Memorandum Points and Authorities

Cal. Super. - 6th Dist.March 2, 2021

DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1 151 Minnesota Avenue San Jose, CA 95125 Telephone: (408) 293-8500 Facsimile: (408)293-8507 Attorney for Defendants Michael and Frances Hart, Tracy Hart-DeGregorio, and Gail Hart SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA FREDERICK HART, .TR., Plaintiff, vs. MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART Defendants. Case No: 2lCV378991 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER T0 VERIFIED COMPLAINT Date: Time: Dept: 7 AP]: Honorable Christopher G. Rudy MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. 1 Case No. 2lCV37899l Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/14/2021 3:58 PM Reviewed By: M. Sorum Case #21CV378991 Envelope: 6848340 21CV378991 Santa Clara - Civil M. Sorum ,_. u-->-- ---©\OOO\lO\UI-|>U3l\J N»-»-.-.-.-.-._-»-4 ©\OO0\lO\lJI-lkb-‘I\) I\) -- Ix) I0 Ix) U) Ix! 4% I\) (II Ix) ON I\) \l I\) 00 TABLE OF CONTENTS AND AUTHORITIES TABLE OF CONTENTS ..................................................................... .. TABLE OF AUTHORITIES ...................................................................................... .. TABLE OF CONTENTS I. INTRODUCTION ........................................................................ .. II. FACTUAL BACKGROUND ........................................................... .. III. LAW & ARGUMENT ............................................................... .. A. THE VERIFIED COMPLAINT DOES NOT DESCRIBE THE INTERESTS OF THE PARTIES AS REQUIRED BY CODE OF CIVIL PROCEDURE §872.230 ........................................................ .. THE VERIFIED COMPLAINT DOES NOT ALLEGE THAT FRANCES HART HAS ANY INTEREST IN THE PROPERTY, SO THERE IS NO CAUSE OF ACTION STATED AGAINST FRANCES THE VERIFIED COMPLAINT IS DEFECTIVE BECAUSE IT ALLEGES THAT PLAINTIFF INHERITED A 25% INTEREST IN THE PROPERTY WHEN JUDICIALLY NOTICED DOCUMENTS INDICATE THAT HE HAD NO SUCH INHERITANCE ............. .. THE VERIFIED COMPLAINT IS DEFECTIVE BECAUSE IT ALLEGES THAT PLAINTIFF INHERITED A 25% INTEREST IN THE PROPERTY WHEN JUDICIALLY NOTICED DOCUMENTS INDICATE THAT HE HAD NO SUCH INHERITANCE ............. .. THE VERIFIED COMPLAINT IS INCONSISTENT WITH A PRIOR LAWSUIT INVOLVING THE SAME SUBJECT MATTER, WHERE PLAINTIFF ALLEGED HE HAD AN ORAL AGREEMENT TO ACQUIRE HIS CLAIMED 25% INTEREST IN THE PROPERTY. THE COMPLAINT DOES NOT SPECIFY IF THE AGREEMENTS IN PARAGRAPHS 12 AND 13 OF THIS ACTION WERE WRITTEN OR ORAL ........................................................................... .. THE VERIFIED COMPLAINT DOES NOT PROVIDE THE ESSENTIAL TERMS OF THAT AGREEMENT ........................ .. THERE IS NO CONSIDERATION FOR THE AGREEMENT THAT IS PAGE(S) I III 1 3 4 MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 21CV378991 I >->-4 "O\DOO\lO\UI-Jk .--»--»--»--»--»--»-- O0\lO\‘JI-l>UJI\) -- \O ALLEGED IN THE PRIOR ACTION ..................................... .. THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE VERIFIED COMPLAINT IS BASED ON AN AGREEMENT WITHOUT CONSIDERATION ........................................... .. THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE COMPLAINT VIOLATES THE STATUTE OF FRAUDS ............. .. .THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE VERIFIED COMPLAINT IS NOT SIGNED BY THE OTHER ALLEGED OWNERS OF THE PROPERTY ............................ .. IV. CONCLUSION ......................................................................... .. 11 I2 13 14 Hart v. Hart et al. Case No. 21CV37899l II MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT ._. .-»- -#©\O0O\lO\UI-l>U~)Ix) N.-._..._._.._.._._-.- C>\ooox1oxuu4>wt\J Ix) »- Ix) Ix) Ix) U.) Ix) -B Ix) ‘J! Ix) O\ Ix) \l Ix) 00 TABLE OF AUTHORITIES PAGE(S) Andreotti v. Andreotti (1964) 224 Cal.App.2d 533, 538 ............................... .. 11, 12, 13 Cantu v. Resolution Trust Cory. (1992) 4 Ca1.App.4‘h 857, 877-78 ................. .. 5, 9, 14 Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593,604 ........................................................................................ .. 5, 9 Dow v. River Farme Co., 110 CalApp.2d 403 ........................................... .. 11 King v. Stanley (1948) 32 Cal.2d 584, 589 ............................................... .. 13, 14 Larson v. UHS ofRancho Springs, Inc. (2014) 230Ca1App.4‘h 336, 344 ............ .. 5, 9 Passante v. McWilliam (1997) 53 Ca1.App.4‘h 1240, 1248-9 .......................... .. 11, 12 CALIFORNIA STATUTES Code of Civ. Proc. §430.10 ................................................................. .. 10 Code of Civ. Proc. §430.10(e),(g) ........................................................... .. 10 Code of Civ. Proc. §430.30 ................................................................. .. 10 Code of Civ. Proc. §872.230 ..................................................................... .. 2, 4, 6, 6 Civ. Code §1624 (a)(1), (3) ................................................................... .. 12= 13 MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 21CV378991 III \lO\ \D »- O .._. ._. N».-._.._.._.._.._.....- O\OoO\l0\Uu-l>L»-ilx) N »- Ix) l\) I\) L») l\) -5 l\) U! I\) ON I9 \) I\) O0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT I. INTRODUCTION This is an action for Partition of a single family home that formerly belonged to the Plaintiffs mother [who was also the mother of 3 of the 4 Defendants]. Plaintiff claims in 1ll0 of his Verified Complaint that he inherited a 25% interest in the property from his mother through a Probate order of distribution. Also, in 1ll0, he claims that his sisters Gail and Tracy [who are 2 of the Defendants here] acted as Executors of their mother’s estate. Defendants ask the Court to take Judicial Notice of the Probate Order for the distribution of the mother’s estate, because the allegation that Plaintiff inherited anything from his mother is false. In other words, Plaintiff has no interest in the property that he is trying to Partition. Even more amazing, and as is confirmed by the Probate file, no one inherited the property that Plaintiff is trying to Partition. The Probate files and the recorded deed confirm that the property was sold by the estate to Defendants Michael and Frances Hart, who paid $337,500 for it. Thus, there is no basis for Plaintiff to sue any of the Defendants, as none of them inherited the property as Plaintiff claims, there is no basis for a Partition of the supposedly inherited property. Other statements in the Verified Complaint are also incontrovertibly false as confirmed in public records from other court files in this County, and the Defendants ask the Court to take judicial notice of those files, as well. For example, Plaintiff filed a previous action against his sister, Defendant Gail Hart in 2018. That action was basically the same as this one, but without the other Defendants. There, he alleged that there was an oral agreement with his sister Gail that he was supposed to receive a 25% interest in the property (apparently out of sister Gai1’s personal generosity), even though he did not inherit it and Gail did not own it. Obviously, his position in that prior lawsuit is at odds with what he is saying here about the circumstances where he MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et :1]. Case No. 2lCV378991 l U1-I><.»JI\) \OOO\lO’\ 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supposedly acquired his claimed 25% interest in the property. Plaintiff has changed his story to be evasive about his previous claim of an oral agreement for him to receive a gift, because he realized that an oral agreement to make a gifi of real estate is not enforceable, both due to a lack of consideration and because it violates the Statute of Frauds. With this context, the document attached as Exhibit “A” to the Verified Complaint gives Plaintiff no rights at all. Exhibit “A” does not purport to grant any estate in the property, it only references a supposed, already existing 25% “equity” in the property. Since Plaintiff inherited nothing, and Michael and Frances bought the property outright from the estate, there is no basis for Plaintiff having 25% “equity” in the property. As indicated below, the one-fourth “equity” is based on a supposed oral agreement with to make a gift to him. That agreement, if it ever existed, is unenforceable. In addition, Plaintiff claims in 1ll2 of the Complaint that there were other agreements (he does not specify if the agreements were oral or written) that Michael and Frances could live at the property (apparently without owning it, but possibly taking legal title) with various conditions. This allegation of an agreement to use it without owning it contradicts the Probate