Case Name: Thuy Pham v. An Nguyen, et al.

Case No.: 17CV311664

(1) Defendant Olivia Nguyen’s Special Motion to Strike
(2) Defendant Olivia Nguyen’s Demurrer to First Amended Complaint
(3) Motion to Reopen Discovery Pursuant to CCP §425.16(g)

Factual and Procedural Background

Defendants Olivia Nguyen (“Olivia”) and An Nguyen (“An”) were previously married, but Olivia filed for divorce against An on October 29, 2001 in Orange County Superior Court. (First Amended Complaint (“FAC”), p. 3, ¶1.) On June 25, 2004, the court entered a judgment of dissolution as to Olivia and An but reserved jurisdiction on the issue of division of assets and liabilities. (Id.) On July 18, 2007, pursuant to a judgment of dissolution for division of assets and liabilities, Olivia and An agreed to sell a jointly-owned vacation home located at 39045 N. Shore Drive in Fawnskin, CA (“Fawnskin Home”) and divide the proceeds after sale. (Id.) However, Olivia and An never sold the Fawnskin Home after their divorce but continued to jointly own and use the property thereafter. (Id.) The Fawnskin Home has an estimated value of approximately $3,666,536.00. (Id.)

Defendant An later remarried plaintiff Thuy Pham (“Pham”), but An filed for divorce against plaintiff Pham in or around September 2007 in Orange County Superior Court. (FAC, ¶2.) A judgment of dissolution between An and plaintiff Pham was filed on November 20, 2007, but subsequently set aside pursuant to a stipulation and order filed on August 26, 2009. (Id.) The only issue not set aside was the termination of status so An and plaintiff Pham remain divorced. (Id.) Property division issues remained but the court dismissed the case. (Id.) Thereafter, defendant An commenced a division of asset proceeding in Vietnam (“Vietnam Action”) sometime in April 2010 which is currently pending adjudication. (Id.)

On July 6, 2010, plaintiff Pham filed a divorce action against defendant An in Santa Clara County Superior Court, case number 110-FL-155416. (FAC, ¶3.) Defendant An agreed to personal jurisdiction. (Id.) During a December 7, 2011 trial date, defendant An and plaintiff Pham agreed to a global settlement of all remaining issues of support, division of assets, and division of liabilities, relating to all properties located in California and Vietnam. (Id.) The parties executed a “Stipulation and Order Regarding Global Settlement of All Issues” in court pursuant to which plaintiff Pham accepted five apartments located in Ho Chi Minh City, Vietnam as future child support payments and almost all of the real property located in Vietnam would be placed in a trust for the benefit of the two children. (Id.) Both parties agreed to obtain a court order in Vietnam consistent with the December 7, 2011 stipulation and order. (Id.)

Defendant An never intended to comply with the December 7, 2011 stipulation and order. (FAC, ¶4.) Defendant An refused to comply and continued to maintain the Vietnam Action in order to obtain full ownership of all remaining real properties in Vietnam. (Id.)

In an effort to enforce the December 7, 2011 stipulation and order, plaintiff Pham’s counsel filed a motion to, among other things, enforce the December 7, 2011 stipulation and order. (FAC, ¶5.) The motion was heard on March 26, 2014 and the court issued several orders including, among other things, reinstatement of the Automatic Temporary Restraining Order (“ATRO”) against defendant An; issuance of a temporary restraining order (“TRO”) prohibiting defendant An from transferring, encumbering, hypothecating, concealing, or in any way disposing any legal or equitable interest in: (i) 10 Shadow Cast, Newport Coast, CA 92657 (“Newport Home”), (ii) Fawnskin Home, and (iii) 16872 Coray Cay Lane, Huntington Beach, CA 92649 (“Huntington Home”). (Id.; see also FAC, Exh. 1.)

In violation of the ATRO and TRO in the March 26, 2014 order, defendant An subsequently transferred half of his interest in the Fawnskin Home to defendant Olivia and also attempted to sell his interest in both the Newport Home and Huntington Home with the assistance of defendant An’s sister, Thi Do Nguyen, and brother, De Nguyen. (FAC, ¶7.)

