Preview
1 Aleksandr A. Volkov (SBN 277850)
VOLKOV LAW OFFICE
2 1200 Mount Diablo Blvd., Ste. 205
Walnut Creek, CA 94596
3 ELECTRONICALLY
Tel. (415) 987-7000
4 Fax (415) 276-6376 F I L E D
Superior Court of California,
alex@volf.com County of San Francisco
5 06/12/2020
Attorney for defendants Clerk of the Court
6 Ivan Bogdanov, Natalia Kutygina BY: SANDRA SCHIRO
Deputy Clerk
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 CITY AND COUNTY OF SAN FRANCISCO
10 UNLIMITED JURISDICTION
11 PAVEL MIZENIN, NATALIA ERMAKOVA, CASE No. CGC–20–582827
12 Plaintiff, BOGDANOV AND KUTYGINA’S
v. MEMORANDUM OF POINTS AND
13 AUTHORITIES IN SUPPORT OF THEIR
IVAN BOGDANOV, NATALIA KUTYGINA; All DEMURRER TO COMPLAINT
14
Persons Unknown, claiming any legal or equitable
15 right, title, estate, lien, or interest in the property Date: August 3, 2020
described in the complaint adverse to plaintiffs’ title, Time: 9:30 A.M.
16 or any cloud on plaintiffs’ title thereto; and DOES Department: 501
1 through 10, inclusive, Location: 400 McAllister Street,
17
San Francisco, CA 94102
18 Defendants.
19 Defendants IVAN BOGDANOV and NATALIA KUTYGINA demur generally and specifically
20 to the plaintiffs’ complaint, filed in this action by the plaintiffs PAVEL MIZENIN and NATALIA
21 ERMAKOVA on the following grounds.
22 POINTS AND AUTHORITIES
23 I. Generally applicable facts as pleaded in the complaint.
24 This is an action between two families who jointly own a single parcel of real property. The
25 plaintiffs seek to compel specific performance on an allegedly made oral contract in connection with
26 real property, to partition the property by sale if the specific performance is not achieved, and to state
27 claims for intentional and negligent misrepresentation. While the disposition on the first cause of action
28 (breach of an oral contract) will be decided on the facts and the consequent application of the Statute of
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
1 Frauds, the rest of the complaint is subject to this demurrer as pleaded. The copy of the complaint is
2 attached as Exhibit “A” to the Request for Judicial Notice, filed concurrently with this demurrer.
3 In short, the plaintiffs seek to tortify the alleged breach of contract by building on that allegation
4 the two fraud causes of action (2d and 3d), and ask the court for a judgment on partition by sale (4th
5 cause of action), without joining all necessary and indispensable parties, making the entry of such
6 judgment impossible.
7 The plaintiffs seek partition by sale (Complaint, ¶ 37). The plaintiffs nominally included in the
8 list of the defendants all unknown persons “claiming any legal or equitable right, title, estate, lien, or
9 interest in the property described in the complaint adverse to plaintiffs’ title, or any cloud on plaintiffs’
10 title thereto,” but did not include the known lienholders, nor pleaded any facts in relation to establishing
11 the scope of the persons who might have a claim against the property. As the result, the Complaint does
12 not join all necessary and indispensible parties for the partition, such as, at the very least, the benefici-
13 ary of the lien recorded against the property. The complaint needs to be amended by curing the above-
14 mentioned deficiencies, so that the defendants may adequately respond and prepare for trial.
15 II. LEGAL ANALYSIS.
16 A. Applicable Standard
17 “[T]o prevail against … general demurrer, plaintiffs must allege facts sufficient to satisfy each
18 element of their cause of action.” Tovar v. S. Cal. Edison Co. (1988) 201 Cal.App. 3d 606, 611,
19 (emphasis added).
20 A general demurrer assumes the truth of all facts properly pleaded in the complaint or
21 reasonably inferred from the pleading, but not mere contentions, deduction, or conclusions of law.
22 Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052. The general demurrer
23 serves to test the sufficiency of a complaint as a matter of law and it raises only questions of law. (Id.)
24 The absence of any allegation essential to the cause of action makes the complaint vulnerable to a
25 general demurrer. (Id.) The court is not bound to accept improperly pleaded allegations. Sklar v.
26 Franchise Tax Board (1986) 185 Cal.App.3d 616, 621. In addition, in the interests of justice, on
27 demurrer, a court will also consider judicially noticeable facts, even if such facts are not set forth in the
28 complaint. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 868.
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
1 The analysis starts with the fourth cause of action for partition, as it appears to be the main
2 claim in the pleading.
