2013-00142936-CU-OR

Christopher Boley vs. Suzanna Jones

Nature of Proceeding:   Hearing on Demurrer to Complaint

Filed By:  Swenson, Samuel K.

Defendant Suzanne Jones’ (“Defendant”) demurrer to the complaint of Plaintiff
Christopher Boley (“Plaintiff”) is SUSTAINED with leave to amend as follows:

This is an action for an accounting of rents and injunctive relief.  Plaintiff also asks the
court to partition certain real property that he and Defendant allegedly hold as tenants
in common, and to declare his interest in said property.

According to Plaintiff, he, Defendant’s deceased husband Anthony Jones (“Mr.
Jones”), and a third party (“Mr. Howard”) entered into a written agreement whereby Mr.
Jones and Mr. Howard gave Plaintiff an undivided 10 percent interest in three pieces
of real property.  Plaintiff alleges that, when Mr. Jones died in 2012, Defendant
inherited her husband’s interest in the property.  Plaintiff further alleges that Defendant
has leased the property but has refused to provide Plaintiff with his 10 percent interest
in such rents.  Based on Defendant’s alleged refusal to acknowledge Plaintiff’s interest
in the properties, Plaintiff has filed his complaint containing causes of action for
accounting of rents and injunctive relief.

Defendant demurs on grounds that the allegations fail to state a cause of action.  She
argues (1) statutes of limitations bar Plaintiff’s action, (2) the action is barred by
statutes of frauds, (3) Plaintiff’s action is not supported by a valid deed, and (4)
Plaintiff’s allegations contradict assertions he made in the course of petitioning for
bankruptcy.

Discussion

One-Year Statute of Limitations [CCP § 366.2]

First, Defendant argues that the one-year statute of limitations in CCP § 366.2 bars
Plaintiff’s action.  Subdivision (a) of that section provides:

If a person against whom an action may be brought on a liability of the
person, whether arising in contract, tort, or otherwise, and whether
accrued or not accrued, dies before the expiration of the applicable
limitations period, and the cause of action survives, an action may be
commenced within one year after the date of death, and the limitations
period that would have been applicable does not apply.

Plaintiff did not file this action until more than one year after Mr. Jones died.

Given her reliance on CCP § 366.2, Defendant appears to contend that Plaintiff’s
causes of action are based on wrongs that Mr. Jones committed.  Plaintiff’s
allegations, however, need not be so construed.  In fact, Plaintiff alleges that Mr. Jones
did what he promised to do, i.e., transfer an undivided 10 percent interest in real
property.  (See Compl., ¶ 6.)  Thus, Plaintiff appears to allege, not that he is pursuing a
cause of action against Defendant as Mr. Jones’ successor, but rather that he is
pursuing a cause of action directly against Defendant for failing to provide him with
rents since she acquired her late husband’s interest in the properties.

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Defendants’ reliance on Battuello v. Battuello (1998) 64 Cal.App.4   842 and
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Stoltenberg v. Newman (2009) 179 Cal.App.4   287 is misplaced.  Battuello involved a
dispute over a promise that a deceased made to a plaintiff during the former’s lifetime.
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(64 Cal.App.4   at 846.)  Under those circumstances, the plaintiff’s causes of action
arose while the deceased was alive, and CCP § 366.2 applied.  In the instant case,
Plaintiff is suing Defendant for her own allegedly wrongful conduct.  Similarly, the
Stoltenberg court held that “the section 366.2 period of limitations is applicable to fraud
claims based on statements of the decedent …even though the action is against the
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successor trustee.”  (179 Cal.App.4   289 [emphasis and ellipsis added].)  Again, the
present dispute involves allegations that Defendant has committed independent
wrongs after Mr. Jones died.

Moreover, even if the allegations can be construed to state a hybrid cause of action,
viz., one aimed in part at Mr. Jones’ misconduct and in part aimed at Defendant’s
misconduct, the one-year statute in CCP § 366.2 would not compel the court to sustain
the demurrer.  The court must overrule the demurrer if the allegations establish a valid
cause of action on any theory.  (See, e.g., Mills v. U.S. Bank (2008) 166 Cal.App.4th
871, 881 [citation omitted].)  If Defendant wished to attack part of cause of action in the
complaint, she was required to file a motion to strike.  (See Caliber Bodyworks, Inc. v.
Superior Court (2005) 134 Cal.App.4th 365, 384-385.)

