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This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:29:37 (UTC).

WILLIAM CAMPANA VS CONSUELO SALDANA ET AL

Case Summary

On 07/17/2017 WILLIAM CAMPANA filed a Property - Other Real Property lawsuit against CONSUELO SALDANA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHANIE M. BOWICK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8542

  • Filing Date:

    07/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHANIE M. BOWICK

 

Party Details

Plaintiff and Petitioner

CAMPANA WILLIAM

Defendants and Respondents

DOMINGUEZ MIGUEL A.

DOMINGUEZ IVA C.

SALDANA CONSUELO

DOES 1 TO 100

ALL PERSON UNKNOWN CLAIMING ANY LEGAL OR

ALL PERSON UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE TITLE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LOPEZ STEVE ESQ.

LOPEZ STEVE

Defendant and Respondent Attorneys

YEAGER MICAHEL A.

GESELOWITZ DENNIS

 

Court Documents

Certificate of Mailing for

7/5/2019: Certificate of Mailing for

Notice

7/8/2019: Notice

Substitution of Attorney

8/6/2019: Substitution of Attorney

Request for Judicial Notice

8/6/2019: Request for Judicial Notice

Objection

8/9/2019: Objection

Objection

8/9/2019: Objection

Notice of Ruling

8/13/2019: Notice of Ruling

Proof of Service

3/20/2018: Proof of Service

NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS, WITHOUT OBJECTIONS, TO SPECIAL INTERROGATORIES, SET NO. ONE,; ETC.

6/7/2018: NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS, WITHOUT OBJECTIONS, TO SPECIAL INTERROGATORIES, SET NO. ONE,; ETC.

NOTICE RE: CONTINUANCE OF HEARING

8/3/2018: NOTICE RE: CONTINUANCE OF HEARING

DEPARTMENT 19 - LAW AND MOTION RULINGS

9/14/2018: DEPARTMENT 19 - LAW AND MOTION RULINGS

Notice of Entry of Judgment

12/24/2018: Notice of Entry of Judgment

Minute Order

3/4/2019: Minute Order

Separate Statement

4/2/2019: Separate Statement

Minute Order

11/13/2017: Minute Order

Proof of Service

11/3/2017: Proof of Service

PROOF OF SERVICE SUMMONS

9/5/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

8/29/2017: PROOF OF SERVICE SUMMONS

74 More Documents Available

 

Docket Entries

  • 08/22/2019
  • Hearingat 08:30 AM in Department 19 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 08/22/2019
  • Hearingat 08:30 AM in Department 19 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 08/22/2019
  • Hearingat 08:30 AM in Department 19 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 08/22/2019
  • Hearingat 08:30 AM in Department 19 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 08/13/2019
  • Docketat 09:30 AM in Department 19; Final Status Conference - Not Held - Vacated by Court

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  • 08/13/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 08/12/2019
  • DocketObjection (to Declaration of Dennis G Geselowitz); Filed by William Campana (Plaintiff)

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  • 08/09/2019
  • DocketReply (PLAINTIFF?S REPLY TO DEFENDANTS? OPPOSITION TO PLAINTIFF?S MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF STEVE LOPEZ); Filed by William Campana (Plaintiff)

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  • 08/09/2019
  • DocketObjection (PLAINTIFF'S OBJECTIONS TO DECLARATION OF IVA CORINA DOMINGUEZ); Filed by William Campana (Plaintiff)

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  • 08/09/2019
  • DocketProof of Service (not Summons and Complaint); Filed by William Campana (Plaintiff)

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125 More Docket Entries
  • 08/29/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/24/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 07/24/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/18/2017
  • DocketNotice of Lis Pendens; Filed by William Campana (Plaintiff)

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  • 07/18/2017
  • DocketNOTICE OF PENDENCY OF ACTION (LIS PENDENS)

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  • 07/17/2017
  • DocketCOMPLAINT FOR PARTITION OF REAL PROPERTY (CCP SECTION 872.21O, 872.230); AND FOR ACCOUNTING, PARTNERSHIP DISSOLUTION, CONSTRUCTIVE TRUST, COMMON COUNT, AND DAMAGES FOR BREACH OF FIDUCIARY DUTY

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  • 07/17/2017
  • DocketComplaint; Filed by William Campana (Plaintiff)

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  • 07/17/2017
  • DocketCIVIL CASE COVER SHEET

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  • 07/17/2017
  • DocketSummons; Filed by William Campana (Plaintiff)

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  • 07/17/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC668542    Hearing Date: November 06, 2020    Dept: 76

This is an action to partition real property owned by a partnership and to dissolve the partnership.

Defendants filed a cross-complaint to quiet title, claiming Plaintiff does not have any actual ownership interest in the property.

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint and the First Amended Answer to the Second Amended Complaint filed by Defendants.

TENTATIVE RULING

Plaintiff/Cross-Defendant William Campana’s demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first and only cause of action. Cross-Complainants are given 30 days leave to amend.

Plaintiff’s demurrer to the entire First Amended Answer to the Second Amended Complaint is OVERRULED.

ANALYSIS

Demurrer To First Amended Cross-Complaint

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint.

Request For Judicial Notice

Plaintiff/Cross-Defendant requests that the Court take judicial notice of the following: (1) Answer to Complaint; (2) Grant Deed recorded February 18, 2014; (3) Application for Guardian Ad Litem filed by Iva Dominguez on March 4, 2019 in this action; (4) Death Certificate of Mario Campana. Request Nos. 1 and 3 are GRANTED per Evid. Code § 452(d)(court records). Request No. 2 is GRANTED. The Court may take judicial notice of recorded documents. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Request No. 4 is GRANTED. “[R]ecords of a county are properly noticed under Evidence Code section 452, subdivision (c) [official acts of the state], because counties are legal subdivisions of the state.” (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 416, overruled on other grounds in County of San Diego v. State of California (1997) 15 Cal.4th 68, 106.)

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP § 430.41(a)(3)(B).

Discussion

The Cross-Complaint alleges a single cause of action to quiet title to the subject real property.

