Judge Stephen P. Pfahler, Case Number: 23STCV24643, Date: 2024-02-15 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23STCV24643, Date: 2024-02-15 Tentative Ruling

Case Number: 23STCV24643 Hearing Date: February 15, 2024 Dept: 68

Dept. 68

Date: 2-15-24 c/f 1-19-24

Case #: 23STCV24643

Trial Date: Not Set

DEMURRER TO THE FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant, Kelly Pelton, et al.

RESPONDING PARTY: Plaintiff, Norma Salceda

RELIEF REQUESTED

Demurrer to the Fist Amended Complaint

· 1^st Cause of Action: Quasi Specific Performance/Constructive Trust

· 2^nd Cause of Action: Promissory Estoppel

· 3^rd Cause of Action: Unjust Enrichment

SUMMARY OF ACTION

In October, 2001, Plaintiff Norma Salceda, commenced leasing 13672 Van Nuys Blvd., Pacoima, for operation of an OB/GYN medical practice on the premises. The premises were owned by Nance Malmrose. Plaintiff and Malmrose were also personal friends.

In 2010, Plaintiff offered to purchase the property from Malmrose. Two weeks later, Malmrose rejected the purchase offer, and instead promised to bequeath the property to Salceda at the time of death in to be reflected in an updated will/estate plan. Following the promise, Plaintiff suggested conversion of the property into a community healthcare center instead of continuing as an OB/GYN clinic. Malmrose agreed. Plaintiff subsequently engaged in plans to convert the premises, and began investing funds for the remodel plus working with government agencies.

On January 23, 2019, passed away intestate with no spouse or offspring. No will was ever found, and Plaintiff accuses a private nurse to Malmrose, Ken Preston, with absconding it.

On October 12, 2022, Ginger Brandenburg (Ginger), child of decedent’s “late husband” Earl Malmrose (stepdaughter of Malmrose?) was awarded “100% of Malmrose’s” estate valued at approximately “11 million dollars” (19STPB09601). Ginger Brandenburg however passed away on September 24, 2022, two weeks before the award. Ginger’s surviving husband, Joe Brandenburg, was designated trustee. Joe subsequently resigned as trustee, thereby leading to the designation of Kelly Brandenburg Pelton (Pelton) as successor trustee. A later probate proceeding (23STPB00795) facilitated the transfer of all assets into the Brandenburg family trust.

Plaintiff alleges that prior to Ginger being awarded the estate, Plaintiff nevertheless informed Ginger Brandenburg about the purported agreement to leave the commercial premises for the community clinic. The wish of the property was confirmed by a third party “financial advisor” affiliated with the Malmrose estate. Ginger purportedly assured Plaintiff that the property would be transferred in accordance with Malmore’s wishes upon appointment as administrator.

Plaintiff elected to forego making any claim with the probate court (presumably in the 19STPB09601 action), though nothing in the operative complaint alleges any actual forbearance agreement with any identified person.

Plaintiff also later met with counsel for Ginger in December 2020, Richard Hoefflin, who also purportedly acknowledged the agreed upon transfer of the clinic. Notwithstanding the purported “agreement,” Hoefflin informed Plaintiff that as counsel for Ginger, representation was solely limited to the interests of Ginger, and specifically disclaimed any representation of the interests of Plaintiff in any capacity. Hoefflin also purportedly told Plaintiff that any statute of limitations on a probate claim lapsed either way.

On February 6, 2021, Ginger demanded a rental payment from Plaintiff. Plaintiff subsequently began paying rent. Following other communications, the parties entered into a seven month lease for the premises beginning on May 1, 2022, and ending November 30, 2022. Following the death of Ginger, and assumption of trustee duties by Pelton, a notice of termination of the lease was later delivered stating that a month to month tenancy now existed on the property as of June 30, 2023 (notwithstanding the lapse of the actual lease on November 30, 2022).

On October 10, 2023, Plaintiff filed a complaint for Quasi Specific Performance/Constructive Trust, Promissory Estoppel, and Unjust Enrichment, and Elder Financial Abuse. On October 23, 2023, Plaintiff filed a Notice of Related Cases for the instant action with Pasadena unlawful detainer action, 23PDUD02724. On October 24, 2023, the court declined to find the complaints related. On October 31, 2023, Plaintiff filed a first amended complaint for Quasi Specific Performance/Constructive Trust, Promissory Estoppel, and Unjust Enrichment. On December 14, 2023, Department 1 deemed the unlawful detainer action related to the instant complaint.

