Case Number: TC029024 Hearing Date: October 30, 2018 Dept: A

# 12. Bertha Gonzalez v. A&G Interprises, LLC, et al.

Case No.: TC029024

Matter on calendar for: hearing on demurrer; CMC; OSC re: dismissal for failure to prosecute

Tentative ruling:

I. Background

Plaintiff Bertha Gonzalez’s case arises from a sale of property. She alleges defendants A&G Enterprises, Ana Huenzo, Ignacio Gonzalez, Nelson Huenzo, Maxximum Realty, Inc., Manual Torales, and Mike Chong defrauded plaintiff into believing she was entitled to only $65,003.00 of the purchase proceeds when she was entitled to 50% of the $2.5 million purchase price (as represented by Maxximum), or approximately $1,115,967.

The Complaint alleges the following causes of action:

1) Breach of contract;

2) Breach of implied covenant of good faith and fair dealing;

3) Intentional misrepresentation;

4) Negligent misrepresentation;

5) Negligence;

6) Professional negligence;

7) Unfair business practices;

8) Declaratory relief;

9) Temporary restraining order;

10) Conversion;

11) Revocation;

12) Partition;

13) Civil conspiracy;

14) Fraudulent concealment; and

15) Breach of fiduciary duty

Defendants Ignacio Gonzalez, Ana Huego, and A&G Interprises, LLC, demur to causes of action 1, 2, 8, 9, 10, 11, 12, 13, and 14. The demurrer is unopposed.

For the reasons set forth below, the Court sustains the demurrer in part.

II. Standard

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; 2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P. § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)

“Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

III. Analysis

a. Breach of contract

A breach of contract cause of action has the following elements: (1) existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach (or anticipatory breach), and (4) resulting damage. (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1391 fn. 6.) Defendants argue that plaintiff did not plead facts showing that she fulfilled her obligations under any alleged contract. (Mtn. 4.) However, plaintiff alleges that she signed all of the documents pursuant to the contract and transferred the property. (Complaint ¶¶ 17, 19.) This sufficiently pleads that plaintiff fulfilled her obligations under the contract.

The demurrer to the first cause of action for breach of contract is overruled.

b. Implied covenant of good faith and fair dealing

This cause of action is derivative of the breach of contract claim. Defendants’ argument is that there is no contract supporting an implied covenant. The demurrer to the second cause of action for implied covenant is overruled.

c. Declaratory relief

Pleading declaratory relief requires: (1) person interested under a written instrument or a contract, or (2) a declaration of his or her rights or duties with respect to another or in respect to property, and (3) an actual controversy. (C.C.P., § 1060; Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 605–606.) Plaintiff has pled a contract relating to her rights in property and a resulting controversy. This cause of action is properly pled.

The demurrer to the eighth cause of action for declaratory relief is overruled.

d. Temporary restraining order

In this cause of action plaintiff is requesting equitable relief. Defendants argue that plaintiff has failed to petition for a restraining order or show there are exigent circumstances. (Mtn. 7.) Plaintiff’s support, or lack thereof, for a restraining order does not address whether it can be pled.

The demurrer to the ninth cause of action for a temporary restraining order is overruled.

e. Conversion

The elements of conversion are: (1) plaintiff’s ownership or right to possession of personal property, (2) defendant’s disposition of the property inconsistent with plaintiff’s rights, and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Defendants’ demurrer to this cause of action is derivative of their breach of contract argument. Plaintiff has pled a contract and defendants’ disposition of her personal property inconsistent with that contract.

The demurrer to the tenth cause of action for conversion is overruled.

f. Revocation

California Civil Code § 3412 allows for the cancellation of a written instrument if there is a reasonable apprehension that, “if left outstanding it may cause serious injury to a person against whom it is void or voidable . . . .” Here, plaintiff seeks revocation of the Grant Deed. Defendants argue that the Complaint does not provide evidence of serious injury justifying revocation. (Mtn. 8.) This is a merits-based argument not properly brought on demurrer. The elements of this cause of action are met.

The demurrer to the eleventh cause of action for revocation is overruled.

g. Partition

Plaintiff and defendant Ignacio Gonzalez are still married. If the Deed is revoked, the property would be community property. Defendants are correct that an action between spouses for partition of their property cannot be brought under Title 10.5 of the Civil Code. (Civ. Code 872.210(b).)

The demurrer to the twelfth cause of action for partition is sustained with leave to amend.

h. Civil conspiracy

“ ’Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.’ [Citation.] A civil conspiracy ‘must be activated by the commission of an actual tort.’ [Citation]” (AREI II Cases (2013) 216 Cal.App.4th 1004, 1021.) The elements of a conspiracy claim are: “ ’(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.’ [Citations.]” (Id. at 1022.)

The underlying torts alleged are misrepresentation and fraudulent concealment. The elements of intentional misrepresentation are: (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled with specificity. (Id. at 645.) This “necessitates pleading facts which show how, when, where, to whom, and by what means representations were tendered.” (Ibid.)

Plaintiff specifically alleges that defendants worked together to deprive her of her interest in the property by conducting a fraudulent purchase agreement and inducing her to sign documents which resulted in her gifting the property. (Complaint ¶¶ 18–33.) The elements of this cause of action are met.

The demurrer to the thirteenth cause of action for civil conspiracy is overruled.

i. Fraudulent concealment

“ ‘[T]he elements of a cause of action for fraud based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as [they] did if [they] had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ [Citation.]” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198.) Specificity is not required at this stage of the proceedings where plaintiff would be required to prove the absence of an act, because to do so is unrealistic. (Jones, supra, 198 Cal.App.4th 1187, 1199.)

This cause of action is similar to the action for conspiracy, which incorporated allegations of intentional misrepresentation. The difference is that specificity is not required here.

The demurrer to the fourteenth cause of action for fraudulent concealment is overruled.

IV. Ruling

The Court sustains the demurrer as to the 12th cause of action for partition with 20 days’ leave to amend. Any responsive pleading must be filed 20 days thereafter, or 25 if served by mail.

The Court overrules the demurrer to all other causes of action.

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