Case Number: BC564386 Hearing Date: March 16, 2018 Dept: 46

Case Number: BC564386
LONNIE MERRITT ET AL VS MARY HARO

Filing Date: 11/19/2014
Case Type: Mortgage Foreclosure

03/16/2018
Hearing on Demurrer
Motion to Strike First Amended Complaint
Motion to Strike

TENTATIVE RULING

Plaintiff’s counsel is warned pursuant to CRC 3.1113(d) that Plaintiff’s papers do not comply with form requirements. In the future, papers filed by Plaintiff that do not conform will not be considered by the court.

Peter Maarten Vandermark and e-mortgageloans.com, Inc dba Exit Dream House Realitys’ Motion to Strike First Amended Complaint is Denied. See discussion.

Mary Haro’s Demurrer is OVERRULED as to the 1st, 2nd, 3rd, 6th, 7th, 10th, and 13th causes of action; Haro’s Demurrer is SUSTAINED WITH 10 days LEAVE TO AMEND as to the 5th, 8th, 9th, and 14th causes of action; Haro’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 4th, 11th, and 12th causes of action. See discussion.

Mary Haro’s Motion to Strike is DENIED. See discussion.

DISCUSSION

The First Amended Complaint

On 11/6/17, Plaintiffs (“Ps”) filed their First Amended Complaint (“FAC”) for (1) Breach of Contract; (2) Estoppel; (3) Breach of Good Faith and Fair Dealing; (4) Breach of Fiduciary Duty; (5) Fraudulent Misrepresentation; (6) Fraudulent Promise Without Intention to Perform; (7) Fraudulent Concealment; (8) To Set Aside Note and Deed of Trust Based Upon Fraudulent Inducement; (9) Fraud; (10) Conspiracy to Commit Fraud; (11) Conversion; (12) Claim and Delivery; (13) Set Aside Fraudulent Transfers; and (14) Imposition of a Constructive Trust; against Defendants Mary Haro (hereinafter, “Haro”); Pieter Maarten Vandermark (hereinafter “Vandermark”); Andre Designer, LLC (hereinafter “Andre”); E-MortgageLoans.com, Inc. (hereinafter “E-Lender”); Exit Dream House Realty (hereinafter “Exit”); Olga Leticia Pacheco (hereinafter “Pacheco”); Oscar “Doe” (hereinafter “Oscar”); and DOES 5-9. On 12/24/14, Ps filed an “Amendment to Complaint,” wherein “Pieter Vandermark” was named in lieu of DOE 1.

On 4/7/15, this court granted Defendant’s motion to enforce settlement pursuant to CCP § 664.6, and entered judgment according to the terms of the settlement. On 6/30/17, this court set aside that judgment as void.

Vandermark and E-Lender Motion to Strike

On 2/21/18, the court continued the motion for further briefing setting forth the specific reasons why Defendants believed Plaintiffs had not complied with CCP §472. (Minute Order of 2/21/18). Defendants neither filed nor served any such briefing. The court may construe this as a concession that the motion is not meritorious. See CRC Rule 3.1113(a). Accordingly, the motion to strike is DENIED.

Mary Haro Demurrer

(The demurrer is OVERRULED as to the 1st-3rd, 6th-7th, 10th, and 13th COAs. It is SUSTAINED, with leave to amend as to the 5th, 8th-9th, and 14th COAs. It is SUSTAINED, without leave to amend as to the 4th, 11th, and 12th Causes of Action (“COAs”).)

Plaintiff’s Defective Papers

Plaintiff’s counsel is warned that his opposition papers are seriously deficient. In the first place, they were filed two days late; the filing deadline is nine court days, not nine calendar days, before the hearing. CCP §1005(b). In the second place, Plaintiffs’ papers are in violation of CRC Rules 2.104 and 2.108, which require that papers be 1 ½ spaced or double spaced, and in font of not smaller than 12 points. The Oppositions are composed of small, single-spaced print that has allowed Plaintiffs’ counsel to cram 42 lines onto pleading paper clearly designed to hold only 28. This formatting violation permits Plaintiffs to circumvent the 15-page limit for their memorandum and gain an unfair advantage over Defendants. CRC Rule 3.1113(d). Plaintiffs’ counsel is placed on notice that future papers bearing these defects will not be considered by this court.

