Case Name: Adrienne Davis v. Robyn Davis
Case No.: 17-CV-309623

Currently before the Court is the motion by defendant Robyn Tataryn (“Defendant”) (formerly known as Robyn Davis) for summary judgment of the second amended complaint (“SAC”) of plaintiff Adrienne Davis (“Plaintiff”) or, in the alternative, summary adjudication of each and every cause of action alleged therein.

Factual and Procedural Background

This action arises out of a dispute regarding real property located at 1563 Clarita Drive, San Jose, California (the “Property”). (SAC, ¶ 2.) On March 1, 1993, Plaintiff held legal title to the Property “subject to a first deed of trust securing a note executed by [P]laintiff in the principal sum of $90,000.” (Id. at ¶ 6.)

On that date, Plaintiff’s daughter, Defendant, represented that she “could arrange for a loan in the [amount] of $125,000 to be secured by trust deed on the [Property] in place and stead of the then existing $90,000 note secured by the [Property] which $90,000 would be paid off with the proceeds of the $125,000 loan.” (SAC, ¶¶ 4 and 7.) Defendant also represented that the payments on the new loan would be no more than the payments on the $90,000 loan. (Id. at ¶ 7.) Defendant further represented that “[i]t would be necessary to transfer title to the [Property] to [her] and [P]laintiff as joint tenants” to qualify for the new loan, and “[e]xecution of a deed to [D]efendant would not convey an ownership interest in the [Property].” (Ibid.) Lastly, Defendant represented that when the “loan was paid in full the [Property] would be put in [P]laintiff’s name alone.” (Ibid.)

In reliance on Defendant’s representations, Plaintiff orally agreed to allow Defendant to apply for a new loan. (SAC, ¶ 8.) Additionally, Plaintiff and Defendant orally agreed that Defendant would “release all interest she had in the [Property] once the $125,000 note was paid off.” (Id. at ¶ 32.) Thereafter, Defendant presented a loan application to Plaintiff. (Id. at ¶ 9.) Plaintiff signed the application “after being directed by [D]efendant, a licensed real estate agent, to list [P]laintiff’s residence at [P]laintiff’s mother’s home.” (Ibid.)

On March 25, 1993, Defendant presented Plaintiff “a [gift] deed naming [P]laintiff and [D]efendant grantees as joint tenants of the [Property].” (SAC, ¶¶ 10-11.) When Plaintiff asked Defendant why “the deed reflected it was a gift,” Defendant represented to Plaintiff that “this was merely a form and part of the paper work [sic] needed to be completed to obtain the new loan.” (Id. at ¶ 11.)

At the time Defendant made the foregoing representations, “she knew them to be false in that she had no intent to release any interest she had in the [Property] when the loan she was to obtain for [P]laintiff was paid in full.” (SAC, ¶ 12.)

In October 1993, Defendant told Plaintiff “it would be necessary for an additional deed to be signed naming [D]efendant and her then husband as grantees of the [Property].” (SAC, ¶ 16.) “This representation was also false and known to be false by [D]efendant and was made for the purpose of inducing [P]laintiff to obtain record title to the [Property] in her and her husband’s name and to defraud [P]laintiff of her ownership of the [Property].” (Id. at ¶ 17.) In reliance of Defendant’s representation, Plaintiff signed a deed naming Defendant and Defendant’s husband “as sole grantees of the [Property].” (Id. at ¶ 18.)

Subsequently, Plaintiff continued to reside at the Property and “made all payments required” under “the terms of the note in the sum of $125,000 secured by the [Property] which [D]efendant obtained through a commercial lender in … 1993.” (SAC, ¶ 19.) All of Plaintiff’s payments were forwarded to Defendant and “marked mortgage payment.” (Id. at ¶ 20.) In October 2016, all of the payments required under terms of the new loan were paid in full. (Id. at ¶ 21.)

From 1993 to October 2016, Defendant concealed that: she had “no intent to release any interest she had in the [Property] to [P]laintiff[ ] when the $125,000 loan … was paid off”; she intended “to retain the [Property] for herself”; and she encumbered the Property with a $300,000 note secured by a deed of trust on the Property. (SAC, ¶ 27.)

On or about October 17, 2016, Plaintiff discovered that Defendant further encumbered the Property “with a deed of trust securing a $300,000 promissory note.” (SAC, ¶ 24.)

On or about October 27, 2016, Plaintiff asked Defendant “to release any interest she might claim to the [Property].” (SAC, ¶ 22.) However, Defendant refused to reconvey the Property to Plaintiff. (Id. at ¶ 23.) Defendant asserted that the Property “belonged to her and had belonged to her from the time the deed conveying the [P]roperty to her was signed by [P]laintiff.” (Ibid.) At this time, Plaintiff discovered Defendant’s fraud. (Ibid.)

