Case Number: GC050396    Hearing Date: November 07, 2014    Dept: NCG

TENTATIVE RULING (11/7/14)
#8
GC 050396
HARRISON v. MANNS

Demurrer to Plaintiff Gina Harrison’s Second Amended Complaint by Defendant Kortney Manns

TENTATIVE:
Demurrer is OVERRULED.

Ten days to answer.

CAUSES OF ACTION: from Second Amended Complaint
1) Quiet Title to Real Property
2) Partition of Real Property

SUMMARY OF FACTS:
Plaintiff Gina Harrison brings this action for partition of real property, consisting of a single family residence located in Altadena, which plaintiff alleges she owns as tenants in common with defendant Kortney Manns, each party owning a one-half interest.

The file shows that on June 27, 2014, the court granted an unopposed motion by defendant to set aside a default with had been entered against her.

On September 19, 2014, the court sustained a demurrer to the complaint on the ground the quiet title cause of action was not verified, and the complaint failed to state, as required by CCP § 872.230(c): “All interests of record or actually known to the plaintiff that persons other than the plaintiff have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintiff.” The demurrer was overruled on other grounds. Plaintiff was permitted ten days leave to amend.

Defendant now challenges the sufficiency of the Second Amended Complaint.

ANALYSIS:
First Cause of Action—Quiet Title
As noted above, the demurrer was previously sustained to this cause of action on the sole ground that the pleading was not verified. The SAC is now verified.

The demurrer argues that plaintiff has failed to sufficiently state all elements of a quiet title cause of action.

The SAC sets forth that plaintiff claims she is entitled to title to the property vested in her alone in fee simple, and seeks a declaration of quiet title, as of the date on which plaintiff was induced to sign the Grant Deed, alleged to have been March 25, 2005, and describes the defendant’s adverse interest. [Paras. 14-25].

There is some argument that plaintiff has failed to name all interested parties, but this is not apparent from the face of the pleading; the allegations are that the two parties are the interested parties.

There is also an argument that the fraud alleged is not specifically stated, but it is fairly clearly alleged that the property was conveyed based on a representation that defendant would pay half the property’s mortgage, that he had no intent to honor that promise, and that plaintiff relied on that representation in adding defendant’s name to title on the property. [Paras. 16-18]. This is sufficient to allege fraud, and the demurrer is overruled.

There is also an argument that the claim is barred by the applicable statute of limitation. The underlying claim giving rise to quiet title is for fraud, which both sides agree is subject to a three year statute of limitations. CCP § 338(d) provides that “an action for relief on the ground of fraud or mistake” must be commenced within three years. CCP § 338(d) provides that in an action for relief on the ground of fraud or mistake, “The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”

A demurrer on the ground a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred. It is not enough that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

Here, the complaint is based on a deed of trust executed in 2005, but the allegations are that payments were made by defendant until June of 2012. [Para. 19]. The argument is that the pleading now alleges that from January 2008 to June 2012, defendant made only periodic monthly payments, and when defendant failed to pay his share, plaintiff made up the difference. [Paras. 19-20]. The argument is that this circumstance placed plaintiff on notice to investigate the matter and reveal the facts giving rise to the cause of action. The opposition argues that since defendant was making the periodic payments, this lulled plaintiff into believing he intended to keep his promises. It is accordingly not clear that the claim is necessarily barred and the demurrer is overruled.

Second Cause of Action—Partition of Real Property
CCP § 872.230 sets forth the required contents of a complaint for partition. As noted above, the demurrer was previously sustained for failure to describe all interests which plaintiff reasonably believes will be materially affected by the property, specifically, the interest of the mortgage lender. The SAC now describes the interest of the mortgage holders and lenders in the property. [Para. 5]. There is also an argument that plaintiff has failed to join all parties to the action, but the statutory requirements include only the requirement of a description.
There is also an argument that a lis pendens must be recorded, but this is not ground for demurrer, but, as indicated in the moving papers, may support some other motion.

The demurrer is overruled.