Judge: Virginia Keeny, Case: 21STCV06887, Date: 2025-02-14 Tentative Ruling
Case Number: 21STCV06887 Hearing Date: February 14, 2025 Dept: 45
francisco
quiroz v. rodeo realty inc., et al.
(1)
MOTION TO
DISMISS PLAINTIFF’S COMPLAINT
(2)
deMURRER
Date of
Hearing: 2/14/25 Trial Date: 10/20/25
Department: 45 Case No.: 21STCV06887
Moving Parties: (1)-(2) Defendant Amber Martinez
Responding
Party: Plaintiff
Francisco Quiroz
BACKGROUND
This
is a breach of contract action arising from alleged non-payment of a loan. The
Attachments to the Complaint allege that the defendants borrowed $30,000 from the
plaintiff to “accomplish a real estate transaction and promise[d] that when the
transaction was concluded in six months, they would pay back the funds.”
However, the defendants did not pay back the loan. The plaintiff is suing for
$30,000, plus legal fees and costs.
On
February 22, 2021, Plaintiff Francisco Quiroz (“Plaintiff”) filed this action
against Defendants Rodeo Realty Inc., Amber Raquel Martinez, and Does 1 to 100,
asserting causes of action for (1) breach of contract, and (2) fraud.
On
June 2, 2021, Plaintiff dismissed Rodeo Realty Inc.
On
March 24, 2023, default judgment was entered against Defendant Amber Martinez
(“Defendant”).
On
May 18, 2023, Defendant filed a motion to vacate default and default judgment.
Plaintiff opposed the motion.
On
October 9, 2023, the Court denied the motion to vacate the default and default
judgment.
On
October 20, 2023, Defendant filed a motion for reconsideration of the Court’s
order denying the motion to vacate the default and default judgment.
On
August 21, 2024, the Court held a hearing on the motion for reconsideration.
Plaintiff and Defendant appeared at that hearing. The Court took the motion
under submission.
On
September 3, 2024, the Court issued a Minute Order granting the motion for
reconsideration and set aside the default and default judgment. The Minute
Order also scheduled an Order to Show Cause Re: Why Plaintiff’s Fee Waiver
Should Not be Stricken to take place on September 26, 2024.
On
September 20, 2024, Defendant filed the instant demurrer.
On
September 26, 2024, the Court held the hearing on the Order to Show Cause Re:
Why Plaintiff’s Fee Waiver Should Not be Stricken. Plaintiff did not appear.
The Court conferred with Defendant and continued the hearing to October 8,
2024. The Court also scheduled an Order to Show Cause Re: Dismissal for
Plaintiff’s Failure to Appear to take place on that date.
On
October 8, 2024, the Court held the Order to Show Cause (“OSC”) hearings
mentioned above. Plaintiff appeared but Defendant did not appear at that
hearing. The Court continued the OSC hearings to October 30, 2024. The Court
ordered Plaintiff to personally appear in Court to be examined regarding his
finances and income. The Court also ordered Defendant to bring any documents to
show Plaintiff’s profitable income.
On
October 23, 2024, both parties appeared at the Case Management Conference.
On
October 30, 2024, both parties appeared at the OSC hearings. After conferring
with the parties, the Court set aside and discharged the OSC hearings. The
Court ordered Plaintiff to pay his initial filing fee of $435.
On
November 25, 2024, Defendant filed the instant Motion to Dismiss Plaintiff’s
Complaint, arguing that Plaintiff has not paid his initial filing fee of $435
as ordered by the Court on October 30, 2024.
On
January 16, 2025, the Court on its own motion continued the hearing on the demurrer
to its current date on February 14, 2025.
On
February 10, 2025, Plaintiff filed oppositions to the motion to dismiss and
demurrer. The oppositions are untimely. (See Code Civ. Proc., § 1005, subd. (b) [requiring
opposition papers to be filed and served at least nine court days before the
hearing, and all reply papers at least five court days before the hearing].)
However, in support of the demurrer opposition, Plaintiff’s counsel testifies
he has no record of receiving the Court’s mailed minute order notifying him of
the new demurrer hearing date. (Demurrer, Declaration of Ayinde A. Jones
(“Jones Decl.”), 5.) Counsel believed the opposition was due on February 10,
2025, based on the original hearing date of February 25, 2025. (Jones Decl.,
3.)
As
of February 11, 2025, no reply in support of the motion to dismiss or demurrer
has been filed.
[Tentative]
RulingS
The Motion to Dismiss Plaintiff’s Complaint
is DENIED.
The Demurrer is OVERRULED IN PART and SUSTAINED IN PART
as follows. The demurrer to the first cause of action for breach of contract is
OVERRULED. The demurrer to the second cause of action for fraud is SUSTAINED,
with leave to amend. Plaintiff is ordered to file and serve his first amended
complaint within 30 days of this ruling.
