Case Name: Lilia Amparo Frometa-Morgado v. Victor Armando Nuno Nunez
Case No.: 18CV331861

I. Background

This is a Marvin action brought by plaintiff Lilia Amparo Frometa-Morgado (“Plaintiff”) against her former partner Victor Armando Nuno Nunez (“Defendant”).

Plaintiff and Defendant met in 1996. (Compl., ¶ 6.) Shortly after they met, they orally agreed to care for and support each other as a husband and wife would. (Compl., ¶ 6.) Plaintiff agreed to support Defendant as a “nurse, confidante, companion, homemaker, housekeeper, cook, social-companion[,] and advisor.” (Compl., ¶ 6.) In exchange, Defendant agreed to support Plaintiff financially. (Compl., ¶ 6.) They agreed to share equally the property acquired through Defendant’s labor and skill, including their mobile home and several businesses. (Compl., ¶¶ 6–7.) They also agreed to divide their property equally if their relationship ended. (Compl., ¶ 6.)

Defendant breached this agreement in March 2018 when he refused to continue to support Plaintiff. (Compl., ¶¶ 11–13.) Plaintiff also alleges she suffered emotional distress as a result of his conduct. (Compl., ¶¶ 55–61.)

Plaintiff asserts causes of action against Defendant for: (1) breach of contract; (2) breach of contract; (3) breach of contract; (4) declaratory relief; (5) fraud; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) partition.

Defendant demurs to the complaint on the ground of uncertainty and to each cause of action on the ground of failure to state facts sufficient to constitute a cause of action.

II. Discussion

A. Uncertainty

Defendant demurs to the complaint as a whole on the ground it is uncertain. A demurrer on the ground of uncertainty tests whether a pleading is ambiguous, uncertain, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–46.) Defendant does not advance any argument to support the conclusion that the pleading is uncertain, ambiguous, or unintelligible. It is not otherwise apparent to the Court that there is any basis for sustaining the demurrer on this ground. Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

B. Failure to State Sufficient Facts

A demurrer on the ground of failure to state facts sufficient to constitute a cause of action tests whether the plaintiff alleges each ultimate fact essential to the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e); C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 873.) For the purpose of a demurrer, a court considers the allegations on the face of the pleading. (Code Civ. Proc., § 430.30, subd. (a).) A court accepts the factual allegations as true and gives them a reasonable, contextual interpretation. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396–97.) The label on a cause of action does not control. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Ibid.)

1. First, Second, and Third Causes of Action

The first, second, and third causes of action are all for breach of contract. In the first and second causes of action, Plaintiff alleges Defendant breached an express contract and seeks damages or specific performance and damages or imposition of a constructive trust, respectively. In the third cause of action, Plaintiff alleges Defendant breached an implied-in-fact contract and seeks imposition of a constructive trust or damages. Defendant argues Plaintiff does not adequately plead underlying claims as well as facts sufficient to support the remedies she seeks.

i. First Cause of Action

The essential elements of a claim for breach of contract are “a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) Defendant asserts Plaintiff does not plead all of these essential elements.

Defendant first argues Plaintiff does not allege the existence of a breach with adequate specificity. He focuses on the fact that he cannot ascertain from the pleading when the alleged breach occurred. Defendant’s argument lacks merit for the following reasons.

First, Defendant does not cite and the Court is not aware of authority for the proposition that a plaintiff must allege facts with particularity or specificity to state a breach of contract claim. For example, contrary to what Defendant suggests, a plaintiff is not required to allege the specific date of a breach or injury. “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for [ ] demurrer.” (United Western Medical Centers v. Super. Ct. (1996) 42 Cal.App.4th 500, 505.) Instead, a defendant may “ascertain the factual basis of the contentions through discovery and, if necessary, file a motion for summary judgment to eliminate that cause of action should the facts reveal the claim is time barred.” (Ibid.)

Second, Plaintiff does allege facts about Defendant’s purported breach. She specifically alleges he breached their agreement on March 10, 2018, by withdrawing financial support and threatening to cease all support and maintenance in the future. (Compl., ¶¶ 6–7, 11–13.) Thus, Defendant’s assertion that no such facts are alleged is inaccurate.

In summary, Defendant’s first argument is not supported by the law or the allegations in the pleading.