Based on the foregoing allegations, Plaintiff filed the operative SAC against Defendant on February 8, 2018, alleging causes of action for: (1) fraudulent misrepresentation; (2) fraudulent concealment; (3) breach of contract; (4) rescission; (5) quiet title; and (6) financial elder abuse.

On May 4, 2018, Defendant filed an answer to the SAC, generally denying the allegations of the SAC and alleging various affirmative defenses.

Defendant originally filed her notice of motion and motion for summary judgment or, alternatively, summary adjudication on May 21, 2018. On June 6, 2018, Defendant re-filed her notice of motion and motion for summary judgment or, alternatively, summary adjudication.

In early August 2018, Plaintiff filed an ex parte application for an order shortening time on a motion to amend the SAC and setting a hearing on that motion for August 21, 2018. Defendant filed papers in opposition to the matter, and the Court denied Plaintiff’s application.

On August 7, 2018, Plaintiff filed a document titled “Reply To Defendant’s Summary Judgment Motion By Cross-Motion To Amend Complaint.” In that document, Plaintiff purported to give notice that she would “move the Court for leave to file a Third Amended Complaint pursuant to California Code of Civil Procedure §§ 473a” on August 28, 2018, or as soon thereafter as the matter could be heard by the Court. Plaintiff further stated: “This motion will be based on this notice, the Memorandum of Points and Authorities the Declarations of[ [sic] Frank E. Mayo, Adrienne Davis and the Declarations required by Cal Rules of Court 1324 the amendments made to the complaint the complaint served and filed herewith, the records on file herein, and on such evidence as may be presented at the hearing of the motion.” (Reply to Summ. Judg. Mtn. by Cross-Mtn., p. 2:1-4.)

Over the course of the following week, Plaintiff filed a memorandum of points and authorities, a separate statement, and various declarations in opposition to Defendant’s motion for summary judgment or, alternatively, summary adjudication. Plaintiff also filed her declaration in support of a “Motion to Amend Complaint.”

On August 14, 2018, Plaintiff filed a request for dismissal, without prejudice, of the fifth cause of action of the SAC. That same day, dismissal was enter by the court clerk as requested.

One week later, Plaintiff filed three documents entitled “Ex Parte Application Declaration Of Frank E Mayo In Support Of Application to Set Aside Default,” “Memorandum of Points And Authorities In Support Of Motion To Set Aside Plaintiff’s Default,” and “Declaration Re Notice.” In these papers, Plaintiff indicated that her counsel was advised by email on August 16, 2018, that her “Reply To Defendant’s Summary Judgment Motion By Cross-Motion To Amend Complaint” was rejected. She also indicated that Defendant’s opposition to the purported motion to amend the SAC was rejected. Plaintiff indicated that her attempt to notice a motion for leave to amend the SAC was rejected because she did not reserve a hearing date for the matter. Plaintiff asked the Court to “enter an order directing that [her] motion to amend [and Defendant’s opposition] be filed.” (Ex Parte App. Dec. of Frank E. Mayo, p. 3:14-19.)

Defendant opposed Plaintiff’s ex parte application, pointing out that “instead of paying the required filing fee and properly requesting time be set aside to hear [a motion for leave to amend the SAC], Plaintiff chose to wait and improperly file a reply to [the pending] summary judgment motion by a purported cross-motion.” (Opp’n., pp. 3:25-4:1.) Defendant argued that even if the Court were to consider Plaintiff’s “Reply To Defendant’s Summary Judgment Motion By Cross-Motion To Amend Complaint” to be a motion for leave to amend the SAC, the motion was untimely and brought after inexcusable delay.

The Court issued an order denying Plaintiff’s ex parte application on August 21, 2018.

Discussion

Pursuant to Code of Civil Procedure section 437c, Defendant moves for summary judgment of the SAC or, alternatively, summary adjudication of each and every cause of action alleged therein.

I. Procedural Issues

A. Motion for Leave to Amend the SAC

As a preliminary matter, there is no motion for leave to amend the SAC before the Court. Although Plaintiff attempted to notice such a motion by filing her “Reply To Defendant’s Summary Judgment Motion By Cross-Motion To Amend Complaint,” this document was rejected. Furthermore, Plaintiff did not reserve a hearing date for a motion for leave to amend the SAC, pay the required filing fee, or file a memorandum of points and authorities in support of such a motion. Most recently, on August 21, 2018, the Court denied Plaintiff’s ex parte application to have her motion for leave to amend the SAC and Defendant’s opposition thereto filed. Consequently, Plaintiff has not properly moved for leave to amend the SAC and the SAC remains the operative pleading.

B. Effect of Dismissal

Next, the Court considers the effect of Plaintiff’s dismissal on the pending motion. As indicated above, after the filing of the instant motion, Plaintiff filed a request for dismissal, without prejudice, of the fifth cause of action of the SAC. That same day, dismissal was enter by the court clerk as requested.

