Judge Ralph C. Hofer, Case EC069256 2022-07-29 Tentative Ruling

Judge: Ralph C. Hofer, Case: EC069256, Date: 2022-07-29 Tentative Ruling

Case Number: EC069256 Hearing Date: July 29, 2022 Dept: D

TENTATIVE RULING

Calendar: 12

Date: 7/29/22

Case Number: EC 069256 Trial Date: September 26, 2022

Case Name: Benjauthrit v. Benjauthrit, et al.

MOTION FOR SUMMARY ADJUDICATION

Moving Party: Defendant Boonsieng Benjauthrit

Responding Party: Plaintiff Prapai Benjauthrit

Relief Requested:

Summary Adjudication of the first through sixth causes of action of Second Amended Complaint

Summary Adjudication of claim for punitive damages

Causes of Action from Second Amended Complaint

1) Quiet Title

2) Partition

3) Accounting

4) Constructive Trust

5) Fraud

6) Financial Elder Abuse

SUMMARY OF COMPLAINT:

Plaintiff Prapai Benjauthrit brings this action against her brother, defendant Boonsieng Benjauthrit, alleging that the parties took title to properties in Glendale in 1977 as joint tenants, with one of the subject properties to be the principal place of residence of plaintiff. Plaintiff alleges that defendant wrongfully induced plaintiff to sign away her interest in the subject properties while plaintiff was recovering from a coma.

Evidently, an unlawful detainer action was filed by defendant Mr. Benjauthrit against Angelo Martinez, plaintiff’s partner. The trial was conducted on November 3, 2018, before the Honorable William Dodson, and the court ruled in favor of Mr. Benjauthrit and entered judgment. The court stayed enforcement of that judgment until November 30, 2018, to accommodate the filing of a motion to consolidate or stay the UD case.

This matter has been consolidated with the UD case, with this case designated the lead case, and the court has issued a preliminary injunction staying the unlawful detainer proceedings. Plaintiff has timely posted a $50,000 bond.

ANALYSIS:

Procedural

Defendant in the moving papers and the reply indicate that this matter, and each of the causes of action in the Second Amended Complaint, concern four properties: 1507 Marion Drive in Glendale (“Marion Property”), 607-611 Brand Blvd. in Glendale (“Brand Property”), 7020 Foothill Blvd. in Tujunga (“Foothill Property”) and 1340-42 E. Colorado Blvd. in Glendale (“Colorado Property”).

Defendant concedes that defendant and plaintiff are listed as joint tenants on the grant deeds for the Foothill Property, recorded in December of 1979, and are also joint tenants on the Colorado Property. [UMF Nos. 38-42, Undisputed, and evidence cited, RFJN, Exs. T, CC, U, V]. These facts are undisputed by plaintiff. [See Response to UMF Nos. 38-42, “Undisputed.”].

Defendant brings this motion for summary adjudication, seeking to adjudicate each of the six causes of action with respect to issues which would, specifically with respect to the second and third causes of action, not dispose of those entire causes of action as to the Foothill Property or the Colorado Property. The relationship of the parties as joint tenants, and plaintiff’s allegations that defendant has wrongfully been collecting rents without accounting or providing plaintiff with plaintiff’s share of those rents, would subject defendant to some liability with respect to those properties as to each cause of action. The adjudications sought in connection with Issues Nos. 2 and 3, directed to adjudicating matters in connection with the Marion Property and the Brand Property, seek adjudications which do not dispose of an entire cause of action.

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

CCP § 437c(f) provides that “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

The motion as to two issues would not dispose of an “entire cause of action.”

Defendant makes a brief general argument in the motion that summary adjudication is warranted as to discrete claims denominated as a single cause of action. Defendant argues that summary adjudication is permitted of disparate alleged wrongful acts within the same cause of action occurring at different times, with different and distinct obligations and separate alleged damages.

Defendant relies on, without discussion, Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, in which it was held that summary adjudication could be appropriately sought and considered where one cause of action involves two separate and distinct obligations.

The motion does not clearly specify what distinct obligations are at issue here. Defendant in the reply indicates that plaintiff does not dispute that each of the separate acts alleged in the complaint are “separately amenable to summary adjudication,” and concludes, “Accordingly, in resolving Defendant’s Motion, the Court should independently consider each wrongful act alleged in Plaintiff’s SAC, and find whether that claim fails and/or is time barred. Specifically, each alleged deed, transaction, and withholding of proceeds should be independently considered.” [Reply, p. 3:5-11].

Lilienthal & Fowler involved a legal malpractice action arising out of legal services defendants lawyers provided to plaintiffs at different times on two separate and distinct matters, but combined them in asserting causes of action for negligence and breach of contract. Defendants sought summary adjudication of the claims as to one of the representations as barred by the applicable statute of limitations.

Defendant here does not make a presentation as distinct as that presented in Lilienthal & Fowler but places the court in a position of considering multiple acts for some causes of action, without explanation or analysis concerning the appropriateness of summarily adjudicating such issues separately which does not dispose of an entire cause of action for purposes of trial. There is no authority cited under which, because an opposing party does not object, the court is accordingly required to conduct analysis outside of the summary adjudication strictures.

Moreover, since Lilienthal & Fowler was decided, the summary judgment statute was amended in 2011 to add a subdivision which now reads:

“(t) Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.

(1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:

(i) A joint stipulation stating the issue or issues to be adjudicated.

(ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.

(B) The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.

(2) Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed. In making this determination, the court may consider objections by a non-stipulating party made within 10 days of the submission of the stipulation and declarations.