Next, Defendant argues Plaintiff does not properly plead the element of damages because she does not specify the exact amount of damages she incurred. In support, he relies on Code of Civil Procedure section 425.10, which sets forth the required contents of a complaint. Under that statute, a plaintiff must include both a “statement of the facts constituting the cause of action” and a “demand for judgment.” (Code Civ. Proc., § 425.10, subds. (a)(1)–(2).) If the plaintiff demands money or damages, he or she must state the amount in the demand for judgment. (Code Civ. Proc., § 425.10, subd. (a)(2).) Defendant’s argument lacks merit because he conflates these distinct requirements.

As is apparent from the face of the statute, the statement of the cause of action is separate and distinct from the demand for judgment (sometimes called the prayer for relief). (Foley v. Foley (1963) 214 Cal.App.2d 802, 809; see, e.g., Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1011–12.) And so, contrary to what Defendant asserts, Code of Civil Procedure section 425.10 does not require a plaintiff to allege the specific amount of damages he or she suffered to properly plead the element of damages as part of the statement of the cause of action. Rather, the language Defendant relies on dictates what must be included in the demand for judgment, which is separate and distinct. His argument that the amount is an essential part of the statement of the cause of action, therefore, lacks merit.

The Court clarifies that, in general, a default judgment is “limited to the damages of which the defendants had notice.” (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 431–33, discussing Code Civ. Proc., § 425.10.) “The purpose of the [demand] requirement is to ensure that the defendant is sufficiently aware of the consequences of not answering the complaint.” (Furia v. Helm (2003) 111 Cal.App.4th 945, 957.) And so, the presence or absence of a specific dollar amount necessarily becomes an issue “only when a default judgment is to be entered.” (Ibid.) No such issue is present here.

Finally, Defendant states “the statute of frauds certainly applies to this cause of action….” (Mem. of Pts. & Auth. at p. 6:21–22.) “The primary purpose of the [statute of frauds] is evidentiary, to require reliable evidence of the existence and terms of the contract and to prevent enforcement through fraud or perjury of contracts never in fact made.” (Sterling v. Taylor (2007) 40 Cal.4th 757, 766 [internal quotation marks and citations omitted].) It is codified in Civil Code section 1624, which lists the types of contracts that “are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent.”

As relevant here, one type of contract subject to the statute of frauds is “[a]n agreement that by its terms is not to be performed within a year from the making thereof.” (Civ. Code, § 1624, subd. (a)(1).) Defendant states that his agreement with Plaintiff is subject to the statute of frauds because it “was for many years….” (Mem. of Pts. & Auth. at p. 7:1–7.) It is not apparent from Defendant’s conclusory statement that he is correctly interpreting and applying the language of this particular subdivision. To clarify, the determinative factor for purposes of the statute of frauds is not when the performance, as a matter of fact, occurred. (See Lacy v. Bennett (1962) 207 Cal.App.2d 796, 800.) Rather, the issue is whether the contract, by its very terms, was incapable of being performed within a year. (Ibid.) Defendant does not present a reasoned explanation or analysis of the allegations and applicable law sufficient to demonstrate the terms of the parties’ agreement reflect it was incapable of being performed within a year.

More significantly, as Plaintiff articulates, courts have been especially critical of whether a defendant may even rely on the statute of frauds in a Marvin action. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1072.) “Marvin noted that most cohabitation agreements are oral, and that cases had ‘expressly rejected defenses [to such agreements] grounded upon the statute of frauds.’” (Ibid., quoting Marvin, supra, 18 Cal.3d at p. 674, fn. 9.)

For these reasons, Defendant does not demonstrate the statute of frauds precludes enforcement of the contract.

In conclusion, none of the arguments advanced by Defendant justify sustaining the demurrer. The demurrer to the first cause of action is therefore OVERRULED.

ii. Second and Third Causes of Action

Although not clearly articulated by Defendant, his primary argument with respect to the second and third causes of action is that a plaintiff cannot seek imposition of a constructive trust in connection with a breach of contract claim and must instead assert a claim for fraud or breach of fiduciary duty. He also states in a conclusory manner: “Furthermore, Plaintiff does not allege all of the requirements of contractive [sic] trust.” (Mem. of Pts. & Auth. at p. 7:23–24.)

“A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) It follows that Defendant is, in essence, challenging whether Plaintiff is entitled to a particular remedy and not whether she states a cause of action. “A demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy.” (Caliber Bodyworks, Inc., supra, 134 Cal.App.4th at p. 385.) “The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.” (Ibid.) Thus, Defendant’s argument about the availability of the remedy of a constructive trust does not justify sustaining the demurrer.

Defendant does not otherwise demonstrate the facts pleaded in the second and third causes of action are insufficient to state a cause of action under any theory. (See Quelimane Co., supra, 19 Cal.4th at p. 38.) Consequently, he does not articulate a basis for sustaining the demurrer to either claim.