After receiving notice of the March 26, 2014 order, defendant An subsequently devised a scheme to fraudulently transfer his remaining interest in the real properties he owned in California in order to hinder, delay, and defraud plaintiff Pham. (FAC, ¶8.) Defendants An and Olivia subsequently entered into an agreement to transfer half of his interest in the Fawnskin Home in exchange for Olivia’s release of her interest in personal property and furniture at a property located at 42 Pelican Point Drive. (Id.) On June 13, 2014, defendant An transferred half of his interest in the Fawnskin Home to defendant Olivia by interspousal deed transfer. (Id.)

Defendant An conspired with plaintiff Pham’s mother to fraudulently transfer five Sea Link Golf and Country Club villas located in Vietnam and worth more than $1 million to third parties in violation of the December 7, 2011 stipulation and order. (FAC, ¶9.)

On May 12, 2014, the Santa Clara County Superior Court issued an order which, among other things: (i) excused plaintiff’s compliance with the terms in the December 7, 2011 stipulation and order, and (ii) ordered defendant An to pay plaintiff Pham $60,000 in attorney’s fees as sanctions, and (iii) continued to assert personal jurisdiction over defendant An. (FAC, ¶10.) Between July 3, 2018 and August 29, 2019, the Santa Clara County Superior Court imposed monetary sanctions against defendant An; and ordered him to pay child support arrearages; and issued a bench warrant for defendant An’s arrest. (FAC, ¶11.) Defendant An has not made any payment to plaintiff Pham pursuant to the orders/ judgments discussed above. (FAC, 12.)

On June 12, 2017, plaintiff Pham commenced this action by filing a complaint. On January 23, 2019, plaintiff Pham filed the operative FAC which asserts the following causes of action:

(1) Breach of Fiduciary Duty [versus defendant An]
(2) Violation of Family Code § 2040 & et seq.
(3) Violation of Court Orders
(4) Actual Fraudulent Transfer
(5) Constructive Fraudulent Transfer
(6) Conspiracy
(7) Aiding and Abetting
(8) Action on Judgment [versus defendant An]
(9) Creditor Suit
(10) Constructive Trust

On July 10, 2019, defendant Olivia filed two of the three motions now before the court: (1) a special motion to strike; and (2) a demurrer to plaintiff Pham’s FAC.

On September 13, 2019, plaintiff made an ex-parte application for an order, among other things, lifting the stay on discovery pursuant to Code of Civil Procedure section 425.16. The court denied plaintiff Pham’s ex-parte application but did allow plaintiff Pham to file a motion to reopen discovery to be heard in conjunction with defendant Olivia’s two motions. On September 13, 2019, plaintiff Pham filed the third motion now before the court, a motion to reopen discovery pursuant to Code of Civil Procedure section 425.16, subdivision (g).

I. Defendant Olivia’s special motion to strike is DENIED.

A. The two-step procedure for anti-SLAPP motions.

Code of Civil Procedure section 425.16 requires a court to engage in a two-step process when determining whether a defendant’s anti-SLAPP motion should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue. If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. In making these determinations, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

B. Step one – threshold showing that the challenged cause of action arises from protected activity.

Defendant Olivia bears the initial burden to demonstrate that the claims asserted against her by plaintiff Pham in the FAC “arise from” some protected activity. “Defendant need only make a prima facie showing that plaintiff’s complaint ‘arises from’ defendant’s constitutionally-protected free speech or petition activity. The burden shifts to plaintiff to establish as a matter of law that no such protection exists.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ¶7:991, pp. 7(II)-54 to 7(II)-55 citing Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458 – 459.)

“A defendant meets the burden of showing that a plaintiff’s action arises from a protected activity by showing that the acts underlying the plaintiff’s cause of action fall within one of the four categories of conduct described in section 425.16, subdivision (e). [Citation.] Those four categories are: ‘(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.’” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569 (Siam).)

It is defendant Olivia’s contention that the claims asserted against her in plaintiff Pham’s FAC all arise from the allegation that defendant “An conspired with Olivia to enter into an agreement to fraudulently transfer ½ of his interest in Fawnskin Home in exchange for Olivia’s release of her interest in personal properties an furniture located at the property located at 42 Pelican Point Drive. On June 13, 2014, An transferred half of his interest in the Fawnskin Home to Olivia by interspousal deed transfer.” (See FAC, ¶¶24(a), 30(a), 36(a), 43(a), 50, and 59; emphasis added.)