(3) If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation. The stipulating parties shall not file additional papers in support of the motion.

(4)(A) A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: “This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.”

(B) The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.”

No such stipulation or court order were obtained here, and the court had no opportunity to determine if a motion of this nature would further the interests of judicial economy. The motion accordingly is denied as to those issues presented which would not dispose of an entire cause of action.

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant Boonsieng Benthauthrit argues that as to plaintiff’s causes of action, plaintiff will be unable to establish an essential element of each claim, and that claims are barred by the defense of laches or the statute of limitations.

ISSUE NO. 1: There is no triable issue of fact as to Plaintiff’s cause of action to quiet title because 1) it is undisputed that the parties are joint tenants as to the Colorado and Foothill Properties, and Plaintiff has no basis to seek sole title to them, 2) Plaintiff knowingly and voluntarily quitclaimed her interests in the Marion and Brand Properties to Defendant, and 3) the cause of action is barred in its entirety by the statute of limitations.

The elements of a cause of action to quiet title are: A description of the property; Plaintiff’s title or interest in the property and the basis therefor; Defendant asserts an adverse claim or antagonistic property interest; the date as of which the determination is sought; a prayer for determination of plaintiff’s title. CCP § 760.010 et seq. See also Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 831.

CCP § 764.010 provides, in connection with quiet title judgments:

“The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.”

Defendant first argues that plaintiff’s quiet title claim fails as to the Foothill Property and Colorado Property, because plaintiff admits that plaintiff and defendant purchased the properties as joint tenants, and this joint tenant status is confirmed in documents attached to plaintiff’s SAC. [SAC, paras. 54-55; Compendium, Exs. V, CC]. Defendant argues that plaintiff accordingly has no basis for seeking in the cause of action to have the court quiet title to plaintiff’s “100% ownership” of those properties. [SAC, para. 70].

Plaintiff in opposition states, “Defendant here lumps together three issues; one of which is correct and two of which are not; Plaintiff is currently a joint tenant for FOOTHILL and COLORADO/FISCHER, so that title is not at issue for these two properties.” [Opp., 13:10-12].

The SAC is not as clear as it could be if plaintiff intends to obtain a quiet title determination that the parties are joint tenant owners of the Foothill Property and Colorado Property, as the pleading seeks a “determination and declaration of Plaintiff’s 100% ownership in the Subject Property.” [SAC, para. 70]. However, the prayer seeks various forms of relief, including not only that plaintiff holds 100% ownership of all four properties in fee simple, but for judgment “determining the rights, claims, ownership, liens, titles and demands of Defendant, and each of them, are proclaimed void subject to superior title held by Plaintiff,” and for judgment that the equity in the subject properties that was taken by defendant through unilateral loans be returned to plaintiff. [Prayer, paras. a, b, d]. The cause of action alleges specifically with respect to the Colorado Property that a deed of trust was executed for that property in the amount of $750,000. [SAC, para. 65].

The opposition appears to concede that plaintiff does not intend to seek to quiet title to the Foothill Property and Colorado Property as 100% owner in fee simple, and it would appear that the court may summarily adjudicate that plaintiff does not intend to seek to quiet title as to that ownership in those two properties at the concession of plaintiff. This issue will be discussed at the hearing, as if plaintiff desires some other quiet title determination as to those properties, the court will hear argument whether this motion will be treated as a motion for judgment on the pleadings with respect to that issue only, with plaintiff being permitted leave to amend to seek to quiet title to those properties in some other ownership capacity, while staying any ruling on the motion as to this aspect of the quiet title cause of action. See e.g. Hobson v. Rahyhem Corp. (1999) 73 Cal.App.4th 614, 625 (overruled in part on other grounds in Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 1031):

“In practice, where a defect appears on the face of the complaint, a trial court may elect to treat the hearing of the summary judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect. (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1997) P 10:17.1.)”

Hobson, at 625.

In fact, defendant in the reply cites to Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, in which the court of appeal, citing and quoting Hobson, suggested that the trial court proceed in such a manner is such circumstances. See Prue, at 1384-1385.

With respect to the Marion Property and the Brand Property, defendant argues that plaintiff cannot establish her quiet title cause of action because plaintiff knowingly quitclaimed her interests in those properties to defendant.

Defendant submits evidence consisting of the quit-claim deeds themselves, which plaintiff signed. [UMF Nos. 31, 37, and evidence cited; RFJN, Exs. P, S]. The Brand Property deed is dated November 17, 1998, and Marion Property deed is dated November 15, 2002. [Exs. S, P]. These were executed after the time of plaintiff’s accident, which the moving papers indicate was in 1993. [UMF No. 6].

Plaintiff in opposition argues that with respect to the Brand Property, the title transfer which occurred is voidable, as at the time of the transfer, defendant lied to plaintiff, using undue influence and preying upon her kindness and desire to be helpful to her brother. Plaintiff indicates that at the time, defendant told plaintiff he needed her to sign the document because he needed help with his taxes, and fraudulently promised that he would return the property to plaintiff. [Response to UMF No. 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, Additional Fact No. 83, and evidence cited].

Plaintiff argues that with respect to the Marion Property, defendant placed papers in front of plaintiff and asked her to sign, and plaintiff signed them without reading them or realizing what they were, as she often did with her brother. [Response to UMF No. 31, and evidence cited, Plaintiff’s Depo., p. 80; Additional Fact No. 88, and evidence cited, Baru Depo., pp. 9, 11].

Plaintiff relies on Civil Code section 3412, which provides, “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.”

