Judge: Stephen P. Pfahler, Case: 23STCV24643, Date: 2025-05-06 Tentative Ruling

Case Number: 23STCV24643    Hearing Date: May 6, 2025    Dept: 68

Dept. 68

Date:  5-6-25 c/f 4-14-25 c/f 3-25-25 a/f 5-12-25

Case #: 23STCV24643

Trial Date: 2-27-26

 

DEMURRER TO THE THIRD AMENDED COMPLAINT

 

MOVING PARTY: Defendant, Kelly Pelton, et al.

RESPONDING PARTY: Plaintiff, Norma Salceda

 

RELIEF REQUESTED

Demurrer to the Third Amended Complaint

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

·         2nd Cause of Action: Promissory Estoppel

 

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 suspects a private nurse to Malmrose, Ken Preston, absconding it.

 

A probate proceeding commenced (19STPB09601). Plaintiff alleges that prior to Ginger Brandenburg being awarded the estate, Plaintiff informed Ginger about the purported agreement to leave the commercial premises for the community clinic. [Third Amend. Comp., ¶¶ 53-54] Plaintiff elected to forego making any claim with the probate court (presumably in the 19STPB09601 action) based on the alleged promise from Ginger. [Third Amend. Comp., ¶¶ 50-51.] On November 7, 2019, Ginger was appointed administrator of the Malmrose estate. [Third Amend. Comp., ¶ 52.] Ginger allegedly assured Plaintiff that the property would be transferred in accordance with Malmrose’s wishes upon appointment as administrator. The purported existence of the promise was also confirmed by a third party attorney, Richard Hoefflin, representing the Malmrose estate. Attorney Hoefflin however specifically disclaimed any and all representation of Plaintiff in any capacity. [Third Amend. Comp., ¶¶ 56-59.] Hoefflin also later confirmed the lapse to present any probate action claim. [Third Amend. Comp., ¶¶ 61, 63.]

 

On February 6, 2021, Ginger demanded a rental payment from Plaintiff. [Third Amend. Comp., ¶ 65.] 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. [Third Amend. Comp., ¶¶ 80-81.]

 

Ginger Brandenburg passed away on September 24, 2022 “without taking actions whatsoever to allow Plaintiff to obtain the property.” [Third Amend. Comp., ¶ 82.] “On October 12, 2022, Brandenburg was awarded 100% of Estate in Malmrose Probate Proceeding (19STPB09601).” [Third Amend. Comp., ¶ 87.] Plaintiff alleges said order was “void” in that the transfer to a deceased person was improper. [Third Amend. Comp., ¶ 6.] Regardless, Ginger’s surviving husband, Joe Brandenburg, was apparently designated trustee on an unspecified date, but resigned this position. [Third Amend. Comp., ¶¶ 7, 8, 84.] On April 11, 2023, Kelly Brandenburg Pelton (Pelton) was designated as successor trustee in a later probate proceeding (23STPB00795), which facilitated the transfer of all assets into the Brandenburg family trust. [Third Amend. Comp., ¶¶ 11-12.] Plaintiff alleges a lack of notice as to the lack of any notice of the death of Ginger or probate action. [Third Amend. Comp., ¶¶ 89-90.]

 

On May 1, 2023, Peloton served a notice of termination of the lease effective June 30, 2023, with conversion to a month-to-month lease. [Third Amend. Comp., ¶ 91.] Peloton subsequently filed an unlawful detainer action on August 4, 2023. [Third Amend. Comp., ¶ 92.]

 

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 30, 2023, Plaintiff dismissed Giger Brandenburg with prejudice. 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. On February 15, 2024, the court consolidated the cases.

 

On February 15, 2024, the court also sustained the demurrer to the first amended complaint with leave to amend. On March 18, 2024, Plaintiff filed a verified second amended complaint for Quasi Specific Performance/Constructive Trust, and Promissory Estoppel. On August 18, 2024, the court sustained the demurrer to the second amended complaint with leave to amend. On September 3, 2024, Plaintiff filed the verified third amended complaint for Quasi Specific Performance/Constructive Trust, and Promissory Estoppel.

 

RULING: Sustained without Leave to Amend.

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

·         A court can normally only take judicial notice of 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 subject orders both address the represented disposition of the claims directly referenced in the complaint. The court therefore considers the content due to incorporation. The court can also take notice of its own prior orders, as well as the dismissal, but said items are also already part of the court record. The copy of the request for dismissal is not conformed, but the court electronic filing system shows the dismissal entered on October 30, 2023.