Following Plaintiff’s dismissal of the fifth cause of action, the SAC now consists of the first through fourth and sixth causes of action. Consequently, Defendant’s motion for summary adjudication of the fifth cause of action is MOOT.

II. Legal Standard on Motions for Summary Judgment or Adjudication

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 (Madden), internal citations omitted.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] §
437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005)
132 Cal.App.4th 458, 464 (Hartline).)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

III. Substantive Merits of the Motion

A. Summary Judgment

Defendant argues that she is entitled to summary judgment of the SAC because Plaintiff’s claims are barred by the statute of frauds (Mem. Ps. & As., pp. 1:2-2:2, 4:22-9:2; D’s Sep. Stmt. of Undisputed Material Facts (“UMF”), pp. 2:1-3:20) and Plaintiff did not suffer any harm as a result of her alleged conduct (Mem. Ps. & As., p. 16:4-15; D’s Sep. Stmt. of UMF, pp. 20:23-23:11).

1. Statute of Frauds

Defendant argues that she is entitled to summary judgment of the SAC because each of Plaintiff’s causes of action are barred by the statute of frauds. (Mem. Ps. & As., pp. 1:2-2:2, 4:22-9:2; D’s Sep. Stmt. of UMF, pp. 2:1-3:20.) Although Defendant generally asserts that each of Plaintiff’s claims are barred by the statute of frauds, Defendant only specifically discusses some of Plaintiff’s claims in connection with her statute of frauds argument. In her memorandum of points and authorities, Defendant addresses the first and second causes of action for fraud, the third cause of action for breach of contract, and the fourth cause of action for rescission. (Mem. Ps. & As., pp. 5:14-6:14, 6:18-7:15, 7:17-8:2, 12:21-13:7.) Defendant does not expressly address the sixth cause of action for financial elder abuse or explain why a statutory claim for financial elder abuse would be barred by the statute of frauds. In addition to her discussion of specific causes of action, Defendant proffers a generalized statute of frauds argument that appears to pertain to all causes of action. Defendant contends that Plaintiff’s case is, at best, one for breach of contract. (Id. at pp. 7:18-8:28.) Defendant further contends that the alleged contract does not satisfy the statute of frauds and, consequently, all of Plaintiff’s claims fail. (Id. at pp. 8:27-9:2.)

Defendant’s statute of fraud argument fails to establish that Defendant is entitled to summary judgment of the SAC because it does not dispose of the entire lawsuit. (All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954 (All Towing) [“Summary judgment is proper only if it disposes of the entire lawsuit.”].)

First, as stated above, Defendant does not expressly address the sixth cause of action for financial elder abuse or explain why a statutory claim for financial elder abuse would be barred by the statute of frauds. Moreover, it is unclear how Defendant’s generalized statute of frauds argument applies to the sixth cause of action. Defendant does not cite any evidence, such as allegations of the sixth cause of action, to show that the claim is essentially one for breach of contract. (See Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149 (Sharabianlou) [“we will not scour the record on our own in search of supporting evidence”]; see also Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 (Quantum) [courts are not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”]; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1 (Regents) [“It is not the task of the reviewing court to search the record for evidence that supports the party’s statement; it is for the party to cite the court to those references.”].) Additionally, Defendant does not cite any legal authority suggesting that a statutory claim for financial elder abuse maybe be construed as a breach of contract claim simply because it may arise out of the same facts as a claim for breach of contract. (See Sharabianlou, supra, 181 Cal.App.4th at p. 1149; see also Quantum, supra, 197 Cal.App.4th at p. 934; Regents, supra, 122 Cal.App.4th at p. 826, fn. 1.) For these reasons, Defendant’s statute of limitations argument fails to adequately address and dispose of the sixth cause of action.

Second, even though Defendant specifically addresses the first and second causes of action for fraud, Defendant fails to establish that those claims are barred by the statute of frauds. Defendant asserts that Plaintiff’s fraud claims are barred by the statue of frauds because those claims are based on the alleged oral promise, or agreement, to transfer the Property back to her. Defendant contends under case law—such as Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965 and Kroger v. Baur (1941) 46 Cal.App.2d 801—an action for promissory fraud cannot be based on an oral agreement that is invalid under the statute of frauds. This contention lacks merit. The first and second causes of action for fraudulent misrepresentation and fraudulent concealment, respectively, do not seek to enforce Defendant’s alleged promise to reconvey the Property to Plaintiff. Instead, those claims seek damages resulting from the alleged fraud. (SAC, ¶¶ 24 and 30, and p. 8:15-18.) The statute of frauds does not apply to a claim which does not seek enforcement of an oral promise. As explained by the court in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass’n (2013) 55 Cal.4th 1169, 1183, “[Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18 (Tenzer)] disapproved a 44–year–old line of cases to bring California law into accord with the Restatement Second of Torts, holding that a fraud action is not barred when the allegedly fraudulent promise is unenforceable under the statute of frauds.”