1. First and Only Cause of Action (Quiet Title.)

A. Re: Uncertainty.

A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Citations omitted.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Cross-Defendant demurs on the ground that the meaning of the allegations is ambiguous. Cross-Defendant argues that the First Amended Cross-Complaint (“1ACC”) does not allege what interest in the subject property Consuelo Saldana is holding, as she previously alleged that she transferred all her interest to Iva and Miguel. Cross-Defendant argues that the 1ACC attempts to plead around this issue by stating that Conseulo signed a grant deed transferring half of her ownership interest in the property. However, Cross-Complainant argues, this completely contradicts the judicial admission in her Answer to the original Complaint where she states that she signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on February 18, 2014, in an attempt to pass her ownership interest in the property, including all beneficial interest. (See Answer to Original Complaint at ¶ 13.)

The Court deems the allegation at ¶ 19 of the 1ACC that Consuelo Saldana transferred “half of her ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014” (italics added) to be poor draftsmanship. It can be (and for purposes of demurrer, must be) inferred in light of the surrounding allegations that she attempted to “pass on her ownership interest in the property, including all beneficial interest,” and “[t]he only reason that the deed referred to a half-interest, was that the recorded declined to transfer of the full interest because Mario Campana had never kept his word to sign over the other half interest; and the recorder would transfer only what was shown on the record.” (1ACC, ¶ 19.) It appears that Conseulo is alleging that she transferred her half legal/record interest in the property, and all of her beneficial interest, to the Dominquezes. The Court does not find a contradiction with prior pleadings such that the sham pleading doctrine applies. “[U]nder the sham pleading doctrine, the trial court may disregard amendments that omit harmful allegations in the original complaint or add allegations inconsistent with it. (Citations omitted.)” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1281 [italics added].)

Cross-Defendant also argues that ¶¶ 6 and 10 of the 1ACC contradict each other. First, it alleges that it was agreed between Cross-Complainant Consuelo Saldana and Mario Campana that the true owner and beneficial interest remain solely with Consuelo Saldana. Then, Cross-Complainants allege that upon completion of the mortgage, Mario Campana was to transfer his interest to Consuelo Saldana. This is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

A “beneficial” or “equitable owner” is defined as “[o]ne recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust.” (Citations omitted.) In contrast, the “legal owner” is “[o]ne recognized by law as the owner of something; esp., one who holds legal title to property for the benefit of another.” (Citations omitted.)

(Pacific Gas & Electric Co. v. Hart High-Voltage Apparatus Repair & Testing Co., Inc. (2017) 18 Cal.App.5th 415, 427.)

Further, Cross-Defendant argues, ¶ 15 alleges that Mario Campana holds no beneficial interest in the subject property, but in the same paragraph, alleges that Mario Campana never transferred his interest to Cross-Complainants. Again, this is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

Cross-Defendant also argue that the basis to quiet title is not clear. The Court agrees that Cross-Complainants must clarify exactly which theories they rely upon to quiet title against Cross-Defendant. As noted, it appears there is a breach of contract theory asserted (1ACC, ¶ 10), and there is also a reference to adverse possession (¶ 13). To enable Cross-Defendant to reasonably respond, Cross-Complainants must separately plead such theories and plead the elements of each such cause of action. If the statute of frauds defense appears on the face of an amended complaint, Cross-Defendant may raise the issue as appropriate.

The demurrer on the ground of uncertainty is persuasive.

The demurrer to the first and only cause of action to quiet title is SUSTAINED with leave to amend on the ground of uncertainty.

B. Re: Defect or Misjoinder of Parties.

Cross-Defendant argues that there has been a defect of parties because the allegations of the Cross-Complaint do not indicate that Cross-Defendant committed a tort or breach against Cross-Complainants, and the only wrongdoer is Mario Campana (deceased). Thus, Cross-Defendant argues, Mario Campana’s successor in interest or his estate must be named as a Cross-Defendant.

This argument is not persuasive. Whether or not Cross-Complainants have stated facts sufficient to constitute a cause of action against Cross-Defendant is a different inquiry than if there has been a defect of parties. There is no dispute that Cross-Defendant William Campana—who is co-owner of record as to the subject property (1ACC, ¶17)—must be named as a defendant to the quiet title cause of action.

Nonetheless, whether or not Cross-Complainants’ failure to name Mario Campana’s estate or successor-in-interest goes to whether Cross-Complainants can obtain relief against the appropriate parties, which is their concern, not Cross-Defendant’s. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

n1 In answering this question, we cannot ignore Witkin's observation that "[although] the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled. [Citations.]" (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 823, p. 2432.)

(Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

This ground for demurrer is not persuasive.

C. Statute of Limitations.

The only cause of action asserted in the Cross-Complaint is one for quiet title. The statute of limitations would not begin to run against cross-complainants seeking to quiet title while they are in possession of the property. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-56. Here, Cross-Complainants allegedly continue to live at the property as their primary residence. (1ACC ¶ 19.)

Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies. (See, e.g., Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] [relief dependent on rescission of a contract, rule requiring prompt action applies]; Kenney v. Parks, 137 Cal. 527, 530 [70 P. 556] [nondelivery of deed, Code Civ. Proc., § 318 applies; failure of trust condition, Code Civ. Proc., § 343 applies]; Estate of Pieper, 224 Cal.App.2d 670, 689 [37 Cal.Rptr. 46] [nondelivery of deed, Code Civ. Proc., § 343 applies]; Turner v. Milstein, 103 Cal.App.2d 651, 657-659 [230 P.2d 25] [extrinsic fraud, Code Civ. Proc., § 338, subd. 4, applies].) In the present case, however, it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. n2 ( Smith v. Matthews, 81 Cal. 120, 121 [22 P. 409]; Faria v. Bettencourt, 100 Cal.App. 49, 51-52 [279 P. 679]; 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613; 41 Cal.Jur.2d, Quieting Title, Etc., § 25, p. 493; see Newport v. Hatton, 195 Cal. 132, 145 [231 P. 987]; Sears v. County of Calaveras, 45 Cal.2d 518, 521 [289 P.2d 425]; see also, Berniker v. Berniker, 30 Cal.2d 439, 448 [182 P.2d 557].) In many instances one in possession would not know of dormant adverse claims of persons not in possession. (See 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613.) Moreover, even if, as here, the party in possession knows of such a potential claimant, there is no  [*561]  reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him. (See Berniker v. Berniker, supra, 30 Cal.2d at p. 448.) Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant. ( Stewart v. Rice, 30 Cal.App.2d 335, 340 [86 P.2d 136]; see DaSilva v. Reeves, 215 Cal.App.2d 172, 175 [30 Cal.Rptr. 81]; see also Berniker v. Berniker, supra, 30 Cal.2d at p. 448 [7].) In this case, however, the trial court erred in holding that plaintiff's action was barred by the statute of limitations and thus did not reach the question of laches.

(Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-561 [bold emphasis added].)

As such, the Court need not address Cross-Defendant’s statute of limitations argument asserted as to fraud, constructive/resulting trust or breach of contract. Also, Cross-Defendant’s request that the Court strike such allegations were required to be brought as a separate motion to strike.

In this regard, Cross-Defendant’s argument that the material time or date is omitted to avoid the statute of limitations issue is not persuasive. As noted above, there is no statute of limitations issue as to the only cause of action to quiet title.

D Re: Laches.

Cross-Defendant argues that this action is barred by laches.

The court declines to find that Cross-Complainants’ claim is barred by laches at this stage of litigation, as such a finding would be made by the Court after hearing the evidence. (Estate of Kampen (2011) 201 Cal.App.4th 971, 997.) Moreover, as laches is an equitable doctrine, the Court will be called upon to exercise its discretion in determining whether laches applies, i.e., whether there has been unreasonable delay plus acquiescence in the act or prejudice to defendant. (Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.) Application of laches is not appropriate if prejudice to the defendant from the delay does not appear from the face of the complaint. (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)s

“ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 [99 Cal. Rptr. 2d 316, 5 P.3d 874].) Prejudice is not presumed from the simple fact of delay; it must be affirmatively shown. (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049 [116 Cal. Rptr. 2d 38].) In determining whether a defendant has sustained its burden of proving laches, the court may consider the extent to which the defendant is partially responsible for the delay. (Ibid.) “Laches is an equitable defense, the existence of which is a matter commended to the discretion of the trial court, ‘and in the absence of manifest injustice or lack of substantial support in the evidence, the trial court's determination will be sustained. [Citation.]’” (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643 [267 Cal. Rptr. 350].)

(Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.)

“ ‘Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances … .’ ” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1286 [258 Cal. Rptr. 795].) However, the issue may be addressed as one of law if the facts are undisputed. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607 [51 Cal. Rptr. 2d 897], overruled on another issue in San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402–403 [83 Cal. Rptr. 2d 836].)

(Estate of Kampen (2011) 201 Cal.App.4th 971, 997.)

For laches to be a successful defense there must have been unreasonable delay and prejudice to the defendant caused by that delay (30 Cal.Jur.3d at p. 487). For a demurrer to be sustained both the delay and the injury must be disclosed in the complaint (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 813). Here Ruby claims that Leo retired on August 1, 1973; she does not tell us when she learned of her rights; she filed suit March 10, 1977; there is no suggestion whatever delay occurred would injure Leo. Under these circumstances it is improper to sustain a demurrer on the basis of laches. Rather, any prejudice should be raised in the answer and the issue determined at trial.

(Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)

This ground for demurrer is not persuasive.

Demurrer To First Amended Answer

Plaintiff/Cross-Defendant demurs to First Amended Answer to the Second Amended Complaint filed by Defendants.

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP § 435.5(a)(3)(B).

Discussion

1. Entire Answer

Plaintiff demurs to the entire First Amended Answer (“1AA”) to the Second Amended Complaint on the ground that it is a sham pleading because it has omitted previous judicial admissions pled in the original Answer. Plaintiff points to ¶¶ 45, 46 and 47 of the 2AC as being admitted in the original Answer.

As to ¶ 45 of the 2AC, Plaintiff alleges that Mario Campana transferred his one-half ownership interest in the property to Plaintiff. At time of transfer, Mario Campana had a 50% ownership interest, thus Plaintiff currently has a 50% ownership interest. Defendant argues that, in Defendants’ 1AA, Defendants deny this paragraph in its entirety. Defendants do this even though in paragraph 11 of Defendants’ original Answer, Defendants state “Mario Campana ultimately transferred whatever interest he did have in the property to Plaintiff William Campana on July 31, 2013 in a quitclaim deed.” That same paragraph goes on to discuss how enraged Defendant Consuelo Saldana was by this transfer.

To the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 45 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP § 430.20, which provides:

A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.

(Code Civ. Proc., § 430.20).)

As to ¶ 46 of the 2AC, Plaintiff alleges that Defendant Consuelo became aware of the interest transfer from Mario Campana between July 31, 2013 and February 18, 2014. Defendant argues that, in Defendants’ 1AA, Defendant’s deny knowledge of this matter, even though, Defendants previously stated in their Original Answer, paragraph 11, that knowledge of this transfer enraged Consuelo Saldana.

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 46 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP § 430.20.

As to ¶ 47 of the 2AC, Plaintiff alleges that Defendant Consuelo Saldana transferred her one-half interest in the Property, including all beneficial interest, to Miguel and Iva on or about February 18, 2014. In Defendant’s 1AC, with exception to Exhibit D, Defendants deny all allegations of paragraph 47. Defendants deny this notwithstanding the fact that on paragraph 13 of their original Answer, Defendants state, “In an attempt to pass on her ownership interest in the property, including all beneficial interest, Consuelo Saldana signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014...”

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 47 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP § 430.20.

Accordingly, Plaintiff’s demurrer to the entire 1AA to the 2AC is OVERRULED.

Case Number: BC668542    Hearing Date: October 28, 2020    Dept: 76

This is an action to partition real property owned by a partnership and to dissolve the partnership.