Under Civil Code § 1575:

“Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;

2. In taking an unfair advantage of another's weakness of mind; or,

3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.”

Plaintiff argues that on both occasions, defendant preyed on plaintiff’s generosity, and on her cognitive impairment, and the transfers were accordingly obtained through undue influence. Plaintiff submits evidence that her accident was serious, leaving her in a lengthy coma, that since the accident she has not had any credit cards or bank accounts or handled her own finances, and that plaintiff has also been required to stop driving due to confusion. [See UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133].

Plaintiff also relies on the declaration of an expert who has recently examined plaintiff. Gary Freedman-Harvey, Ph.D. establishes that he has the appropriate education, training and experience to testify as an expert in this matter in the areas of mental capacity and undue influence, as he has his Ph.D. in clinical psychology, has been a licensed psychologist since 1990, and has practiced in the past twenty years in geriatric psychology, and given expert testimony in numerous cases providing for mental health conservatorships. [Freedman-Harvey Decl. paras. 2]. Dr. Freedman-Harvey interviewed plaintiff at her home at the Marion Property, conducted identified tests, and reviewed other documentation, and indicates that plaintiff had “invested personal trust as well as cultural trust in her brother,” defendant, and that there was transition after the accident to the brother being in a position of perceived or apparent authority. [Freedman-Harvey Decl., para. 3]. Dr. Freedman-Harvey concludes based on his testing of plaintiff that she is “impaired in her ability to use her judgment in novel situations, along with inability to plan, organize and carry out decisions,” with an extreme level of impairment, in the 99th percentile, that plaintiff “lost significant cognitive functioning” after her accident, and that since 1994, plaintiff “is a dependent adult who is not able to function at a level to independently assess business, property, or financial transactions.” [Freedman-Harvey Decl., para. 7, 16, 17]. The expert indicates that after the accident plaintiff signed documents without appreciating the change in ownership of property. [Freedman-Harvey Decl., para. 18]. It is Dr. Freedman-Harvey’s professional opinion that defendant “acted unilaterally to manage property and finances by taking advantage of Prapai’s impairments, unduly benefitting while Prapai lost ownership and income,” and that plaintiff “was subject to Dependent adult abuse, fraud and undue influence.” [Freedman-Harvey Decl., paras. 20, 21].

Defendant argues that plaintiff was not significantly impaired by the time she executed the quitclaim deeds, primarily in reliance on documentation from a lawsuit filed on plaintiff’s behalf concerning the automobile accident in which she was injured in 1993. Defendant indicates that in March of 1995, the lawsuit was settled, and approximately $48,000 was deposited into a blocked account. [UMF Nos. 9-11, and evidence cited, Undisputed, Exhibits E, G]. Plaintiff then filed a Petition for Order Terminating Blocked Account to close the blocked account and distribute the funds, based on plaintiff’s representation that plaintiff was “again capable of handling her own affairs.” [UMF Nos. 12, and evidence cited, RFJN, Ex. E]. The petition was verified by plaintiff and based on declarations from plaintiff’s GAL and two physicians finding plaintiff was capable of handling her own affairs. [UMF Nos 12-14, 16-18, and evidence cited, RFJN, Exs. E-H]. The petition was granted on December 8, 1995. [UMF No. 19, and evidence cited, Undisputed, RFJN, Ex. H]. Defendant argues that plaintiff should accordingly be judicially estopped to take the position in this lawsuit that since the 1993 accident plaintiff has not regained her cognitive faculties.

The doctrine of judicial estoppel was set forth by the California Supreme Court in MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005)36 Cal.4th 412, as follows:

“Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] …” ’ [Citation.] The doctrine [most appropriately] applies when: ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ ” ( Aguilar v. Lerner (2004) 32 Cal.4th 974, 986–987 [12 Cal. Rptr. 3d 287, 88 P.3d 24] (Aguilar); see Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 943 [134 Cal. Rptr. 2d 101]; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 [70 Cal. Rptr. 2d 96] (Jackson).)”

The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.]” ’ ” ( Aguilar, supra, 32 Cal.4th 974, 986.) Consistent with these purposes, numerous decisions have made clear that judicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary.

MW Erectors, at 422, italics in original.

The Court in MW Erectors declined to apply the doctrine in that case, as the case involved contractor’s licensing requirements, which both statutory and case law have recognized are enforceable even against claims in equity.

It is recognized that judicial estoppel has harsh consequences and should be invoked with caution and only if necessary to avoid a miscarriage of justice. Gottlieb v. Kest (2006) 141 Cal.App.4th 110.

The question here is whether the original position was taken by mistake, and whether the positions taken are entirely inconsistent. Plaintiff’s previous representation was that at that time in 1995 she had recovered sufficiently to manage her financial affairs with respect to the release of funds from the blocked account. The position now is that plaintiff was not at the time she executed the deeds of trust in subsequent years, capable of entering into transactions such as those transactions in the face of the alleged undue influence of plaintiff’s brother and her compromised state at the time.

Plaintiff’s expert calls into question the weight to be afforded the prior determination of competency and conclusions, given the circumstances at the time, and the assessment of higher functioning abilities to be considered with respect to the alleged undue influence later exerted by defendant over the significant financial matters concerning the ownership of real properties. [Freedman-Harvey Decl., paras. 10, 11].

Defendant has objected to the expert declaration, indicating that it is not accompanied by copies of a written report of the expert, or the medical and other records which the expert states were reviewed. The expert does not rely specifically on any such records to support an opinion based on the expert’s independent examination, interview, and testing of plaintiff.