Court Order where Michael and Frances bought the property outright from the Estate. It would be subject to the Statute of Frauds as well, so it would have to be in writing to be enforceable. Plus, if Michael and Frances took record title under this supposed agreement, that fact would be inconsistent with the allegation in fllll that the property is owned equally by 4 of the 5 parties to the lawsuit, since all interests of record in the property must be described in the complaint. Finally, the Verified Complaint does not comply with Code of Civ. Proc. §872.230, as it does not identify with clarity the interests of the various persons in the property, and it fails to identify any interest allegedly owned by Defendant Frances Hart. MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 21CV37899l 2 \O0¢\lO\U1-J>bJI\J 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. FACTUAL BACKGROUND Plaintiffs mother died in 2002 and left her entire estate to 2 of Plaintiffs sisters, who are both Defendants here.‘ No part of the Estate was left to Plaintiff. This is confirmed by the Probate Court documents that Defendants have asked the Court to judicially notice. Thus, it is clear that the Plaintiff did not inherit 25% of the property, as he alleges in Paragraph 10 of the Verified Complaint. Defendants ask the Court to take Judicial Notice of the Will that was admitted to Probate and the Judgment in the Probate Court which contradicts the statements of the Verified Complaint as to Plaintiffs alleged inheritance of the property at issue in this action. Moreover, no one actually inherited the subject property out of the Probate Estate of Plaintiffs mother. Instead, the property was sold out of the Estate by the Executors to Defendants Michael and Frances Hart, who happen to be related to the Plaintiff as brother and sister-in-law. This was an outright sale, Michael and Frances paid $337,500 for the property, and they received a grant deed from the Estate in exchange for their cash payment to the estate. Plaintiffs mother’s will was admitted to Probate, and it left everything to 2 of plaintiffs sisters, Gail and Tracy. Thereafter, pursuant to the terms of the Will, the entire estate was distributed to Plaintiffs sisters, Defendants Gail Hart and Tracy Ha1t-Degregorio. As indicated in the Final Order of Distribution, this was a cash distribution, not a distribution of real estate. Upon distribution of the Estate, Plaintiff received no interest in the estate at all, and neither did any of the other siblings. Sixteen years later in 2018, Plaintiff claims that his brother Michael and his wife Frances signed the document attached to the Verified Complaint as Exhibit “A”. That document states: he $18,000 is an advance on [Frederick ’s] ‘A (one-fourth) equity in the property... ” However, even if that document was signed by Michael and Frances, it does not create any 1 As indicated in the Probate file, there are other siblings who are not parties here. Only Gail Hart and Tracy Hart DeGregorio inherited from the mother’s estate. All other children were disinherited. MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 21CV378991 3 -Jk \OOO\lO\U1 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interest in the property. At most it references an existing “equity” in the property that must have originated in some other manner. Based on the Probate file, it is clear that Exhibit “A” simply misstates that Plaintiff has a 1/4 equity in the property because Plaintiff inherited nothing from his mother, and it appears that there is no other document giving Plaintiff any interest in the property. According to the Complaint, Defendant Michael Hart owned a 25% interest in the property before Exhibit “A” was signed. Since it is alleged that he still owns 25% of the property after it was signed, clearly Exhibit “A” transferred nothing. There is also no consideration for the supposed agreement in Exhibit “A.” Also, if Exhibit “A” did create an interest in real estate, it was never signed by the other purported owners, so even if it were an agreement to give Plaintiff a ‘/4 equity interest, it would be invalid. Exhibit “A” also violates the Statute of Frauds, so it cannot be enforced. Any way you look at it, Exhibit “A” gives Plaintiff no rights to the property. Plaintiff has no interest in the property, and he has no right to sue the persons he is suing. Frances Hart is not