3 B. Plaintiffs Failed to Plead Facts Sufficient to State The 4th Cause Of Action.
4 Defendants demur generally to this complaint’s partition cause of action, on the grounds that
5 the complaint does not state facts sufficient to state this claim, and there is lack of necessary cause of
6 action for accounting. CCP § 430.10(e).
7 "'In a suit for partition . . . it is a general rule that all equities and conflicting claims existing
8 between the parties and arising out of their relation to the property to be partitioned may be adjusted
9 [citations].'" Demetris v. Demetris (1954) 125 Cal.App.2d 440, 444-445; CCP § 872.610. Indeed, the
10 statutory framework requires the parties to identify in their pleadings all interests that they have or
11 claim not merely in the estate being partitioned but "in the property," as well as all interests of record
12 or actually known that others have or claim "in the property." CCP §§ 872.230, subds. (b), (c), 872.410,
13 subd. (a), emphasis added.
14 The subject complaint omits at least one relevant party—the lender Wells Fargo Bank, N.A.,
15 under the deed of trust and the mortgagee. (See, Request for Judicial Notice, Exhibit B).
16 Further, the complaint does not include a cause of action for accounting. The plaintiffs do pray
17 to carve out from the defendants share some unspecified “encumbrances incurred by the party”
18 (Complaint, prayor item 4, p.9:8–9), and similarly unspecified “sums reasonably spent by Plaintiffs in
19 maintaining and preserving the property” (Id., prayor item 5, p.9:10–12), yet the plaintiffs did not plead
20 any facts about the “encumbrances” or about what they allegedly have “reasonably spent.” This request
21 goes contrary to the general allegations stated in the complaint’s paragraphs 4, 5, 10, 11, where it is
22 alleged that the parties hold interest 50–50, and were jointly hiring both the contractor and the law firm.
23 While there is a request for partition by sale, there is no cause of action for accounting, and it
24 renders the complaint inoperable. “Every partition action includes a final accounting according to the
25 principles of equity for both charges and credits upon each cotenant's interest.” Wallace v. Daley (1990)
26 220 Cal.App.3d 1028, 1035, citing Code Civ. Proc. § 872.140. Absent to extraordinary circumstances,
27 none of which are pleaded in the complaint, accounting is necessary to accompany a cause of action for
28 partition. Milian v. De Leon (1986) 181 Cal.App.3d 1185. A partition judgment, failing to provide for
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
1 accounting or payment of encumbrances on property involved, was erroneous in absence of showing
2 that statutory provisions relating to lienholders were complied with or waived. Parmelee v.
3 Brainard (1944) 62 Cal.App.2d 182.
4 A quote to illustrate the point: “[i]t is of course correct that a cotenant who pays taxes, trust
5 deed payments or other charges against the property or expends money for the preservation of the
6 property or who, with the assent of his cotenant, makes improvements to the property is entitled to
7 contribution from the cotenant, and on partition by sale is entitled to reimbursement for those
8 expenditures before division of the proceeds among the property owners.” Milan, Id. at 1194, citing
9 Willmon v. Koyer (1914) 168 Cal. 369, 374; Southern Adjustment Bureau v. Nelson (1964) 230
10 Cal.App.2d 539, 541; Shenson v. Shenson (1954) 124 Cal.App.2d 747, 754-755; Combs v. Ritter (1950)
11 100 Cal.App.2d 315, 320; 3 Witkin, Summary of Cal. Law (8th ed. 1973) Real Property, §§ 214-216,
12 pp. 1947-1948.
13 In this action, the plaintiff seeks, albeit subtly, to obtain judgment for proceeding from sale in
14 the amount higher than what would be paid to the defendants, and prayor’s items 4 and 5 seek carve-
15 outs not based on anything pleaded in the complaint. However, the request pleaded in the prayor’s
16 items 4 and 5 shows on the face of the complaint that plaintiffs do have accounting claims against the
17 defendants, both as expenditures and as encumbrances, yet the plaintiffs did not plead either of those.
18 Further, the plaintiffs did not account anywhere in their complaint for the share of the proceeds
19 going to the lender for satisfaction of the recorded lien, if the property is sold. This may very well be
20 the main share of the proceeds and may not be ignored. An accounting upon partition is therefore
21 necessary, or there will not be a final and global resolution of all claims and liens (a required element
22 for the partition action).
23 For these above-stated reasons, the partition cause of action is not sufficiently pleaded, in that it
24 deprives the Court from ability to order the requested relief until and unless the requisite causes of
25 action are sufficiently stated in the complaint.
26 C. Misjoinder of necessary parties.
27 Defendants demur specially to this complaint’s fourth cause of action, on the grounds that the
28 pleader omitted to join parties indispensible for adjudication of this complaint’s partition cause of
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
1 action for partition. CCP § 430.10(d).
2 “The complaint must name all parties who have any recorded interest in the property (Code Civ.
