Susan Flannery et al vs Anna Awiit Akot et al
Susan Flannery et al vs Anna Awiit Akot et al
Case Number
23CV05733
Case Type
Hearing Date / Time
Fri, 04/18/2025 - 10:00
Nature of Proceedings
CMC; Demurrer & Motion to Strike; OSC Sanctions
Tentative Ruling
(1) For all reasons discussed herein, the demurrer of defendant Susan Flannery to the verified first amended complaint of plaintiff Anna Awiit Akot is overruled.
(2) For all reasons discussed herein, the motion of defendant Susan Flannery to strike portions of the verified first amended complaint of plaintiff Anna Awiit Akot is denied.
(3) Defendant Susan Flannery shall, on or before April 30, 2025, file and serve an answer to the verified first amended complaint of plaintiff Anna Awiit Akot.
Background:
On December 28, 2023, plaintiff Susan Flannery (Flannery) filed a complaint (the Flannery Complaint) in this action against defendant Anna Awiit Akot (Akot), alleging one cause of action for unlawful detainer. As alleged in the Flannery Complaint:
Flannery is the owner of 6180 Via Real, Spc. 81 (the premises), which is located within the city limits of Carpinteria, California. (Flannery Compl., ¶ 3(a), 3(b)(1) & 4.) On March 1, 2021, Akot made an agreement with Flannery to rent the premises as a month-to-month tenancy. (Id. at ¶¶ 6(a)(1), 6(b).) Akot agreed to pay rent of $1,100, payable monthly on the first of the month. (Id. at ¶¶ 6(a)(2) & (3).)
On December 1 and December 15, 2023, Flannery separately posted on the premises copies of 3-day notices to quit (the 3-day notices), each of which included an election of forfeiture. (Flannery Compl., ¶¶ 9(a)(4), 9(d), 9(e), 10(a)(3), 10(d) & Exhs. 2 & 3.) The periods stated in each of the 3-day notices expired at the end of the day on, respectively, December 6 and December 20, 2023, and Akot failed to comply with their requirements by these dates. (Id. at ¶ 9(b)(1) & (2).)
On January 8, 2024, Akot filed a demurrer to the Flannery Complaint, which was opposed by Flannery.
On February 7, 2024, Akot filed a notice of related case, identifying case number 24CV00629 entitled Anna Awiit Akot v. Susan Flannery (the Akot Action) as related to this action, and an ex parte application (the application) for an order consolidating the Akot Action with this action, and staying this action. The Court granted the application, reserving the issue of a stay. (See Feb. 8, 2024, Minute Order.)
On February 9, 2024, the Court overruled the January 8, 2024, demurrer of Akot to the Flannery Complaint. (Feb. 9, 2024, Minute Order.) Akot answered the Flannery Complaint on February 20, 2024, responding to its allegations and asserting three affirmative defenses.
On March 21, 2024, the Court entered an order consolidating the Akot Action with this action, designating this action as the lead case, and requiring Akot to pay to Flannery specified sums for Akot’s occupancy at the premises during the pendency of the consolidated actions. (See Mar. 21, 2024, Order.)
On June 4, 2024, Flannery filed a demurrer to first, second, third, fourth, fifth, sixth seventh, and eighth causes of action alleged in the verified complaint (the Akot Complaint) filed by Akot in the Akot Action, and a motion to strike from the Akot Complaint allegations or claims for punitive or exemplary damages. Akot did not substantively oppose Flannery’s demurrer to the Akot Complaint, and ostensibly represented to Flannery that she would file an amended complaint. (See Sept. 6, 2024, Flannery Reply at p. 2, ll. 8-11.)
On September 13, 2024, the Court entered a Minute Order (the September Order) sustaining the June 4, 2024, demurrer of Flannery as to the second cause of action for constructive fraud, fifth cause of action for breach of fiduciary duty, and eighth cause of action for deprivation of civil rights alleged in the Akot Complaint, with leave to amend, and denying without prejudice Flannery’s June 4, 2024, motion to strike.
