Judge: Shirley K. Watkins, Case: 22VECV01019, Date: 2022-12-20 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 22VECV01019    Hearing Date: December 20, 2022    Dept: T

NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE:

The Case Management Conference is continued to 2/24/2023 at 8:30 a.m.  Counsel are ordered to have a meet and confer per CRC 3.724 prior to the CMC.  In particular, there needs to be a discussion of what causes of action, if any, shall be bifurcated and tried to the court (such as quiet title and partition), and the order of the bifurcated trials.  Also, the court will inquire whether there are ongoing settlement negotiations, the status of discovery, and all other issues referenced in CRC 3.724.  The court will set this case for trial in the early Fall 2023 so plan accordingly.  It takes 3-4 months to reserve an MSJ so (also) plan accordingly.

The court notes that if partition is ordered, the process can be very long and very expensive with a possible appointment of a receiver with its attendant expenses.  Also, attorney fees may also be recoverable in this action.

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            [TENTATIVE] ORDER ON DEMURRER:  Cross-Defendant Svetlana Strashko’s Demurrer to the Cross-Complaint is OVERRULED.  20 days to answer the Cross-complaint.

Introduction

            Cross-Defendant Svetlana Strashko (Cross-Defendant or Plaintiff) demurred to Cross-Complainant Aurel Bunduchi’s (Cross-Complainant) Verified Cross-Complaint (VXC).  Cross-Defendant’s demurrer places into issue all four causes of action (COA) for breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, and quiet title.

            Discussion 

            Cross-Defendant argued that all four COAs do not plead sufficient facts because the VXC failed to allege that the agreement was in writing.  (Civ. Code secs. 1091 and 1624; Code Civ. Proc. sec. 1971.)  Cross-Complainant alleged an oral agreement where Cross-Defendant would be added to the title to the property for estate planning purposes only and that Cross-Defendant was not to have 50% ownership if the parties broke up.  (VXC pars. 11, 22-24, 29, 35, and 41.)  Cross-complainant further alleged that: he paid the full down payment; originally took title in his own name; only intended Cross-Defendant (his then "significant other") to own the property if he passed away; made almost all mortgage payments amounting to over $600,000.00 (excluding $30,000.00 paid by Cross-Defendant); paid all the bills and utilities; currently resides at the property; and installed/paid for a swimming pool. (VXC pars. 10-12, 15 and 17.) Cross-Complainant argued his part/full performance as an exception to the statute of frauds.  One party's “partial” (or full) performance of, and resulting detrimental change of position in reliance on, an oral real property sale contract takes the contract out of the statute of frauds. (Code Civ. Proc. sec. 1972(a); Marriage of Benson (2005) 36 Cal.4th 1096, 1108-1109; Alfaro v. Community Housing Improvement System & Planning Association, Inc. (2009) 171 Cal.App.4th 1356, 1396.)  Cross-Complainant alleged that he added Cross-Defendant as a joint tenant after he purchased the property in his own name, which shows his full performance.  (VXC pars. 10 and 22.)  Cross-Complainant sufficiently pleads facts to show his performance on the contract to fall under the exception to the statute of frauds.  Cross-Defendant’s statute of frauds argument is unpersuasive.

            Cross-Defendant further argued that the claims for reimbursement for his down payment or improvements should be made in Plaintiff’s Complaint for partition.  (Code Civ. Proc. sec. 872.140.)  The Court notes that the VXC alleges to forms of relief: 1) reconveyance and alternatively 2) monetary damages no less than $650,000.00 regarding one half of the estimated value of the property.  (VXC Prayer par. 1.)  Cross-Defendant’s argument only asserted the impropriety of the reimbursement request.  A demurrer does not lie as to only a claim for relief (e.g., punitive damages or penalties) where some valid claim is alleged.  (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384.)  Further, a demurrer does not lie to only parts of causes of action, where some valid claim is alleged.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Parties are ‘entitled to any relief warranted by the facts pleaded, and their failure to ask for the proper relief is not fatal.’ … A defective prayer is simply irrelevant to the question whether a cause of action is stated.”  (Gomez v. Volkswagen of America, Inc. (1985) 169 Cal.App.3d 921, 925.)  Cross-Defendant’s argument that the requested relief for reimbursement be alleged as an answer in the partition action is insufficient to sustain the demurrer. 

            The Cross-complaint alleges facts sufficient to constitute a cause of action and the Cross-Defendant’s demurrer is OVERRULED.  20 days to answer the Cross-complaint.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.