Demurrer in Zayra Valencia vs Ravinder Singh| Trellis.Law

On August 04, 2021 a Motion-Secondary was filed involving a dispute between Valencia, Zayra, and Singh, Ravinder, for Unlimited Civil Breach of Contract in the District Court of San Joaquin County.

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Electronically Filed
1 Jerome Anthony Clay, Jr., Esq., SBN 327175 Superior Court of California
LAW OFFICES OF JEROME A. CLAY County of San Joaquin
2 5250 Claremont Avenue, Suite 221 2022-02-14 12:54:02
Stockton, California 95207 Clerk: Irving Jimenez
3

4 Telephone: (209) 603-9852
Facsimile: (510) 280-2841
5 E-mail: Jclay7@claylaw.net

6 Attorney(s) for Plaintiff(s): Zayra Valencia

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN JOAQUIN
10
STOCKTON COURTHOUSE
11

12 ZAYRA VALENCIA, Case No.: STK-CV-UBC-2021-0007397

13 Plaintiff(s), Assigned for all purposes to:
Honorable Judge Jayne Lee
14 vs. Department 10C
15 RAVINDER SINGH; and any and all persons PLAINTIFF’S OPPOSITION TO DEFENDANT
and or entities unknown and DOES 1 through RAVINDER SINGH’S DEMURRER TO THE
16 20 inclusive, FIRST AMENDED COMPLAINT AND
MEMORANDUM OF POINTS AND
17 AUTHORITIES IN SUPPORT THEREOF
Defendant(s).
18 Hearing’s:
Date: March 1, 2022
19 Time: 09:00 A.M.
Dept.: 10C
20 Judge: Hon. Jayne Lee
21 ____________________________________
22 [JURY TRIAL DEMANDED]
23 Complaint Filed: August 4, 2021
Trial Date: Not Assigned
24

Case No. STK-CV-UBC-2021-0007397 1
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 TABLE OF CONTENTS

2 I. INTRODUCTION ........................................................................................................................ 5
3 II. RELEVANT FACTS .................................................................................................................... 5
4 III. ARGUMENT AND AUTHORITIES.............................................................................................. 7
5 1. Legal Standard ............................................................................................................... 7
6 2. Plaintiff’s Causes of Action for Breach of Contract and Specific Performance are
adequately pled............................................................................................................... 8
7

8 3. Plaintiff’s Causes of Action for Breach of Contract and Specific Performance do
state claims because the Agreement satisfies the statute of frauds............................... 10
9
4. Plaintiff’s first cause of action for Breach of Written Contract is procedurally not
10 flawed. .......................................................................................................................... 11

11 5. Plaintiff has adequately pled the third cause of action for Cancellation of
Instrument. .................................................................................................................... 12
12
6. The Demurrer for uncertainty under CCP 430.10(g) to Plaintiff’s first cause of
13 action for Breach of Contract is without merit. ............................................................... 13

14 7. Defendant’s Demurrer of uncertainty (CCP 430.10(f)) to Plaintiff’s first cause of
action for Breach of Contract is without merit. ............................................................... 14
15
8. If this Court sustains Defendant’s Demurrer or any part thereof, Plaintiff should
16 be provided with an opportunity to amend the FAC. ...................................................... 15

17 IV. CONCLUSION AND PRAYER.................................................................................................. 16
18

Case No. STK-CV-UBC-2021-0007397 2
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 TABLE OF AUTHORITIES

2 Cases

3 Apple Inc. v. Superior Court
(2017) 18 Cal.App.5th 222, 222 [227 Cal.Rptr.3d 8] ....................................................................... 15
4
Barquis v. Merchants Collection Assn.
5 (1972) 7 Cal. 3d 94, 103 [101 Cal. Rptr. 745, 496 P.2d 817], original italics; LiMandri
v. Judkins (1997) 52 Cal. App. 4th 326, 339 [60 Cal. Rptr. 2d 539]. ............................................... 14
6
Buxbom v. Smith,
7
23 Cal.2d 535 (Cal. 1944) ................................................................................................................ 8
8
California Logistics, Inc. v. State of California
9 (2008) 161 Cal.App.4th 242, 247 [73 Cal.Rptr.3d 825] ................................................................... 15