Although not found in the FAC, defendant Olivia contends the “agreement” referred to is a “Stipulation and Order Re Amendment to Judgment Filed July 18, 2007” that defendants An and Olivia entered into in April 2014 and filed with the Orange County Superior Court on May 5, 2014. Since this “agreement” is a court-filed document and the transfer of the Fawnskin Home was made in connection with this “agreement,” defendant Olivia contends the claims asserted by plaintiff Pham all arise from protected petitioning activity.

The court does not agree. The court’s task is to determine the gravamen of the cause of action, not merely its label, “ ‘ “by identifying ‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation for the claim.’ ” [citation], i.e., “ ‘the acts on which liability is based,’ ” not the damage flowing from that conduct.’ ” (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 594.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim,” such that “ ‘the defendant’s act underlying the plaintiff’s cause of action [is] itself … an act in furtherance of the right of petition or free speech.’ ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063.)

The wrongful and injury producing conduct in this instance is the wrongful transfer of defendant An’s interest in the Fawnskin Home to defendant Olivia. A mere agreement to transfer does not cause plaintiff Pham any injury. Rather, it is the conduct of transferring property which forms the basis for all of plaintiff Pham’s claims against Olivia. While Olivia’s liability may be based on her role as a conspirator, “A complaint for civil conspiracy states a cause of action only when it alleges the commission of a civil wrong that causes damage. Though conspiracy may render additional parties liable for the wrong, the conspiracy itself is not actionable without a wrong.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 454.) Likewise, for Olivia to be liable to plaintiff Pham for An’s fraudulent transfer of the Fawnskin Home under an aiding and abetting theory, there must, in fact, be a fraudulent transfer. “‘Liability may … be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.’ [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 653–654 (emphasis added); see also CACI, No. 3610.) In this court’s opinion, the claims asserted by plaintiff Pham in the FAC do not arise from protected activity.

Accordingly, defendant Olivia’s special motion to strike is DENIED.

II. Plaintiff Pham’s motion to reopen discovery is MOOT.

“All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.” (Code Civ. Proc., §425.16, subd. (g).) “The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Id.)

Plaintiff Pham acknowledges the stay on discovery as a result of defendant Olivia’s filing of a special motion to strike. As noted above, plaintiff Pham made an ex-parte application which, in part, sought to lift the discovery stay. In light of the court’s ruling above denying defendant Olivia’s special motion to strike, the court deems plaintiff Pham’s motion to reopen discovery MOOT.

III. Defendant Olivia’s demurrer to plaintiff Pham’s FAC is SUSTAINED, in part, and OVERRULED, in part.

A. Litigation privilege.

Defendant Olivia contends plaintiff Pham’s claims against her are all based on defendant Olivia’s alleged agreement with defendant An to transfer half of An’s interest in the Fawnskin Home in exchange for Olivia’s release of her interest in personal property and furniture at a property located at 42 Pelican Point Drive. As she argued earlier, Olivia believes the “agreement” referred to in the FAC is the “Stipulation and Order Re Amendment to Judgment Filed July 18, 2007” that defendants An and Olivia entered into in April 2014 and filed with the Orange County Superior Court on May 5, 2014. Since this “agreement” is a court-filed document and it amends their July 18, 2007 judgment, defendant Olivia contends plaintiff Pham’s claims are barred by the litigation privilege.

“A general demurrer will lie where the complaint ‘has included allegations that clearly disclose some defense or bar to recovery.’ [Citation.]” (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152.) “Absolute privilege is based on the necessity of complete protection from the threat of a civil action. When a publication is absolutely privileged, there is no liability even though it is made with actual malice; malice is not a proper subject of inquiry in such a case.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, §561, p. 818.) “Absolute privilege, unlike evidentiary privileges, which function by exclusion of evidence, operates as a limitation on liability rather than on the admission of evidence.” (Id. citing Shade Foods v. Innovative Products Sales & Marketing (2000) 78 Cal.App.4th 847, 915.)

One type of publication that is absolutely privileged is a publication made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable” by mandamus. (Civ. Code §47, subd. (b).) “Although the absolute privilege set forth in Civil Code section 47, subdivision (b) originally was understood as applicable only to the tort of defamation, the California Supreme Court has extended the privilege to other tort claims.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, §563, p. 819 citing Hagberg v. California Fed. Banks FSB (2004) 32 Cal.4th 350, 361.) It has been “applied to defeat tort actions for abuse of process, intentional infliction of emotional distress, inducing breach of contract, interference with prospective economic advantage, fraud, and negligence.” (Id. citing Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 125; see also 5 Witkin, Summary of California Law (10th ed. 2005) Torts, §567, pp. 826 – 828.) There are limited exceptions to the litigation privilege. (See Civ. Code, §47, subdivisions (b)(1) – (b)(4); see also Silberg v. Anderson (1990) 50 Cal.3d 205, 211, 215 – 216 (Silberg).)

