Judge Thomas Falls, Case 22PSCV00563 2023-05-03 Tentative Ruling

Defendant Rosendo Flores Gonzalez’s (“Defendant”) DEMURRER TO THE SECOND AMENDED COMPLAINT

Defendant Rosendo Flores Gonzalez’s (“Defendant”) DEMURRER TO THE SECOND AMENDED COMPLAINT is SUSTAINED with 30 days leave to amend; it is uncertain whether the promises were oral or written.

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 (“Defendant Rosendo” or “Defendant”), 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 (collectively, “Defendants”): The parties entered into agreement wherein Defendants would purchase the property in their name, but then transfer title to Plaintiff. However, despite Plaintiff paying all acquisition costs for the Property, paying the monthly mortgage payments, and other costs, Defendants have refused to make good their promise.

On August 12, 2022, Defendant Rosendo Flores Gonzalez filed a demurrer, which the court sustained with leave to amend.

On October 3, 2022, Plaintiff filed its FAC, reasserting the same causes of action against the same Defendants.

On November 2, 2022, Defendant filed a second Demurrer with a Motion to Strike, which the court again sustained with leave to amend.

On December 19, 2022, default was entered against All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs Title, or Any Cloud on Plaintiff's Title Thereto.

On February 6, 2023, Plaintiff filed its second amended complaint (“SAC”) against the same Defendants for: 1. BREACH OF CONTRACT 2. IMPOSITION OF CONSTRUCTIVE TRUST BASED ON BREACH OF CONTRACT 3. RESULTING TRUST 4. PROMISSORY ESTOPPEL 5. UNJUST ENRICHMENT 6. DECLARATORY RELIEF.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible);[1] (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading,[2] and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

On two previous rulings, the court sustained Defendant’s demurrer on the grounds that Plaintiff showed nothing more than the possessory right to occupancy enjoyed by any tenant when his complaint required a showing of a bona fide interest. Specifically, that both the original complaint and the FAC failed to specifically plead adverse possession. Now, in its SAC, Plaintiff no longer brings forth his case predicated upon adverse possession, but upon breach of contract.

However, the court finds that the entire SAC is uncertain because, as noted by Defendant on one hand, the SAC claims the agreement was oral (SAC ¶¶12, 23) but in the same breath, Plaintiff avers the agreement was written (SAC ¶40.)[3] The distinction as to whether the agreement was oral or written (or if both, what promises were oral and what promises were written) is of import to the statute of frauds defense and general pleading standards.

Based on the foregoing, the court sustains the entirety of the demurrer with 30 leave to amend.

[1] Defendant demurs the SAC on the ground that the SAC fails to state sufficient facts and is uncertain.

[2] For this reason, though Defendant “vehemently denies” the allegations, such factual determinations are improper on a demurrer.

[3] See Demurrer p. 10 [“Without knowing what was allegedly written or what was allegedly oral, Plaintiff failed to address the defect that was made clear by this court on the first demurrer.”].)