In consideration of the foregoing, the demurrer to the second and third causes of action is OVERRULED.

2. Fourth Cause of Action

The fourth cause of action is for declaratory relief, particularly a declaration as to Defendant’s obligation to provide support and maintenance and the parties’ rights to property, including the businesses they operated during their relationship. (Compl., ¶¶ 37–40.)

Defendant does not clearly articulate why the fourth cause of action is subject to demurrer. His reasoning is conclusory and disjointed.

A party may seek declaratory relief “in cases of actual controversy relating to the legal rights and duties of the respective parties….” (Code Civ. Proc., § 1060.) To state a claim for declaratory relief, a plaintiff must simply allege facts showing there is an actual controversy; he or she need not allege facts showing entitlement to a favorable declaration. (Centex Homes v. St. Paul Fire and Marine Insurance Co. (2015) 237 Cal.App.4th 23, 29.) Other than offering the conclusory assertion that the claim is “improperly plead [sic],” Defendant does not articulate how the allegations in the complaint fall short of this pleading standard. (Mem. of Pts. & Auth. at p. 8:17.) Thus, the Court is not persuaded that the allegations are insufficient to state a claim for declaratory relief.

Defendant also asserts the Court should decline to exercise its authority to grant declaratory relief because there are other adequate remedies available to Plaintiff. It is true that Code of Civil Procedure section 1061 gives trial courts broad discretion to decline to exercise their power to provide declaratory relief, which declination may occur at the pleading stage. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 471.) With that said, he does not demonstrate the Court should exercise this discretion under the circumstances presented here. He simply asserts Plaintiff has other adequate remedies available to her without providing any legal analysis to support this conclusion. This is insufficient. (See generally Dept. of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564–65 [discussing standard for adequacy of alternative remedies].) Consequently, Defendant does not substantiate his position.

Defendant also states “a declaratory relief action will not lie to determine issues raised in other causes of action” or issues that “can be raised as an affirmative defense.” (Mem. of Pts. & Auth. at p. 9:1–12.) It is fundamentally unclear what the significance of Defendant’s statement is as a general matter or in the context of the allegations presented here. He does not articulate and it is not apparent what issue should properly be addressed in the context of evaluating an affirmative defense or some other claim. Accordingly, Defendant does not substantiate his argument.

Based on the foregoing, Defendant does not demonstrate Plaintiff fails to state a claim for declaratory relief. The demurrer to the fourth cause of action is therefore OVERRULED.

3. Fifth Cause of Action

In the fifth cause of action for fraud, Plaintiff alleges Defendant made false promises to her, including his promise to support her. Defendant argues Plaintiff fails to state a claim for fraud because she does not allege all of the essential elements of her claim with particularity.

The essential elements of a fraud claim are: “(1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, citing Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) A plaintiff must plead these elements with particularity. (Lazar, supra, 12 Cal.4th at pp. 644–45 [internal quotation marks and citation omitted].) “[G]eneral and conclusory allegations do not suffice.” (Id. at p. 645.)

Defendant first argues Plaintiff does not adequately allege he made a misrepresentation. Here, Plaintiff alleges Defendant made false promises to her. (Compl., ¶ 42.) “A false promise is actionable on the theory that a promise implies an intention to perform, that intention to perform or not to perform is a state of mind, and that misrepresentation of such a state of mind is a misrepresentation of fact.” (Tarmann v. State Farm Mutual Auto. Insurance Co. (1991) 2 Cal.App.4th 153, 158–59.) “The allegation of a promise (which implies a representation of intention to perform) is the equivalent of the ordinary allegation of a representation of fact.” (Id. at p. 159.) Thus, Plaintiff does generally allege Defendant misrepresented that he intended to fulfill his promises.
As for the specificity of Plaintiff’s allegations, Defendant states she must allege how and when the misrepresentations were made. It is not especially clear what Defendant means when he states Plaintiff must allege how he made the misrepresentations. He does not cite any authority or provide any explanation to support his position. Additionally, Plaintiff does allege in the complaint the oral promises Defendant made to her in December 1996 (Compl., ¶¶ 6, 20), which allegations are incorporated by reference in the fifth cause of action. Thus, Defendant’s assertion that Plaintiff does not allege facts about the circumstances in which the alleged misrepresentations were made is inaccurate.

In summary, Defendant fails to substantiate his argument that the first element of the fraud claim is not properly pleaded.