3 Proc., §§ 872.230, 872.510), or whom the plaintiff knows claim an interest in the property (Code Civ.
4 Proc., §§ 872.230, subd. (c), 872.510, subd. (a), 872.550) … A mortgagee can intervene in the partition
5 action (Towle Bros. Co. v. Quinn (1903) 141 Cal. 382, 385).” Right of partition—Procedure in partition
6 action, 4 Cal. Real Est. § 11:15 (4th ed.) December 2019 update. On the right of the lienholder to
7 intervene, see also, Palpar, Inc. v. Thayer (1947) 82 Cal.App.2d 578, 584.
8 In an action for partition where encumbrances are of record at the commencement of the action
9 and the lien holder is not a party to the action, the court must order such person to be made a party or it
10 must appoint a referee to ascertain what amount if any remains unpaid; a failure to observe such
11 requirements will warrant the reversal of an order confirming such a sale. Balkins v. Los Angeles
12 County (1947) 81 Cal.App.2d 42, 47.
13 In this action, at the very least, the plaintiffs omitted to include the beneficiary under the deed of
14 trust. That there could be other lien claimants also remains a possibility, because the complaint does not
15 plead how the scope of the claimants was assessed, how the unknown claimants were informed, if at
16 all, and there was no title guarantee attached to the complaint, which could otherwise assist in ascer-
17 taining the scope of the parties. The liens, their status and priority, are necessary to be known for the
18 Court to grant the appropriate relief. CCP § 872.630.
19 The misjoinder of all known claimants is therefore fatal for the relief sought in this action. The
20 plaintiffs seek partition by sale, while the property is under a substantial lien secured and recorded
21 against it, whose beneficiary is unaware of the plaintiffs’ action and has not been afforded a notice and
22 an opportunity to appear and defend its interest.
23 D. Plaintiffs Failed to Plead Facts Sufficient to State The 2nd and 3rd Causes Of Action.
24 (1) Lack of specificity regarding the alleged false promise.
25 “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore,
26 each element must be pleaded with specificity (cit.) The specificity requirement means a plaintiff must
27 allege facts showing how, when, where, to whom, and by what means the representations were made.”
28 Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166, internal citations
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
1 omitted. The quote continued to illustrate the heightened standard for a situation with multiple persons
2 potentially speaking on behalf of others, such as the agents speaking on behalf of corporations: “in the
3 case of a corporate defendant, the plaintiff must allege the names of the persons who made the
4 representations, their authority to speak on behalf of the corporation, to whom they spoke, what they
5 said or wrote, and when the representation was made.” (Id.) Likewise here, this is not the case of just
6 one individual communicating with one other. There are four individuals, and the complaint does not
7 specify how the alleged representation had taken place, who talked to whom, when, and what was
8 communicated. Moreover, the complaint occasionally uses a single plaintiff and a single defendant in
9 the fraud allegations, without parties’ names.
10 On the face of the complaint, there are two individual plaintiffs accusing two individual
11 defendants about an alleged misrepresentation, purportedly made to lure the plaintiffs into the purchase
12 of the subject property. (Complaint, ¶¶ 21, 22). There are no facts alleged to show particularly who said
13 what to whom, or where, or when. Were they all four simultaneously communicating? If not, were the
14 non-communicating parties also relying on those communications, and were the communicating parties
15 intending to obtain reliance of those who were not present? These are the missing facts needed for
16 establishing the alleged intent in the second cause of action and other material elements of the claims
17 of both the second and the third causes of action, such as the facts of misrepresentation and justifiable
18 reliance.
19 The need to provide specificity in the fraud claims is also illustrated by the ambiguity of
20 the current version of the complaint. The allegations as pleaded are uncertain, because there is an
21 interchangeable use of plural and single terms for the parties, while not identifying any of them by their
22 names. See, complaint’s page 6, paragraph 23: “ignorant of the falsity of Defendant’s representations”
23 (which defendant?). See also on the same page, paragraph 25: “Plaintiff has suffered damages alleged
24 herein” (which plaintiff?); paragraph 27: “the intention of Defendants to deprive Plaintiff of property or
25 legal rights or otherwise cause injury … subjected to Plaintiff to cruel and unjust hardship in conscious
26 disregard of Plaintiff’s rights” (again, the identify of the plaintiff is not indicated). Similar issue is
27 shown with the third cause of action (page 7, paragraph 33). And in both causes, only one plaintiff is
28 praying for judgment.
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
1 Absence of these details is in contrast with the allegations of the defendants’ denial to go with
2 the condo-conversion (compare, Complaint, ¶ 13). There, the pleading names the particular two out of
3 four individuals who had met, and also alleges in detail when the meeting took place and who said
4 what.