1st COA: 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 C.A.3d 1371, 1388).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 C.A.4th 221, 228. “Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Code Civ.Proc., § 430.10, subd. (g).).” Otworth v. Southern Pac. Transportation Co. (1985) 166 C.A.3d 452, 458-459 (implicitly overruled on other grounds as recognized by Miles v. Deutsche Bank National Trust Company (2015) 236 C.A.4th 394, 401-402).

“’A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” [Citation.]’ (McKell v. Washington Mutual, Inc. (2006) 142 C.A.4th 1457, 1489.).” Heritage Pacific Financial, LLC v. Monroy (2013) 215 C.A.4th 972, 993.

“A written contract which is the foundation of a cause of action may be pleaded in haec verba rather than according to its legal effect, either by setting forth a copy in the body of the pleading or by attaching a copy as an exhibit and incorporating it by reference.” Bates v. Daley’s, Inc. (1935) 5 C.A.2d 95, 101 (Emphasis added). The court in Gilmore v. Lycoming Fire Ins. Co. (1880) 55 C. 123, 124 adds that “[w]here a party relies upon a contract in writing, and it affirmatively appears that all the terms of the contract are not set forth in haec verba, nor stated in their legal effect, but that a portion which may be material has been omitted, the complaint is insufficient.”

Civ. Code § 1621 states that “[a]n implied contract is one, the existence and terms of which are manifested by conduct.”

The FAC pleads in relevant part as follows:

“39. Oral Agreement — Retention to Sell Home: In or about February 2014, Plaintiffs entered into an oral agreement with HARO to sell the Subject Property in a short sale. In March 2014 HARO posted a “For Sale” sign on the Subject Property with the name “Exit Dream House Realty,” HARO’s name, and HARO’s phone number.

40. Plaintiffs Performed the Oral Agreement: Plaintiffs agreed that HARO would be paid a commission to sell the Subject Property.

41. Breach by HARO: HARO breached the oral agreement by not selling the Subject Property; fraudulently misrepresenting to Plaintiffs that she had sold the Subject Property; forging a Deed; fraudulently alleging that Plaintiffs gifted the Subject Property to HARO; and thereafter moving into the Subject Property.

42. Exception to Statute of Frauds: This oral agreement is valid and outside the Statute of Frauds due to the fact that Plaintiffs relied on Defendant’s promises and performed all of Plaintiffs’ obligations pursuant to the promises. Accordingly, the oral agreement is outside the realm of the Statute of Frauds. Further, given Plaintiffs’ reliance and performance, Defendants are equitably estopped from claiming the Statute of Frauds as a defense; as the oral promises are binding. Equitable estoppel constitutes an exception to the statute of frauds, and applies where a party would suffer an unconscionable injury absent enforcement of the oral agreement, including where a party has been induced by another to seriously change its position in reliance upon the agreement, as is the case here.

43. Damages: As a direct and proximate cause of Defendant’s material breaches of the above- referenced agreement, Plaintiffs have been prejudiced, have suffered; and will continue to suffer, general and special damages, including loss of the Subject Property, costs and expenses related to protecting themselves, reduced credit scores, unavailability of credit, increased costs of credit, reduced availability of goods and services tied to credit ratings, increased costs of those goods and services, as well as fees and costs, including without limitation, attorney’s and costs, all in an amount according to proof at the time of trial.” (FAC ¶¶ 39-43).

Haro raises the issue of the Statute of Frauds. Civil Code §1624(a)(4). However, Plaintiffs have pled sufficient facts to suggest that the doctrine of part performance applies here.

“Part performance allows enforcement of a contract lacking a requisite writing in situations in which invoking the statute of frauds would cause unconscionable injury.” Secrest v. Security Nat. Mortg. Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 555. The elements of an estoppel based on part performance are: (1) the party seeking enforcement actually performed a part or all of his obligations under the contract, and (2) the party seeking enforcement must have changed position in some other way in reliance on the contract to such an extent that non-enforcement would result in an unjust or unconscionable loss, amounting in effect to a fraud.” Id. The doctrine of part performance is ordinarily invoked by a buyer against a seller; the traditional situation is that a buyer has paid the down payment and moved into the property when the seller suddenly decides to back out of the deal. See Sutton v. Warner (1993) 12 Cal.App.4th 415, 422. The doctrine of part performance is based on two major policy considerations: (a) that the evidentiary function of a written contract is served just as well by the buyer’s assumption of physical possession as against the seller, and (a) that the reliance on the promise provides a compelling basis for relief. Id. And the law is quite clear that payment of money by itself does not meet the second element of the doctrine of part performance, because parties who pay money under invalid contracts already have adequate remedies at law (viz. an action for restitution). Secrest, supra, 167 Cal.App.4th at 555.