“The usual formulation” of the scope of the so-called “litigation privilege” is that it “applies to any communication made (a) in judicial or quasi-judicial proceedings; (b) by litigants or other participants authorized by law; (c) to achieve the objects of the litigation; and (d) having some connection or logical relation to the action.” (Id. at §567, p. 826 citing Silberg, supra, 50 Cal.3d at p. 212.) The principal purpose of the “litigation privilege” is “to afford litigants and witnesses freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id. citing Silberg, supra, 50 Cal.3d at p. 213.)

As this court observed above, the wrongful and injury producing conduct in this instance is the wrongful transfer of defendant An’s interest in the Fawnskin Home to defendant Olivia. A mere agreement to transfer does not cause plaintiff Pham any injury. For the same reason, the litigation privilege does not apply here because the gravamen of plaintiff Pham’s claim is the fraudulent transfer, not the “Stipulation and Order Re Amendment to Judgment Filed July 18, 2007” that defendants An and Olivia entered into in April 2014 and filed with the Orange County Superior Court on May 5, 2014. (See Chen v. Berenjian (2019) 33 Cal.App.5th 811, 821—litigation privilege did not bar cause of action for fraudulent transfer.)

B. Second and Third Causes of Action.

Defendant Olivia contends the second and third causes of action for violation of Family Code section 2040 et seq. and violation of court orders are, in essence, claims for contempt and she cannot be held in contempt for court orders which are directed against defendant An.

In opposition, plaintiff Pham seemingly concedes the second and third causes of action may be inaccurately or mistakenly titled, but contends the claims adequately notify defendant Olivia that plaintiff Pham is seeking equitable relief to set aside the transfer of the Fawnskin Home. Plaintiff Pham notes that the family court has already issued orders to show cause re contempt to defendant An and plaintiff is not seeking to hold defendant Olivia in contempt.

The gravamen of plaintiff Pham’s claim is fraudulent transfer. Plaintiff Pham affirmatively alleges fraudulent transfer against defendant Olivia as her fourth and fifth causes of action. The court agrees with defendant Olivia that the second and third causes of action are misdirected at her.

Accordingly, defendant Olivia’s demurrer to the second and third causes of action in plaintiff Pham’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for violation of Family Code section 2040 et seq. and violation of court orders, respectively, is SUSTAINED WITHOUT LEAVE TO AMEND.

C. Fourth and Fifth Causes of Action.

Claims for fraudulent transfer are governed by the UVTA [Uniform Voidable Transactions Act (UVTA), Civil Code section 3439 et seq., formerly known as the Uniform Fraudulent Transfer Act]. The purpose of the UVTA is to prevent debtors from placing, beyond the reach of creditors, property that should be made available to satisfy a debt. (Lo v. Lee (2018) 24 Cal.App.5th 1065, 1071, 234 Cal.Rptr.3d 824.) A creditor may set aside a transfer as fraudulent under Civil Code section 3439.04 by showing actual fraud as defined in subdivision (a)(1) or by showing constructive fraud as defined in subdivision (a)(2). [Footnote.] (See Lo v. Lee, supra, 24 Cal.App.5th at p. 1071, 234 Cal.Rptr.3d 824; Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1401-1402, 166 Cal.Rptr.3d 705.) As a remedy, the creditor may obtain avoidance of the transfer, an attachment or other provisional remedy, and, subject to applicable principles and rules, an injunction or a receiver. (Civ. Code, § 3439.07, subd. (a).)

(Chen v. Berenjian (2019) 33 Cal.App.5th 811, 817.)

“A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: With actual intent to hinder, delay, or defraud any creditor of the debtor.” (Civ. Code, §3439.04, subd. (a)(1); emphasis added.) “In determining actual intent under paragraph (1) of subdivision (a), consideration may be given, among other factors, to any or all of the following: … Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.” (Civ. Code, §3439.04, subd. (b)(8).)

