Judge: Virginia Keeny, Case: 22VECV01396, Date: 2023-05-11 Tentative Ruling

Case Number: 22VECV01396    Hearing Date: May 11, 2023    Dept: W

MARIANELA AREVALO v. LEANA AREVALO, et al.

demurrer to the complaint

Date of Hearing:        May 11, 2023                                     Trial Date:       None set.

Department:              W                                                        Case No.:        22VECV01396

Moving Party:            Defendants Leana Arevalo and Ervin Arevalo

Responding Party:     No opposition

BACKGROUND

This is a quiet title action. Plaintiff Marianela Arevalo alleges she has resided at the Subject Property in dispute since it was purchased in March 2005. Plaintiff alleges the Subject Property was purchased under Plaintiff’s mother’s name, Defendant Leana Arevalo, with the agreement that the Subject Property would be under Defendant Leana’s name but Plaintiff was to make all payments on the Subject Property and Plaintiff would take ownership of the Subject Property. Plaintiff further alleges Defendant Ervin Arevalo, Plaintiff’s brother, conspired with Defendant Leana to sell the Subject Property and evict Plaintiff despite Plaintiff residing there and making payments on the property for 17 years.

On September 21, 2022, Plaintiff filed a verified complaint for quiet title and unjust enrichment against Defendants.

[Tentative] Ruling

Defendants Leana Arevalo and Ervin Arevalo’s Demurrer to the Complaint is SUSTAINED WITH LEAVE TO AMEND.

DISCUSSION

Defendants Leana Arevalo and Ervin Arevalo demur to the complaint on the grounds that (1) the Complaint fails to allege whether the contract which purportedly forms the basis of her quiet title cause of action is oral or in writing and (2) the Complaint is uncertain and ambiguous.

“‘A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [Citations];  The allegations of the pleading demurred to must be regarded as true [Citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [Citations], or the construction placed on an instrument pleaded therein [Citation], or facts impossible in law [Citation], or allegations contrary to facts of which a court may take judicial knowledge. [Citations]” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) 

Defendants first argue California law is clear that when pleading any cause of action founded upon a contract, the plaintiff must allege whether the contract in question is oral or in writing. However, nowhere in the Complaint does Plaintiff state whether the alleged agreement between her and Leana Arevalo related to the Subject Property was oral or in writing.

The court agrees. Every quiet title claim must allege the basis on which the quiet title plaintiff is entitled to quiet title to the subject property in himself/herself. (See CCP §761.020(b); Salazar v. Thomas (2015) 236 Cal. App. 4th 467, 476 [noting that in determining the statute of limitations for quiet title claims, the courts look to the “underlying theory” or “gravamen” of the quiet title action].) Because the underlying theory for Plaintiff’s quiet title action is a breach of contract, Plaintiff must allege whether the agreement was written, oral, or implied in fact.  

Next, Defendants argue Plaintiff's Complaint refers to an Exhibit A. However, Plaintiff failed to attach the purported Exhibit A to the verified Complaint. Consequently, Defendants cannot fully admit or deny the allegations in this paragraph of the Complaint. The court agrees. Without the attachment, the Defendants cannot fully ascertain the claims against them, including the claim the Defendants conspired with one another when serving the 60-Day Notice to Move Out and Notice of Entry.  

The demurrer is unopposed.

Accordingly, Defendants’ Demurrer to the Complaint is SUSTAINED WITH LEAVE TO AMEND.