Judge: Stephen I. Goorvitch, Case: 20STCV32939, Date: 2023-08-15 Tentative Ruling

Case Number: 20STCV32939    Hearing Date: August 15, 2023    Dept: 39

Santiago Nuno, et al. v. Francisca Noyola

Case No. 20STCV32939

Demurrer and Motion to Strike

Plaintiffs allege that their parents owned real property at 1438-1440 East 20th Street in Los Angeles and 16058 Wedgeworth Drive in Hacienda Heights, which the parents conveyed to Defendant for the benefit of Plaintiffs.  (Second Amended Complaint, ¶ 6.)  Plaintiffs allege that Defendant Francisca Noyola (“Defendant”) sold the property, but failed to distribute the proceeds per the trust.  (Second Amended Complaint, ¶¶ 7, 11.)  Defendant filed a demurrer to the second cause of action, which the Court sustained in part and overruled in part.  (See Court’s Minute Order, dated February 24, 2022.)  In particular, the Court overruled the demurrer to the fraud and constructive trust claims.  Defendant allegedly misrepresented to Rosario Nuno and Jesse Nuno that she would hold the 20th Street and Wedgeworth properties for the benefit of all siblings, which induced them to transfer the properties to Defendant.  (See id., pp. 5, 7.) 

Defendant filed a first amended cross-complaint for fraud, constructive trust, accounting, and declaratory relief.  Defendant alleges that there are two additional properties: (1) A real property located at 936 West 47th Street, Los Angeles, California 90037, and (2) A real property located at 6979 Tippecanoe Avenue, San Bernardino, California 92404.  (First Amended Cross-Complaint, ¶ 16.)  The parties’ parents deeded the 47th Street property to Jesse Nuno on or about March 2, 1993.  (Id., ¶¶ 16, 17.)  The Tippecanoe property was acquired by Plaintiff/Cross-Defendant Consuelo Nuno on October 21, 1998, pursuant to an agreement that it would be owned by all of the siblings.  (Id., ¶¶ 16, 18.)  The Tippecanoe property was transferred to Plaintiff/Cross-Defendant Maria Hernandez and then to Jesse Nuno.  (Ibid.)  Defendant now raises the same allegations as Plaintiffs: The properties were supposed to be owned by all siblings, and she has not received her fair share of the proceeds, e.g., rents collected by Jesse Nuno.  (Id., ¶ 19.) 

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  Defendant’s first cause of action is for fraud.  Defendant must allege fraud with particularity.  “This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect.”  (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.)  “The elements of fraud, which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.”  (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.)  In this case, Defendant’s allegations are not sufficient to assert a cause of action for fraud.  Defendant alleges that Plaintiff Jesse Nuno “represent[ed] that he would hold title on behalf of the siblings . . .  constitutes fraud as Jesse knew the representations were false when he made them, and when he took title to the 47 Street and Tippecanoe properties, without paying any consideration.”  (First Amended Cross-Complaint, ¶ 21.)  Defendant does not allege when Plaintiff Jesse Nuno made these misrepresentations, to whom, or in what context.  For this reason, it is impossible to determine whether there is a viable fraud claim, e.g., whether there was a misrepresentation upon which Defendant justifiably relied.  Moreover, it appears as though the claim is untimely.  The properties were transferred to Jesse Nuno in 1993 and 2011.  (Id., ¶¶ 17, 18.)  Defendant was supposed to receive 1/10 of the rents but did not.  (See id., ¶ 19.)  The first amended cross-complaint alleges no facts suggesting that the delayed discovery rule tolled the statute of limitations.

Based upon the foregoing, the Court sustains the demurrer to the first cause of action.  Having done so, the Court sustains the demurrer to the second and third causes of action.  The fourth cause of action is for declaratory relief.  At heart, this cause of action relates to ownership of the properties at issue, which precludes a declaratory relief action.  (See California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624.) 

            The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action.  The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.

(General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) 

Based upon the foregoing, the Court orders as follows:

1.         The Court sustains the demurrer to Defendant’s first amended cross-complaint.

2.         The Court sets an Order to Show Cause why the Court should afford leave to amend.  The OSC hearing shall be held on September 21, 2023, at 8:30 a.m.  The Court orders Defendant’s counsel to file a response outlining all facts that would be included in a second amended cross-complaint on or before September 5, 2023.  Plaintiff’s counsel may file a response on or before September 12, 2023.

3.         Plaintiff’s counsel shall provide notice and file proof of such with the Court.