5 Lack of this specificity renders the second cause of action (intentional fraud) inoperable,
6 because the required element of intent is not pleaded. “A false representation made by one person with
7 the intention that it shall come to the attention of another person and be acted upon by him, and which
8 is acted upon by him to his injury, gives to the person so acting the same right to relief as if the
9 representation had been made to him directly.” Wice v. Schilling (1954) 124 Cal.App.2d 735, 745.
10 “[A] representation ordinarily will give rise to a cause of action for fraud or deceit only if it is a
11 representation of fact rather than opinion. [Citations.] ‘[P]redictions as to future events, or statements
12 as to future action by some third party, are deemed opinions, and not actionable fraud.’ [Citation.]”
13 Nibbi Brothers, Inc. v. Home Federal Sav. & Loan Assn. (1988) 205 Cal.App.3d 1415, 1423, emphasis
14 added.
15 As to the third cause of action (negligent misrepresentation) the argument is even stronger,
16 because the scenario of an intentional misrepresentation to a third party discussed in the context of
17 intentional fraud (Wice v. Schilling), does not apply to the negligent misrepresentation. “The plaintiff
18 must have been a person for whose use the representation was intended, and it is not enough that the
19 defendant ought reasonably to have foreseen reliance by someone such as the plaintiff.” Christiansen v.
20 Roddy (1986) 186 Cal.App.3d 780, 787, discussing the exception for the intentional fraud and declining
21 to “broaden this narrow scope of liability under existing California law” to the negligent
22 misrepresentation. None of it is pleaded in the complaint, and the complaint’s third cause of action
23 therefore also fails.
24 (2) No exception to the economic loss rule is pleaded.
25 The claim in this cause of action draws on the allegation of an oral agreement for condo-
26 conversion and units’ use (Complaint, ¶ 8). That allegation is made without pleading any exception to
27 the Statute of Frauds, which is applicable to the alleged agreement under Civil Code section 1624,
28 subds. (a)(1) and (a)(3). But even under the assumption that the underlying contract did exist and
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
1 remains actionable, there is nothing pleaded in the complaint of the defendants’ conduct, which could
2 go beyond the alleged breach of promise to perform under the contract. The allegations are only that
3 the defendants promised to go with the condo conversion and agreed to the use (Complaint, ¶ 8) and
4 then did not do so (Id., ¶ 12–14). It is so stated again in the breach of contract claim (Id., ¶ 17), and then
5 repeated in the two fraud causes of action, specifically with the language of “agreeing to condominium
6 convert and that Plaintiffs would have exclusive use and ownership of [one of the units]” (Id., ¶¶ 21
7 & 29). Even the claimed damages in these two fraud claims are exactly the same $275,000 claimed
8 under the breach of contract. (Compare, Id., ¶¶ 19, 26, & 34). Tellingly, it is the same prayor’s item 2
9 (Id., p. 9:1–2), treating the alleged claim for $275,000 irrespectively between the three causes of action.
10 The $275,000 is the amount of the economic damages, alleged as an equivalent to defendants’
11 performance on the purported verbal agreement. See, complaint’s paragraphs 17–19. No additional
12 layer of recovery of the same damages, for the same conduct of breach of contract, is available to these
13 plaintiffs.
14 An exception for tortuous breach of contract is very narrow. Benavides v. State Farm General
15 Ins. Co. (2006) 136 Cal.App.4th 1241, 1251–1252. Ordinarily, tort damages are not recoverable for
16 breach of contract even if the breach was intentional: “The economic loss rule requires a purchaser to
17 recover in contract for purely economic loss due to disappointed expectations, unless he can
18 demonstrate harm above and beyond a broken contractual promise.” Robinson Helicopter Co., Inc. v.
19 Dana Corp. (2004) 34 Cal.4th 979, 988. It has to be a breach independent of the contract. (Id. at 989).
20 Here, no harm above and beyond the broken contractual promise is demonstrated, and the purely
21 ecomomic loss is ought to be litigated where it belongs, in the breach of contract claim.