With respect to the testimony of an expert, Evidence Code § 801 provides:

“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:…

(b) Based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

The testimony appears to be based on matter that is perceived by or personally known to the expert, and of a type that reasonably may be relied upon in forming the opinions here. The court has accordingly considered the declaration but has not considered any opinions regarding the ultimate legal determinations in this matter to be binding on the court.

Overall, the determination of whether plaintiff executed the deeds under circumstances giving rise to undue influence will depend on a weighing of the evidence and assessment of the credibility of the evidence and witnesses. Triable issues of fact remain, and the motion is denied.

Defendant also argues that plaintiff’s claims are barred due to the running of the applicable statute of limitations. Under Muktarian v. Barmby (1965) 63 Cal.2d 558, 560, “Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies.” The theory here seems to be that the deed was entered into based on fraud or mistake, so that the statute would be the three-year statute of limitations under CCP § 338(d).

CCP § 338(d) provides that “an action for relief on the ground of fraud or mistake” must be commenced within three years. CCP § 338(d) provides that in an action for relief on the ground of fraud or mistake, “The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”

A plaintiff has reason to discover a cause of action when plaintiff “has reason at least to suspect a factual basis for its elements.” Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 807, quoting Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.

Defendant argues that plaintiff was aware of the fact that the various properties were being transferred, and that various loans were being taken out against the properties, as well as that defendant was collecting rent and allegedly not paying plaintiff her portion as early as before 2000, as plaintiff has testified that prior to that time she told defendant she wanted the property back, and that defendant had stated he would hold the money for plaintiff. [UMF Nos. 45-46, and evidence cited]. That deposition testimony does not appear to support any knowledge of any of the conduct upon which this action is based. [See Response to UMF Nos. 45, 46, and evidence cited, Plaintiff’s Depo. pp. 53, 94, 107-108]. Defendant argues that in any case, both plaintiff and plaintiff’s partner, Martinez, knew there was a purported problem with the rent collection and handling of the properties by 2006, when plaintiff has testified that as of August 2006 she was not willing to confront defendant with respect to the properties, and that in 2006 she did in fact ask defendant why he was not using plaintiff’s rent funds to assist plaintiff’s son. [UMF Nos. 54-55, and evidence cited].

Defendant argues that plaintiff was on notice of the purported problems by that time and was required to conduct a reasonable investigation at that time, and that a simple title search of the properties would have revealed the transactions about which plaintiff now complains.

Plaintiff in opposition argues that plaintiff did not learn of the state of title, or of the existence of the loans taken out against three of the properties until Martinez and plaintiff had moved to the Marion Property, plaintiff had undertaken an expensive remodel of the salon, and Boris Baru showed Martinez a sales contract from plaintiff to Baru of the business/salon. [UMF Nos. 84-89, 109, and evidence cited, Martinez Depo. pp. 90-91, 166; Baru Depo, p. 27]. The verified SAC alleges that in 2017, Martinez came back to live at the Marion Property, and received a notice by mail there that a deed of trust was executed on the Marion Property and showed it to plaintiff. [SAC, para. 40]. The SAC indicates that “At that time Angelo searched the Subject Properties and realized that Plaintiff was no longer on title for the Subject Properties.” [SAC, para. 41].

This action was filed on October 2, 2018, so within the same or following year plaintiff argues she first reasonably understood there were irregularities that needed to be pursued, and a reasonable investigation confirmed the problems. This action could be found to have been well within the applicable three-year statute of limitations, if plaintiff’s delay in discovery is credited and found reasonable by the trier of fact, particularly in light of plaintiff’s position concerning her continuing lack of appropriate cognitive function following the accident, and the alleged exercise of undue influence for a significant period of time with respect to the properties, as discussed above. Again, this depends on issues of credibility and the weight of the evidence, which cannot be resolved on a motion for summary adjudication. Triable issues of fact remain, and the motion is denied on this ground.

ISSUE NO. 2: There is no triable issue of fact as to Plaintiff’s cause of action for partition as to the Marion and Brand Properties because Plaintiff has no title to them, and therefore cannot seek partition.

As discussed above, this cause of action is brought as to all four properties, but defendant by this issue addresses only the Marion Property and Brand Property. Defendant concedes that plaintiff owns a joint tenancy interest in the Foothill Property and the Colorado Property. [UMF Nos. 38-42, “Undisputed,” and evidence cited, RFJN, Exs. T, CC, U, V]. There is no dispute that a joint tenancy interest in real property may support an action for partition. See CCP section 872.210 (a)(2). The motion does not dispose of the entire cause of action and is denied on this ground.

Even if the court were to consider the motion on these issues, as discussed above, triable issues of fact remain with respect to plaintiff’s title to the Marion Property and the Brand Property. [Response to UMF Nos. 31, 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, 80; Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

ISSUE NO. 3: There is no triable issue of fact as to Plaintiff’s claim for an accounting as to the Marion and Brand Properties, given 1) Plaintiff ceded her interest in those properties to Defendant and 2) Plaintiff’s underlying claims regarding the Marion and Brand Properties are time-barred.

As discussed above, this cause of action is brought as to all four properties, but defendant by this issue addresses only the Marion Property and Brand Property. Defendant concedes that plaintiff owns a joint tenancy interest in the Foothill Property and the Colorado Property. [UMF Nos. 38-42, “Undisputed,” and evidence cited, RFJN, Exs. T, CC, U, V]. As discussed above, there is no dispute that a joint tenancy interest in real property may support a claim for partition.