even alleged to ovm an interest in the property. The Demurrer should be sustained without leave to amend. III. LAW AND ARGUMENT A Complaint in Partition is required to describe the interests of every person who claims an interest in the property. Code of Civ. Proc. §872.230. The Verified Complaint is defective in form, as it does not properly identify the specific interest of each owner in the property, such as the type of tenancy (joint tenancy, tenancy in common, etc.). Plaintiff also sues Frances Hart, but does not describe any interest that she supposedly owns. Although he says that there was an agreement for Michael and Frances to maybe have title vested in their names in order to secure a loan, he doesn’t state that this ever happened, and MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 21CV37899l 4 \OOO\lO\ 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 apparently it did not, as no interest is listed as belonging to Frances and he doesn’t specify a different record title to the property, as would be required by statute. With regard to ownership, Defendants ask that the Court take judicial notice of portions of the court records from the Probate Court action involving the Estate of Ruth Hart, Plaintiffs mother. These government records show that Plaintiff did not inherit an interest in the property, as he alleges in the Verified Complaint. Thus, he has no interest in the property, contrary to his allegations in the Verified Complaint. Since the allegation that he acquired his interest through a Probate Court order is obviously false, Plaintiff should not be granted leave to amend his Verified Complaint. Defendants are also asking that judicial notice be taken of the prior action that Plaintiff filed against his sister Defendant Gail Hart, making essentially the same claims as are presented here, but based on inconsistent facts. In ruling on a demurrer, a court may take judicial notice of inconsistent statements made by Plaintiff in prior similar lawsuits, that Plaintiff voluntarily dismissed. And the Court may disregard the conflicting factual allegations that are made in the complaint. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593,604; Larson v. UHS of Rancho Springs, Inc. (2014) 230CalApp.4"‘ 336, 344 [judicially noticing allegations in plaintiffs prior, voluntarily dismissed lawsuit against the same defendants.] Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4'h 857, 877-78 [the principle is that of truthful pleading.] As confirmed by the documents in the Probate Court file, the Plaintiff falsely alleges in this action that he inherited a 25% interest in the property from his mother’s estate. The Estate records indicate that the Estate sold the property to Defendants Michael and Frances Hart, that the property was not distributed 25% to Plaintiff as he alleges, and that Plaintiff inherited nothing MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER T0 VERIFIED COMPLAINT Hart v. Hart et al. Case No. 21CV37899l 5 \l .--»-- >-O\OOO N.-..-._.._.._.._-._.._. O\ODO\lO\U1-Jkbélx) [Q -- 24 26 27 28 from his mother’s estate, because he was fully disinherited. It appears that Plaintiff is unhappy that his mother disinherited him, and he wants to obtain a share in the estate through this Partition action. However, there is no basis for such a claim. In the prior action where plaintiff sued his sister Gail Hart for essentially the same claims, Plaintiff alleged a different source of his ownership: that he acquired his interest through an oral agreement to make him a gift, with no consideration. Request For Judicial Notice, Exhibit “A,” 9"‘ page, lines 6-9. After a demurrer was filed in that prior action, Plaintiff dismissed the lawsuit. His new theory that he inherited the property through the Estate is equally frivolous. A. THE VERIFIED COMPLAINT DOES NOT DESCRIBE THE INTERESTS OF THE PARTIES AS REQUIRED BY CODE OF CIVIL PROCEDURE 5872.230. The Complaint has not properly described the interests of the parties in relation to each other, as required by statute. Plaintiff has not alleged what type of title he has, such as a tenant in common, joint tenant, etc. with the other alleged co-owners. Instead of clearly describing the interests of the parties, he has only stated that: “11. Plaintifl is the owner of an undivided one-quarter interest in the above-mentioned property which is co-owned concurrently in undivided