Judge: Peter A. Hernandez, Case: 23PSCV00968, Date: 2023-09-12 Tentative Ruling

Case Number: 23PSCV00968    Hearing Date: September 12, 2023    Dept: K

Defendants Citalli Alejandra Gutierrez’s and Raymundo Gutierrez’s Demurrer to Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

Background[1]  

Plaintiff Salvador Gutierrez (“Plaintiff”) alleges as follows:

Citalli Alejandra Gutierrez (“Citalli”) and Raymundo Gutierrez (“Raymundo”) are married; Plaintiff is Citalli’s father.  In 1991, Plaintiff and his wife, Irene Gutierrez (“Irene”), purchased the property located at 2211 S. San Antonio Avenue, Pomona, CA 91766 (“subject property”). On May 16, 2002, Plaintiff and Irene refinanced and removed Maurilo and Ana Gutierrez from the deed. Plaintiff thereafter added Salvador E. Gutierrez (“Salvador”), to the title for co-signing purposes. Citalli returned to the subject property to live in 1996 and agreed to provide monthly rent of $800 for Raymundo and herself. Plaintiff’s mortgage was then $1,600.00/month. Since Plaintiff did not speak English, Citalli agreed to send the payment directly to the mortgage lender. Citalli occasionally failed to pay the mortgage on time, which resulted in penalties. In 2008, Citalli approached Plaintiff and demanded half of the subject property, but Plaintiff refused.

On July 28, 2008, Citalli convinced Plaintiff he needed to sign a document for the taxes. Plaintiff trusted Citalli and signed the document, but did not realize he was signing over his interest to the subject property. Citalli also convinced Salvador to sign over his interest. In 2002, Plaintiff paid $70,000.00 and constructed another unit in the back of the subject property. Plaintiff also replaced the roof, piping and windows of the addition in subsequent years. Citalli currently lives in the addition. In June 2016, Plaintiff started giving Citalli $185.00/month for electricity. In 2017, Citalli transferred the subject property to Raymundo. 

In 2018, Plaintiff returned from Mexico only to see that his personal objects were thrown outside the subject property. Citalli and Raymundo have made Plaintiff’s life a “living hell” since then and continue to mess with his personal belongings. In January 2023, a real estate agent came to see the subject property; during that time, Citalli, Raymundo and the agent intentionally spoke English so Plaintiff could not understand them.

On April 5, 2023, Plaintiff filed a complaint, asserting causes of action against Citalli, Raymundo and Does 1-20 for:

1.                  Breach of Oral Contract

2.                  Specific Performance

3.                  Resulting Trust

4.                  Quiet Title

5.                  Constructive Trust

6.                  Conversion

7.                  Common Count

8.                  Constructive Fraud

A Case Management Conference is set for September 12, 2023.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e)&(f).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Citalli and Raymundo demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first through eighth causes of action in Plaintiff’s complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain. They also demur to the aforesaid causes of action per subdivision (g), on the basis that it cannot be ascertained from the pleading whether the contracts that appear to be basis for the causes of action are written, oral, or implied by conduct.

Statute of Limitations

Citalli and Raymundo first assert that all of Plaintiff’s causes of action are time-barred. “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations.  The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4^th 316, 324 [emphasis theirs].)

The statute of limitations for breach of oral contract is two years (Code Civ. Proc., § 339(1)). If the gravamen of a quiet title action is to set aside and cancel a written agreement, the four-year statute of limitations period for cancellation of an instrument applies. (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1122.)

Citalli and Raymundo claim that the statute of limitations either began to run in 2008 (i.e., when Plaintiff signed the grant deed) or, at the very latest, in 2018 (i.e., when they removed Plaintiff’s possessions and wanted “Plaintiff out on the street to be homeless”) and that, under either a 2 or 4-year statute of limitations, all causes of action are time-barred.

Plaintiff has failed to address Citalli and Raymundo’s statute of limitations argument. Nevertheless, the court believes that Plaintiff, in general, has sufficiently pled delayed discovery for purposes of withstanding demurrer on this basis. “The general rule is that a cause of action accrues when the wrongful act is done and not at the time of plaintiff's discovery. But under the delayed discovery rule, a cause of action will not accrue until the plaintiff discovers or should have discovered, through the exercise of reasonable diligence, all the facts essential to the cause of action.” (Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4^th 1236, 1246.) Plaintiff has alleged that he does not speak English (Complaint, ¶ 6), that he did not know he was signing over his interest to the subject property in July 2008 (Id., ¶ 8), that at no point did anyone tell him what he was signing (Id.), that he returned home from Mexico to see his personal objects thrown outside the subject property (Id., ¶ 13), that Citalli and Raymundo continue to mess with his personal belongings and it is clear “they want Plaintiff out on the street to be homeless” (Id. [which suggests that Plaintiff is still living at the subject property]), that he had been “entirely unaware” that “Defendants maintained title as her [sic] sole and separate property until recently” (Id., ¶ 14) and that a real estate agent came to see the subject property in January 2023 and spoke English with Citalli and Raymundo so Plaintiff could not listen (Id., ¶ 15).