There is also no dispute that the statutes governing partition actions permit the court to order an accounting:

CCP section 872.120 provides:

“In the conduct of the action, the court may hear and determine all motions, reports, and accounts and may make any decrees and orders necessary or incidental in carrying out the purposes of this title and to effectuating its decrees and orders.”

Under CCP section 872.140:

“The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.”

The motion does not dispose of the entire cause of action and is denied on this ground.

Even if the court were to consider the motion on the partial issues, as discussed above, triable issues of fact remain with respect to defendant’s claim that plaintiff has ceded title to the Marion Property and the Brand Property. [Response to UMF Nos. 31, 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, 80; Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

Triable issues of fact have also been raised with respect to whether the statute of limitations bars these claims. [UMF Nos. 84-89, 109, and evidence cited, Martinez Depo. pp. 90-91, 166; Baru Depo, p. 27; Verified SAC, paras. 40, 41]. The motion on this issue accordingly is denied.

ISSUE NO. 4: There is no triable issue of fact as to Plaintiff’s cause of action for fraud because each alleged wrongful act alleged in that cause of action is either predicated on invalid claims or barred by the statute of limitations.

This cause of action is also brought as to all four properties, but defendant in this issue addresses only the merits of the claims as to the Marion Property and Brand Property. The SAC includes allegations that defendant collected rental income from all four properties, which were not shared with plaintiff. [SAC, para. 106]. It is also alleged that defendant took equity from the jointly owned Colorado Property in order to finance his own lifestyle and business ventures. [SAC, para. 107]. The motion on this issue recognizes these claims, but does not address how they are invalid, mentioning them only in connection with the statute of limitations.

As noted above, as to the sufficiency of the claims as to the Marion Property and Brand Property, triable issues of fact have been raised with respect to whether defendant obtained title to those properties through fraud and undue influence. [Response to UMF Nos. 31, 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, 80; Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

Triable issues of fact have also been raised with respect to whether defendant improperly collected rents on all four properties while assuring plaintiff that defendant was holding plaintiff’s property for her, when he was not. [See Response to UMF No. 46, and evidence cited, Additional Fact No. 85, and evidence cited, Plaintiff’s Depo., pp. 53, 94, 107, 108].

The moving papers do address the other properties with respect to the statute of limitations argument only. Triable issues of fact have also been raised with respect to whether the statute of limitations bars the

claims. [UMF Nos. 84-89, 109, and evidence cited, Martinez Depo. pp. 90-91, 166; Baru Depo, p. 27; Verified SAC, paras. 40, 41]. To the extent defendant argues specifically that the statute of limitations bars the claims concerning the withholding of collected rent, as this activity is alleged to have been occurring for the last twenty years, there is ongoing, continuing misconduct alleged with respect to the collection of rent. The rent was evidently continued to be collected when due for a period of years, continuing into any statute of limitations period. The collection of rent with respect to property owned by joint tenants could be found to give rise to a new duty or obligation on the part of the joint tenant collecting the rent to pay the portion due to the other joint tenant when the rent was due or collected. In Aryeh v. Canon Business Solutions (2013) 55 Cal.4th 1185, the California Supreme Court observed, “we have long settled that separate, recurring invasions of the same right can each trigger their own statute of limitations.” Aryeh, at 1198.

Triable issues of fact remain with regard to whether some of defendant’s recent or future withholding of rents is misconduct would trigger its own statute of limitations, fall within the applicable statute of limitations, and remain actionable. [Additional Fact Nos. 85, 88, 89, and evidence cited.]

ISSUE NO. 5: There is no triable issue of fact as to Plaintiff’s cause of action for “financial elder abuse” because each alleged wrongful act alleged in that cause of action is either predicated on invalid claims or barred by the statute of limitations.

The sixth cause of action for financial elder abuse is based on Welfare & Institutions Code section 15610.30, which defines financial abuse of an elder or dependent adult:

“(a) "Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code.

(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.”

The sixth cause of action of the SAC alleges that plaintiff was in a relationship of trust and reliance on her older brother defendant Boonsieng, and when plaintiff became vulnerable after her injury, he “used that position to trick her out of title to her property.” [SAC, para. 110]. The cause of action refers to “FAC, pars 31-39.” [SAC, para. 110]. Assuming this refers to the corresponding paragraphs in the SAC, as opposed to the FAC, those allegations detail the documents, both deeds and loan documents, executed in connection with the Brand Property, the Marion Property, and the Colorado Property. [SAC, paras. 31-39]. The cause of action itself cites to the execution of the Colorado Property deed of trust for $750,000. [SAC, para. 110].

With respect to the Brand Property and Marion Property, as discussed above, plaintiff has raised triable issues of fact with respect to whether a trier of fact could find that defendant obtained title to those properties

and otherwise acted in connection with those properties using fraud and undue influence after plaintiff became vulnerable due to her accident. [Response to UMF Nos. 31, 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, 80; Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

As to the Colorado Property claim based on the $750,000 deed of trust, the motion argues briefly that Plaintiff executed this document herself before a notary, which precludes any finding of fraud in the execution. [UMF No. 42]. However, the evidence discussed above raises triable issues of fact with respect to plaintiff’s competency and defendant’s undue influence in connection with executing these documents in connection with real property interests. The motion is denied on this ground.

As discussed above, triable issues of fact have also been raised with respect to whether the statute of limitations bars the claims. Specifically, the statute of limitations for a claim for financial dependent or elder abuse is defined by the statute as four years:

“An action for damages pursuant to Sections 15657.5 and 15657.6 for financial abuse of an elder or dependent adult, as defined in Section 15610.30, shall be commenced within four years after the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse.”

Welfare & Institutions Code section 15657.7.