Defendants filed a cross-complaint to quiet title, claiming Plaintiff does not have any actual ownership interest in the property.

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint and the First Amended Answer to the Second Amended Complaint filed by Defendants.

TENTATIVE RULING

Plaintiff/Cross-Defendant William Campana’s demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first and only cause of action. Cross-Complainants are given 30 days leave to amend.

Plaintiff’s demurrer to the entire First Amended Answer to the Second Amended Complaint is OVERRULED.

ANALYSIS

Demurrer To First Amended Cross-Complaint

Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint.

Request For Judicial Notice

Plaintiff/Cross-Defendant requests that the Court take judicial notice of the following: (1) Answer to Complaint; (2) Grant Deed recorded February 18, 2014; (3) Application for Guardian Ad Litem filed by Iva Dominguez on March 4, 2019 in this action; (4) Death Certificate of Mario Campana. Request Nos. 1 and 3 are GRANTED per Evid. Code § 452(d)(court records). Request No. 2 is GRANTED. The Court may take judicial notice of recorded documents. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Request No. 4 is GRANTED. “[R]ecords of a county are properly noticed under Evidence Code section 452, subdivision (c) [official acts of the state], because counties are legal subdivisions of the state.” (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 416, overruled on other grounds in County of San Diego v. State of California (1997) 15 Cal.4th 68, 106.)

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP § 430.41(a)(3)(B).

Discussion

The Cross-Complaint alleges a single cause of action to quiet title to the subject real property.

1. First and Only Cause of Action (Quiet Title.)

A. Re: Uncertainty.

A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Citations omitted.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Cross-Defendant demurs on the ground that the meaning of the allegations is ambiguous. Cross-Defendant argues that the First Amended Cross-Complaint (“1ACC”) does not allege what interest in the subject property Consuelo Saldana is holding, as she previously alleged that she transferred all her interest to Iva and Miguel. Cross-Defendant argues that the 1ACC attempts to plead around this issue by stating that Conseulo signed a grant deed transferring half of her ownership interest in the property. According to Cross-Complainant, this statement completely contradicts the judicial admission in her Answer to the original Complaint where she states that she signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on February 18, 2014, in an attempt to pass her ownership interest in the property, including all beneficial interest. (See Answer to Original Complaint at ¶ 13.)

The Court deems the allegation at ¶ 19 of the 1ACC—that Consuelo Saldana transferred “half of her ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014” (italics added)—to be poorly drafted. The meaning of this allegation appears to be clarified by the surrounding allegations that she attempted to “pass on her ownership interest in the property, including all beneficial interest,” and “[t]he only reason that the deed referred to a half-interest, was that the recorded declined to transfer of the full interest because Mario Campana had never kept his word to sign over the other half interest; and the recorder would transfer only what was shown on the record.” (1ACC, ¶ 19.) It appears that Conseulo is alleging that she transferred her half legal/record interest in the property, and all of her beneficial interest, to the Dominguezes. The Court does not find a contradiction with prior pleadings such that the sham pleading doctrine applies. “[U]nder the sham pleading doctrine, the trial court may disregard amendments that omit harmful allegations in the original complaint or add allegations inconsistent with it. (Citations omitted.)” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1281 [italics added].)

Cross-Defendant also argues that ¶¶ 6 and 10 of the 1ACC contradict each other. First, it alleges that it was agreed between Cross-Complainant Consuelo Saldana and Mario Campana that the true owner and beneficial interest remain solely with Consuelo Saldana. Then, Cross-Complainants allege that upon completion of the mortgage, Mario Campana was to transfer his interest to Consuelo Saldana. This is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

A “beneficial” or “equitable owner” is defined as “[o]ne recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust.” (Citations omitted.) In contrast, the “legal owner” is “[o]ne recognized by law as the owner of something; esp., one who holds legal title to property for the benefit of another.” (Citations omitted.)

(Pacific Gas & Electric Co. v. Hart High-Voltage Apparatus Repair & Testing Co., Inc. (2017) 18 Cal.App.5th 415, 427.)

Further, Cross-Defendant argues, ¶ 15 alleges that Mario Campana holds no beneficial interest in the subject property, but in the same paragraph, alleges that Mario Campana never transferred his interest to Cross-Complainants. Again, this is not inconsistent, as Cross-Complainants allege that Mario Campana held a 50% legal (record) interest in the property, but no beneficial interest in the subject property.

Cross-Defendant also argues that the basis to quiet title is not clear. The Court agrees that Cross-Complainants must clarify exactly which theories they rely upon to quiet title against Cross-Defendant. As noted, it appears there is a breach of contract theory asserted (1ACC, ¶ 10), and there is also a reference to adverse possession (¶ 13). To enable Cross-Defendant to reasonably respond, Cross-Complainants must separately plead such theories and plead the elements of each such cause of action. If the statute of frauds defense appears on the face of an amended complaint, Cross-Defendant may raise the issue as appropriate.

The demurrer on the ground of uncertainty is persuasive.

The demurrer to the first and only cause of action to quiet title is SUSTAINED with leave to amend on the ground of uncertainty.

B. Re: Defect or Misjoinder of Parties.

Cross-Defendant argues that there has been a defect of parties because the allegations of the Cross-Complaint do not indicate that Cross-Defendant committed a tort or breach against Cross-Complainants, and the only wrongdoer is Mario Campana (deceased). Thus, Cross-Defendant argues, Mario Campana’s successor in interest or his estate must be named as a Cross-Defendant.

This argument is not persuasive. Whether or not Cross-Complainants have stated facts sufficient to constitute a cause of action against Cross-Defendant is a different inquiry than if there has been a defect of parties. There is no dispute that Cross-Defendant William Campana—who is co-owner of record as to the subject property (1ACC, ¶17)—must be named as a defendant to the quiet title cause of action.

Nonetheless, whether or not Cross-Complainants’ failure to name Mario Campana’s estate or successor-in-interest goes to whether Cross-Complainants can obtain relief against the appropriate parties, which is their concern, not Cross-Defendant’s. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

n1 In answering this question, we cannot ignore Witkin's observation that "[although] the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled. [Citations.]" (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 823, p. 2432.)

(Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

This ground for demurrer is not persuasive.

C. Statute of Limitations.

The only cause of action asserted in the Cross-Complaint is one for quiet title. The statute of limitations would not begin to run against cross-complainants seeking to quiet title while they are in possession of the property. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-56. Here, Cross-Complainants allegedly continue to live at the property as their primary residence. (1ACC ¶ 19.)

Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies. (See, e.g., Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] [relief dependent on rescission of a contract, rule requiring prompt action applies]; Kenney v. Parks, 137 Cal. 527, 530 [70 P. 556] [nondelivery of deed, Code Civ. Proc., § 318 applies; failure of trust condition, Code Civ. Proc., § 343 applies]; Estate of Pieper, 224 Cal.App.2d 670, 689 [37 Cal.Rptr. 46] [nondelivery of deed, Code Civ. Proc., § 343 applies]; Turner v. Milstein, 103 Cal.App.2d 651, 657-659 [230 P.2d 25] [extrinsic fraud, Code Civ. Proc., § 338, subd. 4, applies].) In the present case, however, it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. n2 ( Smith v. Matthews, 81 Cal. 120, 121 [22 P. 409]; Faria v. Bettencourt, 100 Cal.App. 49, 51-52 [279 P. 679]; 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613; 41 Cal.Jur.2d, Quieting Title, Etc., § 25, p. 493; see Newport v. Hatton, 195 Cal. 132, 145 [231 P. 987]; Sears v. County of Calaveras, 45 Cal.2d 518, 521 [289 P.2d 425]; see also, Berniker v. Berniker, 30 Cal.2d 439, 448 [182 P.2d 557].) In many instances one in possession would not know of dormant adverse claims of persons not in possession. (See 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613.) Moreover, even if, as here, the party in possession knows of such a potential claimant, there is no  [*561]  reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him. (See Berniker v. Berniker, supra, 30 Cal.2d at p. 448.) Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant. ( Stewart v. Rice, 30 Cal.App.2d 335, 340 [86 P.2d 136]; see DaSilva v. Reeves, 215 Cal.App.2d 172, 175 [30 Cal.Rptr. 81]; see also Berniker v. Berniker, supra, 30 Cal.2d at p. 448 [7].) In this case, however, the trial court erred in holding that plaintiff's action was barred by the statute of limitations and thus did not reach the question of laches.

(Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-561 [bold emphasis added].)

As such, the Court need not address Cross-Defendant’s statute of limitations argument asserted as to fraud, constructive/resulting trust or breach of contract. Also, Cross-Defendant’s request that the Court strike such allegations were required to be brought as a separate motion to strike.

In this regard, Cross-Defendant’s argument that the material time or date is omitted to avoid the statute of limitations issue is not persuasive. As noted above, there is no statute of limitations issue as to the only cause of action to quiet title.

D Re: Laches.

Cross-Defendant argues that this action is barred by laches.

The court declines to find that Cross-Complainants’ claim is barred by laches at this stage of litigation, as such a finding would be made by the Court after hearing the evidence. (Estate of Kampen (2011) 201 Cal.App.4th 971, 997.) Moreover, as laches is an equitable doctrine, the Court will be called upon to exercise its discretion in determining whether laches applies, i.e., whether there has been unreasonable delay plus acquiescence in the act or prejudice to defendant. (Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.) Application of laches is not appropriate if prejudice to the defendant from the delay does not appear from the face of the complaint. (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)s

“ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 [99 Cal. Rptr. 2d 316, 5 P.3d 874].) Prejudice is not presumed from the simple fact of delay; it must be affirmatively shown. (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049 [116 Cal. Rptr. 2d 38].) In determining whether a defendant has sustained its burden of proving laches, the court may consider the extent to which the defendant is partially responsible for the delay. (Ibid.) “Laches is an equitable defense, the existence of which is a matter commended to the discretion of the trial court, ‘and in the absence of manifest injustice or lack of substantial support in the evidence, the trial court's determination will be sustained. [Citation.]’” (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643 [267 Cal. Rptr. 350].)

(Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.)

“ ‘Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances … .’ ” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1286 [258 Cal. Rptr. 795].) However, the issue may be addressed as one of law if the facts are undisputed. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607 [51 Cal. Rptr. 2d 897], overruled on another issue in San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402–403 [83 Cal. Rptr. 2d 836].)

(Estate of Kampen (2011) 201 Cal.App.4th 971, 997.)

For laches to be a successful defense there must have been unreasonable delay and prejudice to the defendant caused by that delay (30 Cal.Jur.3d at p. 487). For a demurrer to be sustained both the delay and the injury must be disclosed in the complaint (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 813). Here Ruby claims that Leo retired on August 1, 1973; she does not tell us when she learned of her rights; she filed suit March 10, 1977; there is no suggestion whatever delay occurred would injure Leo. Under these circumstances it is improper to sustain a demurrer on the basis of laches. Rather, any prejudice should be raised in the answer and the issue determined at trial.

(Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)

This ground for demurrer is not persuasive.

Demurrer To First Amended Answer

Plaintiff/Cross-Defendant demurs to First Amended Answer to the Second Amended Complaint filed by Defendants.

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP § 435.5(a)(3)(B).

Discussion

1. Entire Answer

Plaintiff demurs to the entire First Amended Answer (“1AA”) to the Second Amended Complaint on the ground that it is a sham pleading because it has omitted previous judicial admissions pled in the original Answer. Plaintiff points to ¶¶ 45, 46 and 47 of the 2AC as being admitted in the original Answer.

As to ¶ 45 of the 2AC, Plaintiff alleges that Mario Campana transferred his one-half ownership interest in the property to Plaintiff. At time of transfer, Mario Campana had a 50% ownership interest, thus Plaintiff currently has a 50% ownership interest. Defendant argues that, in Defendants’ 1AA, Defendants’ deny this paragraph in its entirety. Defendants do this even though in paragraph 11 of Defendants’ original Answer, Defendants state “Mario Campana ultimately transferred whatever interest he did have in the property to Plaintiff William Campana on July 31, 2013 in a quitclaim deed.” That same paragraph goes on to discuss how enraged Defendant Consuelo Saldana was by this transfer.