 

Defendant Kelly B. Pelton, Trustee of the Brandenburg Family Trust Dated October 28, 2019, brings the subject demurer to the entire verified third amended complaint for Quasi Specific Performance/Constructive Trust and Promissory Estoppel, on grounds that all claims are barred by the one-year statute of limitations, and lack facts in support of the claims. Defendant presents extensive challenges to the allegation of a “void” probate court judgment, no estate representative was required to notify Plaintiff of any right to present claims against the estate, and the consolidation of the unlawful detainer action allegations will not toll the accrual of the statute of limitations, as well as elemental address of the individual causes of action.

 

Plaintiff in opposition counters that the causes of action were both timely filed and sufficiently pled based because no action accrued at the time of Ginger’s death since the order transferring control of the estate following her death was a “void” order. Peloton was appointed until April 11, 2023, and the subject action was filed six months later.

 

Defendant in reply emphasizes the prior rejection of the attempted extension of the statute of limitations bar, and lack of factual basis. Repetition of the rejected argument will not change the result. Plaintiff was obliged to submit any claim at the time of Ginger’s death. Defendant in reply concludes with the lack of facts supporting the individual cause of action.

 

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

The August 4, 2023, consolidated unlawful detainer action was filed within one year of the September 24, 2022, death of Ginger Brandenburg. Plaintiff again raises the rejected position regarding an “articulated nexus” between the unlawful detainer and the subject action. The court reiterates the lack of any support for a finding of accrual of the statute of limitations based on the unlawful detainer complaint. The re-argument of the prior order is noted, but the court finds no basis for re-assessment of the prior order based on disagreement with the prior ruling. The unlawful detainer action itself constitutes a summary proceeding. “[I]t 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” (Vella v. Hudgins (1977) 20 Cal.3d 251, 255; See Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049; Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159.) Nothing in the unlawful detainer proceeding in and of itself apparently raised any of the unfiled claims regarding the purported oral promises of Ginger. The unlawful detainer action itself sought to initiate a summary proceeding for possession as provided in the statutes. Plaintiff, in pro per, at the time filed an answer to the unlawful detainer proceeding, regarding the subject promise of Ginger, but the court finds no support for preservation of the issue for purposes of establishing timely compliance with the statute of limitations. (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 391-393.)

 

Defendant maintains the subject action is governed by Code of Civil Procedure sections 366.2 and 366.3, which both provide in relevant part.

 

“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).)

 

“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).)

 

Defendant interprets the statute of limitations against the estate as accruing on the date of death of the promisor. In the demurrer to the first amended complaint, the court sustained the demurrer at least in part, based on the more than one year gap from the date of Ginger’s passing (September 24, 2022) and the October 10, 2023, filing of the complaint. The court again adhered to this position in its ruling on the demurrer to the second amended complaint.

 

Plaintiff now offers a new variation in the actual operative complaint, as opposed to a position in opposition, whereby the order appointing Ginger as trustee after her death rendered any such order “void.” Plaintiff now depends on April 11, 2023, as the accrual date. The position relies on a somewhat obtuse omission of any reference during the non-pled, unspecified time frame between the date Joe Brandenburg was purportedly appointed trustee through resignation of the position and subsequent appointment Pelton on April 11, 2023. The court interprets this apparent position as somehow supporting a position of an effective basis for the “tolling” of any accrual of the statute of limitations. No named representative or status of the estate is identified or addressed in the operative pleading during the interim of Gingers death, the resignation of Joe Brandenburg, and appointment of Pelton following the “void” October 12, 2022, order deeming Ginger as trustee. Nebulous pleading aside, even after four attempts to plead an action against the estate, this position still requires examination of the gap in time between the “void” appointment of Ginger and valid designation of Pelton as trustee under the statute of limitations accrual standards.

 

Again, given the court is now reviewing the fourth amended complaint, Plaintiff appears to intentionally avoid any specific allegations or dates regarding the space between October 12, 2022, and April 11, 2023, whereby Joe B. or someone was presumably acting as trustee regardless of any resignation in the interim between orders. Instead, Plaintiff relies on the glib allegation of a void order and therefore an essential vacuum apparently existed during the relevant, yet unpled period in between probate court orders. Plaintiff also alleges Joe B.’s awareness of Ginger’s promise, but without any applicably pled tie in between said alleged awareness and basis of liability against the estate of Ginger. Again, Plaintiff instead relies on the Pelton appointment as the decisive moment followed by the initiation of the unlawful detainer action. [Third Amend. Comp., ¶¶ 83, 92.]

 

In this context, Plaintiff again otherwise offers no specific challenge to the reliance on sections 366.2 and 366.3 or the interpretation of the one-year statute of limitations from the date of death against the person responsible and necessarily named to enforce the claim. Plaintiff instead again cites to the August 4, 2023, unlawful detainer action brought by the Trustee, as preserving the one-year statute of limitations, when the action consolidated with the subject action. Consistent with the prior orders, the court again rejects this position, even when presented in context of the “void” order appointing deceased Ginger as trustee.

