Judge: Stephen I. Goorvitch, Case: 20STCV26288, Date: 2022-07-29 Tentative Ruling

Case Number: 20STCV26288    Hearing Date: July 29, 2022    Dept: 39

Matilde Rosa Barry v. Katherine P. Paredes

Case No. 20STCV26288

Motion for Summary Judgment

BACKGROUND

            Plaintiff Matilde Rosa Barry (“Barry”) filed a verified complaint against Katherine P. Paredes (“Paredes”) asserting causes of action for partition of real property, breach of contract, and accounting.  Barry alleges as follows:  She and Paredes entered into an oral agreement concerning the purchase of a property located at 8432 Portafino Place in Whittier, California (the “Portafino property.”)  Per the agreement, Barry contributed $60,000 to the down-payment of the property, and Paredes would make the mortgage payments until the time when she would repay Plaintiff and Paredes would refinance the property and pay back Barry.  However, Paredes has refused to refinance the loan or sell the property, and Barry has not been reimbursed. 

            Paredes filed a cross-complaint against Barry asserting the following causes of action: Quiet title, breach of contract, accounting, common counts, constructive trust, resulting trust, unjust enrichment, and declaratory relief.  Paredes alleges as follows: She and Barry entered into an agreement to purchase a property located at 9257 Telegraph Road in Pico Rivera, California (the “Telegraph property.”)  Barry and Paredes would jointly pay for the maintenance on the property.  Once the property was sold, Barry would tender to Paredes all of the money she contributed plus half of the profit.  Paredes contributed over $90,000 to the down-payment and maintenance on the property.  The Telegraph property was held exclusively in Barry’s name, and she sold the property in March 2015.  However, the loan was not paid until 2020, at which time the profit should have been divided. 

            Paredes alleges that she purchased the Portafino property, and that Barry contributed no money other than that owed from the sale of the Telegraph property.  At no time was there ever an agreement between Barry and Paredes for Barry to have any ownership interest in the Portafino property.  Nevertheless, Barry’s name was placed on the deed because she co-signed for the loan, and certain monies came from her account. 

            Now, Barry moves for summary adjudication of the first cause of action in her complaint, which is partition by sale.  Barry also moves for summary judgment or, in the alternative, summary adjudication of each cause of action in Parades’s cross-complaint.  The Court denies summary adjudication with respect to the first cause of action in Barry’s complaint.  The Court grants summary adjudication with respect to the second, third, fourth, fifth, sixth, and seventh causes of action in the cross-complaint.  The Court denies summary adjudication of the first and eighth causes of action in the cross-complaint.    

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

REQUESTS FOR JUDICIAL NOTICE

            The Court grants the parties’ respective requests for judicial notice, per Evidence Code section 452. 

DISCUSSION

            A.        Complaint – First Cause of Action

Barry’s first cause of action is for partition by sale.  Partition is a right of common owners of real property unless another owner has equitable defenses.  (See Code Civ. Proc. § 872.230.)  In this case, there are several potential defenses that must be resolved before the Court orders a sale of the property. 

First, Paredes challenges Barry’s ownership interest.  In her answer, Paredes raises the following affirmative defenses: Unclear hands, waiver, release, equitable estoppel, actual fraud, constructive fraud, and unjust enrichment.  In simple terms, Paredes claims that Barry is not truly an owner of the property, as the money she contributed to the down-payment was Paredes’s share of the proceeds from the sale of the Telegraph property, and she is on the deed because she co-signed the loan.  Barry’s verified complaint provides some evidence of this defense, as it states that she loaned Paredes the down-payment, suggesting that she was not intending to be a true owner of the property.

Second, even if Barry truly is an owner, the Court must resolve the ownership interests of the parties before ordering a sale.  Barry alleges in a verified complaint that she deposited $60,000 toward the $675,000 purchase price of the property in 2013, pursuant to an oral agreement.  (Complaint, ¶ 9.)  Assuming Barry is an owner, the evidence suggests that she would be entitled only to approximately 8.88% of the property.  This is relevant because Paredes raises the defense of offset.  The verified complaint makes clear that Paredes paid the mortgage and suggests that Paredes paid all outstanding expenses on the property.  (Complaint, ¶¶ 7, 10.)  This gives rise to a triable issue whether any offsets would reduce or eliminate Barry’s ownership interest.  This also gives rise to an equitable consideration: A buy-out, rather than a sale, may be the appropriate remedy in the case.     

Therefore, the Court cannot grant summary adjudication and order a sale of the property at this time.  Rather, these issues—especially whether Barry truly is an owner of the property—must be resolved at trial.