To the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 45 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP § 430.20, which provides:

A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(a) The answer does not state facts sufficient to constitute a defense.

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.

(Code Civ. Proc., § 430.20).)

As to ¶ 46 of the 2AC, Plaintiff alleges that Defendant Consuelo became aware of the interest transfer from Mario Campana between July 31, 2013 and February 18, 2014. Defendant argues that, in Defendants’ 1AA, Defendant’s deny knowledge of this matter, even though, Defendants previously stated in their Original Answer, paragraph 11, that knowledge of this transfer enraged Consuelo Saldana.

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 46 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP § 430.20.

As to ¶ 47 of the 2AC, Plaintiff alleges that Defendant Consuelo Saldana transferred her one-half interest in the Property, including all beneficial interest, to Miguel and Iva on or about February 18, 2014. In Defendant’s 1AC, with exception to Exhibit D, Defendants deny all allegations of paragraph 47. Defendants deny this notwithstanding the fact that on paragraph 13 of their original Answer, Defendants state, “In an attempt to pass on her ownership interest in the property, including all beneficial interest, Consuelo Saldana signed a grant deed transferring ownership of the property to Iva and Miguel Dominguez on or about February 18, 2014...”

Again, to the extent that the foregoing admissions in the original answer are inconsistent with the denial of ¶ 47 in the 1AA, such objection was to be brought by way of a timely motion to strike, as it is attacking a denial as a sham pleading. This does not constitute a proper basis for demurring to an answer under CCP § 430.20.

Accordingly, Plaintiff’s demurrer to the entire 1AA to the 2AC is OVERRULED.

Case Number: BC668542    Hearing Date: August 12, 2020    Dept: 76

This is an action to partition real property owned by a partnership and to dissolve the partnership.

Defendants filed a cross-complaint to quiet title, claiming Plaintiff does not have any actual ownership interest in the property.

Plaintiff/Cross-Defendant demurs to Defendants’ Cross-Complaint and Answer to the Second Amended Complaint.

TENTATIVE RULING

The First Amended Cross-Complaint filed by Cross-Complainants on August 4, 2020 and the First Amended Answer filed by Defendants on August 4, 2020 are ordered STRICKEN as untimely.

Plaintiff/Cross-Defendant William Campana’s demurrer to the Cross-Complaint is SUSTAINED with leave to amend as to the first and only cause of action. Cross-Complainants are given 30 days leave to amend.

Plaintiff William Campana’s demurrer to the Answer to the Second Amended Complaint is OVERRULED as to the issue of sham amendment, and SUSTAINED without leave to amend as to the first affirmative defense and with leave to amend as to the second through fifteenth affirmative defenses. Defendants are given 30 days leave to amend.

ANALYSIS

Demurrer To Cross-Complaint

Plaintiff/Cross-Defendant demurs to the Cross-Complaint.

Request For Judicial Notice

Plaintiff/Cross-Defendant requests that the Court take judicial notice of the following: (1) Answer to Complaint; (2) Grant Deed recorded February 18, 2014; (3) Application for Guardian Ad Litem filed by Iva Dominguez on March 4, 2019 in this action; (4) Death Certificate of Mario Campana. Request Nos. 1 and 3 are GRANTED per Evid. Code § 452(d)(court records). Request No. 2 is GRANTED. The Court may take judicial notice of recorded documents. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 263, 274). Request No. 4 is GRANTED. “[R]ecords of a county are properly noticed under Evidence Code section 452, subdivision (c) [official acts of the state], because counties are legal subdivisions of the state.” (Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 416, overruled on other grounds in County of San Diego v. State of California (1997) 15 Cal.4th 68, 106.)

Meet and Confer

The Declaration of Steve Lopez reflects that counsel for Cross-Complainant did not respond to meet and confer efforts. This satisfies CCP § 430.41(a)(3)(B).

Amended Cross-Complaint

After a demurrer to, or motion to strike, a pleading is filed, an amended pleading may be filed no later than the date an opposition to the demurrer or motion to strike is due, unless the parties stipulate otherwise. (Code Civ. Proc., § 472(a)). An opposition to a demurrer or motion to strike is due nine court days prior to the hearing date. (Code Civ. Proc., § 1005(b).)

The opposition to the demurrer was due July 30, 2020. The Amended Cross-Complaint filed on August 4, 2020 was not filed pursuant to a court order or stipulation of the parties. Accordingly, it was untimely filed and will be STRICKEN pursuant to CCP § 436(b)(pleading not filed in conformity with the laws of this state).

An amended pleading must address the issues identified below by the Court.

Discussion

The Cross-Complaint alleges a single cause of action to quiet title to the subject real property.

1. First and Only Cause of Action (Quiet Title.)

A. Re: Uncertainty.

Cross-Defendant demurs on the ground that the meaning of the allegations are ambiguous.

A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 7:85.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Here, it appears that Cross-Complainants are alleging that Cross-Defendant William Campana’s father, Mario Campana, conveyed the 50% interest in the real property, as evidenced by his name on title to the property as joint owner (Cross-Complaint, ¶ 10), to Cross-Defendant instead of to Cross-Complainant Consuelo Saldana, as had allegedly been agreed during Mario Campana’s lifetime. Whether or not this states a cause of action is a different inquiry than whether the cause of action fails for uncertainty.

Nonetheless, the Court agrees that Cross-Complainants must clarify exactly which theories they rely upon to quiet title against Cross-Defendant. As noted, it appears there is a breach of contract theory asserted (¶ 10), and there is also a reference to adverse possession (¶ 13). To enable Cross-Defendant to reasonably respond, Cross-Complainants must separately plead such theories and plead the elements of each such cause of action. If the statute of frauds defense appears on the face of an amended complaint, Cross-Defendant may raise the issue as appropriate.

The demurrer on the ground of uncertainty is persuasive.

The demurrer to the first and only cause of action to quiet title is SUSTAINED with leave to amend.

