Case Name:   Judy Ann Alonzo, M.D. v. Saddigheh Danaye-Elmi, et al.

Case No.:       1-14-CV-258708

Demurrer and Motion to Strike Second Amended Complaint by Defendants Saddigheh Danaye-Elmi and Cyrus Danaye-Elmi

Defendants Saddigheh Danaye-Elmi and Cyrus Danaye-Elmi’s motion to strike paragraph 10(d) of plaintiff Judy Ann Alonzo, M.D.’s second amended complaint is GRANTED. Plaintiff relies, in part, upon Jones v. Sacramento Savings & Loan Assn. (1967) 248 Cal.App.2d 522, 530 where the court wrote, “A general doctrine of equity permits imposition of an equitable lien where the claimant’s expenditure has benefited another’s property under circumstances entitling the claimant to restitution.” However, Jones goes on to state, “It is necessary that the lien claimant’s money be spent upon the expected security of the property against which the lien is sought. [Citation.] The evidence permits no question but that such reliance existed here.” (Jones, supra, 248 Cal.App.2d at p. 530.) In particular, “Nonconflicting evidence demonstrates and this court finds that both the then owner and the lender intended that the construction loan be secured by first liens.” (Id. at p. 529; emphasis added.) Plaintiff’s allegation, at best, asserts her intent alone to create a security interest, but does not allege the defendants’ intent to create a security interest. Plaintiff contends her allegation that defendants “repeatedly reassured her should would be repaid in full” is sufficient to allege an intent to create a security interest. However, an agreement to repay in full is quite distinct from a pledge of security interest.

Defendants Saddigheh Danaye-Elmi and Cyrus Danaye-Elmi’s motion to strike certain amounts claimed of plaintiff Judy Ann Alonzo, M.D.’s second amended complaint on the ground that they are barred by the statute of limitations is DENIED. Plaintiff has adequately alleged facts to invoke the doctrine of equitable estoppel. “The existence of an estoppel is generally a question of fact for the trial court whose determination is conclusive on appeal unless the opposite conclusion is the only one that can be reasonably drawn from the evidence. [Citation.] When the evidence is not in conflict and is susceptible of only one reasonable inference, the existence of an estoppel is a question of law. [Citation.]” (Potstada v. City of Oakland (1973) 30 Cal.App.3d 1022, 1028; see also Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315.)

Defendants Saddigheh Danaye-Elmi and Cyrus Danaye-Elmi’s demurrer to plaintiff Judy Ann Alonzo, M.D.’s second amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED. California Rules of Court, rule 3.1113, subdivision (a) states, in relevant part, “[t]he court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial, and in the case of a demurrer, as a waiver of all grounds not supported.”  Defendants offer no relevant discussion in support of their general demurrer to the second amended complaint.