10 Cf. Donovan v. RRL Corp.,
26 Cal.4th 261, 277–78, 109 Cal.Rptr.2d 807, 27 P.3d 702 (2001) ................................................ 10
11
City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
12 (1998) 68 Cal.App.4th 445 [80 Cal.Rptr.2d 329]. .............................................................................. 7

13 Construction Protective Services, Inc. v. TIG Specialty Ins. Co.
(2002) 29 Cal.4th 189, 198-199 [126 Cal.Rptr.2d 908, 57 P.3d 372] .............................................. 11
14
Credit Managers Assn. v. Superior Court
15 (1975) 51 Cal.App.3d 352, 361 ........................................................................................................ 8

16 Donabedian v. Mercury Ins. Co.
(2004) 116 Cal. App. 4th 968, 994.................................................................................................... 7
17
Fenton v. Groveland Community Services Dist.
18 (1982) 135 Cal.App.3d 797, 809..................................................................................................... 15
19 Foley v. Cowan
(1947) 80 Cal.App.2d 70, 76 [181 P.2d 410] .................................................................................... 9
20
Fox v. Ethicon Endo- Surgery, Inc.
21 (2005) 35 Cal.4th 797, 810. .......................................................................................................... 7, 8
22
Kotlar v. Hartford Fire Ins. Co.
23 (2000) 83 Cal.App.4th 1116, 1120 [100 Cal.Rptr.2d 246]. .............................................................. 11

24 Lickiss v. Financial Industry Regulatory Authority
(2012) 208 Cal.App.4th 1125, 1135 [146 Cal.Rptr.3d 173]. ............................................................ 14
25
Matteson v. Wagoner,
26 (1905) 147 Cal. 739 [82 P. 436]........................................................................................................ 8

27 Miles v. Deutsche Bank National Trust Co.
(2015) 236 Cal.App.4th 394, 396 [186 Cal.Rptr.3d 625] ........................................................... 11, 12
28

Case No. STK-CV-UBC-2021-0007397 3
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 Otworth v. Southern Pac. Transportation Co.
(1985) 166 Cal.App.3d 452, 459..................................................................................................... 12
2
Quelimane Co. v. Stewart Title Guaranty Co.
3 (1998) 19 Cal.4th 26, 38-39 [77 Cal.Rptr.2d 709, 960 P.2d 513]. ................................................... 14

4 Ruiz v. Moss Bros. Auto Grp., 232 Cal. App. 4th 836, 843
(2014) (quoting Cal. Civ. Code § 1633.7(a)) ................................................................................... 10
5
Serrano v. Priest
6 (1971) 5 Cal.3d 584, 591 .................................................................................................................. 7
7 Sterling v. Taylor
(2007) 40 Cal.4th 757, 765–66 ....................................................................................................... 10
8
Thompson v. Ioane
9
(2017) 11 Cal.App.5th 1180, 1193-1194 [218 Cal.Rptr.3d 501]. ..................................................... 12
10
Thrifty Payless, Inc. v. The Americana at Brand, LLC
11 (2013) 218 Cal.App.4th 1230, 1244 [160 Cal.Rptr.3d 718 ................................................................ 8

12 Wheeler v. County of San Bernardino
(1978) 76 Cal.App.3d 841, 846 [143 Cal. Rptr. 295]. ...................................................................... 13
13
Statutes
14
Cal. Civ. Code § 1624(b)(3)(A)............................................................................................................. 11
15
CCP § 430.10(g) .................................................................................................................................. 14
16
CCP 430.10(f) ...................................................................................................................................... 15
17

Case No. STK-CV-UBC-2021-0007397 4
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 Plaintiff, ZAYRA ALEJANDRA VALENCIA (hereinafter referred to as “Plaintiff”), hereby submits her

3 Opposition to Defendant RAVINDER PAL SINGH’s (hereinafter referred to as “Defendant”) Demurrer

4 to First Amended Complaint (hereinafter referred to as “FAC”), and in support thereof, would allege

5 as follows:

6 I.

7 INTRODUCTION

8 Plaintiff is the daughter of Ana M. Valencia (hereinafter referred to as “Mother”). Plaintiff’s

9 Mother lived in a meretricious relationship with Defendant. There was no legal and familial

10 relationship between Defendant and Plaintiff, but Defendant often referred to Plaintiff as his daughter,

11 and she always referred to him as her father.