The statute is longer than the three-year statute discussed above, and also commences to run when the plaintiff discovers or through the exercise of reasonable diligence should have discovered the facts constituting elder abuse. Triable issues of fact remain with respect to the discovery by plaintiff here. [Additional Facts Nos. 84-89, 109, and evidence cited, Martinez Depo. pp. 90-91, 166; Baru Depo, p. 27; Verified SAC, paras. 40, 41]. The motion on this issue accordingly is denied.

ISSUE NO. 6: There is no triable issue of fact as to Plaintiff’s cause of action for “constructive trust” because 1) there is no substantive basis for the imposition of the remedy of constructive trust and 2) the claim is time-barred.

The fourth cause of action is for constructive trust.

With respect to a constructive trust, under Civil Code § 2223, “One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” Under Civil Code section 2224:

“One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.”

Defendant argues that a constructive trust is not an independent cause of action but a remedy dependent on a substantive basis for liability.

“A constructive trust is not a true trust but an equitable remedy available to a plaintiff seeking recovery of specific property in a number of widely differing situations. The cause of action is not based on the establishment of a trust, but consists of the fraud, breach of fiduciary duty, or other act that entitles the plaintiff to some relief. That relief, in a proper case, may be to make the defendant a constructive trustee with a duty to transfer to the plaintiff.”

BGJ Associates, LLC v. Superior Court (1999, 2nd Dist.) 75 Cal.App.4th 952, 967, italics in original, quotation omitted.

To state a claim, a plaintiff must plead (1) fraud, breach of fiduciary duty, breach of promise to buy property for the plaintiff, or repudiation of an enforceable express trust, etc.; (2) specifically identifiable

property, title to which is in the defendant, which the plaintiff seeks to have transferred to plaintiff; (3) an offer to do equity, where circumstances necessarily call for it. Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114; 5 Witkin, Cal. Procedure (6th Ed. Mar. 2022 Update) Pleading, §836.

The cause of action is based on an alleged agreement between plaintiff and defendant that plaintiff’s portion of rents would be collected by defendant and that plaintiff’s portion of rents would be periodically disbursed to plaintiff and the remaining kept by defendant on plaintiff’s behalf, but that rents were collected without ever distributing plaintiff’s portion of the rent to her. [SAC, paras. 92-94]. It is also alleged that defendant took advantage of plaintiff in causing her to execute deeds affecting title to the Brand Property and Marion Property, and also improperly obtained secured loans on the subject properties without giving any proceeds to plaintiff. [SAC, paras. 95, 96].

Defendant argues that there is no independent cause of action for the imposition of this remedy. However, as noted above, entitlement to the remedy can be based on allegations of the type made here, including that that defendant breached a duty to the joint tenant, breached an express agreement to hold rental funds in trust, and otherwise engaged in actionable fraud entitling plaintiff to such a remedy. The motion will not be granted on the ground there can be no independent cause of action to obtain the constructive trust remedy.

Defendant then argues that since defendant has established there is no triable issue of fact supporting the foregoing causes of action, there is no basis for plaintiff to seek a constructive trust as to those causes of action. As discussed in detail above, triable issues of fact have been raised with respect to the viability of the foregoing causes of action, and the motion on this issue will also be denied.

Defendant also argues that the statute of limitations bars the cause of action, based on statutes of limitations which depend on the discovery of the fraud or mistake upon which the constructive trust is predicated. Defendant argues that as previously elaborated, the statute has run. Also as discussed in detail above, triable issues of fact with respect to this issue have been raised, and the motion on this issue also is denied.

ISSUE NO. 7: There is no triable issue of fact as to Plaintiff’s punitive damages claim because no sufficient predicate cause of action will remain to support this claim; Plaintiff’s punitive damages claim therefore has no merit. (Code Civ. Proc., § 437c, subd. (f)(1)).

As noted above, CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Subdivision (f)(1) provides “a party may move for summary adjudication as to ... one or more claims for damages ... if that party contends ... that there is no merit to a claim for damages as specified in Section 3294 of the Civil Code...”

Defendant here accordingly seeks to summarily adjudicate the claim for punitive damages brought by plaintiff pursuant to Civil Code § 3294.

Civil Code § 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…”

Under Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice…”

It is held that “where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for a summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” American Airlines, Inc. v Sheppard, Mullin, Richter & Hampton (2002, 2nd Dist.) 96 Cal.App.4th 1017, 1049, citation omitted.

In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, “since the degree of punishment depends on the peculiar circumstances of each case.” Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App. 4th 1004, 1053, quoting Hannon Engineering, Inc. v. Reim (1981) 126 Cal.App.3d 415, 431.

Summary judgment on the issue of punitive damages is proper only “when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” Spinks, at 1053, quoting Hoch v. Allied-Signal, Inc., (1994) 24 Cal.App.4th 48, 60–61.

This showing is sufficient to seek punitive damages based on plaintiff’s cause of action for fraud, as it is noted that the statute supports recovery of punitive damages based on a finding of fraud alone; no showing of malice, oppression, or intent to injure is required. See Stevens v. Superior Court (1986, 2nd Dist.) 180 Cal.App.3d 605, 610-611. Triable issues of fact remain with respect to whether plaintiff can establish entitlement to punitive damages in this action, and the motion on this issue will be denied.

