Dolores Hernandez v. Phillip Hernandez

Case Name:   Hernandez v. Hernandez, et al.

Case No.:       1-14-CV-265502

In the complaint, plaintiff Dolores Cruz Hernandez (“Plaintiff”) asserts causes of action against defendant Phillip L. Hernandez (“Defendant”) for (1) assault and battery, (2) intentional infliction of emotional distress, (3) negligent infliction of emotional distress (“NIED”), (4) conversion, (5) breach of a pooling agreement, (6) breach of a partnership agreement (“Partnership Agreement”), (7) constructive trust, (8) quiet title, (9) unjust enrichment, and (10) declaratory relief.  Defendant demurs to the first, third, fourth, sixth, eighth, and tenth causes of action on the ground of failure to allege sufficient facts.  (See Code Civ. Proc. [“CCP”], § 430.10, subd. (e).)

In support of her claims, Plaintiff alleges the following:  Plaintiff and Defendant married on October 11, 2012, and they lived together before and during their marriage from 2002 until July 3, 2013.  (Compl., ¶¶ 11-13.)  Defendant repeatedly assaulted and battered Plaintiff during their marriage, and on July 3, 2013, he was arrested and charged with (and later convicted of) felony domestic violence for severely injuring Plaintiff by beating and choking her while on vacation in Napa.  (Id. ¶¶ 1, 14-17, 19-22, & 24.)  Thereafter, Plaintiff obtained a civil protective order (“CPO”) against Defendant, but he continues to contact and threaten her.  (Id., ¶¶ 23 & 25.)  In addition, before, during, and after their marriage, Defendant breached a pooling agreement and the Partnership Agreement whereby the couple agreed to share assets and work together as a partnership or joint venture.  (Id., ¶¶ 2, 52-53, & 60-62.)  Defendant also represented to Plaintiff that he would transfer his 100% separate property interest in their residence (“the Property”) to Plaintiff’s separate property, and Plaintiff relied on his representations by continuing to live with and care for him; however, on September 5, 2013, Defendant conveyed the Property to himself and Plaintiff as “husband and wife” and joint tenants.  (Id., ¶¶ 27-29.)

The demurrer to the first cause of action (assault and battery) is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.  Lack of consent is a necessary element of a claim for assault and/or battery.  (Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 668-669.)  Plaintiff fails to allege that she did not consent to the abuse and threats, but states in her opposition that she could cure this defect by amending the complaint.

The demurrer to the third cause of action (NIED) is OVERRULED.  Essentially, Defendant contends that Plaintiff cannot state a claim for NIED because she alleges that he intentionally assaulted and battered her.  NIED is a species of negligence whereby a defendant whose negligence breaches a duty to plaintiff is liable for proximately caused serious emotional distress.  (Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 C3d 583, 588; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)  Persons have a general duty to use due care to avoid injuring others (Civ. Code, § 1714), and a person who violated a statute is presumed to have acted negligently if the violation caused a type of harm to a person within the class of persons that the law was designed to protect (Evid. Code, § 669).  Plaintiff alleges that she was Defendant’s wife, he abused her in violated Penal Code section 273.5, and the abuse caused her severe emotional distress.  (Compl., ¶¶ 21-24 & 42-45; see also Pen. Code, § 273.5, subd. (a), as amended by Stats. 2012, ch. 867, § 16 [“[a]ny person who willfully inflicts upon a person who is his or her spouse . . . corporal injury resulting in a traumatic condition is guilty of a felony”].)  Since Plaintiff alleges that she was in the class of persons and sustained the type of harm that the law was designed to protect, she adequately states a NIED claim.

The demurrer to the fourth cause of action (conversion) is OVERRULED.  Although a three-year statute of limitations applies to a conversion claim (CCP, § 338, subd. (c)(1)), at least part of Plaintiff’s claim is not barred by the statute of limitations because it is based on Defendant’s alleged conversion of property “in violation of the [CPO] in place at the time,” and the CPO was allegedly issued after July 3, 2013.  (Compl., ¶¶ 23 & 47(a); see also McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874 [“it is not enough that the complaint shows merely that the action may be barred”]; see also Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“Kong”] [demurrer cannot be sustained to part of a cause of action].)  Defendant further asserts that Plaintiff fails to allege that his conduct was knowing or intentional; however, she does not need to allege such facts.  (See Mendoza v. Rast Produce Co. Inc. (2006) 140 Cal.App.4th 1395, 1405, citation omitted [“[t]he foundation of the action rests neither in the knowledge nor the intent of the defendant,” and “questions of the defendant’s good faith, lack of knowledge, and motive are ordinarily immaterial”].)  Defendant also contends that Plaintiff does not allege a specific sum of money.  While a conversion claim for money must be supported by an alleged specific sum (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395), part of Plaintiff’s conversion claim is based on the fact that Defendant allegedly converted “[o]ther assets” (Compl., ¶ 47), and thus, the demurrer cannot be sustained.  (See Kong, supra, at p. 1047.)  That being said, Plaintiff requests leave to amend to add a specific sum, and the Court grants that request.

The demurrer to the sixth cause of action (breach of the Partnership Agreement) is OVERRULED.  Defendant contends that Plaintiff does not allege facts indicating they engaged activities that “rise to the level where a joint venture or partnership has been established.”  (Defendant’s P&A, at p. 9:9-19.)  Defendant’s argument is unavailing because, to state a breach of contract claim, a plaintiff is not obligated to plead evidentiary facts to support the validity of the contract.  (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 138 [elements of a breach of contract claim are (1) the contract, (2) plaintiff’s performance or excuse, (3) defendant’s breach, and (4) resulting damages].)

The demurrer to the eighth cause of action (quiet title) is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.  To state a claim for quiet title, the pleading must set forth (1) a description of the property, (2) the plaintiff’s title and the basis of the title, (3) the adverse claims to the plaintiff’s title against which a determination is sought, and (4) the date as of which the determination is sought.  (CCP, § 761.020.)  Plaintiff fails to allege facts to support these elements, and in her opposition, she requests leave to amend.

The demurrer to the tenth cause of action (declaratory relief) is OVERRULED.  Contrary to Defendant’s assertion, Plaintiff alleges that an actual controversy exists between her and Defendant as to their respective rights to personal property and to the Property, and she seeks “[a] judicial declaration . . . [of] her rights and ownership in [the Property] and certain other assets.”  (Compl., ¶¶ 82-83; see also CCP, § 1060; see also Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722 [if the alleged “facts reveal an actual controversy exists between the parties, the complaint is legally sufficient for declaratory relief”].)

 

 

Print Friendly, PDF & Email
Copy the code below to your web site.
x 

Leave a Reply

Your email address will not be published. Required fields are marked *