Defendant also contends that the fraud claims are barred by the statute of frauds because “[t]he only ‘evidence’ Plaintiff has of [her alleged] intention not to perform as promised is her alleged failure of performance.” (Mem. Ps. & As., pp. 7:23-8:15.) Defendant states that the court in Tenzer opined that “[i]f plaintiff adduces no further evidence of fraudulent intent then proof of non-performance of an oral promise, he [or she] will never reach a jury.” (Tenzer, supra, 39 Cal.3d at p. 31.) However, Defendant fails to cite any evidence supporting her contention that the only evidence Plaintiff has of her alleged intention not to perform as promised is her failure of performance. (See Sharabianlou, supra, 181 Cal.App.4th at p. 1149; see also Quantum, supra, 197 Cal.App.4th at p. 934; Regents, supra, 122 Cal.App.4th at p. 826, fn. 1.) To the extent Defendant contends that Plaintiff does not have sufficient evidence to support her claims, it is Defendant’s burden to present evidence that Plaintiff does not possess, and cannot reasonably obtain, the needed evidence—as through admissions by Plaintiff following extensive discovery to the effect that she has discovered nothing. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55 (Aguilar); see also Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439-40 (Weber).) Defendant makes no such showing. For these reasons, Defendant’s statute of frauds argument fails to dispose of the first and second causes of action.

Accordingly, Defendant’s statute of frauds argument does not establish that Defendant is entitled to summary judgment of the SAC.

2. Damages

Defendant argues that she is entitled to summary judgment of the SAC because Plaintiff did not suffer any harm as a result of her alleged conduct. (Mem. Ps. & As., p. 16:4-15; D’s Sep. Stmt. of UMF, pp. 20:23-23:11). Defendant asserts that “[t]he fact that Plaintiff was near losing the [Property] demonstrates that she suffered no harm as a result of … Defendant’s conduct.” (Mem. Ps. & As., p. 16:6-8.) Defendant contends that if she “did not step in and assume the [Property] and its associated debt, the [Property] would have been foreclosed by the bank” and Plaintiff “would not have the [Property].” (Id. at p. 16:9-13.)

Defendant’s argument regarding damages fails to establish that Defendant is entitled to summary judgment of the SAC because it does not dispose of the entire lawsuit and it lacks merit. (All Towing, supra, 220 Cal.App.4th at p. 954.)

First, Defendant does not establish that damages is an element of all of Plaintiff’s claims. In particular, the fourth cause of action alleges a claim for rescission and Defendant does not cite any legal authority stating that damages is an element of an action seeking rescission of a contract. Notably, the following need to be alleged in an action for restitution after completed unilateral rescission: (1) the contract or other contractual instrument; (2) the grounds for rescission; and, (3) if the ground is breach of contract, the plaintiff’s own performance. (4 Witkin, Cal. Proc. (5th ed. 2008) § 542; see Runyan v. Pacific Air Industries, Inc. (1970) 2 Cal.3d 304.) For this reason, Defendant’s damages argument fails to adequately address and dispose of the fourth cause of action.

Second, Defendant’s argument is not adequately supported by her UMF. As previously articulated, Defendant asserts that “[t]he fact that Plaintiff was near losing the [Property] demonstrates that she suffered no harm as a result of … Defendant’s conduct.” (Mem. Ps. & As., p. 16:6-8.) Defendant contends that if she “did not step in and assume the [Property] and its associated debt, the [Property] would have been foreclosed by the bank” and Plaintiff “would not have the [Property].” (Id. at p. 16:9-13.)

However, the UMF cited by Defendant in support of her damages argument—UMF Nos. 8, 13, 57, 58, 62, 66, 69, and 129-146—do not demonstrate that the Property would have been foreclosed on but for Defendant’s conduct or that Plaintiff would not have the Property. As is relevant here, the UMF provide that Plaintiff executed a deed of trust securing a debt in the amount of $80,000 in 1991. A Notice of Default was recorded against the Property in November 1992. In January and August of 1993, the lender sent Plaintiff demand letters stating that the principal balance of $80,000 was due and payable on April 4, 1993. A Notice of Default was recorded against the Property in October 1993. “When asked why Defendant was put on the title to the [Property] Plaintiff responded …: ‘Because she knew I was struggling. She did it to help me, not to harm me.’ ” (UMF No. 146; Close Dec., ¶ 11.) Finally, the UMF indicate that Plaintiff’s counsel represented that all documents had been produced at a discovery hearing. At best, these facts show that notices of default were recorded against the Property in 1992 and 1993, $80,000 was purportedly due and owing on April 4, 1993, and Defendant was added to the title of the Property to help Plaintiff who was struggling. The facts do not establish that the Property would have been foreclosed on but for Defendant’s conduct. For example, the UMF do not demonstrate that Plaintiff would have been unable to pay the balance due and owing herself or through means other than Defendant. Consequently, Defendant fails to show that Plaintiff was not harmed by her alleged conduct.

