Plaintiff and cross-defendant Garth Murrin?s motion for judgment on the pleadings for each cause of action in both his complaint against defendant Tram Phan and as to Ms. Pham?s cross-complaint against Plaintiff/Cross-Defendant is denied in part and granted in part.? The motion is denied as to the fourth cause of action for quiet title in Plaintiff?s complaint.? It is otherwise granted with 30 days leave to amend.? Plaintiff?s request for judicial notice, though not required for pleadings and orders in the file of the pending action, is granted.
??????????? MJOP on Complaint Causes of Action
Motions for judgment on the pleadings, like demurrers, may target complaints or answers.? 6 Witkin, Cal. Procedure (5th ed.2008) Proceedings without Trial, ?? 185-186 pp. 623-625.? In ruling on a motion for judgment on the pleadings, the trial court assesses the properly pleaded facts and those subject to judicial notice to determine whether the pertinent pleading states a claim or defense.? Sebago, Inc. v. City of Alameda (1989) 211 Cal. App. 3d 1372, 1379-81.
If the complaint is verified, defendant must verify the answer. Code Civ. Proc. ? 446(a). ?In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the country where the attorney has his or her office?.? Code Civ. Proc. ? 446(a).
When a defendant files an unverified answer to a verified complaint, the plaintiff may seek a default judgment in his favor by filing a motion to strike the answer, or alternatively, may bring a motion for judgment on the pleadings with respect to the defective answer.? Hearst v. Hart (1900) 128 Cal. 327, 328.
When the plaintiff seeks judgment on the pleadings regarding the answer, the plaintiff must establish that the complaint states a claim, in addition to showing that the answer is defective. ?A plaintiff may recover judgment on a motion for judgment on the pleadings only if his complaint states facts sufficient to constitute a cause of action and the answer neither raises a material issue nor states a defense.? Mclain v. City of South Pasadena (1957) 155 Cal. App. 2d 423, 430.? Accord, Barash v. Epstein (1957) 147 Cal. App. 2d 439, 440.? See also Adjustment Corp v. Hollywood etc. Co. (1939) 35 Cal. App. 2d 566, 569-70 (finding plaintiff ?may?may recover judgment, without the introduction of any evidence, if his complaint states facts sufficient to constitute a cause of action, and the answer, as interposed by the defendant?neither raises any material issue nor states a defense?.?).
Here, in his complaint Plaintiff asserts causes of action for breach of the partnership agreement, common count, breach of fiduciary duty, quiet title and declaratory relief.? He has stated a cause of action for each of these except quiet title.
Quiet Title
Plaintiff?s fourth cause of action purports to be to quiet title.
In an action to quiet title of real property, the complaint must be verified and include all of the following:? (1) the legal description and street address of the property; (2) the basis for plaintiff’s title; (3)?the adverse claim or claims to title; (4) the date as of which the determination is sought; and (5) a prayer for determination of plaintiff’s title against the adverse claims.? Code Civ. Proc. ? 760.020; see also Mehta v. Wells Fargo Bank, N.A. (S.D. Cal. 2010) 737 F. Supp. 2d 1185, 1206 (stating elements).
While the general rule is that a holder of equitable title, or of some equitable interest in the property, cannot maintain a quiet title action against a legal owner (e.g., G.R. Holcomb Estate Co. v. Burke (1935) 4 Cal. 2d 289, 297; County of Los Angeles v. Hannon (1910) 159 Cal. 37, 48; Lewis v. Superior Court (1994) 30 Cal. App. 4th 1850, 1866; Stafford v. Ballinger (1962) 199 Cal. App. 2d 289, 294?95), there is an exception to the general rule where it is pled with specificity that the legal title holder obtained its interest through fraud.? Strong v. Strong (1943) 22 Cal. 2d 540, 546; see also Warren v. Merrill (2006) 143 Cal. App. 4th 96, 113?14 & fn. 20.? Equitable rights cannot be established in a quiet title action when the pleadings contain only general allegations asserting a right to ownership.? Strong v. Strong, supra, at 546.
