William Scott Hoppe v. The Estate of Richard Caldwell Brewer, et al

Defendants’ demurrer to the First and Second Causes of Action is sustained with leave to amend.

Procedural Deficiencies

Local Rule 2.8(C)2 requires the moving party to attach the operative pleading as an exhibit to the demurrer. Code of Civil Procedure Section 430.41(a)(3) requires that the demurring party meet and confer “in person, by telephone, or by video conference”. Defendants did not respect these codes and although the demurrer is not overruled for these reasons, the Court nevertheless reminds Defendants to follow all applicable rules when filing matters with the court. (Code Civ. Proc. § 430.41(a)(4).)

Standard

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law, and it raises only a question of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint “ordinarily is sufficient if it alleges ultimate rather than evidentiary facts” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550), but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn., Inc. v.

Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [citation and internal quotations omitted].) Legal conclusions are insufficient. (Id. at 1098–1099; Doe, 42 Cal.4th at 551, fn. 5.) The court “assume[s] the truth of the allegations in the complaint, but do[es] not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.)

Allegations in the Amended Complaint

Plaintiff is the former owner of 85 Eastview Avenue in Tiburon and claims an interest in the adjacent parcels to 85 and 87 Eastview (the “Disputed Parcel”). Plaintiff now resides in Massachusetts. The named defendants, including Defendants Arne T. Morkemo and Emily G. Morkemo (the “Morkemo Defendants”), who own the property at 87 Eastview, claim or may claim some right or interest adverse to Plaintiff’s claimed interest in the Disputed Parcel. The Disputed Parcel is described by metes and bounds in Exhibit A to the Amended Complaint. Plaintiff alleges that he “claims an interest in the Disputed Parcel based on boundary location as recognized by prior owners and as described in Exhibit A.”

In or around 2007, in connection with Plaintiff's purchase and investigation of 85 Eastview Avenue, Plaintiff obtained a field survey and discussed the location of the boundary area between 85 Eastview Avenue and 87 Eastview Avenue with then-owner Richard Caldwell Brewer. After the boundary area was marked in the field, Plaintiff and Mr. Brewer conducted an on-site walk of the line and discussed the deed exception affecting 85 Eastview Avenue. Brewer stated that he was not asserting any claim based on that exception and that, consistent with the marked line and the public record mapping and survey references, each owner owned everything on his respective side of that line.

After the 2015 conveyances of 85 Eastview and 87 Eastview, a dispute arose regarding ownership and adverse claims to the Disputed Parcel. Defendants began asserting claims that overlap the Disputed Parcel, creating an actual and present controversy regarding the parties’ respective interests and the boundary location. Defendants’ claimed interest is adverse to Plaintiff’s claimed interest and inconsistent with the boundary location recognized on the ground during Mr. Brewer’s ownership and with the recorded survey/map references incorporated in Exhibit A.

The Morkemo Defendants obtained a judgment quieting title in Marin County Superior Court in Case No. CV0000520 concerning a larger, survey-defined area in the vicinity of 87 Eastview. Plaintiff was not named or served in that action.

The First Cause of Action is to quiet title to the Disputed Parcel, and the Second Cause of Action is for declaratory relief.

Request for Judicial Notice

The Morkemo Defendants’ request for judicial notice of the Grant Deed recorded on August 1, 2007, Document No. 2007-0046932 (Exhibit 1), Grant Deed recorded on April 20, 2015, Document No. 2015-0018060 (Exhibit 2), Grant Deed recorded on February 28, 2025, Document No. 2025-0004799 (Exhibit 3), Voluntary Petition for Individuals Filing for Bankruptcy filed in Case No. 18 32706-KRH (Exhibit 4), Summary of Your Assets and Liabilities and Certain Statistical Information filed in Case No. 18-32706-KRH (Exhibit 5), Amendment to Statement of Financial Affairs filed in Case No. 18-32706-KRH (Exhibit 6), Amendment to Schedule A/B filed in Case No. 18-32706-KRH (Exhibit 7), Final Decree filed in Case No. 18-32706-KRH (Exhibit 8), Complaint filed in Emily G.

Morkemo v. Town of Tiburon, Case No. CV0000520 (Exhibit 9), and Judgment Quieting Title Case No. CV0000520 (Exhibit 10), is granted. (Evid. Code §§ 452, 453.)

Causes of Action Subject to Demurrer

First Cause of Action/Quiet Title

Section 761.020

The Morkemo Defendants demur to the First Cause of Action on the ground that the Amended Complaint fails to comply with Code of Procedure Section 761.020, which provides that a complaint in a quiet title action “shall be verified and shall include all the following:

a) A description of the property that is the subject of the action . . . b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title . . . . c) The adverse claims to the title of the plaintiff against which a determination is sought. d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought . . . .” (Code Civ. Proc. § 761.020.)

The demurrer is sustained on the ground that Plaintiff does not comply with Section 761.020. Plaintiff does not identify the basis of his claimed title or the date as of which the determination is sought.

Res Judicata

The Morkemo Defendants demur to the First Cause of Action on the additional ground that it is barred by the doctrine of res judicata. “Claim preclusion prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. [Citation.] Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. [Citations.] If claim preclusion is established, it operates to bar relitigation of the claim altogether.