12 This lawsuit arises from a dispute relating to a real property located at 3350 Van Eeden Court,

13 Stockton, CA 95206 (hereinafter referred to as “Subject Property”). On August 4, 2021, Plaintiff filed

14 her Complaint against Defendant for Breach of Contract, Quiet Title, Violation of Business and

15 Profession Code §17200, Intentional Misrepresentation, and Breach of Covenant of Good Faith and

16 Fair Dealing. On December 9, 2021, Plaintiff filed her FAC for Breach of Contract, Specific

17 Performance, Cancellation of Instrument, and Quiet Title. On December 28, 2021, Defendant filed a

18 General and Special Demurrer to FAC and purportedly alleged that Plaintiff’s claims do not state facts

19 sufficient to constitute and cause of action and pleaded facts constitute the statute of frauds. Now,

20 Plaintiff opposes the Demurrer because she adequately pled the factual details in the FAC, which

21 constitute valid legal claims for Breach of Contract, Specific Performance, Cancellation of Instrument,

22 and Quiet Title. As demonstrated in this Opposition, Defendant’s arguments are without merit, and

23 the Court should overrule the Demurrer in its entirety.

24 II.

25 RELEVANT FACTS

26 At all times relevant to this lawsuit, Plaintiff resides at the Subject Property. (See FAC ¶¶2 &

27 4). On May 1, 2000, a Grant Deed was recorded in favor of Defendant Ravinder Singh and Ana M.

28 Valencia, husband and wife, as joint tenants, on the Subject Property. (See FAC ¶6). On July 15,

Case No. STK-CV-UBC-2021-0007397 5
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 2013, Defendant and Plaintiff’s Mother conveyed the Subject Property to Defendant and Plaintiff, as

2 tenants in common, with each a 50% ownership in the Subject Property. The execution of the Grant

3 Deed provides 50% ownership of the Subject Property to Plaintiff. (See FAC ¶7). Within a few days

4 of execution of the Grant Deed, Plaintiff’s Mother handed the executed Grant Deed to her sister,

5 Norma Valencia, to hold the Grant Deed in trust for Plaintiff. (See FAC ¶¶8 & 9). Plaintiff’s Mother

6 died on July 24, 2013. On October 23, 2020, Plaintiff recorded the Grand Deed as Document No.

7 2020-143140. On the same day, Plaintiff learned for the first time that on November 6, 2019,

8 Defendant executed a fraudulent Affidavit/Notice of Death of Joint Tenant recorded on November 7,

9 2017 (Document No. 2017-129913.) (See FAC ¶10). Defendant purposely recorded the Affidavit of

10 Death of Joint Tenant to put the world on notice that the Grant Deed executed on May 1, 2000, still

11 existed and he was the sole owner of the Subject Property, even though he had executed the Grant

12 Deed on July 15, 2013, and granted a tenancy in common (50% ownership) to Plaintiff. Thus,

13 Defendant’s recordation of the Affidavit of Death of Joint Tenant was to make a fraudulent change in

14 the ownership of Subject Property. (See FAC ¶11).

15 On February 28, 2021, Defendant informed Plaintiff via text message that he had lost his

16 employment, could not pay the mortgage payments securing the Subject Property, and desired to

17 sell the Subject Property. (See FAC ¶12). Plaintiff was renting at that time. Plaintiff offered Defendant

18 to purchase his share of the Subject Property and pay him $150,000.00 for his share of equity in the

19 Subject Property. (See FAC ¶13). In or about March 2021, based upon Plaintiff’s offer and

20 Defendant’s acceptance, Plaintiff with her family moved into the Subject Property. (See FAC ¶¶14 &

21 17). Upon entering the Subject Property, Plaintiff learned that Defendant had entered into a

22 forbearance agreement with the lender holding a security interest. Plaintiff also found that one of the

23 two bathrooms in the Subject Property was contaminated with mold. (See FAC ¶16). On April 19,

24 2021. Defendant accepted Plaintiff’s offer to sign over his share of the Subject Property to Plaintiff

25 and agreed to receive $150,000.00 as his total compensation for his share of the tenancy in common

26 over the Subject Property. (See FAC ¶16).