While Plaintiff?s complaint is verified, it does not give a legal description of the property.? Nor does it allege that the legal title holder obtained her interest through fraud.
Plaintiff therefore has not stated a cause of action for quiet title.
Other Causes of Action
Plaintiff?s first cause of action is for breach of contract.? The elements of a breach of contract claim are (1)?existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant?s breach; and (4) resulting damage to plaintiff.? See, e.g., Amelco Electric v. City of Thousand Oaks, 27 Cal. 4th 228, 243 (2002).? Here, Plaintiff has alleged facts that cover the required elements.
Plaintiff?s second cause of action if a common count for money had and received.? To state common counts, Plaintiff need allege (1) indebtedness, (2) consideration (e.g., money had and received, work done, good sold), and (3) nonpayment.? Farmers Ins. Exch. v. Zerin (1997) 53 Cal. App. 4th 445, 460.? ?Th[e] common count [of money had and received] is available in a great variety of situations and lies wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.?? Gutierrez v. Girardi (2011) 194 Cal. App. 4th 925, 937 (internal quote marks and citations omitted).? Plaintiff has alleged the necessary elements for money had and received.
Plaintiff?s third cause of action is for breach of fiduciary duty.? The elements of breach of fiduciary duty are (1) existence of a fiduciary duty, (2) breach of that duty, and (3) damages.? Twomey v. Mitchum, Jones & Templeton Inc. (1968) 262 Cal. App. 2d 690.
A fiduciary or confidential relationship can arise when confidence is reposed by persons in the integrity of others, and if the latter voluntarily accepts or assumes to accept the confidence, he or she may not act so as to take advantage of the other’s interest without that person’s knowledge or consent.? Slovensky v. Friedman (2006) 142 Cal. App. 4th 1518, 1534; Pierce v. Lyman (1991) 1 Cal. App. 4th 1093, 1101?02.
A partner has a fiduciary duty to the other partner not to take partnership assets for her own benefit.? Enea v. Superior Court (2005) 132 Cal. App. 4th 1559, 1564-66.? Plaintiff has alleged the elements for his breach of fiduciary duty claim.
Plaintiff?s fifth cause of action is for declaratory relief.? A declaratory relief complaint must specifically allege that an actual, present controversy exists, and must state the facts of the respective claims concerning the disputed subject matter.? City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.? The complaint will be sufficient if it sets forth facts showing the existence of an actual controversy relating to the parties? legal rights and duties, and requests the court to adjudge these rights and duties.? Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4th 592, 606.? Plaintiff has satisfied these elements.
Finally, Plaintiff?s complaint was verified but Defendant?s answer is a general denial and is not verified.? It fails, then, to raise any material issues or state a defense as to the sufficiently alleged causes of action.
On the Cross-Complaint
Plaintiff/Cross-Defendant?s motion for judgment on the pleadings as to the cross-complaint is not based on an unverified answer but on the ground that Defendant/Cross-Complainant is deemed to have admitted facts that preclude her causes of action.
Initially, it might be thought that this is an improper ground for an MJOP and that such relief must be sought on a motion for summary judgment where evidence ? such as the discovery relied on ? may be submitted.? But, in fact, the pending motion is based on matter which the court may take judicial notice of without requiring evidence ? that is, its own order and a motion on file in this action.? The motion to deem RFAs admitted on file in this action sets forth the RFAs.? The court?s 9/27/16 order establishes that these RFAs are admitted.
These admitted facts prevent Defendant/Cross-Complaint from stating claims for breach of the partnership agreement, breach of the covenant of good faith and fair dealing, or breach of fiduciary duty.? On this basis, the Court grants the motion for judgment on the pleadings as to the cross-complaint.
When there is a reasonable possibility that a defect in pleading can be cured by amendment, the trial court considering motion for judgment on pleadings abuses its discretion by not granting leave to amend.? Mendoza v. Rast Produce Co., Inc., 140 Cal. App. 4th 1395, 1402 (2006).? Where leave to amend is granted on a motion for judgment on the pleadings, Code Civ. Proc. ? 438(h)(2) mandates that the leave be 30 days.