equal one-quarter interests by: I) plaintiff; 2) Michael Hart; 3) Gail Hart; and 4) Tracy Hart-DeGregorio. " Plaintiff needs to state how he holds title with the other 3 persons he alleges own the property. Are they Joint Tenants? Tenants in Common? Do they own the property in Fee Simple Absolute? By law, under Code of Civil Procedure §872.230, 21 Plaintiff is explicitly required to state the exact interests in a Partition Complaint: “The complaint shall set forth: (b) All interests the plaintiff has or claims in the property. MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 21CV37899l 6 LII-BL:-Dix) >->- s-O\OOO\IO\ [gi-pa»-»-»--»-»-»- G\OOO\!O\LII-l>lJ~)l\) N »- I\) I\) B) Lo-I I\) -5 I\) U! I\) ON I\) \) Ix) 00 (c) All interests of record or actually known to the plaintiff that persons other than the plaintifl have or claim in the property and that the plaintifl reasonably believes will be materially affected by the action, whether the names of such persons are known or unknown to the plaintifl " Plaintiff has not done this correctly. In the Verified Complaint, although he apparently falsely claims that his ownership is an interest of record, he doesn’t specify the type of title that they each hold (such as fee simple title absolute or something else) and he doesn’t specify the type of tenancy (such as joint tenancy, tenancy in common, etc.) The fact is that he can't do this because he has no interest in the property. B. THE VERIFIED COMPLAINT DOES NOT ALLEGE THAT FRANCES HART HAS ANY INTEREST IN THE PROPERTY, SO THERE IS NO CAUSE OF ACTION STATED AGAINST FRANCES HART. Paragraph 11 of the Verified Complaint lists all owners of the property. Plaintiff states: “Plaintifl is the owner of an undivided one-quarter interest in the above-mentioned property which is co-owned concurrently in undivided equal one-quarter interests by: 1) Plaintiff; 2) Michael Hart; 3 ) Gail Hart; and 4 ) Tracy Hart-DeGregorio. ” So, according to Plaintiff, these four people own 100% of the property, both equitably and of record. Defendant Frances Hart is not mentioned in that paragraph. As a result, the Complaint does not list any interest owned by Frances Hart in the property, as required by statute if she is to be a party. Since Frances Hart has no interest in the property, the demurrer should be sustained as to her. Since Plaintiff did not allege that Frances owns an interest in the property in the original Verified Complaint, he cannot amend the complaint to claim that she owns an interest now. C. THE VERIFIED COMPLAINT IS DEFECTIVE BECAUSE IT ALLEGES THAT PLAINTIFF INHERITED A 25% INTEREST IN THE PROPERTY WHEN JUDICIALLY NOTICED DOCUMENTS INDICATE THAT HE HAD NO SUCH INHERITANCE. In Paragraph 10 of the Verified Complaint, Plaintiff alleges that “...Ruth Hart’s estate wherein the Plaintiff and the Hart Defendants were awarded and acquired an equal, respective undivided one-quarter interest in the Property.” Yet, the Judgment of Final Distribution from the MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et :11. Case No. 2lCV378991 7 >->-- *#®\O00\lO\'J1-l> N._.._.._.._-._-._-.--.-- o\ooo\lo\ux4>wt\> Ix) »- Ix) I\) I\) U) I\)A t\) U1 I\)O I\) \l I\) O0 Probate indicates that Plaintiff acquired no such interest. Si, Request for Judicial Notice, Exhibit “H” page 3 paragraph 7. Per the court records, the property was sold during the Probate of Plaintiffs mother’s estate to Michael and Frances Hart. Sic, Request for Judicial Notice, Exhibit “G” page 2 paragraph 4; Exhibit “I.” Plaintiff did not buy any portion of the property. When the estate was in a state to close the probate, all of the mother’s assets (consisting solely of cash) were distributed to Gail and Tracy, not to Plaintiff. SE, Request for Judicial Notice, Exhibit “H” page 3 paragraph 7. In point of fact, Plaintiff was disinherited. Since the statement about Plaintiffs inheritance in the Verified Complaint contradicts the allegations in the Probate file and the Recorders Office, the statement in the Complaint should be disregarded. Thus, the claim that plaintiff inherited a 25% interest should be ignored, and this includes the statement that he acquired a one-quarter interest, both in fil10 and again in 1111 of the Complaint. Therefore, Plaintiff owns no interest in the property and catmot sue for partition. D. THE VERIFIED COMPLAINT IS DEFECTIVE BECAUSE THE PROPERTY WAS SOLD BY THE ESTATE