27 On May 17, 2021, Plaintiff sent a demand to Defendant for the cost of remediation of the mold

28 condition on the Subject Property. Defendant texted to Plaintiff that he would not pay for the

Case No. STK-CV-UBC-2021-0007397 6
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 remediation of the Subject Property and wanted to sell his share of equity in the Subject Property to

2 Plaintiff for $150,000.00. (See FAC ¶¶21 & 22). Upon relying on Defendant’s acceptance of the offer,

3 on May 20, 2021, Plaintiff paid mortgage payment to the lender of the Subject Property and brought

4 the mortgage current (See FAC ¶23).

5 On May 25, 2021, in further reasonable reliance on Defendant’s statement, Plaintiff created a

6 written sales agreement and requested Defendant to sign the agreement (hereinafter referred to as

7 “Agreement”). However, Defendant refused to sign it. (See FAC ¶24). In or about June 2021, Plaintiff

8 demanded that Defendant complete the sale of Subject Property, but Defendant again refused to sign

9 the Agreement. (See FAC ¶25).

10 III.

11 ARGUMENT AND AUTHORITIES

12 1. Legal Standard

13 A demurrer tests the legal sufficiency of factual allegations in a complaint. It raises issues of

14 law, not fact, regarding the form or content of the pleadings. (Donabedian v. Mercury Ins. Co. (2004)

15 116 Cal. App. 4th 968, 994). In ruling on demurrers, the court must “treat the demurrer as admitting

16 all facts properly pleaded.” (Fox v. Ethicon Endo- Surgery, Inc. (2005) 35 Cal.4th 797, 810.) A

17 demurrer cannot challenge the truthfulness of the factual allegations in the Complaint. Rather, all of

18 the factual allegations asserted therein are taken as true in order to evaluate the sufficiency of the

19 complaining party’s legal theory of the case. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover,

20 any and all facts that may be implied or inferred from those expressly alleged in the Complaint are to

21 be taken as true along with those facts explicitly alleged. (C & H Foods Co. v. Hartford Ins. Co. (1984)

22 163 Cal. App. 3d 1055, 1062.)

23 “A demurrer tests the pleading alone, and not the evidence or the facts alleged. Thus, a

24 demurrer will be sustained only where the pleading is defective on its face.” (City of Atascadero v.

25 Merrill Lynch, Pierce, Fenner & Smith, Inc., (1998) 68 Cal.App.4th 445 [80 Cal.Rptr.2d 329].). “If

26 upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the

27 hands of the court against the defendants, the complaint will be held good, although the facts may

28 not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of

Case No. STK-CV-UBC-2021-0007397 7
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 action shown, or although the plaintiff may demand relief to which he is not entitled under the facts

2 alleged.” [Emphasis underlined]. (Matteson v. Wagoner, (1905) 147 Cal. 739 [82 P. 436].). “While

3 orderly procedure demands a reasonable enforcement of the rules of pleading, the basic principle of

4 the code system in this state is that the administration of justice shall not be embarrassed by

5 technicalities, strict rules of construction, or useless forms.” (Buxbom v. Smith, 23 Cal.2d 535 (Cal.

6 1944)).

7 “[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action

8 under any possible legal theory.” Fox v. Ethicon Endo- Surgery, Inc. supra at 810. “And it is an abuse

9 of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable

10 possibility any defect identified by the defendant can be cured by amendment.” (Ibid.) “We are not

11 aware of any rule of pleading which requires a plaintiff to allege in his complaint... facts with specificity

12 where the facts are within the knowledge and control of the defendant and are unknown to plaintiff.”