Ps have alleged that they hired Haro to sell their house on commission and moved out of their house. Plaintiffs further allege that, instead of selling the house, Haro moved in. This falls within the class of suits traditionally covered by the doctrine of part performance. Plaintiffs both partially performed and changed their position by moving out of the property. Non-enforcement would essentially confer a free house on Haro. Plaintiffs have otherwise properly alleged the material terms of the contract.

The demurrer is OVERRULED as to this COA.

2nd COA: Promissory Estoppel

“The elements of a promissory estoppel claim are “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” US Ecology, Inc. v. State (2005) 129 C.A.4th 887, 901.

Plaintiffs have properly alleged this. They have alleged that Haro promised to sell their house on commission, and told Plaintiffs that she had done so, and that they relied by vacating the premises. (FAC ¶¶39-51).

The demurrer is OVERRULED as to this COA.

3rd COA: Breach of the Implied Covenant

“’”The [implied] covenant of good faith and fair dealing[ ][is] implied by law in every contract.”’ (Durell v. Sharp Healthcare (2010) 183 C.A.4th 1350, 1369). The covenant is read into contracts and functions ‘”as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.”’ (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 C.A.4th 1026, 1031-1032). The covenant also requires each party to do everything the contract presupposes the party will do to accomplish the agreement’s purposes. (Harm v. Frasher (1960) 181 C.A.2d 405, 417). A breach of the implied covenant of good faith is a breach of the contract (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1393), and ‘breach of a specific provision of the contract is not … necessary’ to a claim for breach of the implied covenant of good faith and fair dealing (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 C.4th 342, 373 & fn. 12).” Thrifty Payless, Inc. v. Americana at Brand, LLC (2013) 218 C.A.4th 1230, 1244.

However, “it is well established that an implied covenant cannot create an obligation inconsistent with an express term of the agreement.” Nein v. HostPro, Inc. (2009) 174 C.A.4th 833, 852. “’The implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.’ (1 Witkin, Summary of Cal. Law (2003 supp.) Contracts, § 743, p. 449.).” Pasadena Live, LLC v. City of Pasadena (2004) 114 C.A.4th 1089, 1094 (emphasis theirs).

“[N]o reported case…has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement. On the contrary, as a general matter, implied terms should never be read to vary express terms. (Tanner v. Title Ins. & Trust Co. (1942) 20 C.2d 814, 824; see, Wal-Noon Corp. v. Hill (1975) 45 C.A.3d 605, 613). Carma Developers, supra, 2 C.4th at 374. “[T]he implied covenant will only be recognized to further the contract’s purpose; it will not be read into a contract to prohibit a party from doing that which is expressly permitted by the agreement itself.” Wolf v. Walt Disney Pictures and Television (2008) 162 C.A.4th 1107, 1120.

“If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. Thus, absent those limited cases where a breach of a consensual contract term is not claimed or alleged, the only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1395.

Under ordinary circumstances, there can be no recovery in tort for breach of the implied covenant outside the insurance context. See Cates Construction, Inc. v. Talbot Partners (1999) 21 C.4th 28, 43. However, where the breach is accompanied by a violation of an independent duty arising from tort law, there may be recovery for tortious breach of the implied covenant. See Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 C.4th 85, 102; Innovative Business Partnerships, Inc. v. Inland Counties Regional Center, Inc. (2011) 194 C.A.4th 623, 631-632. A tortious breach may be found where “(1) the breach is accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion or; (3) one party intentionally breaches the contract intending or knowing that such a breach will cause severe, unmitigable harm in the form of mental anguish, personal hardship, or substantial consequential damages.” (Freeman & Mills, supra, 11 Cal.4th at p. 105 (conc. and dis. opn. of Mosk, J.).).” Erlich v. Menezes (1999) 21 C.4th 543, 553-554.

Here, Plaintiffs base their allegations on a series of alleged fraudulent representations. (FAC ¶54). This is sufficient to permit a recovery for tortious breach of the implied covenant.

The demurrer is OVERRULED as to this COA.