Accordingly, Defendant’s damages argument does not establish that Defendant is entitled to summary judgment of the SAC.

3. Conclusion

Because the arguments offered by Defendant in support of her motion for summary judgment are not well-taken, Defendant does not meet her initial burden and her motion for summary judgment of the SAC is DENIED.

B. Summary Adjudication

1. Fraudulent Misrepresentation

Defendant initially argues that she is entitled to summary adjudication of the first cause of action for fraudulent misrepresentation because there was no misrepresentation. (Mem. Ps. & As., p. 11:9-22.) Defendant contends that she did not make any of the alleged misrepresentations because (1) Plaintiff testified at deposition that she did not believe that Defendant lied to her and (2) Plaintiff signed a deed in October 1993, which said that she was conveying legal title to Defendant. (Ibid.) Based on the foregoing, Defendant concludes that Plaintiff knew she was conveying legal title to Defendant in October 1993, and Plaintiff “can provide no evidence” demonstrating that Defendant promised to reconvey the Property. (Ibid.)

Defendant’s arguments are not well-taken and fail to show that Defendant did not make a false representation.

First, Plaintiff’s deposition testimony does not demonstrate that Defendant did not make the alleged misrepresentations. Defendant does not present any reasoned argument or legal authority showing that Plaintiff’s subjective belief about whether Defendant lied has any bearing on whether a misrepresentation of fact was actually made by Defendant. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85 (Badie); see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Furthermore, Plaintiff’s deposition testimony is more nuanced than Defendant suggests. The relevant portion of Plaintiff’s deposition transcript reads as follows:

Q. What do you believe Robyn lied to you about?
A. Well, I never thought she lied to me.
Q. You never thought —
A. No, not until this all happened, came down.

(Comp. of Evid., Ex. L, p. 82:1-5.) It can be reasonably inferred from Plaintiff’s deposition testimony that Plaintiff did not believe Defendant lied to her at the time the alleged misrepresentations were made. However, at some later point in time—when “this all happened, came down”—Plaintiff came to believe that she had been lied to. Defendant does not present any reasoned argument or legal authority providing that Plaintiff’s belief in the truth of Defendant’s representations, at the time they were made, is sufficient to establish that there was no misrepresentation of fact. (See Badie, supra, 67 Cal.App.4th at pp. 784-85; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2.)

Second, that fact that Plaintiff signed the October 1993 deed, which provided that Plaintiff was conveying the Property to Defendant, does not demonstrate that Defendant did not make the alleged misrepresentations. With respect to the October 1993 deed, Plaintiff alleges that Defendant told her “it would be necessary for an additional deed to be signed naming [D]efendant and her then husband as grantees of the [Property].” (SAC, ¶ 16.) Thus, as pleaded, Defendant allegedly misrepresented that the October 1993 deed needed to be signed in order for the new loan to be obtained. The mere fact that Plaintiff signed the subject deed is insufficient to show that Defendant did not make the alleged misrepresentation.

Third, Defendant’s conclusory assertion that Plaintiff “can provide no evidence” demonstrating that Defendant promised to reconvey the Property is unsupported by citation to any UMF or evidence and, therefore, requires no discussion. (See Badie, supra, 67 Cal.App.4th at pp. 784-85; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2.)

Next, Defendant asserts that she is entitled to summary adjudication of the first cause of action for fraudulent misrepresentation because Plaintiff cannot prove the elements of reliance and damages. Defendant contends Plaintiff cannot show reliance or resulting damages because the Property was in the process of foreclosure. This argument lacks merit. As stated above, Defendant’s UMF do not demonstrate that the Property would have been foreclosed on but for Defendant’s conduct or that Plaintiff would not have the Property. At most, the UMF show that notices of default were recorded against the Property in 1992 and 1993, $80,000 was purportedly due and owing on April 4, 1993, and Defendant was added to the title of the Property to help Plaintiff who was struggling. The facts do not establish that the Property would have been foreclosed on but for Defendant’s conduct. The UMF do not demonstrate that Plaintiff would have been unable to pay the balance due and owing herself or through means other than Defendant. Consequently, Defendant fails to show that Plaintiff did not rely on the alleged misrepresentations to her detriment.