RULING: Sustained with Leave to Amend.

Request for Judicial Notice & Supplement Request for Judicial Notice: Granted in Part/Denied in Part.

· The court takes judicial notice of the death certificate, and the request for dismissal.

· The court takes judicial notice of the Probate Court orders for the existence of the orders, but not any factual findings. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

· The court denies judicial notice of the lease.

Defendant Kelly B. Pelton, Trustee of the Brandenburg Family Trust Dated October 28, 2019, brings the subject demurer to the entire first amended complaint for Quasi Specific Performance/Constructive Trust, Promissory Estoppel, and Unjust Enrichment on grounds that all claims are barred by the one year statute of limitations, and lacks facts in support of the claims. Plaintiff counters that the causes of action were both timely filed and sufficiently pled. Defendant in reply reiterates the statute of limitations bar, and lack of factual basis.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Statute of Limitations

Defendant maintains a one-year statute of limitations governs the case under Code of Civil Procedure section 377.20, while Plaintiff counters while Plaintiff cites to section 366.2, 366.3, and 339. Even assuming a valid statute of limitations claim, Plaintiff also relies on an equitable estoppel basis.

Section 377.20 states: “(a) Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period. (b) This section applies even though a loss or damage occurs simultaneously with or after the death of a person who would have been liable if the person's death had not preceded or occurred simultaneously with the loss or damage.” (Code Civ. Proc., § 377.20.)

In citing to section 377.20, the demurrer relies on a primary assumption that any and all claims lie against Ginger Brandenburg for the “alleged misrepresentation” (e.g. represented promise to transfer the property pursuant to the wishes of Malmore). Plaintiff offers no apparent challenge to this characterization of the gravamen of the operative claims. Plaintiff cites to Code of Civil Procedure section 366.2: “(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., § 366.2, subd. (a).)

Given the pled date of death as September 24, 2022, and the filing date of the complaint on October 10, 2023, the more than one year gap between the date of death and the original complaint filing date establishes an untimely filed action as against Ginger, subsequently becoming a claim against the estate. Plaintiff acknowledges the time lapse, but maintains no statute of limitations bar in that no claim vested against Ginger at the time of death, since she was only awarded the property on October 12, 2022, by court order. While the October 12, 2022, order clearly places the claim within one year of accrual, Plaintiff continues that the actual claim only accrued on April 11, 2023, when Pelton was awarded all property. For purposes of the subject demurrer, the court declines to consider this unpled factual allegation, as extrinsic to the four corners of the operative pleading. The court also questions whether such an argument seemingly and improperly disregards the allegations in the complaint regarding the interim substitution of Joe Brandenburg after the death of Ginger.

Defendant in reply cites to “Law Revision” committee notes regarding the intent and interpretation of the statute regarding the strict interpretation of the one year from death limitation. The argument factually depends on a finding that the claim against Ginger on the date of death—September 24, 2022. Defendant correctly interprets the statute, but the argument also improperly assumes accrual of the claim at the time of death and disregards the plain language of Code of Civil Procedure section 366.2, subdivision (a) regarding accrual versus non-accrual of a claim and the language of section 366.3, subdivision (a). (Dacey v. Taraday (2011) 196 Cal.App.4th 962, 983.)

“Section 366.2's use of the term ‘survives’ can readily be harmonized with its application to claims ‘whether accrued or not accrued’ by applying the latter to reach situations where the cause of action existed while the decedent was alive, but had not yet accrued for limitations purposes—as where the decedent had perpetrated a fraud of which the plaintiff was unaware. In such a case, the decedent's death triggers the limitations period prescribed by the statute, regardless of any accrual rule otherwise governing the claim. The result is to require would-be claimants to seek out and assert any claims they might have against the decedent within a year of his death, or suffer the loss of those claims.”

“Reading the statute as a reference to claims that did not exist at the time of death burdens the statute with a glaring self-contradiction because, as already noted, it speaks in terms of an action that ‘survives,’ i.e., that might have been brought against the decedent while living. Insofar as the Battuello court adopted such a reading, we decline to follow it. We conclude that section 366.2 was inapplicable here, because appellant's claim could not come into existence until decedent died having failed to make provision in accordance with her alleged agreement ...”