22 “As our Supreme Court has explained, although that fraudulent intent is often established by
23 circumstantial evidence, “ ‘something more than nonperformance is required to prove the
24 defendant's intent not to perform his promise.’ [Citations.]” (cit.) Because [first party’s] showing bore
25 only on [second party’s] actual performance under the contract, it does not demonstrate fraudulent
26 inducement. Even if [first party’s] evidence raises triable issues whether the study contains inaccuracies
27 or falsehoods, they are not “conceptually distinct from the contract,” as [second party’s] obligation
28 to perform … arose exclusively from the contract. (cit.) For this reason, the alleged misrepresentations
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BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER
Preview
1 Aleksandr A. Volkov (SBN 277850) VOLKOV LAW OFFICE 2 1200 Mount Diablo Blvd., Ste. 205 Walnut Creek, CA 94596 3 ELECTRONICALLY Tel. (415) 987-7000 4 Fax (415) 276-6376 F I L E D Superior Court of California, alex@volf.com County of San Francisco 5 06/12/2020 Attorney for defendants Clerk of the Court 6 Ivan Bogdanov, Natalia Kutygina BY: SANDRA SCHIRO Deputy Clerk 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 CITY AND COUNTY OF SAN FRANCISCO 10 UNLIMITED JURISDICTION 11 PAVEL MIZENIN, NATALIA ERMAKOVA, CASE No. CGC–20–582827 12 Plaintiff, BOGDANOV AND KUTYGINA’S v. MEMORANDUM OF POINTS AND 13 AUTHORITIES IN SUPPORT OF THEIR IVAN BOGDANOV, NATALIA KUTYGINA; All DEMURRER TO COMPLAINT 14 Persons Unknown, claiming any legal or equitable 15 right, title, estate, lien, or interest in the property Date: August 3, 2020 described in the complaint adverse to plaintiffs’ title, Time: 9:30 A.M. 16 or any cloud on plaintiffs’ title thereto; and DOES Department: 501 1 through 10, inclusive, Location: 400 McAllister Street, 17 San Francisco, CA 94102 18 Defendants. 19 Defendants IVAN BOGDANOV and NATALIA KUTYGINA demur generally and specifically 20 to the plaintiffs’ complaint, filed in this action by the plaintiffs PAVEL MIZENIN and NATALIA 21 ERMAKOVA on the following grounds. 22 POINTS AND AUTHORITIES 23 I. Generally applicable facts as pleaded in the complaint. 24 This is an action between two families who jointly own a single parcel of real property. The 25 plaintiffs seek to compel specific performance on an allegedly made oral contract in connection with 26 real property, to partition the property by sale if the specific performance is not achieved, and to state 27 claims for intentional and negligent misrepresentation. While the disposition on the first cause of action 28 (breach of an oral contract) will be decided on the facts and the consequent application of the Statute of 1 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER 1 Frauds, the rest of the complaint is subject to this demurrer as pleaded. The copy of the complaint is 2 attached as Exhibit “A” to the Request for Judicial Notice, filed concurrently with this demurrer. 3 In short, the plaintiffs seek to tortify the alleged breach of contract by building on that allegation 4 the two fraud causes of action (2d and 3d), and ask the court for a judgment on partition by sale (4th 5 cause of action), without joining all necessary and indispensable parties, making the entry of such 6 judgment impossible. 7 The plaintiffs seek partition by sale (Complaint, ¶ 37). The plaintiffs nominally included in the 8 list of the defendants all unknown persons “claiming any legal or equitable right, title, estate, lien, or 9 interest in the property described in the complaint adverse to plaintiffs’ title, or any cloud on plaintiffs’ 10 title thereto,” but did not include the known lienholders, nor pleaded any facts in relation to establishing 11 the scope of the persons who might have a claim against the property. As the result, the Complaint does 12 not join all necessary and indispensible parties for the partition, such as, at the very least, the benefici- 13 ary of the lien recorded against the property. The complaint needs to be amended by curing the above- 14 mentioned deficiencies, so that the defendants may adequately respond and prepare for trial. 15 II. LEGAL ANALYSIS. 16 A. Applicable Standard 17 “[T]o prevail against … general demurrer, plaintiffs must allege facts sufficient to satisfy each 18 element of their cause of action.” Tovar v. S. Cal. Edison Co. (1988) 201 Cal.App. 3d 606, 611, 19 (emphasis added). 20 A general demurrer assumes the truth of all facts properly pleaded in the complaint or 21 reasonably inferred from the pleading, but not mere contentions, deduction, or conclusions of law. 22 Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052. The general demurrer 23 serves to test the sufficiency of a complaint as a matter of law and it raises only questions of law. (Id.) 24 The absence of any allegation essential to the cause of action makes the complaint vulnerable to a 25 general demurrer. (Id.) The court is not bound to accept improperly pleaded allegations. Sklar v. 26 Franchise Tax Board (1986) 185 Cal.App.3d 616, 621. In addition, in the interests of justice, on 27 demurrer, a court will also consider judicially noticeable facts, even if such facts are not set forth in the 28 complaint. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 868. 