Susan Flannery et al vs Anna Awiit Akot et al

Case Number

23CV05733

Case Type

Hearing Date / Time

Fri, 09/13/2024 - 10:00

Nature of Proceedings

Demurrer and Motion to Strike

Tentative Ruling

(1) For all reasons discussed herein, the demurrer of Susan Flannery to the verified complaint filed by Anna Awiit Akot in consolidated case number 24CV00629 is sustained as to the second, fifth, and eighth causes of action, with leave to amend. Except as otherwise herein sustained, the demurrer is overruled without prejudice.

(2) For all reasons discussed herein, the motion of Susan Flannery to strike portions of the verified complaint filed by Anna Awiit Akot in consolidated case number 24CV00629 is denied without prejudice.

(3) The Court deems any amended complaint that may be filed by Anna Awiit Akot prior to the hearing on the demurrer and motion to strike of Susan Flannery as the amended pleading authorized herein. To the extent an amended complaint is not filed by Anna Awiit Akot prior to the hearing, Anna Awiit Akot shall file and serve her first amended complaint on or before September 23, 2024.

Background:

This lead case is consolidated with case no. 24CV00629 entitled Anna Awiit Akot v. Susan Flannery (the Akot Action). On December 28, 2023, plaintiff Susan Flannery (Flannery) filed a complaint (the Flannery Complaint) in this action (the Flannery Action) against defendant Anna Awiit Akot (Akot) alleging a cause of action for unlawful detainer. As alleged in the Flannery Complaint:

Flannery is the owner of premises located at 6180 Via Real, Spc. 81 (the premises), which is located within the city limits of Carpinteria, California. (Flannery Compl., ¶ 3(a), 3(b)(1) & 4.) On March 1, 2021, Akot made an agreement with Flannery to rent the premises as a month-to-month tenancy. (Id. at ¶¶ 6(a)(1), 6(b).) Akot agreed to pay rent of $1,100 payable monthly on the first of the month. (Id. at ¶¶ 6(a)(2) & (3).) The tenancy is not subject to Civil Code section 1946.2 (the Tenant Protection Act of 2019). (Id. at ¶ 7(b).)

On December 1 and December 15, 2023, Flannery posted on the premises copies of 3-day notices to quit (the 3-day notices), each of which included an election of forfeiture. (Flannery Compl., ¶¶ 9(a)(4), 9(d), 9(e), 10(a)(3), 10(d) & Exhs. 2 & 3.) The periods stated in the 3-day notices expired at the end of the day on, respectively, December 6 and December 20, 2023, and Akot failed to comply with their requirements by that date. (Id. at ¶ 9(b)(1) & (2).)

On January 8, 2024, Akot filed a demurrer to the Flannery Complaint on the grounds that Flannery is estopped from denying Akot’s co-ownership of the premises and lacks capacity to sue in unlawful detainer, and because there is a misjoinder of parties as to Flannery, who Akot alleges does not possess sole title to the premises, and as to Akot who is alleged to be is a purported co-owner of the premises. The demurrer of Akot was opposed by Flannery.

On February 7, 2024, Akot filed a notice identifying the Akot Action as related to the Flannery Action. On the same date, Akot filed an ex parte application (the application) for an order consolidating the Akot Action with, and staying, the Flannery Action. On February 8, 2024, the Court granted the application. (Feb. 8, 2024, Minute Order.) The Court reserved the issue of Akot’s request to stay the Flannery Action.

On February 9, 2024, the Court overruled the demurrer of Akot to the Flannery Complaint. (Feb. 9, 2024, Minute Order.) Akot filed an answer to the Flannery Complaint on February 20, 2024, responding to its allegations and asserting three affirmative defenses.

On March 21, 2024, the Court signed and filed an order consolidating the Akot Action with the Flannery Action, designating the Flannery Action as the lead case, and requiring Akot to pay to Flannery certain sums for Akot’s occupancy at the premises during the pendency of the consolidated cases. (Mar. 21, 2024, Order.)