13 (Credit Managers Assn. v. Superior Court (1975) 51 Cal.App.3d 352, 361.) Thus, following the legal

14 standard to rule on demurrers, accepting the given facts as true, and the reasons mentioned below,

15 this Court should overrule Defendant’s Demurrer in its entirety.

16 2. Plaintiff’s Causes of Action for Breach of Contract and Specific Performance are

17 adequately pled.

18 Contrary to Defendant’s assertions, Plaintiff has adequately pled her first cause of action for

19 Breach of Contract. To survive a demurrer to a breach of contract, a party need only allege: (1) the

20 existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s

21 breach, and (4) the resulting damages to the plaintiff.” (Internal citation omitted.) (Thrifty Payless, Inc.

22 v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244 [160 Cal.Rptr.3d 718].). No

23 other elements are required.

24 Defendant’s argument that Plaintiff’s causes of action are hopelessly vague and devoid of

25 factual allegations, is without merit. In the FAC, Plaintiff has sufficiently stated the facts which

26 constitute valid legal claims for breach of contract and specific performance. It is undisputed that on

27 February 28, 2021, Defendant contacted Plaintiff via text message and informed her that he had lost

28 his employment and could not pay the mortgage payments, so he asked her to sell the Subject

Case No. STK-CV-UBC-2021-0007397 8
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 Property. Plaintiff offered Defendant to purchase his share of the Subject Property, and he agreed

2 to receive $150,000.00 for his share of equity in the Subject Property. (See FAC ¶12, ¶13). On April

3 19, 2021, Defendant agreed to sign over his share of the Subject Property to Plaintiff for $150,000.00

4 as total compensation for his share of the Subject Property. (See FAC ¶¶16, 21, & 22). Again, on

5 May 17, 2021, Defendant texted Plaintiff that he wanted to sell his share of equity in the Subject

6 Property to Plaintiff for $150,000.00. (See FAC ¶¶21 & 22). Upon relying on Defendant’s acceptance

7 of the offer, Plaintiff paid the mortgage payment to the lender of the Subject Property and brought the

8 mortgage current (See FAC ¶23). Plaintiff had created the Agreement and requested Defendant to

9 sign it. (See FAC ¶¶24 & 28). Plaintiff has performed all terms and conditions on her part. (See FAC

10 ¶27). However, Defendant breached the Agreement when he failed to proceed with Plaintiff’s

11 purchasing the Subject Property. (See FAC ¶29). Additionally, there is no requirement that a written

12 contract must be signed. The only requirement is that there must be writing containing all terms and

13 that the party to be charged has accepted it. How that acceptance is manifested is a matter of proof.

14 It may be proved by evidence of a particular act other than signing.

15 Defendant further attempted to demur Plaintiff’s cause of action for specific performance for

16 the same reasons as alleged to demur her contract claim. As discussed above, Plaintiff has

17 sufficiently stated a cause of action for Breach of Contract. Therefore, Plaintiff also sufficiently alleged

18 the facts supporting her cause of action for Specific Performance. Additionally, in cases where

19 damages would not be an adequate remedy, specific performance of the covenant to maintain and

20 repair may be ordered.

21 The Agreement to purchase Defendant’s share of the Subject Property and pay him

22 $150,000.00 was sufficiently definite and certain in its terms to be enforced. The total fair and

23 reasonable equity at the time of Plaintiff’s offer was approximately $300,000.00, and as a 50% tenant

24 in common Plaintiff's equity share in the Subject Property was $150,000.00. Plaintiff has performed

25 all of the terms and conditions on her part. The Agreement was supported by adequate consideration.

26 (See FAC ¶¶32 & 33). “A complaint for specific performance is sufficient upon the point in question

27 if it alleges facts, proof of which would entitle the plaintiff to a decree of specific performance.” (Foley

28 v. Cowan (1947) 80 Cal.App.2d 70, 76 [181 P.2d 410].) Thus, Plaintiff has alleged sufficient facts to

Case No. STK-CV-UBC-2021-0007397 9
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 state causes of action for Breach of Contract and Specific Performance. Therefore, this Court should

2 overrule Defendant’s General Demurrer to Plaintiff’s causes of action for Breach of Contract and

3 Specific Performance.

4 3. Plaintiff’s Causes of Action for Breach of Contract and Specific Performance do

5 state claims because the Agreement satisfies the statute of frauds.