2 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER 1 The analysis starts with the fourth cause of action for partition, as it appears to be the main 2 claim in the pleading. 3 B. Plaintiffs Failed to Plead Facts Sufficient to State The 4th Cause Of Action. 4 Defendants demur generally to this complaint’s partition cause of action, on the grounds that 5 the complaint does not state facts sufficient to state this claim, and there is lack of necessary cause of 6 action for accounting. CCP § 430.10(e). 7 "'In a suit for partition . . . it is a general rule that all equities and conflicting claims existing 8 between the parties and arising out of their relation to the property to be partitioned may be adjusted 9 [citations].'" Demetris v. Demetris (1954) 125 Cal.App.2d 440, 444-445; CCP § 872.610. Indeed, the 10 statutory framework requires the parties to identify in their pleadings all interests that they have or 11 claim not merely in the estate being partitioned but "in the property," as well as all interests of record 12 or actually known that others have or claim "in the property." CCP §§ 872.230, subds. (b), (c), 872.410, 13 subd. (a), emphasis added. 14 The subject complaint omits at least one relevant party—the lender Wells Fargo Bank, N.A., 15 under the deed of trust and the mortgagee. (See, Request for Judicial Notice, Exhibit B). 16 Further, the complaint does not include a cause of action for accounting. The plaintiffs do pray 17 to carve out from the defendants share some unspecified “encumbrances incurred by the party” 18 (Complaint, prayor item 4, p.9:8–9), and similarly unspecified “sums reasonably spent by Plaintiffs in 19 maintaining and preserving the property” (Id., prayor item 5, p.9:10–12), yet the plaintiffs did not plead 20 any facts about the “encumbrances” or about what they allegedly have “reasonably spent.” This request 21 goes contrary to the general allegations stated in the complaint’s paragraphs 4, 5, 10, 11, where it is 22 alleged that the parties hold interest 50–50, and were jointly hiring both the contractor and the law firm. 23 While there is a request for partition by sale, there is no cause of action for accounting, and it 24 renders the complaint inoperable. “Every partition action includes a final accounting according to the 25 principles of equity for both charges and credits upon each cotenant's interest.” Wallace v. Daley (1990) 26 220 Cal.App.3d 1028, 1035, citing Code Civ. Proc. § 872.140. Absent to extraordinary circumstances, 27 none of which are pleaded in the complaint, accounting is necessary to accompany a cause of action for 28 partition. Milian v. De Leon (1986) 181 Cal.App.3d 1185. A partition judgment, failing to provide for 3 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER 1 accounting or payment of encumbrances on property involved, was erroneous in absence of showing 2 that statutory provisions relating to lienholders were complied with or waived. Parmelee v. 3 Brainard (1944) 62 Cal.App.2d 182. 4 A quote to illustrate the point: “[i]t is of course correct that a cotenant who pays taxes, trust 5 deed payments or other charges against the property or expends money for the preservation of the 6 property or who, with the assent of his cotenant, makes improvements to the property is entitled to 7 contribution from the cotenant, and on partition by sale is entitled to reimbursement for those 8 expenditures before division of the proceeds among the property owners.” Milan, Id. at 1194, citing 9 Willmon v. Koyer (1914) 168 Cal. 369, 374; Southern Adjustment Bureau v. Nelson (1964) 230 10 Cal.App.2d 539, 541; Shenson v. Shenson (1954) 124 Cal.App.2d 747, 754-755; Combs v. Ritter (1950) 11 100 Cal.App.2d 315, 320; 3 Witkin, Summary of Cal. Law (8th ed. 1973) Real Property, §§ 214-216, 12 pp. 1947-1948. 13 In this action, the plaintiff seeks, albeit subtly, to obtain judgment for proceeding from sale in 14 the amount higher than what would be paid to the defendants, and prayor’s items 4 and 5 seek carve- 15 outs not based on anything pleaded in the complaint. However, the request pleaded in the prayor’s 16 items 4 and 5 shows on the face of the complaint that plaintiffs do have accounting claims against the 17 defendants, both as expenditures and as encumbrances, yet the plaintiffs did not plead either of those. 18 Further, the plaintiffs did not account anywhere in their complaint for the share of the proceeds 19 going to the lender for satisfaction of the recorded lien, if the property is sold. This may very well be 20 the main share of the proceeds and may not be ignored. An accounting upon partition is therefore 21 necessary, or there will not be a final and global resolution of all claims and liens (a required element 22 for the partition action). 23 For these above-stated reasons, the partition cause of action is not sufficiently pleaded, in that it 24 deprives the Court from ability to order the requested relief until and unless the requisite causes of 25 action are sufficiently stated in the complaint. 26 C. Misjoinder of necessary parties. 27 Defendants demur specially to this complaint’s fourth cause of action, on the grounds that the 28 pleader omitted to join parties indispensible for adjudication of this complaint’s partition cause of 4 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER 1 action for partition. CCP § 430.10(d). 