Statutes of Frauds [CC §§ 1091, 1624, 1971]

Next, Defendant argues that the statutes of frauds at CC §§ 1091, 1624 and 1971 bar
the complaint.  Plaintiff counters that the writing attached to the complaint as an exhibit
satisfies the statutes of frauds.  Plaintiff characterizes this writing as a deed.  In both
the Moving Memorandum and the Reply, Defendants argues that the exhibit to the
complaint cannot satisfy any statutes of fraud because it is not written evidence of any
transfer of an interest in real property to Plaintiff.

The exhibit in question appears to contemplate Mr. Howard’s transfer of his interest in
the subject real property, including the “CPA” properties, to Mr. Jones in exchange for
other consideration.  Next to an asterisk in the lower left corner of the document
appear the words “CB 10% of CPA = $25-30K.”  According to Plaintiff, the “CB”
appearing next to the asterisk refers to him, Christopher Boley.  Both Mr. Jones and
Mr. Howard signed the document.

At this stage of the case, the court must draw all inferences in favor of the complaint.  (See Kruss v. Booth (2010) 185 Cal.App.4th 699, 727.)  Because the court cannot
currently rule out Plaintiff’s proffered construction of the purported deed, it rejects
Defendant’s statutes-of-limitations argument.

Invalid Deed

Defendant argues next that the document attached to the complaint (the alleged deed)
does not function as a valid deed.  To the extent Defendant’s argument is based on
statutes of limitations, the court rejects it for reasons stated above.  To the extent she
specifically and separately argues that the deed is invalid because it does not show a
transfer of an interest in real property to Plaintiff, the court rejects it for reasons stated
above as well.

Defendant further argues that the deed is invalid because Plaintiff has not alleged facts
showing that the deed was delivered to him with an “intent to convey” an interest in
real property.  Defendant does not cite any authority holding that Plaintiff was required
to allege such intent to convey.  Given that Plaintiff has attached to deed to his
complaint, and given the lack of any citation to authority holding that Plaintiff was
specifically required to allege that the deed was intended to convey an interest in real
property, the court rejects Defendant’s argument.

Plaintiff’s Contradictory Statements Under Oath

Finally, Defendant argues that the demurrer may be sustained because, when Plaintiff
filed for bankruptcy in 2011, he stated under oath that he did not possess an interest in
any real property.  Plaintiff does not deny that he made such statements, but rather
argues that the court cannot consider the truth of such statements by way of judicial
notice.  There is no dispute that, at this stage of the case, Plaintiff’s statement in the
bankruptcy case that he did not possess any interest in any real property is only before
the court by way of judicial notice.

Although the court may take judicial notice of the fact that Plaintiff previously asserted
that he did not possess any interest in real property, it may not accept that accuracy of
that assertion.  (See People v. Dungo (2012) 55 Cal.4th 608, 615, fn. 3 [citation
omitted]; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483
[citation omitted].)  Nonetheless, where a plaintiff has made an admission that
contradicts allegations in a subsequently filed complaint, the court may sustain a
demurrer to the complaint.  (See Del E. Webb Corp. v. Structural Materials Co. (1981)
123 Cal.App.3d 593, 604-605 [“The court will take judicial notice of records such as
admissions, answers to interrogatories, affidavits, and the like, when considering a
demurrer, only where they contain statements of the plaintiff or his agent which are
inconsistent with the allegations of the pleading before the court”]; see also Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877 [“[T]he plaintiff may not plead
facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or
suppress facts that prove the pleaded facts false”] [emphasis and citation omitted].)

Where a plaintiff’s current allegations appear to contradict his or her assertions
elsewhere, a court may require the plaintiff to explain the inconsistency before
permitting the case to advance.  (See Amid v. Hawthorne Cmty. Med. Group (1989)
212 Cal.App.3d 1383, 1390.)  Plaintiff has not explained the apparent inconsistency
between his assertions in his bankruptcy action and his current allegations.
Accordingly, the court SUSTAINS the demurrer but grants leave to amend to afford
Plaintiff an opportunity to provide a sufficient explanation.

Request for Judicial Notice

Defendant’s request for judicial notice of a bankruptcy petition and order is GRANTED.
In taking judicial notice of these documents, the court accepts the fact of their
existence, not the truth of their contents.  (See Professional Engineers v. Dep’t of
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Transp. (1997) 15 Cal.4   543, 590 [judicial notice of findings of fact does not mean
that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012)
204 Cal.App.4th 112, 120-121.)