MOTION TO DISMISS
Defendant moves to dismiss Plaintiff’s
Complaint, arguing that Plaintiff did not pay the $435 initial filing fees that
the Court (on October 30, 2024) ordered him to pay.
Plaintiff argues in his opposition that he
has already paid the initial fees $435.
There are cases where the failure to file
initial filing fees within a statutory deadline renders a complaint void
regardless of any future attempts to pay those fees.
For example, under Code of Civil Procedure
section 411.20, if a party files a complaint using a check that is later
returned without payment and the party fails to tender payment within 20 days
of the clerk’s notice of the returned payment, the complaint “shall” be void.
(Code Civ. Proc., § 411.20, subds. (a), (b).) As the California Court of Appeal
stated in one case, “Section 411.20’s language evinces an unequivocal
legislative intent that payment of filing fees is both mandatory and
jurisdictional.” (Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th
1261, 1269.) In that case, the appellate court affirmed the trial court’s order
dismissing the complaint because the plaintiff had failed to tender payment
within the time prescribed by Section 411.20. (Id. at pp. 1266-1271.)
A complaint can also been dismissed due to a
plaintiff’s failure to pay fees and costs after an action has been transferred
from an improper to a proper court. (See Bechtel Corp. v. Superior Court
(1973) 33 Cal.App.3d 405, 408 [“When an action is brought in an improper court
and it is ordered transferred to a proper court, the costs and fees shall be
paid by the plaintiff before the transfer is made. (Code of Civ. Proc. s 399.)
If the plaintiff fails to pay the costs and fees By one year after entry of the
order for transfer, the action ‘must be dismissed.’ (Code of Civ. Proc. s 581b)
In [one case, the California Supreme Court] stated: ‘(T)he only duty resting
upon the court and the only power it had . . . was to enter a judgment of
dismissal’”].)
Here, however, none of those situations apply
(i.e., no check was returned unpaid and there was no transfer in this case).
In addition, Defendant has not cited (nor has
the Court found) any statute that (1) gave Plaintiff a deadline to pay his
initial fees and (2) mandated that Plaintiff’s failure to comply with that
deadline would results in the Complaint being void. Defendant cites Government
Code sections 68632 and 68633, subdivision (e). However, none of those statutes
mention any deadline or give this Court the authority to void the Complaint
based on the facts in this case. In addition, the Court notes that when it
ordered Plaintiff to pay his initial court fees on October 30, 2024, the Court
did not give Plaintiff a deadline to make that payment. Plaintiff has now paid
the $435 initial filing fees.
Therefore, Defendant’s Motion to Dismiss Plaintiff’s
Complaint is DENIED.
DEMURRER
Generally,
a party may demur to a pleading on several enumerated grounds, including that
“the pleading does not state facts sufficient to constitute a cause of action”
and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., §
430.10, subds. (e) and (f).)
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.) The court “‘assume[s] the truth of the complaint’s
properly pleaded or implied factual allegations.’ [Citation.]” (E-Fab, Inc.
v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)
“‘Where
the defect raised by a motion to strike or by demurrer is reasonably capable of
cure, “leave to amend is routinely and liberally granted to give the plaintiff
a chance to cure the defect in question.” [Citations.] A pleading may be
stricken only upon terms the court deems proper [citation], that is, terms that
are just. [Citations.] It is generally an abuse of discretion to deny leave to
amend, because the drastic step of denial of the opportunity to correct the
curable defect effectively terminates the pleader’s action.’ [Citation.]” (Velez
v. Smith (2006) 142 Cal.App.4th 1154, 1174–1175.)
Meet and Confer
Before filing a demurrer, “the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the objections
to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).)
Here, Defendant has not submitted any
declaration or made any argument in her brief addressing the meet and confer
requirement. The Court admonishes Defendant for failing to do so.
Nevertheless, since Plaintiff insists
in his opposition that the Complaint is not uncertain and is sufficiently pled,
the Court finds requiring the parties to meet and confer at this juncture may
be futile.
Therefore, the Court will consider
the demurrer on its merits.
First Cause of Action – Breach
of Contract
Defendant
demurs to the first cause of action for breach of contract, arguing that it
fails to state facts sufficient to constitute a cause of action (e.g., it does
not provide specific details regarding the terms of the alleged loan agreement,
repayment terms, or any written documentation to support the agreement), and
the claim is uncertain (e.g., because references an oral agreement without
specifying whether or not a real estate transaction took place between the
parties).