TO DEFENDANTS MICHAEL AND FRANCES HART. AND THIS PROPERTY WAS NOT PART OF THE ESTATE. In Paragraph 10 of the Verified Complaint, Plaintiff alleges that: “Ruth Hart died intestate in 2002 and Gail and Tracy acted as the Executors of Ruth Hart ’s estate wherein the Plaintifi" and the Hart Defendants were awarded and acquired an equal, respective undivided one-quarter interest in the Property. ” Yet, the court records from the Probate indicate that Plaintiff acquired no such interest. Per the court records, the property was sold during the Probate of Plaintiffs mother’s estate to Michael and Frances Hart. Plaintiff did not buy any portion of the property. When the estate was in a state to close the probate, this property was no longer an asset of the estate. Thus, it is clear that Plaintiff never acquired any interest in the property, as shown by both the Probate files, which MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 2lCV378991 8 \lO'\ \O -- O ,_ ._ .-»-»--.->-.-»- OO\lO\UI-l>UJI\) »- \O indicate that he did not inherit anything, and the deed that shows the property was sold by the estate to Michael and Frances Hart. E. THE VERIFIED COMPLAINT IS INCONSISTENT WITH A PRIOR LAWSUIT INVOLVING THE SAME SUBJECT MATTER, WHERE PLAINTIFF ALLEGED HE HAD AN ORAL AGREEMENT TO ACQUIRE HIS CLAIMED 25% INTEREST IN THE PROPERTY. In 2018, Plaintiff filed a similar lawsuit against his sister, Defendant Gail Hart. In that lawsuit, Plaintiff claimed that he had an oral agreement (apparently with his sister, because he didn’t sue anyone else) that he would get a 25% interest in the property, which would be given to him for no consideration. He named no other Defendants in that lawsuit. Si, Request for Judicial Notice, Exhibit “A,” Santa Clara Superior Court Action # l8CV337834. Defendants ask that the Court take judicial notice of this other action. In that prior complaint, he alleged: We moved my Brother Michael into the home one year after her Death and Verbally agreed to split ownership 25 % each for Gail, Michael, Tracy and myself Frederick. ” S3, Request for Judicial Notice, Exhibit “A” page 9 lines 6-9. In ruling on a demurrer, a court may take judicial notice of inconsistent statements made by Plaintiff in prior similar lawsuits, that Plaintiff had voluntarily dismissed. And the Court may disregard conflicting factual allegations that are made in the [£se_r1_t complaint Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593,604; Larson v. UHS at Rancho ._S‘gflzg§,l (2014) 23OCa.lApp.4‘h 336, 344 [judicially noticing allegations in plaintiffs prior, voluntarily dismissed lawsuit against the same defendants.] Cantu v Resolution Trust Cory (1992) 4 Cal.App.4"‘ 857, 877-78 [the principle is that of truthful pleading.] Defendants request that the Court take judicial notice of the prior action where Plaintiff sued Defendant Gail Hart for the same claims. In that action, he alleges an oral agreement to give him a 25% interest in the property. This statement contradicts 1l10 of the Verified Complaint, MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et :11. Case No. 21CV378991 9 UI »--p-- >dO\O00\lO\ ~.-.--.--.-._-._-.-.- ©\OOO\lO\UIJ>UJl\) l\) ._a I\) IO N Lo) ivA [Q U} I\) O\ I\) \I [Q 00 where Plaintiff claims that he inherited the alleged 25% interest. Since the statements in the prior action are a judicial admission, paragraph 10 of the Verified Complaint should be ignored and stricken from this action as inconsistent with the claims made in the prior action. Thus, Plaintiffs assertion was that he was going to receive a gift from his sister, which gift would be unenforceable without consideration and which assertion contradicts his new allegation that he inherited 25% of the property. He is not permitted to change his story now. F. THE COMPLAINT DOES NOT SPECIFY IF THE AGREEMENTS IN PARAGRAPHS 12 AND 13 OF THIS ACTION WERE WRITTEN OR ORAL. A Complaint founded upon a contract must allege whether the contract is oral or written: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. ” Code of Civil Procedure §430.10 Plaintiff needs to specify whether each agreement pleaded in the Verified Complaint is oral, written, or implied by conduct. Paragraph 12 of the Verified Complaint alleges an agreement where Michael and Frances could take title and have other rights, without indicating whether this agreement was oral or written. In addition, Plaintiff