6 Contrary to Defendant’s assertion, Plaintiff’s claims for Specific Performance and Breach of

7 Contract satisfy the statute of frauds. The statute of frauds does not require a written contract; a

8 “note or memorandum ... subscribed by the party to be charged” is adequate. (Civ.Code, § 1624,

9 subd. (a).) Sterling v. Taylor (2007) 40 Cal.4th 757, 765–66. A memorandum satisfies the statute of

10 frauds if it identifies the subject of the parties’ agreement, shows that they made a contract, and states

11 the essential contract terms with reasonable certainty. (Rest.2d Contracts, § 131; 1 Witkin, Summary

12 of Cal. Law, supra, Contracts, § 353, p. 399.) Ibid. “A record or signature may not be denied legal

13 effect or enforceability solely because it is in electronic form.” Ruiz v. Moss Bros. Auto Grp., 232 Cal.

14 App. 4th 836, 843 (2014) (quoting Cal. Civ. Code § 1633.7(a)). California law does not strictly require

15 a “signature” in order to find that the party to be charged subscribed to the writing. Cf. Donovan v.

16 RRL Corp., 26 Cal.4th 261, 277–78, 109 Cal.Rptr.2d 807, 27 P.3d 702 (2001) (when advertisement

17 constitutes an offer, printed name of the merchant is sufficient to show that merchant subscribed to

18 the writing for purposes of the Statute of Frauds).

19 Pursuant to Cal. Civ. Code § 1624(b)(3)(A) “[t]here is evidence of an electronic communication

20 (including, without limitation, the recording of a telephone call or the tangible written text produced by

21 computer retrieval), admissible in evidence under the laws of this state, sufficient to indicate that in

22 the communication a contract was made between the parties.” In the instant case, it is clear by the

23 allegations that clearly state the essential terms offered by Defendant in the text message and fully

24 incorporate those text messages as Exhibits 4, 5, and 6 in the FAC. (See FAC ¶¶12, 13, 16, 23, &

25 24). “Where, as here, the complaint incorporates the terms of a contract, we consider those terms

26 as part of the pleading. Furthermore, the allegations of the complaint must be liberally construed with

27 a view to attaining substantial justice among the parties. (Code Civ. Proc., § 452; King v. Central

28 Bank (1977) 18 Cal. 3d 840, 843 [135 Cal. Rptr. 771, 558 P.2d 857].)” (Kotlar v. Hartford Fire Ins. Co.

Case No. STK-CV-UBC-2021-0007397 10
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 (2000) 83 Cal.App.4th 1116, 1120 [100 Cal.Rptr.2d 246].).

2 Defendant ignored the facts alleged in the FAC, which rendered his argument related to the

3 statute of frauds as invalid. Here, Plaintiff satisfied the statute of frauds because an electronic

4 communication subscribing that Plaintiff and Defendant entered into a contract to purchase

5 Defendant’s share in the Subject Property is sufficient. Therefore, the Court should overrule

6 Defendant’s Demurrer in its entirety.

7 4. Plaintiff’s first cause of action for Breach of Written Contract is procedurally not

8 flawed.

9 Defendant’s argument that Plaintiff was required to attach the contract with the FAC is without

10 merit because it is not necessary that a complaint/FAC alleging breach of a contract either attach the

11 contract or quote the relevant provisions verbatim. This is not the law. By contrast, “[a] plaintiff’s

12 failure either to attach or to set out verbatim the terms of the contract is not fatal to a breach of contract

13 cause of action.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 396 [186

14 Cal.Rptr.3d 625]). Further, “[i]n an action based on a written contract, a plaintiff may plead the legal

15 effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG

16 Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199 [126 Cal.Rptr.2d 908, 57 P.3d 372].). Pleading the

17 legal effect of the contract means pleading enough of the contractual terms to allege that a breach of

18 contract has occurred.

