Judge Thomas Falls, Case 22PSCV00563 2022-09-12 Tentative Ruling

Defendant Rosendo Flores Gonzalez’s DEMURRER TO THE COMPLAINT is SUSTAINED in its entirety with leave to amend.

This case pertains to property located at 914 Lidford Ave., La Puente, CA 91744 (“Property"): Plaintiff CARLOS MORENO alleges the following against Defendants ROSENDO FLORES GONZALEZ, individually and as Trustee of the Rosendo Flores and Elvia Gonzalez revocable living trust dated June 21, 2018; ELVIA GONZALEZ, individually and as Trustee of the Rosendo Flores and Elvia Gonzalez revocable living trust dated June 21, 2018; and All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Any Cloud on Plaintiff’s Title Thereto: On January 6, 2015, Defendants obtained fee simple title as joint tenants to the Property. Plaintiff asserts that it is the sole fee title holder to the property.

On August 12, 2022, Defendant Rosendo Flores Gonzalez filed the instant Demurrer.

To date, as of Wednesday, September 7, 2021, no Reply has been received (due 5 court days before a hearing).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

Defendant demurs to the entirety of the complaint on the grounds that Plaintiff does not hold title to the Property; therefore, his action fails.

CCP section 761.020 provides that a complaint for quiet title shall be verified[2] 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.)

The allegation forming the cause of action appears to be based upon adverse possession. (See Complaint ¶10 [“Plaintiff has maintained actual, open, exclusive, hostile, and adverse possession of the Property for more than five years preceding the commencement of this action and has paid all taxes assessed against the above-described Property for more than five years preceding the commencement of this action.”].) Adverse possession, however, has not properly been pled because Plaintiff only conclusively pleads the elements. Furthermore, Plaintiff has not maintained a cause of action for adverse possession. Accordingly, as argued by Defendant, even if the allegations are assumed as true, Plaintiff has shown “nothing more than the possessory right to occupancy enjoyed by any tenant. They do not articulate any bona fide interest in the property.” (Demurrer p. 5) (emphasis added).

Therefore, the demurrer is sustained with leave to amend as to the 1^st cause of action for quiet title.

“The elements of promissory estoppel are (1) a promise, (2) the promisor should reasonably expect the promise to induce action or forbearance on the part of the promisee or a third person, (3) the promise induces action or forbearance by the promisee or a third person (which we refer to as detrimental reliance), and (4) injustice can be avoided only by enforcement of the promise.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803, reh’g denied (Apr. 11, 2013), review denied (July 10, 2013).) “The party claiming estoppel must specifically plead all facts relied on to establish its elements.” (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48.) A conclusory allegation of detrimental reliance is insufficient. (See id.) “If actual consideration was given by the promisee, promissory estoppel does not apply.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1413) (emphasis added).[3]

Defendants made oral and/or written representations that the Property was being purchased by Plaintiff, for the benefit of Plaintiff, and that if Plaintiff would pay all the acquisition costs, mortgage payments, taxes, insurance and maintenance, Defendants would transfer record ownership to Plaintiff after the close of escrow when Plaintiff was able to refinance the property into Plaintiff’s own name.

Here, the complaint fails to specify whether the agreement was made in writing or oral because it uses contradictory conjunctions. This is fatal as the complaint involves real property, requiring all agreements to be in writing.[4]

Therefore, absent facts sufficient to pass the statute of frauds, the demurrer is SUSTAINED as to the 2^nd cause of action for promissory estoppel.

Under Civil Code sections 2223 and 2224 and relevant case law, a constructive trust may only be imposed when the following three conditions are met: (1) the existence of property or some interest in property; (2) the complainant’s right to that property; and (3) the defendant or cross-defendant’s wrongful acquisition or detention of the property. (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 659.)

“[A] resulting trust arises from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. . . . It has been termed an ‘intention-enforcing’ trust, to distinguish it from the other type of implied trust, the constructive or ‘fraud-rectifying’ trust. The resulting trust carries out the inferred intent of the parties; the constructive trust defeats or prevents the wrongful act of one of them.” (American Motorists Ins. Co. v. Cowan (1982) 127 Cal.App.3d 875, 884-885.) “Ordinarily a resulting trust arises in favor of the payor of the purchase price of the property where the purchase price, or a part thereof, is paid by one person and the title is taken in the name of another. [Citation.]” (Martin v. Kehl (1983) 145 Cal.App.3d 228, 238.)

Plaintiff asserts this cause of action based on the following pertinent allegation:

“In taking title to the Property, Defendants expressly or impliedly agreed, and/or by operation of law will be deemed to have agreed, that Defendants would hold the Property in trust for the exclusive benefit of Plaintiff at all times.”

Here, for similar reasons explained above, Plaintiff has not shown that he has a legitimate interest in or right to the property.

Therefore, the demurrer is sustained with leave to amend as to both the 3^rd and 4^th causes of actions for a constructive trust and resulting trust, respectively.

“Partition is a statutory action.” (Jacquemart v. Jacquemart (1956) 142 Cal.App.2d 794, 796.) As is relevant here, “[a] partition action may be commenced and maintained by any of the following persons: (1) A coowner of personal property; (2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.” (Code Civ. Proc., § 872.010, subd. (a).)

Therefore, as Plaintiff has not sufficiently plead a recognizable ownership interest in the Property, the demurrer is sustained with leave to amend as to the 5^th cause of action.

The final cause of action for declaratory relief is generally derivative and duplicative of the first five. It also suffers from the same pleading defect.

All in all, the pleading fails to plead facts asserting any ownership interest Plaintiff may have in the property. To the extent that Plaintiff relies on adverse possession to maintain his interest in the property, his complaint has not alleged sufficient facts, nor does Plaintiff advance a cause of action for adverse possession. To the extent that Plaintiff relies upon an “oral or written” agreement, Plaintiff has provided no material terms for the court to ascertain the parties’ intent. To the extent that Plaintiff relies upon an oral agreement wherein Plaintiff would provide consideration in exchange transfer of title after the close of escrow, such is barred by the statute of frauds. To the extent that Plaintiff attempts to assert an exception to the statute of frauds, it has provided no meaningful facts in its pleading to show which exception applies.[5] Therefore, based on the foregoing, the demurrer is sustained. As for leave to amend, liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Given this liberal standard for granting leave to amend, the court SUSTAINS the demurrer with leave to amend.

[1] The court notes that Plaintiff’s Opposition is nothing more than rule statements and recitations of allegations without an analysis.

[2] Here, the complaint is verified. (Complaint p. 10 of 10 of PDF.)

[3] Here, Plaintiff alleges he provided consideration for the property.

[4] Civil Code Section 1624 states in relevant part that an “agreement . . . for the sale of real property, or of an interest therein,” is invalid “unless [it], or some note or memorandum thereof, [is] in writing and subscribed by the party to be charged or by the party’s agent.” (Cal. Civ. Code § 1624(a)(3).) Moreover, a note, memorandum, or other writing is sufficient to indicate that a contract is made if it is “signed by the party against whom enforcement is sought or by its authorized agent or broker.” (Cal. Civ. Code § 1624(b)(3)(D) (emphasis added).)

[5] And to the extent Plaintiff argues that it “paid $50,000 as a deposit for the home, the deposit was paid by cashier’s check under GONZALEZ’s name” (Opp. p. 2) not only is that fact insufficient but it also goes outside of the bounds of the pleadings, and therefore cannot be considered by the court for purposes of a demurrer which focuses only on the face of the pleadings.