Defendant seems to seek that at the very least, the punitive damages be stricken as to the claims other than for fraud and financial elder abuse, given that those causes of action are not tort causes of action. However, such an adjudication would not dispose of the issue of punitive damages for purposes of this action overall. The court observes that since the claims for financial elder abuse and also for constructive trust are based on fraud, the punitive damages would also be appropriate as to those causes of action, along with in connection with the cause of action for fraud. In any case, the court intends to deny the motion on this issue outright but will hear argument from the parties concerning whether plaintiff is amenable to withdrawing the claims for punitive damages from the quiet title, partition, and accounting causes of action, which do not appear to support claims for punitive damages. Plaintiff in opposition to the motion on this issue focuses entirely on the cause of action for elder and dependent adult financial abuse.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant Boonsieng Benjauthrit’s Motion for Summary Adjudication:

to seek sole title to them, 2) Plaintiff knowingly and voluntarily quitclaimed her interests in the Marion and Brand Properties to Defendant, and 3) the cause of action is barred in its entirety by the statute of limitations.

Motion is DENIED or STAYED in part.

Defendant first argues that it is undisputed that the parties are joint tenants to the Colorado Property and the Foothill Property, so that plaintiff has no basis to seek sole title to them.

Plaintiff in the opposition appears to concede that there is no dispute that the parties are joint tenants in those properties. It is not clear if plaintiff nevertheless intends to pursue the quiet title cause of action as to those properties. The SAC seeks a “determination and declaration of Plaintiff’s 100% ownership in the Subject Property.” [SAC, para. 70]. Defendant accordingly argues that since it is undisputed that the Colorado Property and the Foothill Property are held in joint tenancy, plaintiff cannot establish that she is entitled to a determination that plaintiff holds 100% ownership of all four properties in fee simple. However, in reviewing the pleading, the Court notes that the plaintiff seeks not only this 100% ownership interest, but also seeks judgment “determining the rights, claims, ownership, liens, titles and demands of Defendant, and each of them, are proclaimed void subject to superior title held by Plaintiff,” and for judgment that the equity in the subject properties that was taken by defendant through unilateral loans be returned to plaintiff. [Prayer, paras. b, d]. The cause of action alleges specifically with respect to the Colorado Property that a deed of trust was executed for that property in the amount of $750,000, to which a quiet title determination may be sought. [SAC, para. 65].

The Court is inclined to DENY the motion on this issue in its entirety, given the breadth of the prayer in the pleading, and the concession in the moving papers that defendant does not dispute that plaintiff has an interest in title to the Colorado Property and Foothill Property, which may be subject to quieting between the parties, if necessary, in this proceeding. However, the Court also notes that the opposition appears to concede that plaintiff does not intend to seek to quiet title to the Foothill Property and Colorado Property as 100% owner in fee simple, but plaintiff does not clearly state that a quiet title determination of the parties’ interests in those two properties are sought or required in any other proportion or share. The Court will hear argument at the hearing whether the Court should summarily adjudicate that plaintiff does not intend to seek to quiet title in those two properties at the concession of plaintiff. If plaintiff desires some quiet title determination as to those properties, other than the 100% ownership determination plaintiff indicates plaintiff is NOT seeking, the Court will hear argument whether this motion will be treated as a motion for judgment on the pleadings with respect to that issue only, with plaintiff being permitted leave to amend to seek to quiet title to the Colorado Property and the Foothill Property only in some other ownership capacity, while staying any ruling on the motion as to this aspect only of the quiet title cause of action. See e.g., Hobson v. Rahyhem Corp. (1999) 73 Cal.App.4th 614, 625 (overruled in part on other grounds in Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 1031).

With respect to the issue posed by Issue No. 1 that plaintiff knowingly and voluntarily quitclaimed her interests in the Marion Property and Brand Property to defendant, the motion is DENIED. Plaintiff has submitted evidence, including expert evidence, sufficient to raise triable issues of material fact with respect to whether defendant took advantage of plaintiff’s cognitive impairment, and engaged in undue influence with respect to the transfer of title of the subject properties. [Response to UMF Nos. 31, 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, 80; Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

With respect to the statute of limitations, triable issues of fact have been raised with respect to whether the applicable statute of limitations bars these claims, based on plaintiff’s claims concerning the timing of discovery of the claims. [Additional Facts Nos. 84-89, 109, and evidence cited, Martinez Depo. pp. 90-91, 166; Baru Depo, p. 27; Verified SAC, paras. 40, 41]. The motion on this issue accordingly is denied.

Motion is DENIED.

The partition cause of action is brought as to all four properties, but defendant by this issue addresses only the Marion Property and Brand Property. Defendant concedes that plaintiff owns a joint tenancy interest in the Foothill Property and the Colorado Property. [UMF Nos. 38-42, “Undisputed,” and evidence cited, RFJN, Exs. T, CC, U, V]. There is no dispute that a joint tenancy interest in real property may support an action for partition. See CCP section 872.210 (a)(2). The motion accordingly does not dispose of the entire cause of action as required under CCP § 437c(f) (“a motion for summary adjudication shall be granted only if it completely disposes of a cause of action…”) and is DENIED on this ground.

Even if the court were to consider the motion on this partial issue, as discussed above, triable issues of fact remain with respect to plaintiff’s title to the Marion Property and the Brand Property. [Response to UMF Nos. 31, 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, 80; Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

Motion is DENIED.

The accounting cause of action is brought as to all four properties, but defendant by this issue addresses only the Marion Property and Brand Property. Defendant concedes that plaintiff owns a joint tenancy interest in the Foothill Property and the Colorado Property. [UMF Nos. 38-42, “Undisputed,” and evidence cited, RFJN, Exs. T, CC, U, V]. There is no dispute that a joint tenancy interest in real property may support an action for partition. See CCP section 872.210 (a)(2). There is also no dispute that the statutes governing partition actions permit the court to order an accounting. CCP sections 872.120 and 872.140. The motion on this issue accordingly does not dispose of the entire cause of action as required under CCP § 437c(f) (“a motion for summary adjudication shall be granted only if it completely disposes of a cause of action…”) and is DENIED on this ground.