 

Any order transferring property to Ginger following her death is categorically void. (In re Parsell's Estate (1923) 190 Cal. 454, 456; Liberty Mut. Fire Ins. Co. v. McKenzie (2001) 88 Cal.App.4th 681, 688.)  For purposes of the demurrer, the court acknowledges the position articulated in the operative complaint. This position however still lacks address of the valid substantive challenges governing claims against an estate based on the promise of a decedent.

 

“It has been the law in California for over a century that a new trustee ‘succeed[s] to all the rights, duties, and responsibilities of his predecessors.’” (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1131.) “There is no meaningful distinction between the liability of the decedent trustee who committed a tort as trustee and the successor trustee in her capacity as trustee, except that the decedent trustee's estate might also be liable. Plaintiffs attempt to draw a distinction between the decedent trustee, on the one hand, and the trust (which, as noted, is not an entity or proper party) and successor trustee, on the other hand, for purposes of the application of section 366.2. The authorities do not support such a distinction. [¶][¶] ‘There is a one-year statute of limitations for all actions against the decedent for which the statute of limitations has not run at the time of the decedent's death. (Code Civ. Proc., § 366.2.) This statute applies to claims against a living trust. (See Code Civ. Proc., § 366.2(b)(3).)’” (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 294.)

 

The operative complaint specifically states Ginger was pre-deceased at the time of the October 12, 2022, hearing, and Joe was appointed trustee until his resignation on September 26, 2022. Kelly Pelton was ultimately named trustee. Whatever the status of Joe or Pelton, the estate of Ginger still existed at ALL relevant times. A mild allegation that Joe was aware of the agreement is neither relied upon, nor apparently presented as any legally operative pinpoint moment tethering a later accrual date. Whether Joe’s resignation was operative in some way or not for purposes of determining the claim requirement deadline remains unaddressed by Plaintiff, and the court declines to make the arguments for Plaintiff. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 [“When [a party] fails to raise a point or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

 

The plain language of the statute and interpretive case law requires submission against the estate regardless of the knowledge or ignorance of any identified trustee. Nothing prevented Plaintiff from submitting a claim against the estate of Ginger in the interim. The court finds no legal or factual support for the relief of any obligation to somehow, someway submit a claim against the estate of Ginger based on unidentified trustee status and the existence of a void order. (See Prob. Code, § 11801 [“(a) Except as provided in subdivision (b), the share in a decedent's estate of a beneficiary who survives the decedent but who dies before distribution shall be distributed under this chapter with the same effect as though the distribution were made to the beneficiary while living”].) Again, the estate became the responsible entity for receipt of claims upon the death of Ginger, the estate existed at all relevant times under the time frame of the subject action, and the one-year statute of limitations accrued on the date of death. Whether Plaintiff elected to file a claim or not in no way alters the fundamental law.

 

Circling back to Ginger on grounds of estoppel will not salvage the lapse of the claim filing deadline. Assurances by Ginger to leave the property are accepted as true for purposes of the demurrer, but the position still lacks actual address of the statute of limitations argument. Plaintiff only depends on citation to the substantive allegation standard of review as a means of suggesting a potential reversal on appeal based on said presumptively properly pled estoppel claim. The court acknowledges the position and standard of review, but again, without any actual legally supported argument extending or rebutting accrual of the one-year statute of limitations upon death of the promisor, the court finds any potentially properly pled estoppel claim lacks legal support on this basis.

 

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. The court finds no basis of tolling the accrual based on the consolidation of the unlawful detainer action. The joinder fails to rectify the paucity of authority regarding the requirements to present a timely claim against the estate of a promisor within one year of death. While the promise didn’t expire with Ginger, the one-year statute of limitations against the estate exists for the purpose of providing a close to any and all potential claims barring legally supported authority to the contrary. The court therefore sustains the demurrer on statute of limitations grounds. (Code of Civ. Proc., §§ 366.2, subd. (a) 366.3, subd. (a); Davies v. Krasna (1975) 14 Cal.3d 502, 508; Dacey v. Taraday (2011) 196 Cal.App.4th 962, 983; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 554; see Stewart v. Seward (2007) 148 Cal.App.4th 1513, 1521.)

 

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

2nd Cause of Action: Promissory Estoppel

Defendant also challenges the substantive individual causes of action. To the extent Plaintiff seeks to somehow excuse the statute of limitations lapse on grounds of contract and/or estoppel, the court again finds no supporting argument.