On September 17, 2024, Akot filed a verified first amended complaint (the FAAC), alleging seven causes of action against Flannery, each of which arise from or relate to the ownership of a mobile home at the premises (the mobile home): (1) promissory estoppel; (2) fraud; (3) breach of contract; (4) implied contract (restitution/unjust enrichment); (5) financial abuse of an elder; (6) declaratory judgment; and (7) unlawful discrimination in housing. As alleged in the operative FAAC:
Akot is African American and an immigrant who struggled with language, societal customs, and business matters, and needed guidance. (FAAC, ¶ 3.) Flannery, who has more acumen and experience in financial matters than Akot including with respect to the mobile home, undertook to guide Akot which Akot accepted. (Id. at ¶¶ 3 & 5-6.) Akot and Flannery became long-time friends and associates and had a close, personal relationship for over 30 years, with Akot reposing trust and confidence in Flannery. (Id. at ¶¶ 1-3.) When Flannery was very ill, Akot cared for her, and Flannery expressed gratitude for the care and support provided by Akot. (Id. at ¶ 7.)
On September 3, 2020, Flannery asked Akot to move into the mobile home because Flannery wanted to place the mobile home in the Vista De Santa Barbara Mobile Home Park (the Park), which required that at least one occupant of the mobile home be an owner. (FAAC, ¶ 9.) To incentivize Akot to move into the mobile home, Flannery promised to transfer 50 percent ownership of the mobile home to Akot, who would live in the mobile home until Flannery chose to leave or passed away. (Id. at ¶ 10.)
Flannery’s promise to give 50 percent ownership of the mobile home to Akot was subject to conditions: that Akot would devise her ownership of the mobile home to Flannery’s adopted daughter upon Akot’s death; that Flannery’s friend Michael Freeman (Freeman) could live with Akot in the mobile home during Freeman’s lifetime; that Akot would provide care and support to Freeman in the same manner that Akot had done for Flannery without further compensation apart from the transfer of 50 percent ownership in the mobile home; and that Akot and Freeman would equally pay the costs of “space rent” for the mobile home. (FAAC, ¶ 11.)
Akot agreed to and accepted Flannery’s offer. (FAAC, ¶ 12.) Flannery caused the mobile home to be registered in Akot and Flannery’s name. (Id. at 13.) On September 3, 2020, Akot and Flannery signed, as co-owners of the mobile home, a lease agreement with the Park. (Id. at ¶¶ 14-15 & Exh. A.)
In agreeing to Flannery’s offer, Akot forfeited her entitlement to a voucher in a subsidized housing program provided through the Santa Barbara Housing Authority, which Akot had applied for in 2016 and which is difficult to obtain. (FAAC, p. 2, ll. 18-20 & ¶¶ 8, 45.) In reliance on Flannery’s promise that Akot would co-own and live in the mobile home throughout Akot’s lifetime, Akot removed herself from consideration for, and declined, the subsidized housing which will be nearly impossible for Akot to reacquire. (Id. at p. 2, ll. 8-13, ¶¶ 4 & 13.)
Akot moved into the mobile home and cared for Freeman for no compensation apart from ownership in the mobile home. (FAAC, ¶ 20.) Akot and Freeman each paid 50 percent of the space rent, to which Flannery did not contribute. (Id. at ¶¶ 24-25.) Following Freeman’s departure from the mobile home, Akot continued to pay 50 percent of the space rent as requested by Flannery. (Id. at 26.)
During the course of Akot’s co-ownership of the mobile home with Flannery, Flannery demanded that Akot forbid her daughters from visiting Akot, threatened to evict Akot, and failed to contribute to space rent following the departure of Freeman. (FAAC, ¶¶ 21-22 & 25.) Flannery’s demands were not part of the parties’ original promises to each other. (Id. at ¶ 21.) Flannery also altered the ownership papers for the mobile home to remove Akot as a co-owner, stopped accepting Akot’s space rent payments, and filed the Flannery Complaint. (Id. at ¶¶ 28-29.)
On January 6, 2025, Flannery filed a motion to strike certain paragraphs of the FAAC, on the grounds that these paragraphs include allegations assert a cause of action based on discrimination or indentured servitude without any legal or factual basis, include improper demands for punitive damages and attorney’s fees, improperly allege the existence of a “confidential relationship” between the parties, and assert a claim for restitution and unjust enrichment as an independent cause of action. (Notice of Motion to Strike at p. 2, ¶ 1-8.)