19 In the instant case, the FAC alleged that Plaintiff offered Defendant to purchase his share of

20 the Subject Property, and Defendant agreed to receive $150,000.00 as total compensation of his

21 equity of share in the Subject Property. (See FAC ¶¶12 & ¶13). FAC indicated an offer and

22 acceptance regarding the sale-purchase of Defendant’s share in the Subject Property to Plaintiff.

23 (See FAC ¶16, ¶27). Upon relying on Defendant’s acceptance of the offer, on May 20, 2021, Plaintiff

24 paid the mortgage payment to the lender of the Subject Property and brought the mortgage current

25 (See FAC ¶23). Plaintiff then created the Agreement and asked Defendant to sign it. (See FAC ¶24,

26 ¶28). However, Defendant refused to sign. Plaintiff has performed all terms and conditions on her

27 part. (See FAC ¶27). Defendant breached the contract when he failed to proceed with Plaintiff’s

28 purchase. (See FAC ¶29). Therefore, Plaintiff has sufficiently alleged the facts to support her breach

Case No. STK-CV-UBC-2021-0007397 11
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 of contract claim.

2 Additionally, in support of his argument, Defendant cited and relied upon Otworth v. Southern

3 Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459 (Otworth), which the Court of Appeal of

4 California, Fourth Appellate District had declined to follow in (Miles v. Deutsche Bank National Trust

5 Co. supra at 401-402). While declining to follow Otworth the Miles Court stated as follows:

6 “In support of that argument, defendants cite Otworth v. Southern Pac. Transportation
Co. (1985) 166 Cal.App.3d 452, 459 [212 Cal. Rptr. 743] (Otworth), which stated, “If
7 the action is based on an alleged breach of a written contract, the terms must be set
out verbatim in the body of the complaint or a copy of the written instrument must be
8 attached and incorporated by reference.” “The Otworth court did not offer any analysis
to support that proposition. Instead, it simply cited Wise v. Southern Pacific Co. (1963)
9 223 Cal.App.2d 50, 59 (Wise) (overruled on other grounds in Applied Equipment Corp.
v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510, 521). The Wise court stated,
10 “where a written instrument is the foundation of a cause of action, it may be pleaded
in haec verba by attaching a copy as an exhibit and incorporating it by proper
11 reference.” (Wise, at p. 59.) It is readily apparent that the Otworth court read more into
that statement than is actually there. The Wise court was simply stating one available
12 method of pleading the contract - it was not specifying the exclusive means of pleading
a contract. The correct rule is that “a plaintiff may plead the legal effect of the contract
13 rather than its precise language.” (internal citaton omitted.) Because it is apparent that
the Otworth court misread Wise, and because, in any event, we are bound by our
14 Supreme Court, we decline to follow Otworth. Accordingly, plaintiff's failure
either to attach or to set out verbatim the terms of the contract was not fatal to
15 his breach of contract cause of action.” [Emphasis bold]. Id at 401-402.

16 Likewise, in the present case, the Otworth is not applicable, and failure to attach or set out

17 verbatim the terms of the Agreement is not fatal to her Breach of Contract claim. Therefore, this

18 Court should overrule Defendant’s General Demurrer to Plaintiff’s cause of action for Breach of

19 Contract.

20 5. Plaintiff has adequately pled the third cause of action for Cancellation of

21 Instrument.

22 “Under Civil Code section 3412, ‘[a] written instrument, in respect to which there is a

23 reasonable apprehension that if left outstanding it may cause serious injury to a person against whom

24 it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or

25 canceled.’ To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is

26 void or voidable due to, for example, fraud, and (2) there is a reasonable apprehension of serious

27 injury including pecuniary loss or the prejudicial alteration of one's position. [Citation.]”. (Thompson

28 v. Ioane (2017) 11 Cal.App.5th 1180, 1193-1194 [218 Cal.Rptr.3d 501].)