“We turn then to section 366.3, which provides in pertinent part, ‘If a person has a claim that arises from a promise or agreement with a decedent to distribution from an estate or trust or under another instrument, whether the promise or agreement was made orally or in writing, an action to enforce the claim to distribution may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.’ (Code Civ. Proc., § 366.3, subd. (a).)”

(Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 554.)

The plain language of the statute still requires a one year statute of limitations from the date of death, regardless of any court order subsequently establishing accrual of the cause of action. (Id. at p. 556.) To the extent Plaintiff concedes the claims accrued against Ginger, the court finds no basis evading the statute of limitations given the more than one year gap between the death of Ginger and the filing of the complaint, with no intervening claims presented to the probate court. (Ibid.) The court finds the reliance on a superseding, foundational statute of limitations, such as section 339, insufficiently addresses the plain language of section 366.3, subdivision (a) where the claims fall against a deceased person. (Davies v. Krasna (1975) 14 Cal.3d 502, 508.)

The court otherwise declines to consider the new arguments in reply regarding accrual of the claim in 2019 based on the appointment of Ginger as administrator and personal representative of the Malmrose Estate on November 7, 2019 and December 2, 2019. The facts are beyond the scope of the operative pleading, and not subject to judicial notice for purposes of the demurrer. The court also declines to allow Defendant to present an alternative basis for accrual of the statute of limitations given the discussion under sections and in the reply without granting Plaintiff the opportunity to respond.

Plaintiff alternatively maintains promissory and equitable estoppel precludes the imposition of the statute of limitations. Defendant challenges any basis of promissory or equitable estoppel. Generally, a statute of limitations begins to run “when the cause of action is complete with all of its elements”—namely, wrongdoing, causation, and resulting harm. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397; Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797 [“A cause of action accrues ‘when [it] is complete with all of its elements’—those elements being wrongdoing, harm, and causation”].) “In the statute of limitations context, equitable estoppel may be appropriate where the defendant's act or omission actually and reasonably induced the plaintiff to refrain from filing a timely suit. (Citation.) The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit. (Citation.)” (Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.)

Promissory estoppel constitutes the second cause of action. “The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’” (Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 225 (internal quotation marks omitted).) “The elements of equitable estoppel are ‘(1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citation.]’ [Citation.] The detrimental reliance must be reasonable. [Citations.] [¶] An additional requirement applies in cases involving equitable estoppel against the government. In such a case, the court must weigh the policy concerns to determine whether the avoidance of injustice in the particular case justifies any adverse impact on public policy or the public interest.” (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.)

Plaintiff in opposition refers to the subject defenses in context of the statute of frauds, but it’s not clear how and where the statute of frauds applies in the instant action. (See Civ. Code, § 1624.) Assuming application of the principles however, the court finds no basis of reasonable reliance causing Plaintiff to forbear from submitting a claim to the Probate Court in the first action. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 418.) Any alleged representations from Ginger thereby inducing action on a claim accruing after death leaves an uncrossable logical gap for purposes of stating such a claim. [First Amend. Comp., ¶¶ 47, 60, 87-89.] If the court accepted the allegations of the claim regarding the formation of the claim in 2019, as presented by Defendant in reply, a follow through on this potential accrual date, undermines the earlier consideration regarding accrual based on the court dates.

The court therefore finds under the currently alleged version of the complaint and arguments, the claims are barred under the statute of limitations without any basis for extension.

1^st Cause of Action: Quasi Specific Performance/Constructive Trust

The court acknowledges the argument regarding potential claim preclusion, but finds the discussion insufficiently addressed by both sides, especially given the denial of the existence of a California Supreme Court actually published by the First District Court of Appeal. (Holabird v. Superior Court of Fresno County (1929) 101 Cal.App. 49, 52.)

3^rd Cause of Action: Unjust Enrichment

The Second Appellate District no longer recognizes unjust enrichment as a cause of action. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) “Unjust enrichment is a ‘general principle, underlying various legal doctrines and remedies,’ rather than a remedy itself.” (Ibid.) This remedy may still be pled in conjunction with a valid cause of action. (Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911; Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1535.) To the extent the subject cause of action depends on “wrongful acquisition” of the property, as addressed above, the court finds no basis for an unjust enrichment claim at this stage.