On January 7, 2025, Flannery filed a demurrer to the FAAC, and each cause of action alleged in the FAAC, on the grounds that Akot has failed to allege facts sufficient to constitute a cause of action, and that the FAAC is uncertain.
On March 11, 2025, Akot filed an opposition to the demurrer.
On March 12, 2025, Flannery separately filed what Flannery describes as reply papers with respect to the demurrer and motion to strike, asserting that neither Flannery nor her counsel were served with oppositions to the demurrer and motion to strike as of the date those replies were filed.
On March 14, 2025, Flannery filed a supplemental reply in which Flannery contends that the filing and service of Akot’s opposition to the demurrer was improper and untimely, and requesting an order striking that opposition.
The Court’s records reflect that Akot did not file an opposition to the motion to strike.
On March 21, 2025, the Court entered a Minute Order (the March Order) adopting its tentative ruling on Flannery’s demurrer to and motion to strike portions of the FAAC as follows:
“(1) The Demurrer
All papers opposing a motion noticed under Code of Civil Procedure section 1005, subdivision (b), “shall be filed with the court and a copy served on each party at least nine court days, … before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise stated.) Under subdivision (b) of section 1005, Akot was required to file and serve papers opposing the demurrer and motion to strike on or before March 10, 2025. (Code Civ. Proc., § 12c, subd. (a); Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1038.) As Akot’s opposition to the demurrer was filed on March 11, 2025, it is untimely.
Moreover, Akot has not filed an opposition to the motion to strike.
In addition, papers opposing a motion “shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers … are filed.” (Code Civ. Proc., § 1005, subd. (c).)
The proof of service attached to Akot’s opposition to the demurrer states that the opposition was mailed to one of Flannery’s multiple counsel on March 10, 2025. Though the proof of service was executed under penalty of perjury on March 11, 2025, it is not unreasonable to infer that a copy of the opposition was mailed to Flannery’s counsel on March 10, 2025, notwithstanding the date on which the proof of service was signed. Though the declaration appearing in the proof of service attached to Akot’s opposition to the demurrer appears sufficient to create a rebuttable presumption that the opposition was served on March 10, 2025, (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478-1479), there exists some question as to whether the means of service described in the proof of service was reasonably calculated to ensure delivery of the opposition to Flannery no later than the next business day after the opposition was filed.
Further, though service of Akot’s opposition to the demurrer on one of Flannery’s multiple counsel of record is effective to provide notice of that opposition (Adaimy v. Ruhl (2008) 160 Cal.App.4th 583, 588), Flannery submits with the supplemental reply described above, undisputed evidence which shows that Flannery’s counsel did not receive a copy of the opposition until March 14, 2025, and which suggests that the opposition received by Flannery’s counsel on that date was mailed by Akot’s counsel on March 12, 2025. (Supp. Reply at p. 2, l. 21 & pdf p. 5 [copy of envelope].)
“[A] trial court has broad discretion to accept or reject late-filed papers.” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262; see also Cal. Rules of Court, rule 3.1300(d).) Relevant here, as the demurrer of Flannery tests only the legal sufficiency of the FAAC, Flannery has raised only issues of law and not issues of fact with respect to the allegations of the FAAC, which, for present purposes, are accepted as true. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1397.) For these reasons, any failure by Akot to timely file an opposition to the demurrer is not a sufficient ground upon which the Court may, alone, sustain the demurrer. (See, e.g., Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111; Code Civ. Proc., §§ 430.10 [listing grounds for demurrer] & 472d [a court’s decision sustaining a demurrer must include the “specific” grounds on which the decision is based].)
The record further described above reflects that Akot’s opposition to the demurrer was filed one day late and received by Flannery one week prior to the hearing on the demurrer. Though Akot fails to offer sufficient justification for the late submission of the opposition, Flannery also offers no reasoned argument to show why she was prejudiced by any late filing or service of Akot’s opposition, including with respect to the preparation of any reply to the opposition. Flannery also does not address whether or to what extent any prejudice arising from the late filing of Akot’s opposition to the demurrer can be cured by an order permitting Flannery to file a supplemental reply brief in response to the late-filed opposition. (See, e.g., Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168.)