alleges a second agreement, the allegations in 1113 which refer to a loan that was made to him. These allegations do not state whether the agreements are oral, written or implied by conduct. G. THE VERIFIED COMPLAINT DOES NOT PROVIDE THE ESSENTIAL TERMS OF THAT AGREEMENT. Whenever a contract is alleged in a Complaint, all of the essential terms need to be set out in the Complaint, in order to set forth a cause of action. Code of Civil Procedure §430.10(e),(g). A Complaint may either attach a copy of the contract in haec verba, or set forth its essential MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 2lCV378991 10 \O0O\lO\ -lkbllx) 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terms; that is ALL of its essential terms. Otherwise, any cause of action relying on a contract fails to set forth all of the elements of a cause of action. H. THERE IS NO CONSIDERATION FOR THE AGREEMENT THAT IS ALLEGED IN THE PRIOR ACTION. Since Plaintiff did not inherit any interest in the property from his mother, he must have acquired that interest by the means alleged in the prior action against his sister. The prior action alleged that there was an oral agreement to give Plaintiff a 25% interest in the property. However, Plaintiff does not claim that he paid anything or otherwise gave any consideration for that agreement, and thus, there is no consideration for that agreement. Consideration is an essential element for any contract. Andreotti v. Andreotti (1964) 224 Cal.App.2d 533, 538. Since there was no allegation relating to consideration, Plaintiff should not be allowed to amend to allege that previously asserted cause of action. In Passante v. McWilliam (1997) 53 Cal.App.4‘h 1240, 1248-9, the Court of Appeal found that, “As a matter of law, any claim by Passante for breach of contract necessarily founders on the rule that consideration must result from a bargain. Id. At 1247. “ Like the corporate resolution in Dow, it represented a moral obligation. And like the corporate resolution in Dow, it was legally unenforceable. (See Dow v. River Farme Co., 110 CalApp.2d 403 [company executive rendered services without expectation of payment, thus subsequent promise by board to pay him $50,000 for those services as soon as the company became free of floating indebtedness was unenforceable.]) Id. At 1248. Thus, even if there was an oral promise to give Plaintiff a 25% interest in the property, it would not be enforceable since there was no consideration. // // MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 2lCV37899l 1 1 U1-l>UJl\) >--»-- >-O\D0O\lO'\ r-->-»--»-»-»->-- OO\lO\UI-l>LoJI\) I. THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE VERIFIED COMPLAINT IS BASED ON AN AGREEMENT WITHOUT CONSIDERATION. Based on the 2018 lawsuit Plaintiff filed against his sister, Defendant Gail Hart, Plaintiff claimed that he was to receive a one quarter interest in the property based on an oral agreement to make a gift to him. He recites no consideration that he gave for this agreement. Without the required consideration, the alleged agreement is unenforceable. Passante v. Mc William (1997) 53 ca1.App.4"' 1240, 1248-9 J. THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE COMPLAINT VIOLATES THE STATUTE OF F RAUDS. Plaintiff did not inherit any interest in the property. Thus, the only way Plaintiff could have acquired an interest, is as he alleged in his 2018 lawsuit against his sister Defendant Gail Hart. In that lawsuit, Plaintiff claims that he was to receive a one quarter interest in the property based on an oral agreement with his sister Defendant Gail Hart and/or with his other siblings. The statute of frauds (Civil Code §1624(a)(1), (3)) applies to an agreement to transfer property or any interest in real property, whether or not consideration is to be paid. Andreotti v. Andreotti (1964) 224 Cal.App.2d 533, 538. Under the Statute of Frauds, the agreement previously alleged by Plaintiff is unenforceable. Recording a document does not create the required consideration, nor does it rescue the agreement from the Statute of Frauds. The Statute of Frauds and Civ. Code §1091 both require a written memorandum that is signed by each party to the agreement against whom enforcement is requested. Here only Michael and Frances are alleged to have signed Exhibit “A,” and there is no allegation that the other persons listed in the prior complaint ever signed