Case Number: KC069491 Hearing Date: March 26, 2018 Dept: J

Re: Fernando Hernandez, et al. v. George F. Alvarez, et al. (KC069491)

DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Moving Party: Defendant/Cross-Complainant George F. Alvarez

Respondents: Plaintiff/Cross-Defendant Fernando Hernandez and Plaintiff Maria De Jesus Hernandez

POS: Moving timely filed but served by mail on 2/26/18 contrary to CCP § 1005(b); Opposing OK; Reply to opposition to demurrer served by regular mail contrary to CCP § 1005(c)

Plaintiff alleges that he purchased the real property located at 4847 Slancroft Avenue in Baldwin Park (“subject property”) from George “Frank” Alvarez (“Alvarez”) in 2005 and thereafter made mortgage payments to him. Alvarez apparently sold the subject property in 2017 to Oseguera Investments Inc. The complaint was filed 7/27/17. The First Amended Complaint, filed 2/8/18, asserts causes of action against Defendants Alvarez, Juan Sanchez, Oseguera Investments, Inc., Steve Carmona, Laikin Realty Corp., All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiffs’ Title or Any Cloud on Plaintiffs’ Title Thereto and Does 1-20 for:

1. Quiet Title

2. Breach of Contract

3. Breach of the Covenant of Good Faith and Fair Dealing

4. Breach of Fiduciary Duty

5. Negligent Misrepresentation

6. Fraud

7. Money Had and Received/Unjust Enrichment

On 3/19/18, Alvarez filed his cross-complaint, asserting causes of action against plaintiff for:

1. Breach of Contract

2. Breach of the Implied Covenant of Good Faith and Fair Dealing

3. Fraud

4. Unjust Enrichment

5. Elder Abuse

A Case Management Conference is set for 4/5/18.

DEMURRER TO FIRST AMENDED COMPLAINT:

Defendant George F. Alvarez (“defendant”) demurs to the first through third and fifth through seventh causes of action in Plaintiffs Fernando Hernandez’s and Maria De Jesus Hernandez’s First Amended Complaint (“FAC”), per CCP § 430.10(e), on the basis that they each fail to state facts sufficient to constitute causes of action. Defendant also demurs to the third and fifth causes of action, per subsection (f), on the basis of uncertainty.

NOTICE:

At the outset, the court notes that, while defendant’s demurrer was filed on 2/28/18, it was mail-served on 2/26/18. The deadline for mail-service was 2/25/18 pursuant to CCP § 1005(b). With that said, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.

The court elects to entertain the merits of the demurrer, inasmuch as plaintiffs have filed a substantive opposition.

The court notes that defendant purports to demur to the first cause of action for Quiet Title; this cause of action, however, is not directed against him.

SECOND CAUSE OF ACTION (i.e., BREACH OF CONTRACT):

“’A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’ (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228.

Plaintiffs have alleged that, on or about 6/13/05, they purchased the property located at 4847 Stancroft Avenue in Baldwin Park (“subject property”) from defendant and that the sale was “evidenced by, among other things, a Purchase Agreement” between them, attached as Exhibit “A.” (FAC, ¶¶ 11 and 14). Plaintiffs contend that, in addition to the written Purchase Agreement, “[t]he parties also had an implied in fact contract based on their course of conduct during the last twelve years” and that “the parties’ course of conduct defined/amended/modified the terms of the Purchase Agreement to the extent any terms were vague, undefined, or waived.” (Id., ¶ 26).

Defendant contends that plaintiffs’ second cause of action fails to identify any enforceable contract, because the Purchase Agreement had expired, by its terms, as of 6/29/07. (Demurrer, 8:26-91). Defendant further claims that, while the parties twice agreed to extend the 6/29/07 date until 6/30/13, the parties could not extend this date further unless they agreed to do so in writing. (Id., 9:14-16, 9:22-24 and Alvarez Decl., ¶ 3, Addendums Nos. 2 and 3). The court notes that Addendums Nos. 2 and 3 were not attached as exhibits to the FAC and are not judicially noticeable documents. Plaintiffs, in turn, represent that they did not attach these addendums to the FAC because they did not have copies. (Opposition, p. 4, fn. 2). It is evident, then, that plaintiffs have not adequately alleged the parties’ contractual agreement.

Defendant’s demurrer to the second cause of action is sustained.

THIRD CAUSE OF ACTION (i.e., BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING):

Defendant’s demurrer to the third cause of action is sustained, for the reasons noted above.

FIFTH AND SIXTH CAUSES OF ACTION (i.e., NEGLIGENT MISREPRESENTATION AND FRAUD, RESPECTIVELY):

“The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243).” National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.

“The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638). Fraud allegations ‘involve a serious attack on character’ and therefore are pleaded with specificity. (Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707). General and conclusory allegations are insufficient. (Lazar at p. 645). The particularity requirement demands that a plaintiff plead facts which ‘”’show how, when, where, to whom, and by what means the representations were tendered.’”’ (Ibid.).” Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469. Likewise, “[e]ach element in a cause of action for…negligent misrepresentation must be factually and specifically alleged. (Small[ v. Fritz Companies, Inc. (2003)] 30 C.4th [167,] at p. 184).” Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.

Plaintiffs have sufficiently alleged these causes of action, in ¶¶ 11, 15-17, 19, 20, 22, 43-47 and 49-53. Accordingly, defendant’s demurrer to the fifth and sixth causes of action is overruled.

SEVENTH CAUSE OF ACTION (i.e., MONEY HAD AND RECEIVED/ UNJUST ENRICHMENT):

“A cause of action for money had and received is stated if it is alleged the defendant ‘is indebted to the plaintiff in a certain sum “for money had and received by the defendant for the use of the plaintiff.”’ (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623).” Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.

“A common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” 4 Witkin, Cal. Proc. 5th Plead § 554 (2008). “A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract.” Utility Audit Co. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.

Plaintiffs have adequately alleged the elements of this cause of action. Defendant’s demurrer is overruled.

MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT:

Defendant George F. Alvarez (“defendant”) moves the court, per CCP §§ 435 and 436, for an order striking out the following portions of Plaintiffs Fernando Hernandez’s and Maria De Jesus Hernandez’s (“plaintiffs”) First Amended Complaint (“FAC”):

a. Exhibit “A;”

b. The second cause of action (i.e., for Breach of Contract);

c. The fifth cause of action (i.e., for Negligent Misrepresentation);

d. The sixth cause of action (i.e., for Fraud)

e. The seventh cause of action (i.e., for Money Had and Received/Unjust Enrichment)

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all of any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP § 436.

At the outset, the motion is moot with respect to the second cause of action and Exhibit “A,” based on the recommendation made on the demurrer. The motion is summarily denied with respect to the fifth through seventh causes of action, as defendant has not utilized the appropriate statutory vehicle. A motion to strike is appropriate only when seeking to strike out portions of causes of action which may be time-barred.

The court grants plaintiffs 10 days leave to amend the second and third causes of action.