For all reasons further discussed above, under the circumstances present here, and to permit the matters raised in the demurrer to be resolved on their merits, the Court will exercise its discretion to consider the late-filed opposition of Akot to the demurrer. The Court will provide Flannery with an opportunity to address, counter, or rebut any issues or points raised by Akot in her opposition to the demurrer by authorizing the filing of a supplemental reply brief by Flannery in response to the late-filed opposition. Nothing herein shall authorize any party to file any additional papers in support of or in opposition to the demurrer apart from the supplemental reply brief described above.
(2) Motion To Strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)
The motion to strike is brought in part on the grounds that Akot has failed to plead facts sufficient to support an award of either punitive damages or attorney’s fees. A reasonable interpretation of the allegations of the FAAC indicate that Akot’s claim for punitive damages arise from what Akot contends is financial elder abuse under Welfare and Institutions Code section 15610.30, and fraud, by Flannery. (See, e.g., FAAC, ¶¶ 55, 71, & prayer ¶ 2.) Akot’s claim for attorney’s fees also arises from the purported financial elder abuse of Akot by Flannery. (Id. at ¶ 71.)
Welfare and Institutions Code section 15657.5 permits a plaintiff to recover reasonable attorney’s fees and costs “[w]here it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30….” (Welf. & Inst. Code, § 15657.5, subd. (a).) The statute also “permits a plaintiff who has suffered financial elder abuse to seek punitive damages pursuant to Civil Code section 3294[]” and where it is proven by clear and convincing evidence that the defendant has been guilty of oppression or fraud, among other thigs. (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 507; Welf. & Inst. Code, § 15657.5, subds. (b) & (d).) Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is also shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud.
The demurrer of Flannery is directed to each of the causes of action alleged by Akot in the FAAC, including the second cause of action for fraud and the fifth cause of action for financial abuse of an elder. (Demurrer at pp. 16-19 & 23.) For all reasons discussed above, to the extent Akot has alleged facts sufficient to state a cause of action for fraud, Akot has also alleged facts sufficient to support an award of punitive damages. In addition, to the extent Akot has allege facts sufficient to state a cause of action for financial elder abuse by Flannery, Akot has also alleged facts sufficient to support an award of statutory attorney’s fees. Because the Court will continue the hearing on the demurrer, the Court will also continue the hearing on the motion to strike to avoid piecemeal rulings. The parties shall not be permitted to file any additional papers in support of or in opposition to Flannery’s motion to strike.”
Pursuant to the March Order, the Court continued the demurrer and motion to strike of Flannery to April 18, 2025, and ordered Flannery to, on or before April 1, 2025, file and serve any supplemental reply brief in response to the opposition of Akot to the demurrer and motion to strike.
On April 1, 2025, Flannery served a supplemental reply to Akot’s opposition to the demurrer. The Court’s records reflect that Akot did not file an opposition to Flannery’s motion to strike.
Analysis:
(1) The Demurrer
When ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations including facts which may be inferred from those expressly alleged, but not of contentions, deductions, or conclusions of fact or law. (Ibid.; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
Special demurrer on the grounds of uncertainty:
Flannery demurs to the FAAC, and each cause of action alleged in the pleading, on the grounds that the allegations are uncertain. A party may object by special demurrer on the grounds that the subject pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)
Wholly absent from the demurrer is any factual or legal argument showing, specifically, where the FAAC is uncertain, or why Flannery cannot understand the issues or the nature of the claims alleged by Akot. Moreover, Flannery’s recitation of the allegations of the FAAC suggests that the pleading is not so unintelligible or ambiguous that Flannery cannot understand the issues and the nature of the claims alleged by Akot, or reasonably respond to the allegations. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”].)
Moreover, the allegations of the FAAC indicate or suggest that facts pertaining to the purported transfer of ownership of the mobile home subject to the conditions described above are presumptively known to Flannery. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) To the extent the FAAC is in some respects uncertain as to these matters, any “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
For all reasons discussed above, the court will overrule the special demurrer of Flannery to the FAAC and each cause of action alleged therein, made on the grounds of uncertainty.
Demurrer to the FAAC based on the statute of frauds:
Flannery asserts that each cause of action alleged in the FAAC arises from or relates to an alleged oral or implied promise by Flannery to give Akot an ownership interest in the mobile home. Because Akot has not alleged in or attached to the FAAC a written agreement for the transfer of any ownership interest in the mobile home to Akot, Flannery argues, the FAAC is barred by the statute of frauds. In her opposition to the demurrer, Akot offers no reasoned argument in response to, or to counter or rebut, this point.