Case No. STK-CV-UBC-2021-0007397 12
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 The Demurrer to FAC alleges that Plaintiff fails to allege a cause of action for Cancellation of

2 Instruments because she has not alleged enough facts to show reasonable apprehension of serious

3 injury. However, Defendant’s contention is without merit and is red herring. “A complaint may state

4 a cause of action for injury to real property if italleges that the defendant wrongfully recorded a

5 document that placed a cloud upon the plaintiff's titleto real property. (Wheeler v. County of San

6 Bernardino (1978) 76 Cal.App.3d 841, 846 [143 Cal. Rptr. 295].)” (Cyr v. McGovran (2012) 206

7 Cal.App.4th 645, 650 [142 Cal.Rptr.3d 34].). Where a false written instrument has been recorded

8 against property, the legislature has provided an individual with a private right of action to seek

9 redress against that injury.

10 In the case at bar, the FAC alleges the injury and basis for cancellation of the Notice of Death

11 of Joint Tenant. On July 15, 2013, Defendant and Plaintiff’s Mother conveyed the Subject Property

12 to Defendant and Plaintiff, as tenants in common, with 50-50 ownership in the Subject Property. (See

13 FAC ¶7, 35, 36). On November 6, 2017, Defendant secretly executed a Notice of Death of Joint

14 Tenant. (See FAC ¶37). This instrument was purposely recorded to cloud the title of the Subject

15 Property. This instrument was procured by fraudulent actions because Defendant never informed

16 Plaintiff that he had recorded a Notice of Death of her Mother. (See FAC ¶10). As a proximate result

17 of Defendant’s act, Plaintiff has suffered such injury in that her present and future interest in the

18 Subject Property is diminished, as a cloud has been placed upon the titleto the Subject Property,

19 and Plaintiff is at imminent risk of losing her share in the Subject Property. In this instance, Plaintiff

20 alleges her title to Subject Property is impaired due to the recorded Notice of Death of Joint Tenant.

21 Such allegations constitute an action for injury to real property. Therefore, Plaintiff has sufficiently

22 pled the substantial facts to support her cause of action for Cancellation of Instrument, and the Court

23 should overrule Defendant’s General Demurrer.

24 6. The Demurrer for uncertainty under CCP 430.10(g) to Plaintiff’s first cause of

25 action for Breach of Contract is without merit.

26 While CCP § 430.10(g) permits demurrer to a cause of action for Breach of Contract where it

27 cannot be ascertained from the pleadings whether the contract is written, oral or implied by conduct;

28 it does not apply here because it is prima facie clear from the pleadings that this action is founded

Case No. STK-CV-UBC-2021-0007397 13
LAW
OFFICES OF
JEROME A.
CLAY PLAINTIFF’S OPPOSITION TO DEFENDANT RAVINDER SINGH’S DEMURRER TO THE FIRST AMENDED
COMPLAINT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 upon breach of a written contract. The FAC also sufficiently alleges a valid written Agreement existed

2 between Plaintiff and Defendant whereby Plaintiff offered to purchase Defendant’s share in the

3 Subject Property, and Defendant agreed to receive $150,000.00, for his share of equity in the Subject

4 Property. (See FAC ¶12, ¶13). Plaintiff relied on Defendant’s statement and created the Agreement

5 for execution between Plaintiff and Defendant, and requested Defendant to sign the Agreement. (See

6 FAC ¶¶24 & 28). Plaintiff has performed all terms and conditions on her part. (See FAC ¶27).

7 Defendant breached the contract when he failed to proceed with Plaintiff’s purchase. (See FAC ¶29).

8 Thus, cause of action for breach of contract pertains to writing can be ascertained from the pleadings.

9 Therefore, Plaintiff’s allegations are sufficient to state a cause of action for breach of contract against

10 Defendant and Defendant's Demurrer on the ground of uncertainty should be overruled.

11 7. Defendant’s Demurrer of uncertainty (CCP 430.10(f)) to Plaintiff’s first cause of

12 action for Breach of Contract is without merit.

13 A demurrer for uncertainty is only warranted when a pleading is ambiguous and unintelligible.

14 CCP 430.10(f). In this case

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Lee, Jayne Track Judge’s New Case

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February 14, 2022

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August 04, 2021

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Motion-Secondary: Zayra Valencia vs Ravinder Singh

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