Judge: Richard S. Whitney, Case: 37-2023-00025812-CU-OR-CTL, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 21, 2023

12/22/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00025812-CU-OR-CTL THOMAS VS THOMAS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT PAUL THOMAS' DEMURRER TO COMPLAINT is SUSTAINED with leave to amend.

Defendant PAUL THOMAS ('Defendant') demurs to Plaintiff JAIMIE M. THOMAS's ('Plaintiff') entire complaint, which includes causes of action for 'QUIET TITLE TO REAL PROPERTY, FOR PARTITION, ACCOUNTING, DECLARATORY RELIEF AND/OR DAMAGES.' When considering a demurrer, '[t]he pleading must be read as if it contained all matters of which the court could properly take judicial notice even in the face of allegations in the pleading to the contrary.' (Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 47.) '[W]e give the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context.' (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564.) 'If the facts appearing in the attached exhibit contradict those expressly pleaded, those in the exhibit are given precedence.' (Id. at 567–568.) 'A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.' (Khoury v. Maly's of California, Inc.

(1993) 14 Cal.App.4th 612, 616.) The Court agrees the complaint is confusing as to the theory of recovery. Plaintiff alleges facts to indicate Defendant was acting benevolently as if to give a gift, but Plaintiff also alleges Defendant asked for Plaintiff and Sean, Defendant's son and Plaintiff's fiancé and husband, to make mortgage and tax payments. However, while it is unclear as to the terms of the purported agreement among Sean, Plaintiff, and Defendant, it is not so unclear that the basic allegations cannot be understood. They are that Defendant purchased the property to help Plaintiff and Sean with financing and that 'it was fully understood that Jaimie and Sean were the actual and beneficial owners of the Subject Property.' (Complaint, ¶ 19.) It appears to the Court that the allegations support that the benevolence was in regard to supporting the financing, which would explain the allegation that 'Defendant remained committed to paying down the mortgage on Sean and Jaimie's house.' (Complaint, ¶ 24.) This can still be consistent with the understanding that Defendant was assisting with the finances while expecting Sean and Plaintiff to contribute as the loan would have been Defendant's responsibility on paper.

(Complaint, ¶ 23.) What is unclear is the amount of financial support promised by Defendant. Discovery can clarify the particulars. The more important question is whether the allegations, as pled, support the causes of action.

A complaint including a claim for quiet title must be verified and include the following: Calendar No.: Event ID:  TENTATIVE RULINGS

3029905  53 CASE NUMBER: CASE TITLE:  THOMAS VS THOMAS [IMAGED]  37-2023-00025812-CU-OR-CTL (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.

(c) The adverse claims to the title of the plaintiff against which a determination is sought.

(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.

(e) A prayer for the determination of the title of the plaintiff against the adverse claims.

(Code Civ. Proc., § 761.020.) Defendant cites law that the general rule that an equitable claim to property is insufficient in a quiet title cause of action has one exception – the claim must be based on fraud. (See Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 584.) Plaintiff, in response, cites to Warren v. Merrill (2006) 143 Cal.App.4th 96.

The court in Warren stated: Once fraud by a fiduciary is shown by the evidence (1) a written contract for a real property transaction is not required; (2) the absence of a written contract does not violate the statute of frauds; (3) the defrauded person may be found to hold superior title to that held by the defrauder; and (4) a wide variety of equitable remedies are available and appropriate to remedy the fiduciary's fraud.

Many of these principles were explained by the Supreme Court in Mazzera v. Wolf. 'A constructive trust may be imposed when a party has acquired property to which he is not justly entitled, if it was obtained by actual fraud, mistake or the like, or by constructive fraud through the violation of some fiduciary or confidential relationship. [Citations.] Such a trust, imposed upon a partner, agent, or other fiduciary, arises by operation of law, and, accordingly, the statute of frauds is no bar. [Citations.] But the mere failure to perform an oral promise to convey real property is not itself fraud, and the agreement will be held unenforceable under the statute of frauds in the absence of actual or constructive fraud. [Citations.]' (Warren v. Merrill (2006) 143 Cal.App.4th 96, 112–113 [Citations omitted].) Warren does not state that a plaintiff need not allege fraud with specificity. Plaintiff also relies on Civil Code section 1573 to support that Plaintiff need not allege fraudulent intent.

Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.

(Civ. Code, § 1573.) However, '[c]onstructive fraud, like actual fraud, must be pleaded with specificity.' (Knox v. Dean (2012) 205 Cal.App.4th 417, 434.) While Plaintiff is correct that she does not need to allege fraudulent intent, Plaintiff must still plead specific facts. (Knox, supra, 205 Cal.App.4th at 434.) There is no doubt the allegations are not sufficiently specific. Plaintiff has not alleged any details as to what Defendant agreed to do, when he agreed to do it, and by what means he did so. The most important details lacking are what obligations Defendant had to Plaintiff. Providing a temporary loan while acting as an ostensible purchaser? Providing a gift of a certain number of mortgage payments after acting as an ostensible purchaser? Was the $200,000 paid to Defendant by 'Sean on behalf of Sean and [Plaintiff]' to be returned at some point in the future when title was transferred? (Complaint, ¶20.) There are too many details missing to Calendar No.: Event ID:  TENTATIVE RULINGS

3029905  53 CASE NUMBER: CASE TITLE:  THOMAS VS THOMAS [IMAGED]  37-2023-00025812-CU-OR-CTL determine if Defendant committed fraud.

Plaintiff apparently seeks to circumvent the particularity requirement by relying on her allegations that Defendant breach a fiduciary duty to Plaintiff. 'A breach of a fiduciary duty usually constitutes constructive fraud.' (Knox v. Dean (2012) 205 Cal.App.4th 417, 434.) Plaintiff relies on the theory that 'Defendant has breached his confidential and fiduciary duties....' (Complaint, ¶ 43.) 'The mere existence of the relationship of parent and child [does] not alone give rise to a fiduciary relation.' (McMurray v. Sivertsen (1938) 28 Cal.App.2d 541, 547.) 'Confidential and fiduciary relations are, in law, synonymous, and may be said to exist whenever trust and confidence is reposed by one person in the integrity and fidelity of another.' However, it is not clear from the cases whether the courts mean a confidential relationship in fact must exist, or whether it must also be a relationship based on status. (See cases commented on, 13 Cal.L.Rev. 174.) The basis of the confidential relationship exception is that under section 2224 of the Civil Code the equity courts will prevent one person who is in a confidential relation with another from becoming unjustly enriched by reason of a breach of the trust. It would seem, therefore, that a confidential relation in fact should be the test. Under such a test relief would be afforded in practically every case where there is a breach of the oral promise to reconvey. Few cases will arise where one person will convey property to another by absolute deed, and where the grantor will be satisfied with the oral promise of the grantee to reconvey, unless the grantor, in fact, has trust and confidence in the integrity and fidelity of the grantee. The result is that under such a test the exception tends to swallow up the rule to which it is supposed to be an exception. That is exactly what has happened in this state. The cases are clear that where there is some sort of a status between the grantor and the grantee, and confidence is imposed, a constructive trust will be imposed upon repudiation of the oral promise to reconvey. Thus actual trust and confidence, plus the relationship of parent and child, is sufficient.

(Steinberger v. Steinberger (1943) 60 Cal.App.2d 116, 121–122 [Citations omitted].) In Steinberger 'a fiduciary relation was established and the conveyance was made upon an oral promise to reconvey.' (Ampuero v. Luce (1945) 68 Cal.App.2d 811, 818.) Plaintiff alleges: Defendant was a person with a fiduciary and/or confidential relationship to Sean and Jaimie. Defendant had a duty to disclose and share all material information concerning the acquisition and ownership of the Subject Property with Sean and Jaimie. Defendant had a duty to act in the highest good faith toward Sean and Jaimie; to not obtain any advantage over Sean and Jaimie by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind; to not use or deal with the Subject Property for his own profit or advantage to the detriment of Sean and Jaimie; to not use his influence to obtain any advantage from Sean and Jaimie; to not unjustly enrich himself by wrongful conduct or breach of the trust and confidence placed in Defendant by Sean and Jaimie; to continue to acknowledge the actual and beneficial ownership of Sean, Jaimie and/or Plaintiff and not wrongfully retain the Subject Property; and, to not profit by his own wrong.