In the Akot Complaint, Akot alleged eight causes of action against Flannery: (1) fraud; (2) constructive fraud; (3) breach of contract; (4) restitution/unjust enrichment; (5) breach of fiduciary duty; (6) financial abuse of an elder; (7) declaratory judgment; and (8) deprivation of civil rights. The causes of action alleged in the Akot Complaint also arise from or relate an alleged promise by Flannery or agreement between the parties to transfer 50 percent ownership of the mobile home to Akot upon the conditions further detailed above (See Akot Compl., ¶¶ 5-8.)
“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” (Code Civ. Proc., § 430.41, subd. (b).) The statute of frauds issue could have been but was not raised by Flannery’s demurrer to the Akot Complaint. Therefore, as to Flannery’s demurrer to the FAAC on the grounds that each of its causes of action are barred by the statute of frauds, the demurrer is improper.
Even if the Court were to consider the points raised by Flannery with respect to whether the FAAC is barred by the statute of frauds, the demurrer is without merit.
“A general demurrer may be interposed when the complaint shows on its face that the agreement sued on is within the statute of frauds and does not comply with its requirements.” (Parker v. Solomon (1959) 171 Cal.App.2d 125, 136.) Even if the court were to assume without deciding that the statute of frauds renders the purported agreement to transfer an ownership interest in the mobile home unenforceable, this does not mean that other causes of action arising from purported misrepresentations by Flannery are not actionable. (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183, fn. 10.)
Moreover, to the extent Flannery contends that any oral contract alleged in the FAAC constitutes a gift of personal property which falls within the provisions of Civil Code section 1624.5, Flannery fails to explain why the FAAC shows, on its face, that that the mobile home constitutes personal property under that code section. By way of example there are no allegations appearing on the face of the FAAC to show that the mobile home was “first sold new on or after July 1, 1980”, for purposes of Revenue and Taxation Code section 5801, subdivision (a). The allegations of the FAAC also do not show on their face why the mobile home falls within the provisions of Health and Safety Code section 18008.
To the extent Flannery also contends that the mobile home constitutes real property such that any agreement for its sale to Akot is subject to the statute of frauds under Civil Code section 1624, subdivision (a)(3), the same reasoning and analysis apply. The allegations of the FAAC do not show on their face that the mobile home constitutes real property for purposes of Civil Code section 1624, subdivision (a)(3).
Moreover, the allegations of the FAAC described above are sufficient to show an exception to the statute of frauds based on Akot’s performance of the conditions described in the FAAC and above, and to show that Akot changed her position in reliance on Flannery’s purported oral promise or agreement to transfer co-ownership of the mobile home by, among other things, forfeiting subsidized housing as further described above. (Baggesi v. Baggesi (1950) 100 Cal.App.2d 828, 835 [showing of performance and irrevocable change of position was sufficient to come within exception to statute of frauds]; Zakk v. Diesel (2019) 33 Cal.App.5th 431, 452-453 [general discussion]; see also Seymour v. Oelrichs (1909) 156 Cal. 782, 795, disapproved on another ground in Sterling v. Taylor (2007) 40 Cal.4th 757, 769-770 [doctrine of equitable estoppel is not limited to “any particular class of contracts included within the statute of frauds”].)
A demurrer based on a defense “cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred. [Citation.] Nor is a demurrer the appropriate procedure for determining the truth of disputed facts or what inferences should be drawn where competing inferences are possible.” (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635; see also Walbridge v. Richards (1931) 212 Cal. 408, 415 [general discussion of defense].) For all reasons discussed above, Flannery has failed to demonstrate that each cause of action is necessarily barred by a defense. For these and all reasons further discussed above, the court will overrule the demurrer of Flannery on the grounds that the causes of action alleged in the FAAC are not enforceable under the statute of frauds.
Demurrer to the second, third, fourth, fifth, and sixth causes of action alleged in the FAAC:
Noted above, Akot alleged in the Akot Complaint a first cause of action for fraud. Flannery filed a demurrer to that cause of action, which the Court overruled in the September Order.