Given the subject demurrer constitutes the first review of the operative pleading by this court, the court sustains the demurrer with 30 days leave to amend. The court grants leave to amend in order to allow Plaintiff the opportunity to address the statute of limitations arguments, claim preclusion, and any other items raised in the demurrer. Plaintiff may not add any new causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Any new causes of action added without leave of court may be subject to a motion to strike. Material changes to the operative complaint seeking to alter the material terms of any purported agreements or representation may also be subject to a demurrer under the sham pleading standard.

The court will concurrently conduct the Case Management Conference.

Defendant to give notice.

Dept. 68

Date: 2-15-24 c/f 1-17-24

Case #: 23STCV24643

Trial Date: Not Set

STAY OR CONSOLIDATION

MOVING PARTY: Defendant, Kelly Pelton, et al.

RESPONDING PARTY: Plaintiff, Norma Salceda

RELIEF REQUESTED

Motion to Stay or Consolidate

SUMMARY OF ACTION

On January 23, 2019, passed away intestate with no spouse or offspring. No will was ever found, and Plaintiff accuses a private nurse to Malmrose, Ken Preston, with absconding it.

RULING: Granted.

Request for Judicial Notice: Granted in Part/Denied in Part.

· The court takes judicial notice of the request for dismissal.

· The court takes judicial notice of the Department 1 order for the existence of the order deeming the cases related, but not any factual findings. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

· The court denies judicial notice of the Declaration of Richard Hoefflin.

Plaintiff Salceda moves to stay the related unlawful detainer action or alternatively consolidate the cases. Plaintiff moves for relief on grounds both cases involve claims regarding ownership and possession of the property. Defendant in opposition challenges the motion on grounds the instant action and the pending unlawful detainer complaint lack common questions of law and fact. Defendant specifically relies on the concurrently scheduled demurrer in support of the argument, as well as a claim of prejudice. Defendant concludes that any stay requires a preliminary injunction and posting of an undertaking. Plaintiff in reply reiterates the propriety of consolidation. Plaintiff denies the necessity of any application for preliminary injunction.

“Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) “Code of Civil Procedure section 1048 grants discretion to the trial courts to consolidate actions involving common questions of law or fact.” (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.) The section states in relevant part:

“(a) When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

“(b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”

“Consolidation is not a matter of right; it rests solely within the sound discretion of the trial judge.” (Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 402.) There are two types of consolidation under §1048: “a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.)

The court finds the allegations of the complaint sufficiently support a claim for disputed title, thereby supporting a basis for consolidation. “Because of its summary character, an unlawful detainer action is not a suitable vehicle to try complicated ownership issues involving allegations of fraud.” (Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049; Vella v. Hudgins (1977) 20 Cal.3d 251, 255 [“For our present purpose, it is sufficient to note that the proceeding is summary in character; that, ordinarily, only claims bearing directly upon the right of immediate possession are cognizable”]; Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159; Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) The arguments in opposition in fact affirm the inability of the UD court to address the title issues, thereby prompting consolidation without any finding of collateral estoppel. (Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1326-1327.)

The court finds no basis for denial of consolidation simply based on the pending demurrer. The issues regarding ownership and possession remain to be adjudicated. The court therefore grants the motion to consolidate.

Given the consolidation of the actions, the court stays the unlawful detainer proceeding pending adjudication of the action. The court also finds no basis of necessity for any request under Code of Civil Procedure section 526, including the posting of an undertaking, given the authority of this unlimited jurisdiction court to stay the action. (Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, 146.)

The unlawful detainer case is therefore transferred from the unlawful detainer court to this department. The two cases will now be captioned under one case number, with the unlimited case number serving as the lead number. All dates in the Unlawful Detainer Court are now vacated. All documents filed going forward shall only be filed using the lead case number.

The court, however, will consider requests for the continued payment of rent on the premises pending adjudication of the underlying action. Nothing in the consolidation and stay pending adjudication of the property right claims in any way relieves any current rent obligations for use of the premises. The court will also concurrently conduct the Case Management Conference.

Plaintiff to give notice.