Case Number: VC065715 Hearing Date: August 07, 2018 Dept: SEC

ALVARADO v. TOFT

CASE NO.: VC065715

HEARING: 08/07/18

JUDGE: LORI ANN FOURNIER

#4

TENTATIVE ORDER

Plaintiff/Cross-Defendant HECTOR ALVARADO’s unopposed motion for judgment on the pleadings is GRANTED without leave to amend. CCP §438(b).

Moving Party to give Notice.

No Opposition filed as of August 6, 2018.

Plaintiff ALVARADO filed the subject action in August 2016 which arises from his alleged agreement with Defendant JUNE TOFT to purchase the subject real property. Defendant GEORGE CURTIS acted as Toft’s attorney in fact, prior to Jacalyn Horton-Toft apparently taking over the role as her mother-in-law’s attorney in fact. (To date, it appears the whereabouts of Defendant CURTIS is unknown, and neither party has been able to serve him.) Plaintiff alleges that he took possession of the Subject Property in July 2015, but that a grant deed was never recorded. Approximately 5 months later, Jacalyn contacted Plaintiff and refused to honor the terms of the sale contract.

The relevant facts are as follows: On September 1, 2016, Cross-Complainants/Defendants JUNE TOFT and JACALYN HORTON-TOFT filed a cross-complaint. On March 14, 2017, Cross-Complainants filed a FAXC, asserting causes of action for declaratory relief and punitive damages. On May 23, 2017, this Court sustained Alvarado’s demurrer to Cross-Complainants’ FAXC with 15 days leave to amend. On June 5, 2017, Cross-Complainant JUNE TOFT (in pro per) filed her SAXC, which asserts the following causes of action: (1) conversion; (2) unlawful detainer; (3) financial elder abuse; and (4) punitive damages.

Plaintiff/Cross-Defendant ALVARADO moves for judgment on the pleadings as to the entire SAXC.

As to the Entire SAXC – Incapacity

A special demurrer lies on the ground that the person who filed the pleading does not have the legal capacity to sue. (CCP §430.10(b).) Minors and individuals who are incompetent lack capacity to sue in their own names. (CCP §372.) Notwithstanding Alvarado’s arguments to the contrary, the SAXC against ALVARADO successfully withstands a motion for judgment on the pleadings on the ground of Cross-Complainant TOFT’s alleged incapacity to sue. The arguments raised by Alvarado raise factual determinations inappropriately decided at this stage in the litigation. The motion for judgment on the pleadings is not granted on this basis.

First, Second, and Third Causes of Action – Conversion, Unlawful Detainer, and Financial Elder Abuse

The law is well-settled. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” [Internal Citations Omitted.] (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023.)

Here, Cross-Complainant TOFT did not seek, nor did the Court grant leave to file additional/different causes of action from those previously asserted in the FAXC. Therefore, the motion for judgment on the pleadings as to the first, second, and third causes of action is granted without leave to amend.

Punitive Damages

Punitive damages is a remedy, not a cause of action. A cause of action consists of a primary right of the plaintiff, a corresponding primary right of the defendant, and a wrongful act by the defendant constituting a breach of that duty. The nature of the relief sought does not determine the nature of the cause of action because the violation of one primary right may entitle the injured party to many different forms of relief. (McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) Moreover, Cross-Complainants fail to allege a sufficient basis to warrant an award of punitive damages. Thus, the motion for judgment on the pleadings as to the fourth “cause of action” is granted without leave to amend.

Leave to Amend

Because Cross-Complainant has failed to file an Opposition, Cross-Complainant has made no representation that the pleading defects can be cured, seemingly in forfeiture of her claims against the demurring Cross-Defendant herein. Therefore, further leave to amend the pleading is denied.