4th COA: Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: 1) the existence of a fiduciary duty; 2) a breach of the fiduciary duty; and 3) resulting damage. (City of Atascadero v. Merill, Lynch, Pierce, Fenner & Smith, Inc. (1999) 68 C.A.4th 445, 483).” Pellegrini v. Weiss (2008) 165 C.A.4th 515, 524. “The mere placing of a trust in another person does not create a fiduciary relationship. (Ampuero v. Luce (1945) 68 C.A.2d 811, 819).” Zumbrun v. University of Southern California (1972) 25 C.A.3d 1, 13.

“The key factor in the existence of a fiduciary relationship lies in control by a person over the property of another.” Vai v. Bank of America National Trust & Savings Ass’n (1961) 56 C.2d 329, 338.

Plaintiffs supply no authority stating that Haro owed them a fiduciary duty, and in fact there is authority which suggests otherwise. Defendant Haro stands in relation to Plaintiffs, more or less, as a real estate agent, and a real estate agent only has a fiduciary duty where she represents both seller and buyer in a transaction. See Horiike v. Coldwell Banker Residential Brokerage Company (2016) 1 C.5th 1024, 1031, 1033. Where a real estate agent only represents one party, there is no fiduciary duty. Id. Therefore, Haro had no fiduciary duty to Plaintiffs.

The demurrer is therefore SUSTAINED, without leave as to this COA.

5th-10th COAs: Various Fraud Theories

The elements of a cause of action for fraud are: (1) a false representation, actual or implied, or concealment of a matter of fact material to the transaction which defendant had a duty to disclose or defendant’s promise made without the intention to perform; (2) defendant’s knowledge of the falsity; (3) defendant’s intent to deceive; (4) plaintiff’s justifiable reliance thereon; and (5) resulting damage to plaintiff. Mosier v. Southern Calif. Physicians Ins. Exchange (1998) 63 C.A.4th 1022, 1045. Fraud must be specifically pled, and the particularity requirement necessitates the pleading of facts that “show how, when, where, to whom, and by what means the representations were tendered.” Stansfield v. Starkey (1990) 220 C.A.3d 59, 73.

“To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. (Hills Trans. Co. v. Southwest Forest Industries, Inc. (1966) 266 C.A.2d 702, 708; Regus v. Schartkoff (1957) 156 C.A.2d 382, 389).” Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 C.A.4th 153, 159. [M]aking a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise.” Id. “’[S]omething more than nonperformance is required to prove the defendant’s intent not to perform his promise.’ (People v. Ashley (1954) 42 C.2d 246, 263; see also Jacobson v. Mead (1936) 12 C.A.2d 75, 82; Justheim Petroleum Company v. Hammond (10th Cir. 1955) 227 F.2d 629, 637; Rest.2d Torts, § 530, com. d.; Prosser, Torts (5th ed. 1984) § 109, p. 764.).” Tenzer v. Superscope, Inc. (1985) 39 C.3d 18, 30.

“To sufficiently plead the first requirement, that the defendant made a promise, the complaint must state “ ‘facts which “show how, when, where, to whom, and by what means the representations were tendered.” ’ [Citation.]” (Lazar, supra, 12 Cal.4th 631, 645, 49 Cal.Rptr.2d 377, 909 P.2d 981.) As for the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance. (See Tyco Industries, Inc. v. Superior Court (1985) 164 Cal.App.3d 148, 156, 211 Cal.Rptr. 540.) “The representation (implied) is that of the intention to perform [citation]; the truth is the lack of that intention. Purely evidentiary matters—usually circumstantial evidence or admissions showing lack of that intention—should not be pleaded. Hence, the only necessary averment is the general statement that the promise was made without the intention to perform it, or that the defendant did not intend to perform it.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 725, p. 142.).” Beckwith v. Dahl (2012) 205 C.A.4th 1039, 1060.

Haro demurs to each of these COAs in a blanket fashion, alleging that the pleading is insufficiently specific and that reliance has not been alleged. As discussed above, reliance has been alleged. And Plaintiffs have properly pled the fraud, in some detail. (FAC ¶¶ 39, 54, 61). Haro has been well informed of the grounds of the charges, and should be able to evaluate them. See Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 231.

With that said, there are certain housekeeping elements related to two of the COAs challenged here. The 8th COA “To Set Aside Note and Deed of Trust Based Upon Fraudulent Inducement” as pled is really a COA for Cancellation of Instruments. Thus, the demurrer to that COA is SUSTAINED, with leave to allow Plaintiffs to properly caption and plead it.

Also, the 5th and 9th COAs for Fraud simpliciter have a large body of overlapping facts, and the fact that they remain separate creates a risk of confusion and double recovery. Therefore, the demurrer is SUSTAINED, with leave as to both COAs to allow Plaintiff to combine the allegations into a single COA.