B. Re: Defect of Parties.

Cross-Defendant argues that there has been a defect of parties because the allegations of the Cross-Complaint do not indicate that Cross-Defendant committed a tort or breach against Cross-Complainants, and the only wrongdoer is Mario Campana (deceased). Thus, Cross-Defendant argues, Mario Campana’s successor in interest or his estate must be named as a Cross-Defendant.

This argument is not persuasive. Whether or not Cross-Complainants have stated facts sufficient to constitute a cause of action against Cross-Defendant is a different inquiry than if there has been a defect of parties. There is no dispute that Cross-Defendant William Campana—who is co-owner of record as to the subject property (¶17)—must be named as a defendant to the quiet title cause of action.

Nonetheless, whether or not Cross-Complainants’ failure to name Mario Campana’s estate or successor-in-interest goes to whether Cross-Complainants can obtain relief against the appropriate parties, which is their concern, not Cross-Defendant’s. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

n1 In answering this question, we cannot ignore Witkin's observation that "[although] the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties plaintiff or defendant, and his demurrer ought to be overruled. [Citations.]" (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 823, p. 2432.)

(Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 & n.1.)

C. Statute of Limitations.

The only cause of action asserted in the Cross-Complaint is one for quiet title. The statute of limitations would not begin to run against cross-complainants seeking to quiet title while they are in possession of the property. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-56. Here, Cross-Complainants allegedly continue to live at the property as their primary residence. (Cross-Complaint, ¶ 20.)

Since there is no statute of limitations governing quiet title actions as such, it is ordinarily necessary to refer to the underlying theory of relief to determine which statute applies. (See, e.g., Leeper v. Beltrami, 53 Cal.2d 195, 214 [1 Cal.Rptr. 12, 347 P.2d 12, 77 A.L.R.2d 803] [relief dependent on rescission of a contract, rule requiring prompt action applies]; Kenney v. Parks, 137 Cal. 527, 530 [70 P. 556] [nondelivery of deed, Code Civ. Proc., § 318 applies; failure of trust condition, Code Civ. Proc., § 343 applies]; Estate of Pieper, 224 Cal.App.2d 670, 689 [37 Cal.Rptr. 46] [nondelivery of deed, Code Civ. Proc., § 343 applies]; Turner v. Milstein, 103 Cal.App.2d 651, 657-659 [230 P.2d 25] [extrinsic fraud, Code Civ. Proc., § 338, subd. 4, applies].) In the present case, however, it is unnecessary to determine which statute would otherwise apply, for no statute of limitations runs against a plaintiff seeking to quiet title while he is in possession of the property. n2 ( Smith v. Matthews, 81 Cal. 120, 121 [22 P. 409]; Faria v. Bettencourt, 100 Cal.App. 49, 51-52 [279 P. 679]; 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613; 41 Cal.Jur.2d, Quieting Title, Etc., § 25, p. 493; see Newport v. Hatton, 195 Cal. 132, 145 [231 P. 987]; Sears v. County of Calaveras, 45 Cal.2d 518, 521 [289 P.2d 425]; see also, Berniker v. Berniker, 30 Cal.2d 439, 448 [182 P.2d 557].) In many instances one in possession would not know of dormant adverse claims of persons not in possession. (See 1 Witkin, Cal. Procedure (1954) Actions, § 111, p. 613.) Moreover, even if, as here, the party in possession knows of such a potential claimant, there is no  [*561]  reason to put him to the expense and inconvenience of litigation until such a claim is pressed against him. (See Berniker v. Berniker, supra, 30 Cal.2d at p. 448.) Of course, the party in possession runs the risk that the doctrine of laches will bar his action to quiet title if his delay in bringing action has prejudiced the claimant. ( Stewart v. Rice, 30 Cal.App.2d 335, 340 [86 P.2d 136]; see DaSilva v. Reeves, 215 Cal.App.2d 172, 175 [30 Cal.Rptr. 81]; see also Berniker v. Berniker, supra, 30 Cal.2d at p. 448 [7].) In this case, however, the trial court erred in holding that plaintiff's action was barred by the statute of limitations and thus did not reach the question of laches.

(Muktarian v. Barmby (1965) 63 Cal.2d 558, 560-561 [bold emphasis added].)

As such, the Court need not address Cross-Defendant’s statute of limitations argument asserted as to fraud, constructive/resulting trust or breach of contract. Also, Cross-Defendant’s request that the Court strike such allegations were required to be brought as a separate motion to strike.

In this regard, Cross-Defendant’s argument that the material time or date is omitted to avoid the statute of limitations issue. As noted above, there is no statute of limitations issue as to the only cause of action to quiet title.

D Re: Laches.

Cross-Defendant argues that this action is barred by laches.

The court declines to find that Cross-Complainants’ claim is barred by laches at this stage of litigation, as such a finding would be made by the Court after hearing the evidence. (Estate of Kampen (2011) 201 Cal.App.4th 971, 997.) Moreover, as laches is an equitable doctrine, the Court will be called upon to exercise its discretion in determining whether laches applies, i.e., whether there has been unreasonable delay plus acquiescence in the act or prejudice to defendant. (Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.) Application of laches is not appropriate if prejudice to the defendant from the delay does not appear from the face of the complaint. (Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)s

“ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 [99 Cal. Rptr. 2d 316, 5 P.3d 874].) Prejudice is not presumed from the simple fact of delay; it must be affirmatively shown. (Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1049 [116 Cal. Rptr. 2d 38].) In determining whether a defendant has sustained its burden of proving laches, the court may consider the extent to which the defendant is partially responsible for the delay. (Ibid.) “Laches is an equitable defense, the existence of which is a matter commended to the discretion of the trial court, ‘and in the absence of manifest injustice or lack of substantial support in the evidence, the trial court's determination will be sustained. [Citation.]’” (In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643 [267 Cal. Rptr. 350].)

(Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1494.)

“ ‘Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances … .’ ” (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1286 [258 Cal. Rptr. 795].) However, the issue may be addressed as one of law if the facts are undisputed. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 607 [51 Cal. Rptr. 2d 897], overruled on another issue in San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 402–403 [83 Cal. Rptr. 2d 836].)