Defendant also argues in a conclusory manner that “Plaintiff … failed to provide any evidence as to the other elements she as required to prove.” (Mem. Ps. & As., p. 11:26-28.) This argument is not persuasive. It is not Plaintiff’s burden to provide evidence supporting each of the elements of her claim; rather, Defendant bears the initial burden on summary adjudication. (See Madden, supra, 165 Cal.App.4th at p. 1272; see also Hartline, supra, 132 Cal.App.4th at p. 464.) Moreover, Defendant does not meet her initial burden as she does not present evidence showing that Plaintiff does not possess, and cannot reasonably obtain, the needed evidence—as through admissions by Plaintiff following extensive discovery to the effect that she has discovered nothing. (See Aguilar, supra, 25 Cal.4th at pp. 854-55; see also Weber, supra, 143 Cal.App.4th at pp. 1439-40.)

Finally, Defendant asserts that “Plaintiff must show that [she] had some knowledge that there was an agreement between the parties in order to show that [she] intended to defraud Plaintiff” and “Plaintiff at the most may have had a unilateral belief that there was an agreement, but the belief was not shared by Defendant.” (Mem. Ps. & As., p. 12:4-6.) Defendant’s assertion is not well-taken. As a preliminary matter, Defendant does not cite any legal authority providing that Plaintiff must prove Defendant’s knowledge of an agreement between the parties to establish that Defendant possessed that requisite intent to defraud. (See Badie, supra, 67 Cal.App.4th at pp. 784-85; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2.)

Additionally, Defendant does not cite any UMF or evidence establishing that “Plaintiff at the most may have had a unilateral belief that there was an agreement, but the belief was not shared by Defendant.” In her papers, Defendant cites paragraph 12 of her declaration in support of the proposition that “[a]t no time did [she] enter into an agreement with Plaintiff, oral, written or otherwise, to reconvey the [Property].” But paragraph 12 of her declaration does not support that proposition. Rather, paragraph 12 of Plaintiff’s declaration states:

I had no desire to live in San Jose, so I agreed to allow my mother to live in the Subject Property. I simply requested that she pay rent in order to assist me with my mortgage payments and other property-related expenses. I was concerned about my personal financial security, carrying a new mortgage just out of school.

(D’s Dec., ¶ 12.) This portion of Plaintiff’s declaration simply does not address whether the parties entered into an agreement regarding the reconveyance of the Property.

As all of Defendant’s arguments fail to dispose of the first cause of action, the motion for summary adjudication of the first cause of action is DENIED.

2. Fraudulent Concealment

Defendant initially argues that she is entitled to summary adjudication of the second cause of action for fraudulent concealment because “Plaintiff is unable to present facts showing that [she] owed Plaintiff a duty to disclose the information she was allegedly concealing.” (Mem. Ps. & As., p. 9:24-26.) Specifically, Defendant asserts that Plaintiff “cannot present facts indicating that there was a confidential relationship between [them].” (Id. at p. 10:8-10.) Defendant further asserts that “[i]n order to show the existence of a duty to disclose allegedly concealed information, Plaintiff must demonstrate that Defendant owed a contractual duty to her,” citing Shin v. Kong (2000) 80 Cal.App.4th 498, 509 (Shin).

These arguments lack merit. First, a duty to disclose can arise even when the parties do not have a confidential relationship. (See Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336 [the duty to disclose can arise not only from the existence of a fiduciary or confidential relationship, but also where the defendant had exclusive knowledge of material facts not known to the plaintiff, where the defendant actively conceals a material fact from the plaintiff, or where the defendant makes partial representations while concealing other material facts].) Therefore, the absence of a confidential relationship is not fatal to the second cause of action.

Furthermore, Shin does not provide that a plaintiff must demonstrate that the defendant owed her a contractual duty in order for the defendant to have a duty to disclose information. Shin states, “[a] duty to disclose facts arises only when the parties are in a relationship that gives rise to the duty, such as ‘seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.’ [Citation.]” (Shin v. Kong (2000) 80 Cal.App.4th 498, 509.) Here, Plaintiff and Defendant are parties allegedly entering into a contractual agreement. Shin does not suggest that the contract must be valid or enforceable in order for a duty to disclose to arise. Therefore, Defendant’s argument lacks merit.

Lastly, Defendant argues that she is entitled to summary adjudication of the second cause of action for fraudulent concealment because Plaintiff cannot prove the elements of reliance and damages. Defendant contends Plaintiff cannot show reliance or resulting damages because the Property was in the process of foreclosure. This argument lacks merit for the same reasons previously articulated in connection with the first cause of action.

As all of Defendant’s arguments fail to dispose of the second cause of action, the motion for summary adjudication of the second cause of action is DENIED.

