TERRY vs FLORES, et al.

24CV020540: TERRY vs FLORES, et al. 05/21/2025 Hearing on Demurrer in Department 53

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Defendants’ Notice of Motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Defendants’ counsel is directed to contact opposing counsel forthwith to advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If Defendants’ counsel is unable to contact opposing counsel prior to the hearing, Defendants’ counsel shall be available at the hearing, in person or remotely (telephonically or by video conference via Zoom as stated in the introductory notice to today’s tentative rulings), in the event opposing counsel appears without following the procedures set forth in Local Rule 1.06(B).

Defendants Saul A. Flores, Kristian A. Flores, Maria E. Flores, and Olives and Moore LLC’s (“Defendants”) Demurrer to Plaintiff Alan Terry’s (“Plaintiff”) Complaint is ruled upon as follows.

Factual Background

This case pertains to Plaintiff’s purchase of a home commonly known as 9460 Bar Du Lane, Sacramento (“Subject Property”) from Defendant Maria Flores. Plaintiff alleges that he made multiple payments to Defendant Maria Flores (“Maria”) for the property, who failed to transfer the property. Plaintiff further alleges that Defendants evicted him from the subject property and improperly took possession of his personal property. The complaint alleges causes of action for: (1) conversion; (2) common count, money had and received; (3) fraud; (4) breach of contract (oral); (5) breach of implied covenant of good faith and fair dealing; (6) violation of Uniform Fraudulent Transfer Act; (California Civil Code §§ 3439.04(a)(1), (a)(2)(a), (a)(2)(B) and 3439.5); and (7) civil conspiracy (to violate the UFTA).

Defendants demur on the grounds that each cause of action fails to state sufficient facts and is uncertain. Plaintiff opposes.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020540: TERRY vs FLORES, et al. 05/21/2025 Hearing on Demurrer in Department 53

v. Lynch (1990) 225 Cal.App.3d 1259, 1271.)

A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. §452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal.3d at p. 318; William S.

Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616, fn. 2.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Discussion

First Cause of Action for Conversion

Defendants argue that Plaintiff fails to state a cause of action for conversion, as Plaintiff voluntarily left the property and Defendants continued to allow Plaintiff access to the property to obtain his possessions.

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

The complaint alleges that Defendant Maria asked Plaintiff to purchase the subject property from

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020540: TERRY vs FLORES, et al. 05/21/2025 Hearing on Demurrer in Department 53

her for the amount of $1,030,000, with $310,000 to be paid in cash. (Complaint, ¶ 14.) Plaintiff wrote Defendant Maria checks and cash totaling $155,000. (Complaint, ¶ 15.) However, Defendant Maria never transferred ownership of the property to Plaintiff, instead transferring the property to her sons. (Complaint, ¶ 17.) The complaint further alleges that after serving Plaintiff with a notice to quit the property, when Plaintiff returned to collect his gun collection, he found the safe open, with all of his firearms missing. (Complaint, ¶¶ 29-32.) Similarly, Plaintiff’s equipment has been removed from the property and sold without Plaintiff’s permission. (Complaint, ¶¶ 33, 34.) Plaintiff has not been reimbursed for the funds given to Defendant Maria, nor has been returned or repaid for his missing personal property. (Complaint, ¶¶ 35-27.)

Defendants argue that they have stored Plaintiff’s personal property “well beyond what is legally required under the Unlawful Detainer judgment and the DVRO.” (Mot., p. 5:3-4.)

The Court declines to take judicial notice of Plaintiff’s unlawful detainer ruling, Defendants fail to provide a full copy of the ruling, or to properly authenticate it. (See People v. Preslie (1977) 70 Cal.App.3d 486, 494; Pastoria v. Nationwide Insurance (2003) 112 Cal.App.4th 1490, 1495, n.4.)

While Defendants argue that the complaint fails because “it does not provide specific factual allegations or evidence demonstrating that Defendants wrongfully took possession of or interfered with Plaintiff’s property,” the Complaint provides specific information regarding Defendant’s taking possession of his personal property without permission and refusing to return it. Further, Defendants fail to respond to allegations in the complaint that Defendant Maria solicited $155,000 from Plaintiff with promises of selling the subject property to him.

Plaintiff has sufficiently stated a claim to survive the demurrer stage.

With regard to Defendant’s argument that the complaint is fatally uncertain, the allegations are not so uncertain that Defendants cannot frame a response. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2014), sec. 7:85, p. 7(l)-39.)

Defendants’ demurrer to Plaintiff’s first cause of action is OVERRULED.

