Case Number: BC493470    Hearing Date: August 05, 2014    Dept: 34

Moving Party: Defendants Lisa M. Delgado and Steven R. Delgado (“defendants”)

Resp. Party: None

The Court takes judicial notice of the items requested by defendants. (See Evid. Code, § 452(c), (h).) The Court notes that exhibits 2 and 3 are not separated and can both be found after the hard tab for exhibit 3.

Defendants’ motion for judgment on the pleadings is GRANTED only as to the first cause of action. The motion is otherwise DENIED.

PRELIMINARY COMMENTS:

The Court finds it strange that defendants’ motion for judgment on the pleadings is unopposed. If plaintiff agrees that there is no merit in his case, he should have dismissed the matter. On the other hand, if plaintiff believes his case has merit and should withstand a motion for judgment on the pleadings, the Court would have expected that he would have opposed the motion.

The Court reminds the parties that trial in this matter is less than two months away, and the court is not inclined to continue the trial on this two-year old matter.

BACKGROUND:

Plaintiff commenced this action on 10/9/12, against defendants for: (1) quiet title; (2) breach of contract; (3) fraud; (4) specific performance; (5) injunctive relief; and (6) constructive trust. Plaintiff filed a first amended complaint on 4/22/13 for the same six causes of action.

Plaintiff alleges that he and Maria Pulido cohabitated with each other in the subject property, which was owned by Pulido. (FAC ¶ 8.) Plaintiff alleges that he and Pulido agreed to provide for each other. (Id., ¶¶ 8-10.) Pulido died on September 9, 2010. (Id., ¶ 11.) Plaintiff alleges that, shortly before her death, Pulido reiterated an agreement with plaintiff in the presence of her daughter, defendant Lisa M. Delgado, that plaintiff was entitled to occupy and to have the quiet use of the property for life. (Ibid.) Plaintiff alleges Delgado promised Pulido and plaintiff that plaintiff could continue to have a right to occupy and have quiet use of the property for life. (Id., ¶ 12.) Plaintiff alleges that on August 30, 2012, Delgado breached her promise by serving plaintiff with a notice to quit. (Id., ¶ 15.)

ANALYSIS:

Defendants move for judgment on the pleadings on the ground that every cause of action is based on an alleged promise made by Pulido, and the action is not timely because it was not commenced within one year of Pulido’s death.

“If a person has a claim that arises from a promise or agreement with a decedent to distribution from an estate or trust or under another instrument, whether the promise or agreement was made orally or in writing, an action to enforce the claim to distribution may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., § 366.3(a).) Plaintiff alleges that Pulido died in September 2010. (See FAC ¶ 11. See also RJN, Exh. 2.) Plaintiff did not commence the instant action until over two years later, in October 2012. Therefore, to the extent that the action arises from a promise or agreement with Pulido, the action is untimely.

Defendants are incorrect in their assertion that the entire complaint is based on a promise by Pulido for a distribution of her estate. While it is true that plaintiff asserts that such a promise was made by Pulido, plaintiff also clearly alleges that another promise was made by defendant Lisa Delgado to allow plaintiff to continue to occupy, use, and enjoy the property. (See FAC ¶¶ 9, 11, 12.) The second and third causes of action are solely based on Delgado’s agreement and fraudulent conduct. (See id., ¶¶ 23-24, 29-32.) The fourth, fifth, and sixth causes of action are based on both agreements and, because they do not entirely fail for untimeliness, are sufficient to withstand the instant motion. (See id., ¶¶ 39, 42, 43, 46, 47.) The first cause of action is the only one that is solely based on Pulido’s oral agreement. (See, e.g., id., ¶ 20 [alleging that plaintiff acquired a life interest in the property based on Pulido’s argument].)

Accordingly, defendants’ motion for judgment on the pleadings is GRANTED only as to the first cause of action. The motion is otherwise DENIED.