2 “The complaint must name all parties who have any recorded interest in the property (Code Civ. 3 Proc., §§ 872.230, 872.510), or whom the plaintiff knows claim an interest in the property (Code Civ. 4 Proc., §§ 872.230, subd. (c), 872.510, subd. (a), 872.550) … A mortgagee can intervene in the partition 5 action (Towle Bros. Co. v. Quinn (1903) 141 Cal. 382, 385).” Right of partition—Procedure in partition 6 action, 4 Cal. Real Est. § 11:15 (4th ed.) December 2019 update. On the right of the lienholder to 7 intervene, see also, Palpar, Inc. v. Thayer (1947) 82 Cal.App.2d 578, 584. 8 In an action for partition where encumbrances are of record at the commencement of the action 9 and the lien holder is not a party to the action, the court must order such person to be made a party or it 10 must appoint a referee to ascertain what amount if any remains unpaid; a failure to observe such 11 requirements will warrant the reversal of an order confirming such a sale. Balkins v. Los Angeles 12 County (1947) 81 Cal.App.2d 42, 47. 13 In this action, at the very least, the plaintiffs omitted to include the beneficiary under the deed of 14 trust. That there could be other lien claimants also remains a possibility, because the complaint does not 15 plead how the scope of the claimants was assessed, how the unknown claimants were informed, if at 16 all, and there was no title guarantee attached to the complaint, which could otherwise assist in ascer- 17 taining the scope of the parties. The liens, their status and priority, are necessary to be known for the 18 Court to grant the appropriate relief. CCP § 872.630. 19 The misjoinder of all known claimants is therefore fatal for the relief sought in this action. The 20 plaintiffs seek partition by sale, while the property is under a substantial lien secured and recorded 21 against it, whose beneficiary is unaware of the plaintiffs’ action and has not been afforded a notice and 22 an opportunity to appear and defend its interest. 23 D. Plaintiffs Failed to Plead Facts Sufficient to State The 2nd and 3rd Causes Of Action. 24 (1) Lack of specificity regarding the alleged false promise. 25 “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, 26 each element must be pleaded with specificity (cit.) The specificity requirement means a plaintiff must 27 allege facts showing how, when, where, to whom, and by what means the representations were made.” 28 Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166, internal citations 5 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER 1 omitted. The quote continued to illustrate the heightened standard for a situation with multiple persons 2 potentially speaking on behalf of others, such as the agents speaking on behalf of corporations: “in the 3 case of a corporate defendant, the plaintiff must allege the names of the persons who made the 4 representations, their authority to speak on behalf of the corporation, to whom they spoke, what they 5 said or wrote, and when the representation was made.” (Id.) Likewise here, this is not the case of just 6 one individual communicating with one other. There are four individuals, and the complaint does not 7 specify how the alleged representation had taken place, who talked to whom, when, and what was 8 communicated. Moreover, the complaint occasionally uses a single plaintiff and a single defendant in 9 the fraud allegations, without parties’ names. 10 On the face of the complaint, there are two individual plaintiffs accusing two individual 11 defendants about an alleged misrepresentation, purportedly made to lure the plaintiffs into the purchase 12 of the subject property. (Complaint, ¶¶ 21, 22). There are no facts alleged to show particularly who said 13 what to whom, or where, or when. Were they all four simultaneously communicating? If not, were the 14 non-communicating parties also relying on those communications, and were the communicating parties 15 intending to obtain reliance of those who were not present? These are the missing facts needed for 16 establishing the alleged intent in the second cause of action and other material elements of the claims 17 of both the second and the third causes of action, such as the facts of misrepresentation and justifiable 18 reliance. 19 The need to provide specificity in the fraud claims is also illustrated by the ambiguity of 20 the current version of the complaint. The allegations as pleaded are uncertain, because there is an 21 interchangeable use of plural and single terms for the parties, while not identifying any of them by their 22 names. See, complaint’s page 6, paragraph 23: “ignorant of the falsity of Defendant’s representations” 23 (which defendant?). See also on the same page, paragraph 25: “Plaintiff has suffered damages alleged 24 herein” (which plaintiff?); paragraph 27: “the intention of Defendants to deprive Plaintiff of property or 25 legal rights or otherwise cause injury … subjected to Plaintiff to cruel and unjust hardship in conscious 26 disregard of Plaintiff’s rights” (again, the identify of the plaintiff is not indicated). Similar issue is 27 shown with the third cause of action (page 7, paragraph 33). And in both causes, only one plaintiff is 28 praying for judgment. 