3. Breach of Contract

Defendant argues that she is entitled to summary adjudication of the third cause of action for breach of contract because the alleged oral contract violates the statute of frauds and Plaintiff cannot establish that she was damaged by the alleged breach. (Mem. Ps. & As., pp. 5:14-6:14, 9:3-19; D’s Sep. Stmt. of UMF, pp. 9:10-12:6.)

a. Statute of Frauds

With respect to her statute of frauds argument, Defendant begins by pointing out that the third cause of action for breach of contract is predicated on the alleged oral agreement between Plaintiff and Defendant, providing that Defendant would reconvey the Property to Plaintiff and release any interest in the Property once the new loan was fully repaid. (Mem. Ps. & As., p.5:14-6:10; UMF No. 2-3, 52-54.) Next, Defendant cites Civil Code section 1624, subdivision (a)(3) for the proposition that such an agreement to transfer an interest in real property must be reduced to a writing signed by the party to be charged.

The statute of frauds is a collective term describing the various statutory provisions that deny enforcement to certain enumerated classes of contracts unless they are reduced to writing and signed by the party to be charged.” (1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §342, p. 390.) “The California statute of frauds (Civil Code §1624) provides that certain contracts ‘are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent.” (Id. at §343, p. 391.) For example, an agreement for the sale of an interest in real property is invalid “unless [it], or some note or memorandum thereof, [is] in writing and subscribed by the party to be charged or by the party’s agent.” (Civ. Code, § 1624, subd. (a)(3); see Civ. Code, § 1091 and Code Civ. Proc., § 1971 [providing that the transfer of an estate in real property other than by operation of law must be in writing]; Dutton v. Interstate Inv. Corp. (1941) 19 Cal.2d 65, 69 [“a transfer of an interest in real property is required by our statutes to be in writing”].)

Here, Defendant’s UMF and evidence adequately establish that the first cause of action is predicated on an oral agreement to transfer an interest in the Property. Consequently, Defendant meets her initial burden to show that the alleged oral contract is invalid under the statute of frauds.

In opposition, Plaintiff asserts that the doctrines of estoppel and part performance apply in this case such that there is a triable issue of material fact as to whether Defendant can assert the statute of frauds as a defense.

In support of her position, Plaintiff offers her declaration. In her declaration, Plaintiff declares that she made payments on the new loan from 1993 until October 2016, by sending checks marked mortgage to Defendant. (P’s Dec., ¶ 12.) She sent those payments to Defendant because she understood that Defendant was acting as her agent and would make the loan payments on her behalf. (Ibid.) Plaintiff further declares that she transferred the Property to Defendant in reliance on Defendant’s representations that the Property would be reconveyed to her once the loan was paid off. (Id. at ¶¶ 9-10.) Plaintiff states that “[s]hould this court determine that the Statute of Frauds bars my claims against [D]efendant, I will suffer a devastating and what I understand is an unconscionable injury since my home is now worth over One Million Dollars.” (Id. at ¶ 18.) Plaintiff declares that if she loses her home she will have no place to live and Defendant will obtain a windfall. (Ibid.)

The doctrine of estoppel to assert the statute of frauds as a defense is applicable where a party, by words or conduct, represents that he will stand by his oral agreement, and the other party, in reliance upon that representation, changes his position, to his detriment. [Citations.] The existence of an estoppel is a question of fact, unless, of course, but a single inference may be drawn from the facts. [Citations.] The doctrine of estoppel to assert the statute of frauds is invoked to prevent fraud that inheres in unconscionable injury that would result from denying enforcement of the oral contract after one party has been induced by the other seriously to change his position in reliance upon the oral contract. [Citation.]

(Associated Creditors’ Agency v. Haley Land Co. (1966) 239 Cal.App.2d 610, 617.)

Here, Plaintiff’s evidence is sufficient to raise a triable issue of material fact as to whether the doctrine of estoppel applies and prevents Defendant from asserting the statute of frauds as a defense. Plaintiff’s evidence shows that Defendant orally represented that she would reconvey the Property to Plaintiff once the new loan was paid, Plaintiff relied to her detriment on the representation by transferring the Property to Defendant and making payments on the new loan, and she would suffer an unconscionable injury if the Court denied enforcement of the oral contract.

b. Damages

Regarding her damages argument, Defendant states that Plaintiff cannot establish the element of damages because “Plaintiff was facing a possible foreclosure proceeding” and the Property would have been foreclosed on by the bank if she did not step in and assume the Property and its associated debt. (Mem. Ps. & As., p. 9:9-19.)

However, as explained above, the UMF cited by Defendant do not demonstrate that the Property would have been foreclosed on but for Defendant’s conduct or that Plaintiff would not have the Property. At best, the UMF show that notices of default were recorded against the Property in 1992 and 1993, $80,000 was purportedly due and owing on April 4, 1993, and Defendant was added to the title of the Property to help Plaintiff who was struggling.

c. Conclusion

As there is a triable issue with respect to the statute of frauds issue and Defendant’s damages argument fails to dispose of the third cause of action, the motion for summary adjudication of the third cause of action is DENIED.