Triable issues of fact have also been raised with respect to whether the statute of limitations bars these claims. [Additional Facts Nos. 84-89, 109, and evidence cited, Martinez Depo. pp. 90-91, 166; Baru Depo, p. 27; Verified SAC, paras. 40, 41]. The motion on this issue accordingly is denied.

Motion is DENIED.

Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

Plaintiff has also raised triable issues of fact which would support a reasonable inference that defendant improperly collected rents on all four properties while assuring plaintiff that defendant was holding plaintiff’s property for her, when he was not. [See Response to UMF No. 46, and evidence cited, Additional Fact No. 85, and evidence cited, Plaintiff’s Depo., pp. 53, 94, 107, 108].

Triable issues of fact have also been raised with respect to whether the statute of limitations bars the claims. [UMF Nos. 84-89, 109, and evidence cited, Martinez Depo. pp. 90-91, 166; Baru Depo, p. 27; Verified SAC, paras. 40, 41]. See also Aryeh v. Canon Business Solutions (2013) 55 Cal.4th 1185, 1198 (“separate, recurring invasions of the same right can each trigger their own statute of limitations.”) [Additional Fact Nos. 85, 88, 89, and evidence cited.]

Motion is DENIED.

Plaintiff has submitted evidence, including expert evidence, sufficient to raise triable issues of material fact with respect to whether defendant engaged in financial abuse of plaintiff by taking real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or assisting in such conduct, or took, appropriated, obtained, or retained real or personal property of an elder or dependent adult by undue influence. [Response to UMF Nos. 31, 37, and evidence cited, Plaintiff’s Depo., p. 53-54, 75, 80; Additional Facts No. 83, 88, and evidence cited, Baru Depo. pp. 9, 11; UMF Nos. 7, 8, 10, and evidence cited; Response to UMF No. 21, and evidence cited, Martinez Depo., pp. 130, Martinez Depo., pp 132-133; Freedman-Harvey Decl., paras. 2, 3, 7, 10, 11, 16, 17, 18, 20, 21].

Motion is DENIED.

The cause of action sufficiently alleges facts supporting a substantive basis for this claim and the pursuit of the constructive trust remedy, as entitlement to the remedy can be based on allegations of the type made here, including that that defendant breached a duty to the joint tenant, breached an express agreement to hold rental funds in trust, and otherwise engaged in actionable fraud.

To the extent defendant argues defendant has established there is no triable issue of fact supporting the foregoing causes of action, so there is no basis for plaintiff to seek a constructive trust as to those causes of action, as discussed above, triable issues of fact have been raised with respect to the viability of the foregoing causes of action, and the motion on this issue is also denied.

Similarly, to the extent defendant argues that the statute of limitations bars the cause of action, as defendant has previously elaborated, also as discussed above, triable issues of fact with respect to this issue have been raised, and the motion on this issue is also similarly denied.

Motion is DENIED or GRANTED IN PART.

This is sufficient to seek punitive damages based on plaintiff’s cause of action for fraud, as it is noted that the statute supports recovery of punitive damages based on a finding of fraud alone; no showing of malice, oppression, or intent to injure is required. See Stevens v. Superior Court (1986, 2nd Dist.) 180 Cal.App.3d 605, 610-611. Triable issues of fact remain with respect to whether plaintiff can establish entitlement to punitive damages in this action, and the motion on this issue is denied.

However, the Court notes that defendant seems to request that the punitive damages sought be stricken as to the claims other than for fraud and financial elder abuse. The Court is inclined to DENY this request, given that this is not a motion to strike, and that such an adjudication would not dispose of the issue of punitive damages for purposes of this matter overall. The Court will hear argument concerning whether plaintiff is amenable to withdrawing the claims for punitive damages from the quiet title, partition, and accounting causes of action, which do not appear to support claims for punitive damages. The remaining causes of action appropriately pursue punitive damages.

UNOPPOSED Request for Judicial Notice in Support of Defendant Boonsieng Benjauthrit’s Motion for Summary Adjudication is GRANTED.

Plaintiff Prapai Benjauthrit’s UNOPPOSED Request for Judicial Notice in Support of Opposition to Motion for Summary Adjudication is GRANTED.

Defendant Boonsieng Benjauthrit’s Objections to Evidence Submitted in Support of Plaintiff’s Opposition to Motion for Summary Adjudication are OVERRULED. The Court notes that it has not considered binding on the Court the expert’s opinions on any ultimate legal issues in this action. The Court has considered the evidence concerning property transactions which are not the subject of this action only for the purpose of considering the family dynamic background for purposes of plaintiff’s undue influence argument.

The Court has not considered evidence submitted by defendant for the first time with the Reply.

To the extent “Objections” appear in Plaintiff Prapai Benjauthrit’s Separate Statement of Disputed and Undisputed Facts in Support of Opposition to Defendant’s Motion for Summary Judgment, it appears that no separate document setting forth objections was filed on eCourt, or with the courtesy hard copies submitted to the Court. The objections are accordingly not considered by the Court. CRC Rule 3.1354(b), governing the filing of objections in connection with a motion for summary judgment or summary adjudication requires that

“[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion…” (Emphasis added).

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines. In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask. The Department D Judge and court staff will continue to wear face masks. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.