Defendant Olivia demurs to the claims for fraudulent transfer by arguing that plaintiff Pham has not alleged that the property exchanged was not of substantially equivalent value. However, this is but one of various badges of fraud from which actual fraudulent intent may be inferred. It is enough that plaintiff Pham has alleged an actual intent to hinder, delay, or defraud. (See FAC, ¶¶37 and 44.) Significantly, “whether a conveyance is made with fraudulent intent is a question of fact.” (Annod Corp, v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1294; see also Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 834 (Filip).) “There is no minimum number of factors that must be present before the scales tip in favor of finding of actual intent to defraud. This list of factors is meant to provide guidance to the trial court, not compel a finding one way or the other.” (Filip, supra, 129 Cal.App.4th at p. 834.)

Accordingly, defendant Olivia’s demurrer to the fourth and fifth causes of action in plaintiff Pham’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for actual fraudulent transfer and constructive fraudulent transfer, respectively, is OVERRULED.

D. Sixth and Seventh Causes of Action.

“The elements of a civil conspiracy are (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting.” (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1048; see also CACI, No. 3600.) “The sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective.” (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1328.)

“‘Liability may … be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.’ [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 653–654; see also CACI, No. 3610.)

Under either conspiracy or aiding and abetting theories, a plaintiff must have knowledge of the wrongdoing. Defendant Olivia contends plaintiff Pham has not alleged defendant Olivia’s knowledge of any wrongdoing. In opposition, plaintiff Pham points to paragraphs 50 – 51 wherein it is alleged, “Defendants collectively devised of and all agreed to a common scheme or plan to commit the following acts … : (1) Defendants agreed to and entered into a plan to hinder, delay, defraud and make it difficult for Plaintiff as a creditor to enforce her orders/judgments; (2) Defendants entered into an agreement to fraudulently transfer ½ of his interest in Fawnskin Home in exchange for Olivia’s release of her interest in personal properties and furniture located at the property 42 Pelican Point Drive…” “Each of the Defendants was aware of the other Defendants’ actions and was aware that Defendants individually and jointly, planned to commit such acts.” The court would agree that defendants’ knowledge can be reasonably inferred from allegations of defendants’ agreement to engage in wrongdoing.

Accordingly, defendant Olivia’s demurrer to the sixth and seventh causes of action in plaintiff Pham’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for conspiracy and aiding and abetting, respectively, is OVERRULED.

E. Tenth Cause of Action.

“A constructive trust is a remedy used by a court of equity to compel a person who has property to which he is not justly entitled to transfer it to the person entitled thereto.” (11 Witkin, Summary of California Law (9th ed. 1990) Trusts, §305, p. 1138.) A constructive trust can be imposed against “one who wrongfully detains a thing.” (Civ. Code, §2223.) A constructive trust can also be imposed against “one who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act … unless he or she has some other and better right thereto.” (Civ. Code, §2224.)

“A constructive trust is an involuntary trust created by operation of law and not by the intention of the parties’ as an equitable remedy to prevent unjust enrichment and to enforce restitution.” (12 Miller & Starr, California Real Estate (3rd ed. 2005) Remedies, §34:115, p. 389.) “The creation of a constructive trust requires that: (1) there be a res—some property or interest in property, which includes real property, a promissory note, or cash; (2) the plaintiff has a right to the res; and (3) the defendant acquired the res wrongfully.” (Id. at §34:117, pp. 392 – 393.)

“A cause of action for constructive trust is not based on the establishment of a trust, but consists of fraud, breach of fiduciary duty or other act which entitles the plaintiff to some relief. Relief, in a proper case, may be to make the defendant a constructive trustee with a duty to transfer to the plaintiff. [Citation.] Pleading requirements are: (1) facts constituting the underlying cause of action, and (2) specific identifiable property to which defendant has title.” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114.)

Defendant Olivia demurs by arguing that plaintiff Pham has not sufficiently stated an underlying cause of action to support the imposition of a constructive trust. Defendant Olivia apparently incorporates the arguments she raised as to each of the underlying causes of action. In light of the court’s ruling above overruling defendant Olivia’s demurrer to the fourth and fifth causes of action, there is at least some underlying cause of action from which to support the imposition of a constructive trust.

Accordingly, defendant Olivia’s demurrer to the tenth cause of action in plaintiff Pham’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for constructive trust is OVERRULED.