4. Rescission

Defendant argues that she is entitled to summary adjudication of the fourth cause of action for rescission because: (1) the alleged oral contract is barred by the statute of frauds such that Plaintiff cannot establish the existence of a valid agreement; and (2) Plaintiff cannot establish fraud for the reasons Defendant proffered in connection with her attack on the first and second causes of action.

These arguments are not well-taken because, as explained above, there is a triable issue of material fact as to whether the oral contract is barred by the statute of frauds and Defendant failed to demonstrate that that Plaintiff’s first and second causes of action for fraud lack merit.

Consequently, the motion for summary adjudication of the fourth cause of action is DENIED.

5. Financial Elder Abuse

Defendant initially argues that she is entitled to summary adjudication of the sixth cause of action for financial elder abuse because Plaintiff was not an elder under Welfare and Institutions Code section 15610.27 at the time Defendant acquired the Property. (Mem. Ps. & As., pp. 14:24-16:3.) Defendant points out that Plaintiff alleges the Property was fraudulently obtained in 1993. (Id. at p. 15:13-14.) Defendant asserts that “[i]t is undisputed that Plaintiff was approximately 60 years old at the time Plaintiff executed the grant deed in October of 1993.” (Id. at p. 15:14-16.) In support of this assertion, Defendant cites UMF No. 124.

To establish a claim for financial elder abuse, a plaintiff must show: (1) he or she was an elder at the time of his or her injury; (2) the defendant took, secreted, appropriated or retained, or assisted another in taking, secreting, appropriating or retaining, real or personal property; and (3) the defendant wrongfully used the property or intended to defraud the elder plaintiff. (Welf. & Inst. Code, § 15610.30; Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790.) An “elder” is “any person residing in this state, 65 years of age or older.” (Welf & Inst. Code, § 15610.27.)

Here, the UMF and evidence cited by Defendant do not establish that Plaintiff was younger than 65 years of age at the time of her alleged injury. As previously stated, Defendant cites UMF No. 124 in support of her assertion that “Plaintiff was approximately 60 years old at the time Plaintiff executed the grant deed in October of 1993.” However, UMF No. 124 merely provides that the grant deed transferring title of the Property to Defendant and Defendant’s husband was recorded on October 18, 1993.

It appears that Defendant intended to cite UMF No. 125, which states that “[a]t the time the Grant Deed was recorded on October 18, 1993, Plaintiff was 60 years old.” This UMF cites to Plaintiff’s deposition testimony. Plaintiff testified at deposition that her date of birth is September 3, 1933. (Comp. of Evid., Ex. L, p. 11:21-22.) This evidence shows that Plaintiff was approximately 60 years old as of October 1993.

However, this evidence is insufficient to demonstrate that Plaintiff was not an elder at the time of her injury. The alleged oral agreement between Plaintiff and Defendant provided that Defendant would reconvey the Property to Plaintiff, and release any interest therein, once the new loan was repaid. (SAC, ¶¶ 7-13, 32, 34, 41.) Plaintiff alleges that the new loan was repaid in October 2016, and Defendant then refused to reconvey the Property. (Id. at ¶¶ 21-23, 34, 41-42.) Thus, the sixth cause of action effectively alleges that Defendant wrongfully retained the Property in October 2016, thereby causing Plaintiff injury. As Plaintiff was more than 65 years old as of October 2016, Defendant fails to establish that Plaintiff was not an elder at the time of her injury.

Next, Defendant argues that she is entitled to summary adjudication of the sixth cause of action for financial elder abuse because Plaintiff cannot establish that the Property was taken with an intent to defraud or in bad faith. (Mem. Ps. & As., pp. 15:10-16:3.) In support of her argument, Defendant cites Plaintiff’s deposition testimony, wherein Plaintiff states that “[Defendant] knew I was struggling. She did it to help me, not harm me.” (Id. at p. 15:20-21.) Upon review of the relevant portion of the transcript, it is clear that Plaintiff is referring to the agreement between the parties that Defendant would be placed on the Property’s title so the new loan could be obtained. (UMF No. 126; Comp. of Evid., Ex. L, p. 39:4-25.)

This argument fails to dispose of the sixth cause of action because it does not address Defendant’s alleged wrongful retention of the Property in October 2016. The SAC alleges that Defendant refused to reconvey the Property to Plaintiff in 2016 despite the parties’ agreement. (SAC, ¶¶ 7-13, 21-23, 32, 34, 41-42.) “Bad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174; Welf & Inst. Code, § 15610.30.) Thus, the SAC effectively alleges that Defendant retained the Property in October 2016, in bad faith. Because Defendant does not address her alleged wrongful retention of the Property in October 2016, her argument regarding intent to defraud and bad faith fails to dispose of the claim for financial elder abuse in its entirety.

Therefore, the motion for summary adjudication of the sixth cause of action is DENIED.