Case Number: KC066423 Hearing Date: June 06, 2014 Dept: J

Re: Gwynn R. Brown, etc. v. Pauline J. Hatch, et al. (KC066423)

DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Moving Parties: Defendants Pauline J. Hatch and Larry Boulware

Respondent: Plaintiff Gwynn R. Brown

POS: Moving OK; Opposing OK; Reply OK

In this action for quiet title and declaratory relief, Plaintiff claims ownership of the subject property based on promissory estoppel. The Complaint was filed on 10/18/13. The operative First Amended Complaint was filed on 3/25/14 and asserts causes of action for:

1. Promissory Estoppel
2. Quiet Title
3. Declaratory Relief
4. Cancellation of Deed

The Case Management Conference is set for 6/06/14.

(1) DEMURRER:

Defendants demur to the entire First Amended Complaint (“FAC”) on the grounds that it fails set forth facts sufficient to constitute any cause of action against them pursuant to CCP Section 430.10(e).

REQUEST FOR JUDICIAL NOTICE:

Defendants seek judicial notice of numerous documents: (1) A Trust; (2) The Will of Gerald Hatch; (3) a Deed of 7/20/01 conveying the Pomona Property by Gerald Hatch to the Trust; (4) a Letter; (5-6) two Acceptances and Checks; (7) a Deed of 11/21/12 by Pauline Hatch, Trustee, conveying the Pomona Property to herself, as the surviving Trustee; (8) a Deed of 8/13/13, conveying Pomona Property to Pauline Hatch as Trustee of the Survivor’s Trust; (9) a Deed of 8/13/13, conveying Pomona Property to Larry Boulware; (10) a Deed of 8/07/02, conveying Glendora Property by Gerald Hatch to his daughters; (11-12) the Complaint and FAC; (13) Defendants’ first Demurrer, Motion to Strike and Request for Judicial Notice, filed 3/05/14; and (14) the Unlawful Detainer Action, filed 9/13/13.

Court Files:

“A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” (Day v. Sharp (1975) 50 Cal.App.3d 904, 914). Here, Defendant requests that judicial notice be taken of four pleadings, one motion, and a request for judicial notice in an earlier demurrer. All of these documents are in court files. Therefore, their existence is noted, but judicial notice is not necessarily taken of their content.

Deeds:

“A court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256, 265). In this case, Defendants request that judicial notice be taken of five deeds, but each is objected to on grounds of lack of proper foundation to show authentication.

“[A] document is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be….” Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321 (citing, e.g., Ev. C. §1400). Here, Defendants have presented the Declaration of Colleen Barney, who states that the Deeds (Exhs. “C” and “G”-“I”) are true and correct copies of the originals, and that she prepared them for Gerald and Pauline Hatch. Plaintiff has not presented evidence to show that these documents are not authentic. Thus, these documents are sufficiently authenticated, and the court takes judicial notice of the deeds’ recordation, the dates the deeds were recorded and executed, the parties to the transactions reflected in the deeds, and the deeds’ legally operative language.

Other Documents:

“[J]udicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134.) “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374).

In this case, Defendant also requests judicial notice of a trust, a will, a letter, and two acceptances and checks. Plaintiff objects to these requests for judicial notice on grounds of lack of proper foundation to show authentication. Defendants have presented the Declaration of Colleen Barney, who states that the Trust and the Will (Exhs. A and B), are true and correct copies of the originals, and that she prepared them for Gerald and Pauline Hatch. Plaintiff has not presented evidence to show that these documents are not authentic. Thus, these documents are adequately authenticated. The court takes judicial notice of the existence of the Trust and the Will, but not the interpretation of them at the demurrer stage of the litigation.

MERITS OF THE DEMURRER:

Defendants attack all four causes of action of the FAC on the same legal grounds. They claim that all causes of action fail for the following reasons: (1) there is a misjoinder of parties; (2) the claims are barred by the statute of limitations; (3) the claims are barred by the Statute of Frauds; (4) parol evidence contradicting the writing of the Trust is barred; (5) Plaintiff accepted money in consideration that satisfied the Trust obligation and released any further beneficial interest in the Trust, or any other trusts created pursuant to the terms of the Trust Agreement; (6) the failure of the oral agreement due to lack of terms, and indefiniteness; (7) the offer expired; and (8) the civil courts lacks jurisdiction.

