; Part Performance – Generally, 35 Cal. Jur. 3d Statute of Frauds § 93.)

 

“The doctrine of part performance by the purchaser is a well- recognized exception to the statute of frauds as applied to contracts for the sale or lease of real property…. ‘Under the doctrine of part performance, the oral agreement for the transfer of an interest in real property is enforced when the buyer has taken possession of the property and either makes a full or partial payment of the purchase price, or makes valuable and substantial improvements on the property, in reliance on the oral agreement.’ … The part performance by the buyer must clearly relate to, and must be pursuant to, the terms of the oral agreement.”  (Sutton v. Warner (1993) 12 Cal.App.4th 415, 422 - internal citations omitted/)

 

Here, ¶ 22 alleges that “after the parties agreed to the $50,000 price, Cross-Complainants resumed their maintenance of the parcel, with the consent of Cross-Defendant Behzad, including but not limited to clearing overgrown vegetation and rodent / pest control.”  ¶ 23 alleges that Cross-Complainants suffered damages relating to the maintenance and improvements to the parcel. 

 

At this juncture, the court is satisfied that Cross-Complainants have alleged facts supporting part performance, and that the performance clearly relate to the terms of the alleged oral agreement. 

 

Demurrer is OVERRULED.

 

The accompanying motion to strike attorney’s fees is GRANTED without leave to amend because the contract is not signed. 

 

Motion to strike punitive damages is DENIED.  ¶ 31 alleges that Behzad damaged Cross-Complainants property by removing a gate on Cross-Complainants’ property without permission.  ¶ 33 alleges that Behzad’s actions were done in his individual capacity as well as an agent for Mehea.  The court finds the allegations are sufficient to support malicious conduct.

 

Cross-Defendants are ORDERED to file and serve their Answers within 10 days.