Case Number: KC066581 Hearing Date: May 05, 2014 Dept: J

Re: Rogelio A. Guadalupe, Jr. v. Shannon J. Boyd (KC066581)

DEMURRER TO COMPLAINT; MOTION TO STRIKE

Moving Party: Defendant Shannon J. Boyd

Respondent: Plaintiff Rogelio A. Guadalupe, Jr.

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c); Reply OK

The Verified Complaint herein, filed 12/26/13, asserts causes of action for:

1. Partition of Real Property
2. Breach of Fiduciary Duty
3. Accounting of Rents and Profits
4. Declaratory Relief

The Case Management Conference is scheduled for May 27, 2014.

DEMURRER:

Defendant Shannon J. Boyd demurrers to the second cause of action for Breach of Fiduciary Duty and fourth cause of action for Declaratory Relief on the grounds that they fail to state facts sufficient to constitute a cause of action and is uncertain. Defendant also claims that the fourth cause of action fails because it addresses past wrongs rather than future litigation, and it is duplicative of the first and third causes of action.

In the Complaint Plaintiff alleges that he owned the real property located at 938 Occidental Drive, Claremont, CA 91711, which he and his parents bought in 2001. In 2003, Plaintiff and his parents conveyed the property to Plaintiff and Defendant, who took title in both their names as joint tenants, and who allegedly lived in the house as common law husband and wife, having two children, but never getting married. In 2013, discord between Defendant and Plaintiff caused Plaintiff to leave the property at Defendant’s behest. Defendant allegedly lives in the property with her parents and pays rent to Plaintiff at below fair rental value, and refuses to sell the house and apportion the money with Plaintiff.

A cause of action for Breach of Fiduciary Duty requires Plaintiff to allege facts showing a fiduciary relationship, a breach of that duty, and damages. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182.) Defendant contends that the second cause of action for Breach of Fiduciary Duty fails to state facts sufficient to constitute a cause of action and is uncertain. However, at paragraph 25, Plaintiff alleges that he and Defendant were “co-owners, as Joint Tenants, in the Subject property and partners in [its] ownership and rental…” (Verified Complaint, para. 25). “Partners” in the ownership and rental of real property would fall under the definition of a fiduciary relationship. Thus, the demurrer to the Second Cause of Action is overruled.

Declaratory Relief requires Plaintiff to allege that he is interested under a written instrument or a contract; or a declaration of his or her rights or duties; with respect to another; or in respect to, in, over or upon property; and, an actual controversy. (CCP § 1060; Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4th 592, 605-06. ). “[D]eclaratory relief operates prospectively only, rather than to redress past wrongs….” (Gafcon, Inc. v. Ponsor & Assocs. (2002) 98 Cal. App. 4th 1388, 1404.)

Defendant claims that this claim addresses past wrongs rather than future litigation. However, there exists an actual controversy as to the present interest each party holds in the subject property, and a court ruling ascertaining those rights is necessary to properly partition the subject property. The partition and accounting causes of action will not resolve all of the issues between the parties. The issue as to what interest in the subject property each party owns remains even after a resolution, or the granting, of the partition and accounting causes of action.

Defendant also argues that it is duplicative of the first and third causes of action, which have accrued already. However, “‘[t]he mere circumstance that another remedy is available is an insufficient ground for refusing declaratory relief, and doubts regarding the propriety of an action for declaratory relief … generally are resolved in favor of granting relief.’” (Osseous Technologies of Amer., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 364.) Further, the “availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” but “[t]he refusal to exercise the power is within the court’s legal discretion….” (Cal. Ins. Guar. Ass’n v. Sup. Ct. (1991) 231 Cal. App. 3d 1617, 1624.) Thus, the Court finds that Declaratory Relief is proper here, and the Demurrer on this ground is overruled. Therefore, the demurrer to the fourth cause of action is overruled.

MOTION TO STRIKE PORTIONS OF THE COMPLAINT:

The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.(CCP § 436.)

Here, Defendant claims that punitive damages are not supported by sufficient facts, and the court should strike page 6, lines 14-18 (paragraph 28 in its entirety). Plaintiff contends that he has alleged sufficient facts to support malice. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Civil Code Section 3294.

Plaintiff has alleged that Defendant knew that he was an owner of the subject property, that he was entitled to half of the income produced by the subject property, and that if he moved out he would be entitled to the rental value of the subject property. (Complaint, para. 7). Plaintiff also alleges that the actions of the Defendants were with a conscious disregard of the property rights of the Plaintiff. Complaint, para. 26, 28. However, the alleged failure by Defendant to sell the home she lives in with her minor children is not despicable conduct. Further, her failure to charge fair rent, and her commingling of rent, although allegedly wrongful, does not rise to the level of despicable. Therefore, the request to strike paragraph 28 is granted.

Defendant has 10 days to answer.