Judge: Peter A. Hernandez, Case: 22PSCV00525, Date: 2022-10-19 Tentative Ruling

Case Number: 22PSCV00525    Hearing Date: October 19, 2022    Dept: O

1.         Defendant Jose Daniel Gomez’s Demurrer to Plaintiff’s Complaint is TAKEN OFF-CALENDAR. The court deems the First Amended Verified Complaint electronically received from Plaintiff on October 10, 2022, 1:31 p.m. filed as of that date and time.

2.         Defendant Maria De La Cruz Ceballos’ Demurrer to Plaintiff’s Complaint is TAKEN OFF-CALENDAR. The court deems the First Amended Verified Complaint electronically received from Plaintiff on October 10, 2022, 1:31 p.m. filed as of that date and time.

Background   

Plaintiff Mayela Michelle Sullivan aka Margarita Sullivan aka Margarita Ceballos (“Plaintiff”) alleges as follows: On or about June 14, 2002, Plaintiff and her sister, Maria De La Cruz Ceballos (“Ceballos”), purchased the duplex located at 4431 and 4433 Baldwin Park Blvd. in Baldwin Park (“subject property”) from Plaintiff and Ceballos’ brother and sister-in-law under Ceballos’ name since Plaintiff was unable to obtain a loan from any financial institution at the time. Plaintiff and Ceballos negotiated a deal to pay $40,000.00 to their brother and sister-in-law and to continue making the mortgage payment on the subject property until they were able to obtain a loan and convert title to their name. Ceballos made the down payment and Plaintiff and Ceballos agreed that Plaintiff would pay funds towards the purchase once her house in Mexico sold. The price for the property was a payment of $80,000.00 and of a mortgage in excess of $118,000.00. Plaintiff lived in one unit with her mom and nephew and the other unit was rented out. Ceballos paid off the first mortgage loan in November 2004. In December 2004 Plaintiff sold her house in Mexico and paid $41,219.00 to Ceballos. In 2007, Ceballos added Plaintiff to the title; the deed was recorded in 2010. On November 13, 2012, Ceballos asked Plaintiff if they could put Ceballos’s husband, Jose Daniel Gomez (“Gomez”), on title. Ceballos is a real estate broker and Gomez is a real estate agent. Plaintiff permitted this. The original mortgage was paid off in 2014. On July 29, 2015, Ceballos asked Plaintiff to quitclaim the subject property to Gomez because Ceballos and Gomez were getting a loan and did not want Plaintiff affected by the loan process. Ceballos represented that she and Gomez would put Plaintiff on title as soon as the loan was done. Ceballos and Gomez got two loans, for $250,000.00 and $278,000.00, to buy a shopping center without letting Plaintiff know and re-financed them on or about May 21, 2021, without Plaintiff’s knowledge or consent. On January 31, 2021, Ceballos advised Plaintiff to keep unit 4431, including the whole rent, for herself and offered Plaintiff to assume her debt for $260,000.00 and she would sign a quitclaim. On April 14, 2021, after Plaintiff insisted to be added to the title, Ceballos told Plaintiff that adding her to the title would reassess the subject property’s value and increase the property tax. On April 12, 2022, Plaintiff received an email from Ceballos’s attorney to stop contacting Ceballos and stop collecting the rent.

On June 2, 2022, Plaintiff filed a complaint, asserting causes of action against Ceballos, Gomez, All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title or Any Cloud on Plaintiff’s Title Thereto and Does 1-20 for:

1.                  Breach of Oral Contract

2.                  Quiet Title to Real Property

3.                  Constructive Fraud

4.                  Conversion

5.                  Unjust Enrichment

6.                  Constructive Trust

7.                  Breach of Fiduciary Duty

8.                  Fraud and Misrepresentation

9.                  Breach of the Covenant of Good Faith and Fair Dealing

10.              Partition or, in Alternative, Sale of the Property

11.              Declaratory Relief

A Case Management Conference is set for October 19, 2022.

Discussion

Ceballos and Gomez have both demurred to Plaintiff’s verified complaint.

On October 10, 2022 at 1:31 p.m., the court electronically received a First Amended Verified Complaint from Plaintiff. Plaintiff should have filed the foregoing pleading no later than October 6, 2022 pursuant to Code of Civil Procedure § 472 (i.e., “[a] party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties . . .”) There is no record of a party stipulation having been filed (i.e., as of October 12, 2022, 9:08 a.m.)

Nevertheless, the court determines that it is appropriate under the circumstances to deem the First Amended Verified Complaint filed as of October 10, 2022 at 1:31 p.m. and to take the demurrers off-calendar.

The Case Management Conference will proceed as scheduled.