As to the present demurrer to the second cause of action for fraud alleged in the FAAC, Flannery offers no information or argument showing why Akot’s cause of action for fraud was amended, why the cause of action for fraud alleged in the Akot Complaint is different from the cause of action for fraud alleged in the FAAC, or why any amendment to the cause of action for fraud changes the Court’s reasoning or analysis as set forth in the September Order with respect to that cause of action.
Absent information showing the manner in which the first cause of action for fraud alleged in the Akot Complaint was amended or changed in the second cause of action for fraud alleged in the FAAC, the same analysis and reasoning set forth in the September Order apply here. In addition, to the extent Flannery demurs to the second cause of action for fraud alleged in the FAAC on grounds that could have been raised in Flannery’s demurrer to the first cause of action for fraud alleged in the Akot Complaint, the Court will, for this and all further reasons discussed above, overrule the demurrer.
The same reasoning and analysis apply as to the third cause of action for breach of contract, the fourth cause of action for restitution/unjust enrichment, the fifth cause of action for financial elder abuse, and the sixth cause of action for declaratory judgment. Absent information or argument showing the manner in which these same causes of action alleged in the Akot Complaint were amended in the FAAC, or how any amendment changes the analysis set forth in the September Order, and to the extent the points presently advanced by Flannery as to these causes of action could have been raised in Flannery’s earlier demurrer, the Court will overrule the demurrer to these causes of action.
Demurrer to the first cause of action for promissory estoppel:
In the first cause of action for promissory estoppel, Akot alleges that Flannery made a promise that if Akot would move into the mobile home, render treatment and care to Freeman for no additional compensation, devise Flannery’s interest in the mobile home to Akot’s adopted daughter, and pay 50 percent of the space rent for the mobile home, Flannery would convey 50 percent ownership of the mobile home to Akot. (FAAC, ¶ 42.) Akot further alleges that, based on the parties’ personal relationship and history and because Flannery needed Akot to live in the mobile home in order to place it in the Park, Akot relied upon Flannery’s promise, moved into the mobile home, rendered care to Freeman, and sacrificed Akot’s entitlement to a housing voucher. (FAAC, ¶ 45.)
Flannery contends that, at most, Akot has alleged a gratuitous oral promise of a 50 percent interest in the mobile home which Flannery argues is insufficient to establish a claim for promissory estoppel. Flannery further contends that Akot has failed to sufficiently allege the promise in clear and unambiguous terms with sufficient detail, terms which are sufficiently definite and certain, or that Akot relied on any promise or suffered a substantial detriment with sufficient factual detail. For these reasons, Flannery argues, Akot has failed to allege facts sufficient to state a claim for promissory estoppel.
The doctrine of promissory estoppel is equitable in nature, and arises from the principle that “ ‘ “he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted.” ’ [Citations.] ” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1041; Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 944-945.) “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.’ [Citation.]” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.)
The disputed elements based on the points raised in the demurrer are whether Akot has alleged a clear and unambiguous promise, reliance on that promise, and that Akot was injured by her reliance. (Demurrer at pp. 15-16.)
The allegations described above, of which the demurrer assumes the truth, show that Flannery made a promise to transfer 50 percent of the ownership of the mobile home if Akot met the conditions described above. These allegations are sufficient to meet the first element of the cause of action for promissory estoppel. (Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 930; see also Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 417 (Granadino) [describing a “promise”].)
As to the element of reliance and injury, Flannery argues that Akot has failed to allege any facts showing what Akot gave up in reliance on the alleged promise of Flannery, and that the allegations are conclusory and vague as to the existence or value of the subsidized housing allegedly lost by Akot, why Akot could not regain that housing, whether Akot ever attempted to regain the housing, or why Akot could not resume a similar living situation.
“Promissory estoppel applies whenever a ‘promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance’ would result in an ‘injustice’ if the promise were not enforced.” (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.) Reliance by the party to whom a promise is made must be justifiable, and that party’s “misguided belief or guileless action in relying on a statement on which no reasonable person would rely is not justifiable reliance.” (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 54 (Kruse).)