Claim preclusion also bars claims that could have been raised in the first proceeding . . . . The court may sustain a demurrer on claim preclusion grounds [i]f all the facts necessary to show that the action is barred are within the complaint or subject to judicial notice . . . ” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1190-1191 [citations and internal quotations omitted] [emphasis in original].)

Exhibit 9 to the Morkemo Defendants’ request for judicial notice is a Verified Complaint to quiet title filed by the Morkemo Defendants in August 2023. The Town of Tiburon (the “Town”) was named as a defendant, along with “all persons unknown, claiming any legal or equitable right, title estate, lien, or interest in the property described in the complaint adverse to Plaintiffs’ title, or any cloud on Plaintiffs’ title thereto . . . .” The Verified Complaint alleged that after the Morkemo Defendants bought the property at 87 Eastview in 2015, they learned of discrepancies between the dimensions of the parcel described in the grant deed and the dimensions of the parcel as reflected in the Marin County Assessor’s Parcel Map, and it was determined that a substantial portion of the Morkemo Defendants’ dwelling, and the garage were located outside the property as the property was described in the grant deed.

The Verified Complaint also alleged that the Town owned, controlled, and maintained public roadway rights of way that

border the property and that the Town did not claim any right of ownership of the disputed land shown in the Assessor’s Parcel Map. The Morkemo Defendants sought either the consent of the Town or a judgment that the Town did not have a right or interest in the property.

Exhibit 10 is a Judgment Quieting Title entered on August 22, 2024, which stated among other things that title to the disputed property was vested in the Morkemo Defendants and that all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property adverse to the Morkemo Defendants have no right, title, estate, lien, or interest whatever in or to the Property, or any part of it, adverse to the Morkemo Defendants.

The demurrer is not sustained on this additional basis. Exhibit A to the Complaint reflects a different property description than the exhibit to the Judgment Quieting Title, so the Court cannot tell if the same parcel is at issue in both actions. In addition, the Morkemo Defendants argue that Plaintiff had notice of the earlier action because there was service by publication, but that fact is not found within the four corners of the Amended Complaint, and the Court does not consider extrinsic evidence in the context of a demurrer. (See Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)

Judicial Estoppel

The Morkemo Defendants demur to the First Cause of Action on the additional ground that it is barred by judicial estoppel. “[J]udicial estoppel is an equitable doctrine aimed at preventing fraud on the courts. It is an extraordinary remedy that is applied with caution. The doctrine applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Miyahara v.

Wells Fargo Bank, NA (2024) 99 Cal.App.5th 687, 697 [citations and internal quotations omitted].) “[W]here a debtor in bankruptcy violates its statutory and fiduciary duty to disclose a current claim during a bankruptcy proceeding, equitable and judicial estoppel operate as a bar to further litigation by the debtor.

By virtue of this failure to disclose, equitable and judicial estoppel operate against further litigation. The rationale for these decisions is that the integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets. The courts will not permit a debtor to obtain relief from the bankruptcy court by representing that no claims exist and then subsequently to assert those claims for his own benefit in a separate proceeding.” (Id. at p. 698 [citations and internal quotations omitted].) “[A] debtor’s assertion [in a civil action] of legal claims not disclosed in earlier bankruptcy proceedings constitutes an assumption of inconsistent positions . . .

The omission of a cause of action or claim from . . . mandatory bankruptcy filings is tantamount to a representation that no such claim existed.” (Id. at p. 699 [citation and internal quotations omitted].)

Exhibits 4-7 to the Morkemo Defendants’ request for judicial notice are filings from Plaintiff’s 2018 bankruptcy proceeding. On page 8 of Schedule A/B, paragraph 34, Plaintiffs identify “potential one-quarter interest in real property at 85 Eastview Avenue in Tiburon, CA, as a result of pending boundary dispute litigation; debtors’ potential interest could be worth up to $250,000

though being valued here at ‘unknowns’ due to speculative nature of interest.” Considering this language, the Court cannot conclude that Plaintiff’s claims are barred under the doctrine of judicial estoppel.

Uncertainty

“Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) are disfavored. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [citations and internal quotations omitted].)

The demurrer is not sustained because of uncertainty, as any uncertainty in the First Cause of Action stems from Plaintiff’s failure to allege the requisite elements of a quiet title claim under Section 761.020, as discussed above. The Court already sustains the demurrer based on that deficiency.

Second Cause of Action/Declaratory Relief

Plaintiff’s declaratory relief cause of action is wholly derivative of his quiet title cause of action. The Court sustains the demurrer to the Second Cause of Action on this basis. (See City of Lancaster v. Netflix, Inc. (2024) 99 Cal.App.5th 1093, 1114; Lauckhart v. El Macero Homeowners Assn. (2023) 92 Cal.App.5th 889, 909; Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800.)

The demurrer is sustained on a related basis as well. As Plaintiff does not identify the basis for his claim to the Disputed Parcel, particularly given his allegations that he is the “former owner” of 85 Eastview and now lives in Massachusetts, he has failed to allege facts sufficient to show he has standing for the declaration he seeks. (See D. Cummins Corp. v. United States Fidelity & Guaranty Co. (2016) 246 Cal.App.4th 1484, 1489 [affirming order sustaining demurrer to declaratory relief claim where plaintiff failed to allege facts supporting standing]; Dominguez v. Bonta (2022) 87 Cal.App.5th 389 [same].)

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444- 7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).