The demurrer to the 6th, 7th, and 10th COAs is OVERRULED.

11th COA: Conversion

“’”Conversion is the wrongful exercise of dominion over the property of another.”’(Farmers Ins. Exchange v. Zerin (1997) 53 C.A.4th 445, 451). The elements of a claim for conversion are (1) ‘the plaintiff’s ownership or right to possession of the property at the time of the conversion,’ (2) ‘the defendant’s conversion by a wrongful act or disposition of property rights,’ and (3) damages. (Ibid.). ‘It is not necessary that there be a manual taking of the property,” only “an assumption of control or ownership over the property, or that the alleged converter has applied the property to his [or her] own use.’ (Id. at pp. 451-452).” Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 C.A.4th 1105, 1135.

“’To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession.’ (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 C.A.3d 593, 610). To do so, the plaintiff must have ‘either ownership and the right of possession or actual possession [of the property] at the time of the alleged conversion thereof.’ (General Motors A. Corp. v. Dallas (1926) 198 Cal. 365, 370). ‘[A] mere contractual right of payment, without more, will not suffice’ to support a claim for conversion. (Farmers Ins. Exchange v. Zerin [(1997)] 53 C.A.4th [445,] at p. 452).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 C.A.4th 221, 232-233.

Additionally, “the simple failure to pay money owed does not constitute conversion.” Kim v. Westmoore Partners, Inc. (2011) 201 C.A.4th 267, 284.

“[A] conversion claim does not require that a specific lump sum of money be entrusted to defendant; the plaintiff must merely prove a specific, identifiable sum of money that was taken from it. ‘California cases permitting an action for conversion of money typically involve those who have misappropriated, commingled, or misapplied specific funds held for the benefit of others. [Citations.]’ (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP [(2007)] 150 C.A.4th [384,] at pp. 396, italics added.).” Welco Electronics, Inc. v. Mora (2014) 223 C.A.4th 202, 216.

“The tort of conversion applies to personal property, not real property.” Salma v. Capon (2008) 161 C.A.4th 1275, 1295. The basis for Plaintiffs’ claims is the alleged taking of their real property. A conversion COA is not available here.

The demurrer to this cause of action is therefore SUSTAINED, without leave.

12th-14th COAs: Constructive Trust, Claim and Delivery, and Fraudulent Transfer, respectively

A claim for constructive trust “is not an independent cause of action but merely a type of remedy for some categories of underlying wrong. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 796, p. 252.).” Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal. App. 4th 1018, 1023 n. 3.

“’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. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.] The principal circumstances where constructive trusts are imposed are set forth in Civil Code sections 2223 and 2224. Section 2223 provides that “[o]ne who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” Section 2224 states that “[o]ne who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” Under these statutes and the case law applying them, a constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.’ (Communist Party v. 522 Valencia, Inc. (1995) 35 C.A.4th 980, 990; italics in original.).” Burlesci v. Petersen (1998) 68 C.A.4th 1062, 1069.

“The wrongful exercise of dominion over the personal property of another, whether it involves wrongful taking or lawful taking and wrongful withholding, constitutes the tort of conversion. The injured party may elect either of two main types of actions: (1) specific recovery of the property, with damages, in a proper case, for its detention; or (2) damages for conversion based on the value of the property taken. (See 5 Summary (10th), Torts, § 699 et seq.; 6 Summary (10th), Torts, § 1722 et seq.) (On the action for conversion, see infra, § 702 et seq.; on election to waive the tort and sue in quasi-contract, see supra, § 556; on action to quiet title to personal property, see infra, § 706.).” 5 Witkin, Cal. Proc. 5th Plead. § 692.

“The first action, insofar as it needs a label or designation, might be termed “specific recovery of personal property.” (See C.C.P. 627 [“action for the recovery of specific personal property”]; C.C.P. 667 [“action to recover the possession of personal property”]; Berry v. Bank of Bakersfield (1918) 177 C. 206, 209, 170 P. 415 [“The action was one for the recovery of specific personal property, the code equivalent of the common-law writ of replevin”].).” Id.