            B.        Cross-Complaint – First Cause of Action

            Paredes asserts a quiet title action concerning the Portafino property.  Code of Civil Procedure section 761.020 provides that a complaint for quiet title shall be verified and include: (1) a description of the property that is the subject of the action, including both the legal description and its street address or common designation if the subject property is real property; (2) the plaintiff’s title as to which determination is sought and basis of the title; (3) the adverse claims to the plaintiff’s title against which determination is sought; (4) the date of which the determination is sought; and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. (See Code Civ. Proc., § 761.020.)  Both Barry and Paredes are on the deed to the Portafino property.  (See Paredes’s Request for Judicial Notice, Exh. D.)  Paredes has complied with these requirements, and there is no basis to grant summary adjudication of this claim.  Therefore, the motion is denied with respect to the first cause of action in the cross-complaint.   

            C.        Cross-Complaint – Second Cause of Action – Breach of Contract

            Paredes’s second cause of action is for breach of contract concerning the alleged oral agreement between Paredes and Barry concerning the distribution of proceeds from the Telegraph property.  Barry argues that Paredes lacks standing because she was not a party to the oral agreement, which was between her father, Juan Oswaldo Paredes, and Barry.  Barry argues that the agreement violates the statute of frauds.  Finally, Barry argues that the claim is barred by the statute of limitations.  The Court grants summary adjudication based upon the statute of limitations. 

In this case, there is no dispute that any contract concerning the Telegraph property was oral.  The statute of limitations for breach of an oral contract is two years.  (Code Civ. Proc., § 339(1).)  Plaintiff alleges that “[o]nce the Telegraph property was sold, Barry would tender to Paredes all of the money which she contributed and half of the profit.”  (Cross-Complaint, ¶ 10.)  The declaration of Juan Oswaldo Paredes, who purportedly negotiated the transaction on behalf of Paredes, states: “Barry and [Paredes] each stated . . . that they would share in the sale of the Telegraph Property because of [Paredes’s] contributions toward the purchase of the Telegraph property. . . .  [Paredes] and Barry would sale in the proceeds of the sale equally.”  (Declaration of Juan Oswaldo Paredes, ¶ 23.)  Paredes had no direct communications with Barry, as she used her father, Juan Oswalda Paredes, as an intermediary.  (Declaration of Wendy Miele, Exh. A, pp. 38-50.)  However, Paredes testified that the agreement was as follows:

Q:        And do you know the details of the agreement?

A:        What I understood is, once the property was sold, it would be fifty/fifty.

Q:        What do you mean by fifty/fifty?

A:        Once the property is sold, whatever amount it was sold for, I’m aware of how much the property was sold for, we would get -- it would be fifty/fifty.

Q:        You would get half of the profit, and she would get half?

A:        Yes.  That was my understanding yes.

(Id., Exh. A, pp. 48-49.)  The property was sold on February 25, 2015.  (Paredes’s Response to Barry’s Separate Statement, ¶ 6; see also Paredes’s Request for Judicial Notice, Exh. E.)  Paredes never requested the money before she filed her cross-complaint on September 8, 2020.  (Declaration of Wendy Miele, Exh. A, pp. 49-50.)  Paredes attempts to create a triable issue, arguing that the contract provided that Barry was not required to pay her the proceeds of the sale until the underlying loan was satisfied, but Paredes’s evidence does not support that argument.  Rather, the terms of the contract were that the proceeds would be distributed when the property was “sold,” and Paredes never demanded the money prior to this litigation.  Therefore, the Court grants summary adjudication of the second cause of action. 

            D.        Cross-Complaint – Third, Fourth, Fifth, Sixth, Seventh Causes of Action

            The third, fourth, fifth, sixth, and seventh causes of action in the cross-complaint are derivative of the second cause of action, the breach of contract relating to the sale of the Telegraph property.  The Court has granted summary adjudication of that cause of action.  Therefore, the Court grants summary adjudication of the derivative causes of action.

            E.         Cross-Complaint – Eighth Cause of Action

            The eighth cause of action in the cross-complaint seeks declaratory relief concerning Paredes’s rights and duties concerning the Portafino property.  The Court denies summary adjudication of this cause of action, having denied summary adjudication of the quiet title action. 

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         Barry’s motion for summary adjudication is denied with respect to the first cause of action in her complaint.

            2.         Barry’s motion for summary adjudication is denied with respect to the first and eighth causes of action in the cross-complaint.

            3.         Barry’s motion for summary adjudication is granted with respect to the second, third, fourth, fifth, sixth, and seventh causes of action in the cross-complaint.

            4.         Counsel for Barry shall provide notice and file proof of such with the Court.