Defendant
also argues that the loan violates the statute of frauds because to the extent the
loan was based on the sale of real property, or concerned the hiring of
Defendant as a real estate broker, then Code of Civil Procedure section 1624
(the statute of frauds statute) required the loan to be in writing. For those
reasons, Defendant asks the Court to sustain the demurrer to the first cause of
action for Breach of Contract without leave to amend.
In
opposition, Plaintiff argues that the statute of frauds does not apply because
the Complaint is not alleging that the loan was “in furtherance of real
property.” (Opposition, p. 5:5-6.) Instead, Plaintiff is alleging that the
defendant “asked him to lend [Defendant] the funds to help [Defendant], a
licensed real estate salesperson, with a real estate transaction of hers, of
which he [i.e., Plaintiff] had no involvement.” (Opposition, p. 5:6-8.)
“The
statute of frauds provides that certain contracts are invalid unless they, or
some note of them, are in writing and signed by the party to be charged. (Civ.
Code, § 1624, subd. (a).)” (Reeder v. Specialized Loan Servicing LLC
(2020) 52 Cal.App.5th 795, 801 (“Reeder”).)
“An
agreement for the sale of real property or an interest in real property comes
within the statute of frauds. That includes a promissory note and a deed of
trust securing performance under the note.” (Reeder, supra, 52
Cal.App.5th at p. 801.)
The
statute of frauds also “applies to any ‘agreement authorizing or employing a[ ]
... broker ... to purchase or sell real estate, ... or to procure, introduce,
or find a purchaser or seller of real estate’ —regardless of how that agreement
came to be. ([Code Civ. Proc.] § 1624, subd. (a)(4).)” (Westside Estate
Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317, 328 [italics removed].)
“A
general demurrer may be interposed when the complaint shows on its face
that the agreement sued on is within the statute of frauds and does not comply
with its requirements.” (Parker v. Solomon (1959) 171 Cal.App.2d 125,
136 [emphasis added].)
Here,
it is not clear from the face of the Complaint (1) whether the loan agreement
was an agreement for the sale of real property or an interest in real property,
or (2) whether the agreement was for authorizing or employing a broker to
purchase a real estate, or to procure, introduce, or find a purchase or seller
of real estate.
Therefore,
the Court finds Defendant’s statute of frauds argument unpersuasive.
In addition, “[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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are
disfavored, and are granted only if the pleading is so incomprehensible that a
defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance
Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
Here,
the Complaint is not so incomprehensible that Defendant cannot reasonably
respond, and Defendant can find out more details regarding the real estate
transaction through discovery.
Therefore,
the demurrer on the ground of uncertainty is overruled.
The
Court also finds the breach of contract claim is sufficiently pled. “The
elements of a breach of oral contract claim are the same as those for a breach
of written contract: a contract; its performance or excuse for nonperformance;
breach; and damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233
Cal.App.4th 437, 453.) “The material terms of a loan include the identity of
the lender and borrower, the amount of the loan, and the terms for repayment.”
(Peterson Development Co. v. Torrey Pines Bank (1991) 233 Cal.App.3d
103, 115.) Here, the Complaint alleges that on or about October 5, 2018,
“Defendants asked Plaintiff to borrow $30,000 in regards to a real estate
transaction and promised to repay him within six months.” (Attachment to the
Complaint, First Cause of Action for Breach of Contract, p. 1.) The Complaint
then alleges that six months later, on April 5, 2019, Defendant failed to repay
the $30,000. (Ibid.) The Court finds those facts sufficient to state a
cause of action for breach of oral contract.
For
those reasons, Defendant’s demurrer to the first cause of action for breach of
contract is OVERRULED.
Second Cause of Action – Fraud
“Under Civil Code section 1709, one is liable for fraudulent deceit if
he ‘deceives another with intent to induce him to alter his position to his
injury or risk....’ (Civ. Code, § 1709.)” (Beckwith v. Dahl (2012) 205
Cal.App.4th 1039, 1059–1060 (“Beckwith”).)
Deceit for the purposes of Civil Code section 1709 means “‘[a] promise,
made without any intention of performing it.’ (Civ. Code, § 1710.)” (Beckwith, supra, 205
Cal.App.4th at p. 1060.)
Here, the second cause of action alleges that Defendant made the
promise of paying back Plaintiff’s $30,000 without any intention to pay back
that money. (Attachment to Complaint, Second Cause of Action-Fraud, p. 1.)
Defendant now demurs that claim, arguing that it is uncertain and fails
to state facts sufficient to constitute a cause of action.
In opposition, Plaintiff argues that the fraud claim is sufficiently
pled because he used a Judicial Council of California form.
However, “‘[a]doption
of Official Forms for the most common civil actions has not changed the
statutory requirement that the complaint contain ‘facts constituting the
cause of action.”’ [Citation.] Thus, in order to be demurrer-proof, a form
‘complaint must contain whatever ultimate facts are essential to state a
cause of action under existing statutes or case law.’ [Citation.]” (People
ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th
1480, 1484 [italics in original].)
