Case Number: TC029212 Hearing Date: February 07, 2019 Dept: A

# 6. Willie Brooks v. Otha Bell Brooks, Trustee of the Rosa Brooks Living Trust, and The Rosa Brooks Living Trust

Case No.: TC029212

Matter on calendar for: Hearing on demurrer

Tentative ruling:

I. Background

Plaintiff Willie Brooks asserts that he advanced money to his mother, decedent Rosa Brooks, totaling $280,007.30. He and decedent allegedly entered an oral agreement in 2008 that he would be paid back for any expenses and services upon her passing. He also argues implied contract. Defendant Otha Bell Brooks is Willie Brooks’ brother and the successor trustee of the Rosa Brooks Living Trust. Rosa Brooks passed away on March 20, 2018.

The First Amended Complaint (“FAC”) alleges the following causes of action:

(1) Breach of implied contract;

(2) Common counts;

(3) Goods and services rendered;

(4) Imposition of constructive trust; and

(5) Injunctive relief.

The Court sustained in part a demurrer to the original complaint. Defendants now demur to the FAC. The demurrer is opposed.

For the reasons set forth below, the Court sustains the demurrer in part.

II. Standard

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; 2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P. § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)

“Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

III. Analysis

A. Goods and services rendered (3rd cause of action)

The third cause of action is for goods and services rendered. “To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made.’ ” [Citation.]’ [Citation.]” (E.J. Franks Construction, Inc. v. Sahota (2014) 226 Cal.App.4th 1123, 1127.) Plaintiff alleges that he provided various services for the decedent. As he does not need to prove a contract for this cause of action, this cause of action is not barred by the statute of frauds (discussed below). Further, plaintiff sufficiently has alleged that he was damaged. (Civ. Code, § 339.) The allegations in the original complaint were sufficient to support this cause of action; the FAC is similarly viable.

B. Constructive trust (4th cause of action)

Under Civil Code §§ 2223 and 2224, if someone by a wrongful act has obtained a something that is the property of another, they are an involuntary trustee of that item. The wrongful act alleged here is defendant’s violation of the trust by not agreeing to pay its debts. This sufficiently states a cause of action derivative of the quantum meruit claim. If the quantum meruit claim prevails, plaintiff will have shown an underlying obligation for payment.

C. Statute of Frauds (1st and 2nd causes of action)

Civil Code § 1624(a)(5) includes within the statute of frauds: “[a]n agreement that by its terms is not to be performed during the lifetime of the promisor.” Here, plaintiff alleges that Rosa Brooks entered into an agreement under which plaintiff would be reimbursed from her estate after her death. “The law will not imply both the promise to repay and postponement of the maturity of such obligation until death of the debtor.” (Tabata v. Murane (1944) 24 Cal.2d 221, 226.) The statute of frauds is applicable here, making any alleged oral agreement to pay debts on the decedent’s death unenforceable. (Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 875, citing Tabata, supra, 24 Cal.2d at 228.)

The opposition refers to the 2004 Trust as evidence of a writing, but the cited subsections are generic trust debt provisions, not a contract between plaintiff and decedent in which plaintiff would advance sums to be repaid on decedent’s death. (FAC Exh. 1; FAC ¶ 11.) Plaintiff has failed to allege a writing to defeat the statute of frauds. These causes of action may not be maintained.

D. Promissory estoppel

In opposition, plaintiff argues that the statute of frauds does not bar a promissory estoppel claim where plaintiff can show unconscionable injury or unjust enrichment if a promise is not enforced. (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 944.) The elements of promissory estoppel are: “ ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’ [Citation.]” (Ibid.) Here, plaintiff argues that Rosa Brooks promised to reimburse him for her care expenses and he detrimentally relied upon this promise when he spent several hundred thousand dollars for her care. A promissory estoppel claim, like quantum meruit, seeks an equitable remedy.

While plaintiff has included language in the FAC suggesting promissory estoppel, plaintiff does not assert a cause of action for promissory estoppel. The Court, without ruling at this time on whether plaintiff may be able to maintain a cause of action for promissory estoppel, will permit plaintiff to amend the complaint to assert such as cause of action if he wishes to do so.

IV. Ruling

The demurrer is overruled as causes of action 3 and 4.

The demurrer is sustained without leave to amend as to causes of action 1 and 2.

Plaintiff is granted leave to amend to add a promissory estoppel cause of action if he chooses to do so. Any amended complaint must be filed and served within 20 days. Any responsive pleading is due 20 days thereafter or 25 if served by mail.

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