such an agreement. Moreover, the new Verified Complaint alleges that Michael originally had a 25% interest, which he still allegedly has, and thus Michae1’s interest was independent of the interest acquired by Plaintiff. Frances is not alleged to have any interest, and thus Exhibit “A” MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 2lCV378991 12 could not have granted Plaintiff any interest in the property unless Michael and Frances owned more than the Verified Complaint alleges. Although Exhibit “A” references Plaintiffs “one-fourth equity” in the property, it does not purport to grant that to plaintiff. It only refers to it as something that Plaintiff already has. Thus, it is not possible that Exhibit “A” conveyed a 25% interest to Plaintiff . Any agreement to transfer an interest in real property, or that would be performed in more than one year, must name the parties, identify the property, and set forth the price and terms of payment with a reasonable degree of certainty. King v. Stanley (1948) 32 Cal.2d 584, 589. As indicated by the Plaintiff in his prior lawsuit against Gail Hart, he really claims that there was an oral agreement for someone to give him a 25% interest in the property. Without the required written memorandum required under the Statute of Frauds, the alleged agreement is unenforceable. That requires an instrument in writing, subscribed by the party disposing of same. K. THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE VERIFIED COMPLAINT IS NOT SIGNED BY THE OTHER ALLEGED OWNERS OF THE PROPERTY. Exhibit “A” could not convey any interest to Plaintiff, because it was not signed by all of the other persons who Plaintiff claims are owners of the property. &, Paragraph 11 of the Verified Complaint. Although Plaintiff claims to have obtained the signatures of Defendant Michael and Frances Hart on the document attached as Exhibit “A” to the Verified Complaint, he never obtained the signatures of any of the other alleged owners. The Exhibit does not recite any consideration and it does not even contemplate an exchange of any obligations. Instead, it merely recites that Plaintiff already has a 25% “equity” interest in the property. The statute of frauds (Civil Code §1624(a)(1), (3)) applies to an agreement to transfer property or any interest in real property, whether or not consideration is to be paid. Andreotti v. Andreotti (1964) 224 MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et al. Case No. 2lCV378991 13 U1-I>b)l\) \lO\ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.App.2d 533, 538. The Statute of Frauds requires a written memorandum that is signed by the party to the agreement who is to be charged. It must name the parties, identify the property, and set forth the price and terms of payment with a reasonable degree of certainty. King v. Stanley (1948) 32 Cal.2d 584, 589. As indicated by the Plaintiff in his prior lawsuit against Gail Hart, he claims that there was an oral agreement to give him a 25% interest in the property. Without the required written memorandum signed by the parties to be charged, as required under the Statute of Frauds, the alleged agreement is unenforceable. A fortiori, Exhibit “A” also runs afoul of the Statute of Frauds because it does not contain all of the required terms. Ultimately, the Verified Complaint will not be able to be cured since any corrections would require contradicting the Verified Statements that Plaintiff has already made under oath in the Verified Complaint. Cantu v Resolution Trust Cary, (1992) 4 Cal.App.4"' 857, 877-78 [the principle is that of truthful pleading.] IV. CONCLUSION Plaintiff wishes he had received an inheritance from his mother, but she disinherited him. In order to get the inheritance that he thinks he deserves, he filed a false Verified Complaint and lied about the situation. In the 2018 lawsuit, he claimed that family members orally promised him that they would give him a share in this property. But even if it were true that they made him an oral promise, such a promise would be unenforceable. Plaintiff cannot cure the defects in his Verified Complaint. As a result, the Demuner should be sustained without leave to amend. Respect lly submitted, ~~ Dated: July 14, 2021 Douglas Scott Maynard, SBN 90649 Attorney for Defendants MEMO OF PTS AND AUTH IN SUPPORT OF DEMURRER TO VERIFIED COMPLAINT Hart v. Hart et 211. Case No. 2lCV37899l 14