“‘“The elements of fraud, which give rise to the tort action for
deceit, are (a) misrepresentation (false representation, concealment, or
nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to
defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage.” [Citations.]’ [Citation.] Each element must be alleged with
particularity.” (Beckwith, supra, 205
Cal.App.4th at p. 1060.)
Here, Plaintiff has failed to sufficiently allege the elements of
misrepresentation and justifiable reliance.
With regard to misrepresentation, a “complaint must allege (1) the
defendant made a representation of intent to perform some future action, i.e.,
the defendant made a promise, and (2) the defendant did not really have that
intent at the time that the promise was made, i.e., the promise was false.” (Beckwith, supra, 205
Cal.App.4th at p. 1060.)
“To sufficiently
plead the first requirement, that the defendant made a promise, the complaint
must state ‘“facts which ‘show
how, when, where, to whom, and by what means the representations were tendered.’”
[Citation.]’ [Citation.] As for the second requirement, the falsity of that
promise is sufficiently pled with a general allegation the promise was made
without an intention of performance.” (Beckwith, supra, 205 Cal.App.4th at p. 1060 [italics in
original].)
Here, Plaintiff has sufficiently pled the second
requirement by making a general allegation that Defendant promised to pay his
$30,000 without the intention of performance.
However, Plaintiff has not sufficiently pled the
first requirement, specifically, facts showing how, when, where, to whom, and
by what means Defendant promised to pay him the $30,000 Defendant allegedly
borrowed.
With regard to justifiable reliance, a “plaintiff
must set ‘forth facts to show that his or her actual reliance on the
representations was justifiable, so that the cause of the damage was the
defendant’s wrong and not the plaintiff's fault.’ [Citation.] There must be
more pled than a simple statement plaintiff justifiably relied on the
statements. [Citation.] The complaint must contain ‘allegations of facts
showing that the actual inducement of plaintiffs ... was justifiable or
reasonable. [Citations.]’ [Citation.]” (Beckwith, supra, 205 Cal.App.4th at p. 1060.)
Here, the Complaint only alleges that “Plaintiff
lent defendants the $30,000.” (Attachment to Complaint, Second Cause of
Action-Fraud, p. 1, FR-5.) That allegation is insufficient to plead justifiable
reliance.
Therefore, Defendant’s demurrer to the second cause
of action on the ground that it fails to state facts sufficient to constitute a
cause of action is SUSTAINED, with leave to amend.
Statute of Limitations
Lastly, Defendant demurs the Complaint, alleging that Plaintiff’s
claims are barred by the two-year statute of limitations for oral contracts.
(See Whorton v. Dillingham (1988) 202 Cal.App.3d 447,
456[“The statute of limitations for an action upon a contract not founded on a
writing is two years. (Code Civ. Proc., § 339, subd. 1)”].)
Defendant claims that Plaintiff shifted the date of the transaction from
October 2018 to 2019 to circumvent the statute of limitations. Defendant then argues
that because the alleged loan transaction occurred in October 2018, the statute
of limitations begun to run at that time and Plaintiff was required to file
this action by October 2020.
However, on a demurrer, a court takes well pleaded facts as true.
Therefore, to the extent Defendant is disputing the truth of the allegations in
the Complaint, the Court cannot resolve factual disputes on this demurrer.
Further,
“[t]he statute of limitations for a breach of contract claim begins to run at
the time of breach (that is, when one party fails to perform as contractually
required).” (Piedmont Capital Management, L.L.C. v. McElfish (2023) 94
Cal.App.5th 961, 964.)
Here, the
Complaint alleges that the breach occurred on April 5, 2019, and Plaintiff
filed the lawsuit within two years of that date, on February 22, 2021. “[W]here
a complaint, challenged by general demurrer charging failure to comply with the
applicable statute of limitations, does not on its face disclose that the
action was necessarily barred, courts should overrule the demurrer and permit
the defense to be raised by answer.” (Childs v. State of California
(1983) 144 Cal.App.3d 155, 160–161.)
Therefore,
Defendant’s demurrer on the ground that the Complaint is barred by the statute
of limitations is OVERRULED.
CONCLUSION
The Motion to Dismiss Plaintiff’s Complaint is DENIED.
The Demurrer is OVERRULED IN PART and SUSTAINED IN PART
as follows. The demurrer to the first cause of action for breach of contract is
OVERRULED. The demurrer to the second cause of action for fraud is SUSTAINED,
with leave to amend. Plaintiff is ordered to file and serve his first amended
complaint within 30 days of this ruling.