However, it does appear that Plaintiff’s common count cause of action, which is based on money given to Citalli and Raymundo by Plaintiff “for payment on the property,” is time-barred under either the four year statute of limitations in Code of Civil Procedure § 337 or the two year statute of limitations in Code of Civil Procedure § 339.

The court, then, overrules the demurrer as to the first-sixth, eighth and nine causes of action based on statute of limitations grounds but sustains the demurrer as to the seventh cause of action on this basis.

First Cause of Action (i.e., Breach of Oral Contract)

Citalli and Raymundo assert that Plaintiff’s first cause of action “does not allege the terms of the oral contract Plaintiff contends Defendants breached.” (Demurrer, 8:10-11). The court agrees.[2] Plaintiff has alleged that “Defendant breached the oral agreement by failing to transfer or convey the property back to Plaintiff.” (Complaint, ¶ 20.) Plaintiff, however, has not alleged the existence of any agreement between Plaintiff, on the one hand, and Citalli and/or Raymundo, on the other hand, wherein Citalli and/or Raymundo were required to transfer title to the subject property to Plaintiff; instead, Plaintiff pled that Citalli returned to the subject property with Raymundo in 1996 and agreed to provide $800 monthly rent to Plaintiff and that on or about July 28, 2008, Citalli had Plaintiff sign documents which he believes were for the taxes but apparently instead were to sign over his interest to the subject property. (Id., ¶¶ 6 and 8.)

Citalli and Raymundo’s demurrer to the first cause of action is sustained.

Second, Third and Fifth Causes of Action (i.e., Specific Performance, Resulting Trust and Constructive Trust, Respectively)

Citalli and Raymundo point out that Paragraph 23 of Plaintiff’s complaint concedes that “[s]pecific performance is a remedy for breach of contract. . .” (Emphasis in original). Further, a resulting trust and a constructive trust are remedies, not causes of action. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76 [“In their third amended complaint appellants alleged, as causes of action, a resulting trust and a constructive trust. But neither is a cause of action, only a remedy”].

Citalli and Raymundo’s demurrer to the second, third and fifth causes of action is sustained.

Fourth Cause of Action (i.e., Quiet Title)

A cause of action for quiet title requires (1) a legal description and street address of the subject property; (2) the title of the plaintiff as to which a determination is sought and the basis of the title; (3) the adverse claims to the title of the plaintiff against which a determination is sought; (4) the date as of which the determination is sought and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. (Code Civ. Proc., § 761.020.) The complaint must also be verified. (Ibid.)

Citalli and Raymundo assert that Plaintiff has failed to allege the above elements. The court agrees that, at a minimum, the third and fourth elements are lacking. Further, Plaintiff fails to address Citalli’s and Raymundo’s reference to De Leonis v. Hammel (1905) 1 Cal.App.390, 394 for the proposition that “[a]n action to quiet title cannot be maintained by the owner of an equitable estate against the holder of the legal title.” Citalli and Raymundo’s demurrer to the fourth cause of action is sustained.

Sixth Cause of Action (i.e., Conversion)

The court notes that, while not addressed by either party, “conversion is a tort that may be committed only with relation to personal property and not real property.” (Munger v. Moore (1970) 11 Cal.App.3d 1, 7.) Citalli and Raymundo’s demurrer to the sixth cause of action is sustained.

Seventh Cause of Action (i.e., Common Counts)

Citalli and Raymundo’s demurrer to the seventh cause of action is sustained, as set forth above.

Eighth Cause of Action (i.e., Constructive Fraud)

Plaintiff has failed to adequately allege the existence of a fiduciary relationship with respect to Raymundo. Further, Plaintiff refers to “Defendant” only in Paragraphs 48-50 without identifying whether such allegations are directed to Citalli or Raymundo. Citalli and Raymundo’s demurrer to the eighth cause of action is sustained.