“At an early date, however, California courts borrowed the statutory title of the provisional remedy of “claim and delivery,” which gives immediate possession pending trial, and the action is often called a “claim and delivery action.” It should be remembered that the statutes deal solely with the provisional remedy and do not control the pleading or procedure of the main action. “Courts and law-writers have sometimes inadvertently spoken of the code ‘action of claim and delivery’ as if there were really here a form of action called by that name. … These sections merely give to a plaintiff suing to recover personal property an auxiliary remedy very similar to the auxiliary remedy of attachment. … But it is no more proper to speak of an action ‘of claim and delivery,’ than to speak of an action ‘of attachment.’ ” (Faulkner v. First Nat. Bank (1900) 130 C. 258, 263, 264, 62 P. 463; see Benzler v. Van Fleet (1915) 28 C.A. 389, 390, 152 P. 736; C.C.P. 512.010 et seq. [writ of possession]; 6 Cal. Proc. (5th), Provisional Remedies, § 245.).” Id.

The elements of a fraudulent transfer cause of action are:

Transfer made or obligation incurred by a debtor;

with actual intent to hinder, delay, or defraud any creditor of debtor;

without receiving a reasonably equivalent value in exchange for the transfer or obligation; and

debtor was engaged or was about to engage in a business or a transaction for which remaining assets were unreasonably small in relation to the business or transaction; or

intended to incur, or believed or reasonably should have believed that debtor would incur, debts beyond ability to pay as they became due; and

injury to the creditor.

Civil Code §§3439.04(a), 3439.05; 8 Witkin Cal. Pro. (5th ed. 2008) Enforcement of Judgment §§495-98. See also Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 834 (“There is no minimum number of factors that must be present before the scales tip in favor of finding of actual intent to defraud.”); Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 651 (fraudulent transfer was sufficiently alleged based on defendant’s transfer of property with the intent to defraud, hinder or delay creditors in collection); Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298 (proof of fraudulent intent in conveyances often is inferences from the surrounding circumstances); Civil Code §§3439.07(a)(1), 3439.08(a) (fraudulent transfers may be avoided as against transferees who did not take property in good faith for adequate consideration); Jhaveri v. Teitelbaum (2009) 176 Cal.App.4th 740, 755 (UFTA is merely cumulative of other remedies and not exclusive); Mehrtash v. Mehrtash (2001) 93 Cal.App.4th 75, 80 (“‘It cannot be said that a creditor has been injured unless the transfer puts beyond [her] reach property [she] otherwise would be able to subject to the payment of [her] debt.’”).

“A creditor who is damaged by a transfer described in either Civil Code section 3439.04 or Civil Code section 3439.05 can set the transfer aside or seek other appropriate relief under Civil Code section 3439.07. (Citation.).” Hasso v. Hapke (2014) 227 Cal.App.4th 107, 121–22. The statute of limitations for an action for fraudulent transfer is four years after the transfer was made. Civil Code § 3439.09. In certain cases, the statute may be tolled by plaintiff’s failure to discover the transfer, provided plaintiff files within one year after the transfer was or reasonably could have been discovered; however, in no case may the total time elapsed between transfer and claim amount to more than seven years. Id.

Haro is correct that the 12th and 14th COAs for Claim and Delivery and Constructive Trust are remedies rather than claims for relief. And the 12th COA is unavailable to Plaintiffs in any event because it only applies to an action regarding personal property, not real property.

Therefore, the demurrer to the 12th COA is SUSTAINED without leave.

Also, the demurrer to the 14th COA is SUSTAINED, with leave, but only to combine the factual allegations with the new, single COA for fraud; a request for constructive trust is already in the prayer.

However, there is a COA to Set Aside Fraudulent Transfer, and Haro’s blanket attack on the last three COAs as remedies rather than claims for relief must fail as to the Fraudulent Transfer COA. The demurrer is OVERRULED as to the 13th COA.

Conclusion

The demurrer is OVERRULED as to the 1st-3rd, 6th-7th, 10th, and 13th COAs. The demurrer is SUSTAINED, with leave to combine the 5th, 9th, and 14th COAs into a single COA. The demurrer is SUSTAINED, with leave to re-plead the 8th COA as a claim for Cancellation of Instruments. The demurrer is SUSTAINED, without leave as to the 4th, 11th, and 12th COAs.

HARO’s MOTITION TO STRIKE

The motion is made on the same grounds as the Vandermark motion, above, and in the same conclusory terms. CCP §472 entitles a party to amend its pleading once without leave of court at any time before an answer, demurrer, or motion to strike is filed. No such document had been filed before Plaintiffs filed their FAC. Thus, the motion is DENIED.

IT IS SO ORDERED:

Frederick C. Shaller, Judge