Jurisdiction:

Probate Code §17000(a) states, “[t]he superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of trusts.” In this case, Plaintiff does not seek to administer a trust, and the subject trust has not been administered by the court. This action involves equitable causes of action of a civil nature and are properly within the subject matter jurisdiction of this civil court. Probate Code § 17000(a) does not apply, so the demurrer on this ground is overruled.

Verification of a Complaint for Quiet Title:

A Complaint for Quiet Title must be verified pursuant to CCP § 761.020. Here, the FAC is not verified. Although Defendants couched this argument within their Motion to Strike, this defect is easily corrected by amendment, so the court will treat it as grounds for demurrer. Therefore, the demurrer on this ground is sustained.

Misjoinder of Parties:

A trustee of a trust is an indispensible party in an action involving the trust, pursuant to CCP § 389. Plaintiff has named Pauline Hatch as an individual, and not as a trustee of the Hatch Living Trust. Further, Paragraph 13 of the FAC alleges that “[t]itle to the subject property was created in the name of the living trust by a Grant Deed…The intent was for one of the three daughters [which includes Plaintiff] of Gerald J. Hatch to become the beneficiaries of the subject real property by and through the living trust.” This language indicates that the contents of the trust are in issue. Therefore, the Trustee should be named as a party, and the demurrer on this ground is sustained.

Statute of Limitations:

There is a one year statute of limitations under CCP § 366.2(a) and § 366.3(a) for claims arising from a promise or agreement with a decedent for a distribution from a trust. Here, the property remained Gerald Hatch’s sole and separate property while in the trust. Gerald’s death on 3/22/08 triggered the running of the one-year statute of limitations, which expired on 3/22/09, four-and-a-half years before this action was filed.

CCP § 339 allows an action on an oral contract to be brought within two years of the breach. The alleged oral contract between Plaintiff and Gerald Hatch of August 2002 was not performed within a reasonable period of time, and therefore was breached in August 2004. Plaintiff had to bring her action by August 2006, but failed. The demurrer on the basis of the statute of limitations is sustained.

Statute of Frauds:

Civil Code § 1624(a)(3) provides that contracts for the sale of real property are invalid unless “they, or some note or memorandum thereof, are in writing.” Here, Plaintiff contends that she had an alleged oral contract to purchase the subject premises with her deceased father, and she would make monthly payments towards the purchase price. “The payment of money is not sufficient part performance to take an oral contract out of the statute of frauds.” Anderson v. Stansbury, 38 Cal.2d 707 (1952). Further, under Evidence Code § 662, there is a presumption of full beneficial title to the owner of legal title. Defendants argue that the Trust, through Trustee Pauline Hatch, was owner of the legal title to the property. However, Plaintiff seeks to enforce an oral promise made by Gerald J. Hatch to plaintiff, his daughter, to give her the property on the condition that she pay $80,000. She alleges that she took possession, made capital improvements and repairs. (FAC, ¶18) Under these circumstances, a writing is not necessary. Further, the purported Trust attached to the Demurrer as Exhibit “A” does not name the subject real property as one of the Trust assets. The Trust specifically states that separate property is to retain its character and does not empower Pauline Hatch to dispose of it as her community property. At the pleading stage, Plaintiff’s interpretation of the transaction must be read liberally, and parol evidence is admissible. The demurrer is overruled on this ground.

Release:

Defendants claim that Plaintiff accepted $5,881.00 from the Trust due to the death of Gerald Hatch, and her signature released any further beneficial interest of Plaintiff in the Trust. Assuming that is true, it would be irrelevant since Plaintiff claims that the Trust does not contain the Property as one of its assets. The demurrer on this ground is overruled.

Failure of Oral Agreement:

A court will not specifically enforce a contract for the sale of real estate unless all material terms are included. Bruggeman v. Sokol, 122 Cal.App.2d 876 (1954). Here, the terms of the alleged oral agreement were to sell Plaintiff the house for $80,000, to be paid $300 per month until it is paid off. Thus, no terms are missing, and they are certain enough that the court can make a remedy or judgment. The demurrer is overruled on this ground.

(2) MOTION TO STRIKE:

In light of the foregoing ruling, the Motion to Strike is deemed moot.

The court will hear from counsel for Plaintiff as to whether leave to amend and, if so, will require an offer of proof, especially as to the issues regarding the applicable statutes of limitations.