(Estate of Kampen (2011) 201 Cal.App.4th 971, 997.)

For laches to be a successful defense there must have been unreasonable delay and prejudice to the defendant caused by that delay (30 Cal.Jur.3d at p. 487). For a demurrer to be sustained both the delay and the injury must be disclosed in the complaint (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 813). Here Ruby claims that Leo retired on August 1, 1973; she does not tell us when she learned of her rights; she filed suit March 10, 1977; there is no suggestion whatever delay occurred would injure Leo. Under these circumstances it is improper to sustain a demurrer on the basis of laches. Rather, any prejudice should be raised in the answer and the issue determined at trial.

(Sangiolo v. Sangiolo (1978) 87 Cal.App.3d 511, 514.)

This ground for demurrer is not persuasive.

Demurrer To Answer

Plaintiff/Cross-Defendant demurs to Defendants’ Answer to the Second Amended Complaint.

Meet and Confer

The Declaration of Steve Lopez reflects that the meet and confer requirement set forth in CCP § 435.5(a)(3)(B) was satisfied.

Amended Answer

After a demurrer to, or motion to strike, a pleading is filed, an amended pleading may be filed no later than the date an opposition to the demurrer or motion to strike is due, unless the parties stipulate otherwise. (Code Civ. Proc., § 472(a)). An opposition to a demurrer or motion to strike is due nine court days prior to the hearing date. (Code Civ. Proc., § 1005(b).)

The opposition to the demurrer was due July 30, 2020. The Amended Answer filed on August 4, 2020 was not filed pursuant to a court order or stipulation of the parties. Accordingly, it was untimely filed and will be STRICKEN pursuant to CCP § 436(b)(pleading not filed in conformity with the laws of this state).

An amended pleading must address the issues identified below by the Court.

Discussion

1. Entire Answer

Plaintiff demurs to the entire Answer to the Second Amended Complaint on the ground that it is a sham pleading because it has omitted previous judicial admissions pled in the original Answer. Plaintiff points to ¶¶ 45, 46 and 47 of the 2AC as being admitted in the original Answer. The Court finds that the nature of Plaintiff’s objection would have properly been asserted as a motion to strike. (Code Civ. Proc., § 436.)

This ground for demurrer is not persuasive.

2. Failure To State Facts Sufficient To Constitute A Defense To The Complaint.

Plaintiff indicates he moves for judgment on the pleadings as to Defendant’s Answer. This is improper motion practice. Plaintiff noticed a demurrer, not a motion for judgment on the pleadings. A motion for judgment on the pleadings is not ripe until after the time to demur to the answer has expired. (Code Civ. Proc., § 438(f)(1).)

The Court will proceed to address this as a demurrer, not as a motion for judgment on the pleadings.

(2) Argumentative Denials. The affirmative form in which the defendant phrases his or her answering averments does not make them new matter. If they merely contradict essential allegations of the complaint, they are simply denials in affirmative form ("argumentative denials"). (Frisch v. Caler (1862) 21 C. 71, 74; Goddard v. Fulton (1863) 21 C. 430, 436; Rancho Santa Margarita v. Vail (1938) 11 C.2d 501, 543, 81 P.2d 533; Jolley v. Clemens (1938) 28 C.A.2d 55, 65, 82 P.2d 51, supra, §1077.)

(5 Witkin Cal. Proc. Plead § 1082.)

See also Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, 1117:

The Board's answer alleged merely: "Plaintiff's claims are barred in whole or in part by the doctrine of waiver," and "Plaintiff's causes of action, or some of them, are barred by the doctrine of laches because plaintiff unreasonably delayed bringing suit, causing defendants to reasonably rely on the status quo."

These affirmative defenses consist of legal conclusions that could survive neither a demurrer nor a motion for judgment on the pleadings. (Citations omitted.)

Moreover, affirmative defenses cannot be “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’ (Citation omitted.)” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

1. First Affirmative Defense (Complaint Unintelligible and Uncertain).

Unintelligibility and uncertainty are objections to the form of pleading, not affirmative defenses on the merits. This type of objection is to be asserted by demurrer, not an answer.

The demurrer to the first affirmative defense is SUSTAINED without leave to amend.

2. Second Affirmative Defense (Statute of Limitations).

The statute of limitations affirmative defense must specify the statutory section at which the statute of limitations is found (Code Civ. Proc., § 458) and the cause of action against which the particular statute is asserted. (Code Civ. Proc., § 431.30(g): “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”)

In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section_____ _____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.

(Code Civ. Proc., § 458.)

The demurrer to the second affirmative defense is SUSTAINED with leave to amend.

3. Third Affirmative Defense (Failure to State Facts Sufficient to Constitute a Cause of Action.)

The failure to plead facts sufficient to state a cause of action may be asserted by way of answer. (Code Civ. Proc., § 430.10(e).) This affirmative defense is asserted as to all causes of action. However, as pointed out by Plaintiff, there are insufficient facts pled to indicate why the various causes of action are deficiently pled as to their elements.

The demurrer to the third affirmative defense is SUSTAINED with leave to amend.

4. Fourth Affirmative Defense (Failure To Mitigate Damages); Fifth Affirmative Defense (Waiver); Sixth Affirmative Defense (Estoppel); Seventh Affirmative Defense (Release and Discharge); Eighth Affirmative Defense (Statute of Frauds); Ninth Affirmative Defense (Unclean Hands); Tenth Affirmative Defense (Laches); Eleventh Cause of Action (Failure to State a Claim for Award of Attorney’s Fees); Twelfth Cause of Action (Consent); Thirteenth Affirmative Defense (Violations of State and Local Laws); Fourteenth Affirmative Defense (Condition Precedent); Fifteenth Affirmative Defense (No Breach of Duty).

There are insufficient facts pled to state an affirmative defense. More facts must be pled to explain why these affirmative defenses apply to each cause of action.

The demurrer to the fourth through fifteenth affirmative defenses is SUSTAINED with leave to amend.