The allegations of the FAAC are sufficient to show more than just a “hopeful expectation” that Flannery would transfer co-ownership of the mobile home if Akot agreed to the conditions for that transfer. (Kruse, supra, 202 Cal.App.3d at p. 55.) For example, it can be inferred from the express allegations of the FAAC that Akot knew that Flannery was the owner of the mobile home. (FAAC at p. 2, ll. 10-12 [alleging that Flannery was its original purchaser].) These allegations are sufficient to show that Akot could have reasonably relied on a promise by Flannery to transfer 50 percent ownership of the mobile home to Akot. (Kruse, supra, 202 Cal.App.3d at p. 55 [knowledge that a loan request required approval showed that party could not have reasonably relied on any failure to disclose that request might be denied].)
Further, there is nothing on the face of the FAAC which would suggest that it was unreasonable for Akot to move into the mobile home and surrender the subsidized housing in reliance on Flannery’s promise to transfer 50 percent ownership of the mobile home under the conditions described above and in the FAAC. (Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 227.) Flannery fails to explain why the allegations, on their face, demonstrate that Akot’s reliance on the purported promise made by Flannery was in any respects misguided considering that Akot also alleges that she agreed to and performed the conditions imposed by Flannery. (Id. at pp. 227-228 [reliance on bank’s promise to work with party to reinstate and modify loan was reasonable and foreseeable where bank presented compelling reason to negotiate rather than seek bankruptcy relief].)
For all reasons discussed above, the allegations of the FAAC are sufficient, for pleading purposes, to show that Akot reasonably relied on a clear and unambiguous promise by Flannery to transfer 50 percent ownership of the mobile home to Akot upon Akot agreeing to specified conditions for that transfer, to which Akot agreed. Moreover, allegations showing that Akot rendered care to Freeman without compensation, paid space rent for the mobile home, and surrendered a right to subsidized housing are sufficient to demonstrate damages which are not, on their face, speculative, contingent, or remote. (Granadino, supra, 236 Cal.App.4th at p. 419.) For these and all reasons further discussed above, the Court will overrule the demurrer to the first cause of action for promissory estoppel alleged in the FAAC.
Demurrer to the seventh cause of action for unlawful discrimination in housing:
In the seventh cause of action of the FAAC, Akot alleges that Flannery’s conduct with respect to the terms, conditions, or privileges of the sale or rental of the mobile home constitutes unlawful discrimination against Akot based on Akot’s race, color, religion, sex, familial status, and national origin under “42 U.S.C. section 3604.” (FAAC, ¶¶ 80 & 82-83.)
Flannery contends that Akot has failed to allege a sale or rental of any property apart from an interest in the mobile home, that the claim alleged by Akot is excluded by the Fair Housing Act, codified as 42 U.S.C. § 3601 et seq. (the FHA), which Flannery contends does not apply to a shared living arrangement, that Akot has failed to alleged that she is entitled to bring a claim under the FHA or that Akot suffered any actual damages caused by Flannery’s conduct. For these reasons, Flannery argues, Akot has failed to allege facts sufficient to state a cause of action for violation of the FHA.
Under the FHA, it is unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin” and to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” (42 U.S.C.A. § 3604(a) & (b).)
On its face, and as more fully discussed above, the FAAC does not show that the mobile home is a “single-family house” for purposes of section 3603 of the FHA. The allegations of the FAAC are also, for present purposes, sufficient to show or give rise to an inference which, if proven, may show that Flannery made the mobile home unavailable to Akot, or denied a dwelling to Akot in a manner in which Akot contends was improper or based on a Akot’s national origin or race. (See, e.g., FAAC at p. 3, ll. 8-9 22-24 & ¶ 29 [alleging Akot’s sex and race or national origin and the filing of an unlawful detainer action against Akot].)
For pleading purposes, the allegations described above are sufficient to show that Akot may be entitled to relief notwithstanding whether Akot can prove these allegations. (Gilligan v. Jamco Development Corp. (9th Cir. 1997) 108 F.3d 246, 248–249; Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) Therefore, and for all reasons discussed above, the Court will overrule the demurrer to the seventh cause of action alleged in the FAAC.
(2) Motion To Strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)
Flannery contends that Akot has failed to plead facts sufficient to support an award of punitive damages. Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. In addition, Welfare and Institutions Code section 15657.5 also “permits a plaintiff who has suffered financial elder abuse to seek punitive damages pursuant to Civil Code section 3294[]” and where it is proven by clear and convincing evidence that the defendant has been guilty of oppression or fraud, among other thigs. (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 507; Welf. & Inst. Code, § 15657.5, subds. (b) & (d).)
