Malasky v. Malasky CA1/3

Filed 4/28/16 Malasky v. Malasky CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

HANK MALASKY, Plaintiff and Appellant, A143448 v. MARTIN MALASKY, et al., (Marin County Super. Ct. No. CIV1401290) Defendants and Respondents.

Plaintiff Hank Malasky sued his sons Martin and Garrett for damages in a dispute over payment of a secured promissory note he executed in their favor. Plaintiff appeals in propria persona after the court sustained a demurrer to his complaint without leave to amend.1 He challenges the ruling on the demurrer and the award of attorney fees to defendants. We affirm. I. BACKGROUND Plaintiff and his former wife, Sandra Esposito, executed a promissory note dated May 17, 2010, for the sum of $60,000 plus six percent interest per annum payable to defendants. The note stated that it was given “[f]or valuable consideration,” and provided for payment of attorney fees to the prevailing party in any legal action to

1 An order sustaining a demurrer without leave to amend is not an appealable order. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) The appeal lies from an order or judgment dismissing the case, neither of which appears to have been entered here. Nevertheless, we will deem the order on the demurrer to include a judgment of dismissal, and reach the merits of the appeal. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527, fn. 1.)

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enforce the note’s terms. The note was secured by a deed of trust on real property owned by plaintiff and Esposito in Tiburon. The deed of trust provided that “Borrower shall pay when due the principal of, and interest on, the debt evidenced by the note,” and that “Borrower’s obligations and liability shall be joint and several.” The deed of trust required maintenance of insurance for the property, and included other typical covenants such as those against waste and creation of senior liens. The complaint alleges that, contrary to the terms of the note, it was not given for any consideration. The complaint states that plaintiff and Esposito were sued in 2010 for a debt owed to a law firm. Plaintiff and Esposito gave defendants the note and deed of trust “to attempt to protect $60,000 in equity which they believed they had in the Property” from the potential judgment creditor. When the lawsuit settled, there was no longer any need to protect that equity. Esposito conveyed her interest in the property to plaintiff, and plaintiff contracted to sell it. Plaintiff asked defendants to cancel the note and deed of trust but they refused. Instead, they made a demand for payment of the outstanding balance of the note from the escrow for the sale, which was set to close on the day the complaint was filed. The complaint set forth causes of action for unjust enrichment, fraud, and breach of contract/declaratory relief. The unjust enrichment cause of action was based on an alleged lack of consideration for the note. The fraud and breach of contract causes of action were based on defendants’ alleged agreement to deposit the amount owed on the note into an attorney’s trust account until a court determined whether plaintiff was liable for the debt. Defendants demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action. In support of the demurrer, defendants requested judicial notice of the judgment on reserved issues in plaintiff and Esposito’s divorce, under which plaintiff “assume[d] responsibility for the student loans for the parties’ children (approximately $56,000)” and debts on property, and the parties were “free to compromise/resolve liabilities they have assumed.” Defendants also requested