In the future, Defendant is directed to request judicial notice in a separate document in
compliance with CRC 3.1113(l).

Conclusion

No later than January 3, 2014, Plaintiff may file and serve a first amended complaint
(“FAC”); Defendant to file and serve her responsive pleading(s) within 14 days
thereafter, 19 days if the FAC is served by mail.  (Although not required by any statute
or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the
FAC to facilitate the filing of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.

Item   10    2013-00142936-CU-OR

Christopher Boley vs. Suzanna Jones

Nature of Proceeding:      Motion to Expunge Lis Pendens

Filed By:    Swenson, Samuel K.

Defendant Suzanna Jones motion to expunge notice of pendency of action (lis
pendens) is GRANTED.

This is an action for an accounting of rents and injunctive relief.  Plaintiff also asks the
court to partition certain real property that he and Defendant allegedly hold as tenants
in common, and to declare his interest in said property.

According to Plaintiff, he, Defendant’s deceased husband, Anthony Jones (“Mr.
Jones”), and a third party (“Mr. Howard”) entered into a written agreement whereby Mr.
Jones and third party transferred to Plaintiff an undivided 10 percent interest in three
pieces of real property.  Plaintiff alleges that, when Mr. Jones died in 2012, Defendant
inherited her husband’s interest in the property.  Plaintiff further alleges that Defendant
has leased the property but has refused to provide Plaintiff with his 10 percent interest
in such rents.  Based on Defendant’s alleged refusal to acknowledge Plaintiff’s interest
in the properties, Plaintiff has filed his complaint containing causes of action for
accounting of rents and injunctive relief.

The lis pendens was recorded on August 12, 2013.

The motion to expunge the lis pendens requires the Court to determine the “probable              validity” of the claims brought in the action. The “probable validity” is tested by the
preponderance of evidence. (Code of Civil Procedure §405.32.) In proceedings under
this chapter, the court shall order that the notice be expunged if the court finds that the
claimant has not established by a preponderance of the evidence the probable validity
of the real property claim.  (Code of Civil Procedure §405.32.) In such a motion, the
Court must “consider the relative merits of the positions of the respective parties and
make a determination of the probable outcome of the litigation.” (Howard S. Wright
Construction Co . v. Superior Court (2003) 106 Cal.App.4th 314, 319-320.)  The
plaintiff has the burden of proof to establish the probable validity of the real property
claim. (Code of Civil Procedure §405.30.)  “Probable validity” is defined as it being
“more likely than not that claimant will obtain a judgment against the defendant on the
claim.” (Code of Civil Procedure §405.30.)

Defendant does not appear to dispute that the instant action is a “real property claim.”
She argues, however, that Plaintiff cannot establish the “probable validity of the claim.”
Defendant argues that Plaintiff’s complaint is barred by the statute of limitations.  She
further argues that the complaint is improbable because: (1) the CPA Shop Deal
agreement is invalid under the statute of frauds, (2) the property interest claim is based
on an invalid deed, and (3) Plaintiff’s claims for property ownership are contradicted by
his own statements made under the penalty of perjury.  Defendant’s arguments are
identical to those made in the concurrently filed demurrer.

The Court has overruled most of Defendant’s arguments on demurrer.  However, it has
sustained with leave to amend, Defendant’s argument that Plaintiff’s claims of property
ownership are contradicted by his own statements made under penalty of perjury.  As
noted in its ruling on demurrer, which the Court fully incorporates herein, Plaintiff does
not deny that he stated under oath in his bankruptcy filing that he did not possess an
interest in any real property.  Plaintiff argues that the Court may not accept the truth of
his statements in the bankruptcy petition.

Here, the Court takes judicial notice that in April 25, 2012, Plaintiff filed a verified
bankruptcy petition and admitted that he did not own any interest in real property.
Plaintiff has not proffered any evidence in opposition to the motion denying this
statement, explaining why the statement was false at the time made, or explaining the
apparent inconsistency between his assertions in his bankruptcy action and his current
allegations.

Given the above, the Court concludes that Plaintiff has failed to demonstrate the
probable validity of a real property claim and thus, pursuant to §405.32, the Court
“shall order that the notice [of pendency] be expunged.”  Accordingly, the motion is
GRANTED.

Defendant’s request for attorneys’ fees is DENIED.  Here, Defendant’s counsel’s
declaration fails to set forth the amount of time spent on the motion or the fees
charged.  Rather, this information is set forth in Defendant’s declaration, of which she
does not have personal knowledge.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.