 

An action to make performance of a contract part of a will can be identified as quasi specific performance. “Since the making of a will cannot be compelled, there can be no specific performance of such a contract in the strict sense, but under certain circumstances equity will give relief equivalent to specific performance by impressing a constructive trust upon the property which decedent had promised to leave to plaintiff. (Citations.) ... A contract to make a will is breached only if it has not been complied with at the time of the promisor's death, and for this reason the cause of action for the breach does not ordinarily accrue or the period of limitation commence to run until the promisor dies. (Citations.)” (Ludwicki v. Guerin (1961) 57 Cal.2d 127, 130.) “A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing.” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485.)

 

“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.)

 

The quasi specific performance claim in no way relieve Plaintiff of the statute of limitations challenges. “A contract to make a will is breached only if it has not been complied with at the time of the promisor's death, and for this reason the cause of action for the breach does not ordinarily accrue or the period of limitation commence to run until the promisor dies.” [¶] “When a person dies, the title to his property, real and personal, passes to the person to whom it is left in his will or who takes by intestacy, but all his property is subject to the possession of the executor or administrator for purposes of administration. (Citation.)” (Ludwicki v. Guerin, supra, 57 Cal.2d at p. 131.) The operative complaint lacks any allegation regarding whether died with a will or trust or intestate. Regardless, the claim remained against the estate for one year upon death. Again, the court finds no basis for the delayed filing against the estate of Ginger based on the rejected extension of the statute of limitations based on the unlawful detainer action, and delays until the appointment of Pelton. The demurrer is sustained as to the Quasi Specific Performance/Constructive Trust on the grounds of the statute of limitations.

 

On the estoppel claim, the court examines the elements of disclosure and reliance. “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.) The subject claim relies on the allegations in the operative complaint of a failure to notify Plaintiff of the obligation to submit a claim based on alleged knowledge of said oral agreements passing through the decedents to the trustees. [Third Amend. Comp., ¶¶ 86, 89-90.]

 

While estoppel as a plead cause of action may excuse the late filed action, the court again finds no factual basis for a finding of any misrepresentation or reasonable basis of detrimental reliance supporting the finding of a properly pled cause of action.

 

Plaintiff presents no legal basis for an obligation of anyone acting on behalf of the estate of Ginger to notify Plaintiff of the opportunity to present a claim and bring the estate into litigation. The court declines to make potential arguments for Plaintiff. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784–785.)

 

The court also finds the alleged knowledge of the purported existence of the “promise” also falls short of establishing some form of binding agreement and required basis of disclosure. (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044.) Plaintiff in fact offers no counter legal argument.

 

Still, even assuming the undisputed facts qualify as a binding promise for purposes of estoppel, and some form of disclosure was required also as part of the estoppel showing, the court finds Plaintiff’s reliance on the demurrer standard in reviewing a pleading will not salvage the estoppel claim given the other lacking elements. Reliance requires a showing of a prejudicial forbearance somehow induced by a trustee or other third party. Plaintiff indisputably alleges in the verified third amended complaint about the lapse of the statute of limitations for any claims against the Estate of Malmrose, as confirmed with both counsel for Ginger and her own attorney as to the expiration. [Third Amend. Comp., ¶¶ 59, 61.] Upon the pled revival of the potential claim against Ginger, Plaintiff only pleads to the lack of notice of any proceeding in regards to Brandberg. [[Third Amend. Comp., ¶¶ 89-90.] “If the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable, ... he will be denied a recovery.” [Citation.] A mere ‘hopeful expectation[ ] cannot be equated with the necessary justifiable reliance.’” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 418 (internal quotations omitted).) A valid argument can be made that any determination of reasonableness falls beyond the scope of the demurrer.

 

Accepting this possibility, Plaintiff was still under notice of the necessity of the need to present a potential claim in regards to Ginger following the notice of lapsed deadline as to Malmrose. Again, Plaintiff alleges in the operative verified complaint that both counsel for the estate and her own attorney advised Plaintiff of the first lapsed deadline. Thus, a finding of reasonableness under the circumstances becomes more attenuated, and instead supports a conclusion of a neglectful lapse of the filing deadline. Again, even giving the maximum benefit of the doubt to Plaintiff, the concentration on this single element will still not overcome the other noted defects with the cause of action as previously addressed.

 

Finally, on damages, the court finds a basis of damages in terms of lost funds expended in improving the premises on the representations. The claim is by no means speculative, even if Plaintiff offers NO response to this position.  (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 694.) Again, the court declines to make potential arguments for Plaintiff. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784–785.)

 

Plaintiff emphatically emphasizes the rule regarding interpretation of operative pleadings for purposes of a demurrer. The court acknowledges this position, but when undisputable verified facts in the operative complaint lead to certain legal conclusions, the court can find as a matter of law to the lack of a valid claim, and no further ability to successfully plead even if given endless leave to amend.  (Code Civ. Proc., § 430.41, subd. (e)(1); Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 245.)

 

The demurrer is therefore sustained without leave to amend.

 

Defendant to give notice.

 




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