Second Cause of Action for Common Count, Money Had and Received

Defendants argue that Plaintiff has not alleged sufficient facts to support the cause of action for common count, as Plaintiff’s allegations regarding the funds given to Plaintiff Maria are “strongly contradicted by correspondence between Plaintiff, his son Miles, and Jesus Nebot, a real estate professional brought in to help both parties negotiate a potential agreement on the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020540: TERRY vs FLORES, et al. 05/21/2025 Hearing on Demurrer in Department 53

purchase of the Property. Jesus Nebot reached out by phone and text between January 1st and January 3rd to the Plaintiff with questions regarding Plaintiff’s intent to purchase the property. Plaintiff failed to make any specific offer, verbally or in writing, and never claimed to have made any payment towards the purchase of the Property. The same holds true when Defendant Maria brought up the topic to Plaintiff.” (Mot., p. 6:5-12.)

As noted above, demurrers stand on the facts alleged in the complaint. Defendants’ demurrer to this cause of action is based almost entirely upon extrinsic evidence which is not only not before the Court, but cannot be properly considered on demurrer. Moreover, Defendants seek a factual determination that is outside the scope of a demurrer.

As with Plaintiff’s first cause of action, the second cause of action for common count is not so uncertain as to give rise to demurrer.

Defendants’ demurrer to this cause of action is OVERRULED.

Third Cause of Action for Fraud

Defendants argue that the cause of action for fraud fails because the complaint does not “provide specific details regarding any false statements or promises made by Defendants Olives and Moore LLC or Maria Flores.” Defendants further argue that the Complaint does not contain specific allegations regarding any fraud by Defendant Olives & Moore.

The elements of common law fraud in California are (1) a misrepresentation of a material fact (false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) These elements are identical to those for deceit under Civil Code section 1709. (Lazar v. Superior Court (1996) 12 Cal.4th 631 638.) Fraud must be pled with specificity. (Small v.

Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v.

Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020540: TERRY vs FLORES, et al. 05/21/2025 Hearing on Demurrer in Department 53

Here, while Plaintiff alleges that Defendant Maria took his money following promises to sell the property, the complaint contains no allegations that Defendant Maria never intended to sell the house, nor that she had an intent to defraud Plaintiff. Further, the complaint does not give specific details regarding the fraudulent statements by Defendants, as required to meet the particularity standard for a claim for fraud.

Based on the foregoing, Defendants’ demurrer to Plaintiff’s cause of action for fraud is SUSTAINED, with leave to amend.

Fourth Cause of Action for Breach of Oral Contract and Fifth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing

Defendants demur to Plaintiff’s fourth and fifth causes of action on the grounds that Plaintiff does not provide specific details regarding the oral contract, and because an oral contract would be barred by the statute of frauds.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

“There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658.)

Plaintiff has sufficiently alleged the terms of the contract for the purposes of demurrer. However, Plaintiff makes no response to Defendants’ argument that the claim is barred by the statute of frauds. A party's failure to oppose a ground for demurrer is construed as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.)

Therefore, Defendants’ demurrer to the causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing is SUSTAINED, with leave to amend.

Sixth Cause of Action for Violation of Uniform Fraudulent Transfer Act

Defendants demur to Plaintiff’s sixth cause of action for violation of the Uniform Fraudulent Transfer Act on the grounds that the complaint fails to allege any intent to hinder, delay, or defraud creditors on Defendants’ part.

Under the Uniform Fraudulent Transfer Act, a plaintiff must allege facts sufficient to show “...a transfer by the debtor of property to a third person undertaken with the intent to prevent a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV020540: TERRY vs FLORES, et al. 05/21/2025 Hearing on Demurrer in Department 53

creditor from reaching that interest to satisfy its claim.” A transfer is fraudulent if it was intended to “hinder, delay, or defraud any creditor of the debtor.” See Civil Code section 3439.04(a)(1).

While the Complaint alleges that Defendant Maria transferred the subject property to her sons, it contains no allegations that the transfer occurred specifically with the intent to preventing Plaintiff from satisfying his own claims to it.

Defendants’ demurrer to this cause of action is SUSTAINED, with leave to amend.

Seventh Cause of Action for Civil Conspiracy

Finally, Defendants argue that Plaintiff’s claim for civil conspiracy fails because the Complaint fails to allege an independent wrongful act in relation to the transfer of the subject property to her sons.

“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.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-51.) “Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.” (Id.; see also Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574 [“The unifying principle under either theory of recovery, civil conspiracy or aiding and abetting, is that [defendant's] liability depends upon the actual commission of a tort.”].) “The conspiring defendants must have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.” (Kidron v.

Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.)

As the Court has sustained the underlying cause of action upon which Plaintiff bases his claim for conspiracy, the demurrer to the seventh cause of action is similarly SUSTAINED.

Disposition

Defendants’ demurrer is OVERRULED as to causes of action one and two, and SUSTAINED as to causes of action three, four, five, six, seven, with leave to amend.

Plaintiff may file and serve an amended complaint no later than June 2, 2025. Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the First Amended Complaint. Defendant may file and serve a response within 30 days of service of the First Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is required.