As the Court will overrule the demurrer to the causes of action for fraud and financial elder abuse alleged in the FAAC, for all reasons discussed above and in the September Order, the Court will deny the motion of Flannery to strike the claim for punitive damages from the FAAC.
Flannery further contends that the claim for attorney’s fees appearing in paragraph 71 and prayer paragraph 6 of the FAAC is improper because Akot has failed to allege a legally sufficient claim for financial elder abuse. Welfare and Institutions Code section 15657.5 permits a plaintiff to recover reasonable attorney’s fees and costs “[w]here it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30….” (Welf. & Inst. Code, § 15657.5, subd. (a).) As the Court will also, and for all reasons further discussed above, overrule the demurrer to the fifth cause of action for financial elder abuse alleged in the FAAC, the Court will deny the motion to strike attorney’s fees claimed by Akot in that pleading.
Flannery further contends that the fourth cause of action for restitution or unjust enrichment is not an independent cause of action. “ ‘Unjust enrichment is not a cause of action.’ It is ‘just a restitution claim.’ [Citation.]” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) Further, unjust enrichment “is ‘ “a general principle, underlying various legal doctrines and remedies,” ’ rather than a remedy itself. [Citation.]” (Cameron v. Evans Securities Corp. (1931) 119 Cal.App. 164, 172; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [also noting that unjust enrichment is “synonymous with restitution”].)
Apart from arguing that a claim for restitution or unjust enrichment is not a cause of action, Flannery fails to explain, with reasoned argument, why Akot is not entitled to restitution based on the facts alleged in the FAAC. As Code of Civil Procedure section 436 does not authorize an attack on an entire cause of action, such as the ostensible claim for restitution alleged in the FAAC, the Court will deny the motion to strike the fourth cause of action alleged in the FAAC. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 [general discussion].)
In addition, Flannery asserts that paragraph 3 of the section titled “Allegations Of Fact”, and paragraphs 48, 62, and 76 of the FAAC are improper because Akot has failed to allege facts establishing the existence of a “confidential” relationship between the parties. To support this point, Flannery relies on the decision in City of Hope National Medical Center v. Genentech, Inc., in which the court examined whether the facts of that case gave rise to a fiduciary relationship. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 387-388.)
While the existence of a confidential relationship may give rise to a legal relationship, a confidential relationship may also exist under circumstances “where there is no fiduciary relation.” (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1160 [noting that a confidential relationship may also be based on a “moral, social, domestic, or merely personal relationship”].)
Giving the FAAC a reasonable interpretation, and considering that Akot has not included in the FAAC the same cause of action for breach of fiduciary duty alleged in the Akot Complaint following the Court sustaining the demurrer of Flannery to that cause of action (see September Order), the allegations of a confidential relationship appear to describe a personal relationship between the parties, and appear intended to provide background or context to the events and other matters alleged in the FAAC. For this reason, Flannery has failed to show, and the Court does not find, that the allegations of a purported confidential relationship are improper or irrelevant. Instead, these allegations appear relevant if not essential to the claims alleged in the FAAC. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [improper for court to strike essential matters].) For these reasons, the Court will deny the motion to strike allegations of a confidential relationship.
Flannery further requests that the Court strike the entirety of paragraphs 35 through 40, 66, and 79 through 84, on the grounds that Akot has alleged claims based on involuntary servitude and discrimination which are not legally cognizable causes of action or supported by the allegations of the FAAC.
The same analysis and reasoning apply. The allegations appearing in paragraphs 35 through 40, 66, and 79 through 84 are, or appear to be, relevant or essential to the seventh cause of action for unlawful discrimination in housing further discussed above. As the Court will overrule the demurrer to that cause of action, the Court will deny the motion to strike paragraphs 35 through 40, 66, and 79 through 84 from the FAAC.
To the extent Flannery requests, in the memorandum submitted in support of the motion to strike, an order striking matters or paragraphs which are not set forth in the notice of the motion to strike, the Court will deny the motion as to these additional matters. (Code Civ. Proc., § 1010; see also Cal. Rules of Court, rule 3.1110(a) [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”]; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [“[a]s a general rule, the trial court may consider only the grounds stated in the notice of motion”].)