(Complaint, ¶ 42.) Plaintiff also alleges that 'based on the trust and confidence placed in the integrity and fidelity of Defendant, which Defendant accepted, [Plaintiff] and Sean allowed Defendant to become involved with their purchase of a home and the ostensible purchaser of the Subject Property to hold bare record title in trust for them due to the influence and assurances of Defendant and the ability to obtain financing that was not available if Sean and [Plaintiff] were on title.' (Complaint, ¶ 39.) Plaintiff has alleged a fiduciary duty owed by Defendant to Plaintiff. However, Plaintiff is alleging the breach of the fiduciary duty supports the quiet title cause of action. Plaintiff is not alleging the breach resulted in some amount of damages. A claim for quiet title does not include damages. (Code Civ. Proc., Calendar No.: Event ID:  TENTATIVE RULINGS

3029905  53 CASE NUMBER: CASE TITLE:  THOMAS VS THOMAS [IMAGED]  37-2023-00025812-CU-OR-CTL § 761.020; Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195.) Plaintiff claims equitable rights to the property. In such instance, as in Steinberger, Plaintiff needed to allege an oral promise to convey title.

Plaintiff has not alleged an oral promise to convey title. The Court agrees with Defendant that the allegations are insufficiently particular to support a constructive trust based on a breach of a fiduciary and/or confidential relationship.

Plaintiff also relies on her resulting trust claim to support her title in the property. 'A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest.' (Lloyds Bank California v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 1042.) Defendant asserts the result trust claim fails because Plaintiff does not allege contemporaneous payment, rather Plaintiff alleges payment after the conveyance, citing McQuin v. Rice (1948) 88 Cal.App.2d 914. Plaintiff cites Stone v. Lobsien (1952) 112 Cal.App.2d 750, which states 'the rule requiring contemporaneous payment is no longer the law of this state.' (Id. at 755.) However, the court also stated '[i]t is no doubt the law that when the transferee loans the purchase price to the claimant, that, before a resulting trust will arise, there must be evidence of an obligation by the claimant to repay the loan.' (Id. at 755.) The rule is that where one person pays part of the purchase price and title is taken in another's name, the payor cannot secure a greater interest in the property by way of a resulting trust than the proportion of the amount he paid bears to the total purchase price. [Citations] This proportional payment of consideration at the time of conveyance must be distinguished from subsequent monetary contributions to make improvements on property or for installment payments after the title has been acquired, which do not secure an interest by way of a resulting trust.

(Martin v. Kehl (1983) 145 Cal.App.3d 228, 243 [Citations omitted].) Here, Plaintiff does not allege exactly how much Defendant essentially loaned to Plaintiff and Sean, whether Defendant paid more than $200,000 as a downpayment, whether Plaintiff and Sean were repaying part or all the amount Defendant paid by paying $200,000, or whether there was an obligation to repay any amount Defendant contributed upfront during the purchase and refinancing. Plaintiff's failure to plead details of a purported agreement by the parties is fatal to the resulting trust claim.

In sum, the allegations fail to support a quiet title claim because Plaintiff has not sufficiently alleged equitable title in the property. Consequently, Plaintiff's allegations for partition and accounting fail.

'A complaint for declaratory relief must demonstrate: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.' (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) 'The 'actual controversy' requirement concerns the existence of present controversy relating to the legal rights and duties of the respective parties pursuant to contract (Code Civ. Proc., § 1060), statute or order.' (Id.) '[A] request for declaratory relief will not create a cause of action that otherwise does not exist.' (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [Citation omitted].) Here, Plaintiff has failed to allege a present controversy relating to a contract, statute or order. Plaintiff has insufficiently alleged a declaratory relief cause of action.

Finally, Plaintiff fails to provide any authority that 'damages' is a stand-alone cause of action. While Plaintiff incorporates the allegations of all the other causes of action, as discussed above, all the other causes of action fail. The demurrer is sustained. Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion [...] Liberality in permitting amendment is the rule....' (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-04.) The face of the complaint does not indicate that it is incapable of being amended. Further, this is Plaintiff's first attempt at drafting a complaint. Therefore, the Court grants Plaintiff ten (10) days leave to amend the complaint.

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