Next, Defendant states Plaintiff does not adequately allege he knew his promises were false. “In a promissory fraud action…the falsity of the promise and the knowledge of that falsity (scienter) are interconnected.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061.) “A promise is only false if the promisor did not intend to perform the promise when it was made, i.e., had knowledge of its falsity.” (Id. at pp. 1061–62.) And so, an allegation that the defendant did not intend to fulfill the promise made is sufficient to allege both that a promise was false and the promisor knew it was false. (Id. at p. 1062.) Because Plaintiff alleges Defendant did not intend to fulfill his promises, she adequately alleges he knew his promises were false. Additionally, Plaintiff explicitly alleges “he knew [the promises] were false.” (Compl., ¶ 43.) Consequently, Defendant’s argument lacks merit.

Defendant also asserts in a conclusory manner that Plaintiff does not adequately allege he intended to deceive her. Here, Plaintiff alleges Defendant “intended to defraud and deceive [her]….” (Compl., ¶ 44.) Defendant does not articulate and it is not otherwise obvious how this allegation is insufficient standing alone or when read in the context of the other factual allegations in the complaint. (See, e.g., Beckwith, supra, 205 Cal.App.4th at p. 1062.) He does not cite any authority that independently supports his position. Thus, his argument is unsubstantiated.

Defendant does not address the remaining elements of a fraud claim. The Court notes that Plaintiff does allege specific facts about her reliance and the damages she suffered as a result of her reliance on Defendant’s promises. Thus, there is no basis for concluding the other elements of Plaintiff’s claim are not properly pleaded.

In conclusion, the demurrer to the fifth cause of action is OVERRULED.

4. Sixth and Seventh Causes of Action

Plaintiff’s sixth and seventh causes of action for intentional infliction of emotional distress (“IIED”) and negligent infliction of emotional distress (“NIED”) are based on allegations that Defendant’s withdrawal of support for her and taking of her property caused her to suffer emotional distress, including humiliation, anguish, loss of sleep and energy, tension, shock, and anxiety. (Compl., ¶¶ 52, 55, 59, 61.)

Defendant’s argument that the allegations in the sixth and seventh causes of action are insufficient to state claims for IIED and NIED is not supported by analysis of the law or the allegations in the pleading. He relies on conclusory and disjointed assertions that the allegations are inadequate. It is insufficient to merely assert a point without providing authority and analysis in support. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–85.) As a consequence, Defendant does not substantiate his demurrer. The demurrer to the sixth and seventh causes of action is therefore OVERRULED.

5. Eighth Cause of Action

In the eighth cause of action for partition, Plaintiff alleges she and Defendant each have “an undivided one-half interest as tenants in common in the above described property.” (Compl., ¶ 63.) This property includes a mobile home, three businesses, and “[o]ther.” (Compl., ¶ 5.)

Under Code of Civil Procedure section 872.210, “[a] partition action may be commenced and maintained by…[a] coowner of personal property” as well as an owner of an estate in real property.
Defendant first asserts Plaintiff cannot maintain a partition action because she alleges she is not an owner of the property at issue. He fails to identify any allegation that supports this assertion. His assertion is, in fact, false. Plaintiff does allege she has an ownership interest in the property at issue. (Compl., ¶¶ 5, 63.) Thus, the demurrer is not sustainable on this basis.
Defendant also states Plaintiff cannot maintain a partition action based on the limitation in Code of Civil Procedure section 872.210, subdivision (b), which states: “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.” This limitation is inapplicable, and Defendant provides no authority or analysis to support a contrary conclusion.

The allegations in the complaint reflect Plaintiff and Defendant were not married and are not “putative spouses,” which is a term used to describe spouses who believe they are lawfully married but whose marriage is not actually valid due to some procedural irregularity or failure to comply precisely with the statutory requirements for a valid marriage. (See generally Burnham v. California Public Employees’ Retirement System (2012) 208 Cal.App.4th 1576, 1585–86.) Indeed, in Marvin, the California Supreme Court explicitly stated “we do not hold that plaintiff and defendant were ‘married,’ nor do we extend to plaintiff the rights which the Family Law Act grants valid or putative spouses; we hold only that she has the same rights to enforce contracts and to assert her equitable interest in property acquired through her effort as does any other unmarried person.” (Marvin, supra, 18 Cal.3d at p. 684, fn. 24.) It follows that the prohibition of actions for partition of property held by spouses or putative spouses necessarily does not apply to nonmarital partners seeking relief through a Marvin action. Consequently, Defendant’s second argument lacks merit.

For the reasons set forth above, the demurrer to the eighth cause of action is OVERRULED.

The Court will prepare the order.