6 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER 1 Absence of these details is in contrast with the allegations of the defendants’ denial to go with 2 the condo-conversion (compare, Complaint, ¶ 13). There, the pleading names the particular two out of 3 four individuals who had met, and also alleges in detail when the meeting took place and who said 4 what. 5 Lack of this specificity renders the second cause of action (intentional fraud) inoperable, 6 because the required element of intent is not pleaded. “A false representation made by one person with 7 the intention that it shall come to the attention of another person and be acted upon by him, and which 8 is acted upon by him to his injury, gives to the person so acting the same right to relief as if the 9 representation had been made to him directly.” Wice v. Schilling (1954) 124 Cal.App.2d 735, 745. 10 “[A] representation ordinarily will give rise to a cause of action for fraud or deceit only if it is a 11 representation of fact rather than opinion. [Citations.] ‘[P]redictions as to future events, or statements 12 as to future action by some third party, are deemed opinions, and not actionable fraud.’ [Citation.]” 13 Nibbi Brothers, Inc. v. Home Federal Sav. & Loan Assn. (1988) 205 Cal.App.3d 1415, 1423, emphasis 14 added. 15 As to the third cause of action (negligent misrepresentation) the argument is even stronger, 16 because the scenario of an intentional misrepresentation to a third party discussed in the context of 17 intentional fraud (Wice v. Schilling), does not apply to the negligent misrepresentation. “The plaintiff 18 must have been a person for whose use the representation was intended, and it is not enough that the 19 defendant ought reasonably to have foreseen reliance by someone such as the plaintiff.” Christiansen v. 20 Roddy (1986) 186 Cal.App.3d 780, 787, discussing the exception for the intentional fraud and declining 21 to “broaden this narrow scope of liability under existing California law” to the negligent 22 misrepresentation. None of it is pleaded in the complaint, and the complaint’s third cause of action 23 therefore also fails. 24 (2) No exception to the economic loss rule is pleaded. 25 The claim in this cause of action draws on the allegation of an oral agreement for condo- 26 conversion and units’ use (Complaint, ¶ 8). That allegation is made without pleading any exception to 27 the Statute of Frauds, which is applicable to the alleged agreement under Civil Code section 1624, 28 subds. (a)(1) and (a)(3). But even under the assumption that the underlying contract did exist and 7 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER 1 remains actionable, there is nothing pleaded in the complaint of the defendants’ conduct, which could 2 go beyond the alleged breach of promise to perform under the contract. The allegations are only that 3 the defendants promised to go with the condo conversion and agreed to the use (Complaint, ¶ 8) and 4 then did not do so (Id., ¶ 12–14). It is so stated again in the breach of contract claim (Id., ¶ 17), and then 5 repeated in the two fraud causes of action, specifically with the language of “agreeing to condominium 6 convert and that Plaintiffs would have exclusive use and ownership of [one of the units]” (Id., ¶¶ 21 7 & 29). Even the claimed damages in these two fraud claims are exactly the same $275,000 claimed 8 under the breach of contract. (Compare, Id., ¶¶ 19, 26, & 34). Tellingly, it is the same prayor’s item 2 9 (Id., p. 9:1–2), treating the alleged claim for $275,000 irrespectively between the three causes of action. 10 The $275,000 is the amount of the economic damages, alleged as an equivalent to defendants’ 11 performance on the purported verbal agreement. See, complaint’s paragraphs 17–19. No additional 12 layer of recovery of the same damages, for the same conduct of breach of contract, is available to these 13 plaintiffs. 14 An exception for tortuous breach of contract is very narrow. Benavides v. State Farm General 15 Ins. Co. (2006) 136 Cal.App.4th 1241, 1251–1252. Ordinarily, tort damages are not recoverable for 16 breach of contract even if the breach was intentional: “The economic loss rule requires a purchaser to 17 recover in contract for purely economic loss due to disappointed expectations, unless he can 18 demonstrate harm above and beyond a broken contractual promise.” Robinson Helicopter Co., Inc. v. 19 Dana Corp. (2004) 34 Cal.4th 979, 988. It has to be a breach independent of the contract. (Id. at 989). 20 Here, no harm above and beyond the broken contractual promise is demonstrated, and the purely 21 ecomomic loss is ought to be litigated where it belongs, in the breach of contract claim. 22 “As our Supreme Court has explained, although that fraudulent intent is often established by 23 circumstantial evidence, “ ‘something more than nonperformance is required to prove the 24 defendant's intent not to perform his promise.’ [Citations.]” (cit.) Because [first party’s] showing bore 25 only on [second party’s] actual performance under the contract, it does not demonstrate fraudulent 26 inducement. Even if [first party’s] evidence raises triable issues whether the study contains inaccuracies 27 or falsehoods, they are not “conceptually distinct from the contract,” as [second party’s] obligation 28 to perform … arose exclusively from the contract. (cit.) For this reason, the alleged misrepresentations 8 BOGDANOV AND KUTYGINA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR DEMURRER