On June 4, 2024, Flannery filed a demurrer to the verified complaint filed by Akot in the Akot Action (the Akot Complaint), and to each cause of action alleged in the Akot Complaint, on the grounds that the Akot Complaint fails to state facts sufficient to constitute a cause of action and is uncertain. Also on June 4, 2024, Flannery filed a motion to strike from the Akot Complaint claims for punitive or exemplary damages.

The Court has no record of the filing by Akot of an opposition or other response to either the demurrer or motion to strike of Flannery. On September 6, 2024, Flannery filed a “reply” regarding the demurrer and motion to strike, in which Flannery states that on September 4, 2024, her counsel was advised by counsel for Akot that Akot would not oppose the demurrer and motion to strike and would be filing an amended complaint. (Sept. 6, 2024, Reply at p. 2, ll. 8-11.) Flannery also asserts that counsel for Akot requested that Flannery stipulate to the filing of an amended complaint by Akot, but that Akot’s counsel did not send any proposed stipulation. (Id. at p. 2, ll. 11-13.)

The Akot Complaint:

The Akot Complaint to which the present demurrer and motion to strike are directed was filed on February 5, 2024. In the Akot Complaint, Akot alleges eight causes of action against Flannery each of which arise from or relate to the alleged ownership of a mobile home at the premises (the mobile home) as further discussed below: (1) fraud; (2) constructive fraud; (3) breach of contract; (4) restitution/unjust enrichment; (5) breach of fiduciary duty; (6) financial abuse of an elder; (7) declaratory judgment; and (8) deprivation of civil rights. As alleged in the Akot Complaint:

Akot and Flannery are long-time friends and associates who have had a close, personal relationship for over 30 years, with Akot having reposed significant trust and confidence in Flannery who has more acumen and experience with respect to the mobile home than Akot. (Akot Compl., ¶¶ 1-2.) When Flannery was very ill, Akot cared for her, and Flannery expressed gratitude for the care and support provided by Akot to Flannery. (Id. at ¶ 3.)

On September 3, 2020, Flannery asked Akot to move into the mobile home which at the time was owned solely by Flannery. (Akot Compl., ¶ 5.) To incentivize Akot to move, Flannery promised to transfer 50 percent of the mobile home to Akot who would then co-own and reside in the mobile home until Flannery chose to leave or passed away. (Id. at ¶ 6.) Flannery’s promise to give Akot 50 percent of the mobile home was subject to conditions: (1) that Akot would devise her ownership of the mobile home to Flannery’s adopted daughter upon Akot’s death; (2) that Flannery’s friend Michael Freeman (Freeman) could live with Akot in the mobile home for as long as he chose; (3) that Akot would render care and support to Freeman in the same manner that Akot had done for Flannery; and (4) that Akot and Freeman would equally pay the costs of “space rent” for the mobile home. (Id. at ¶ 7.)

Akot agreed to Flannery’s offer. (Akot Compl., ¶ 8.) On September 3, 2020, Akot and Flannery signed as co-owners of the mobile home a “Rental Agreement” (the Lease) with the mobile home park where the mobile home is located. (Id. at ¶ 8 & Exh. A.) Akot thereafter moved into the mobile home and cared for Freeman until Freeman’s medical condition prevented him from continuing to live in the mobile home. (Id. at ¶¶ 10 & 13.) In addition, while Freeman lived at the premises, Akot and Freeman each paid 50 percent of the space rent, to which Flannery did not contribute. (Id. at ¶¶ 13 & 14.)

While Akot was living in the mobile home, Akot’s application for senior housing subsidized through the County of Santa Barbara Housing Authority, which Akot submitted in 2016 due to Akot’s status as an elderly citizen, was approved. (Akot Compl., p. 2, ll. 18-20 & ¶ 4 [allegations of fact].) In reliance on Flannery’s promise that Akot would co-own and could live in the mobile home throughout Akot’s lifetime, and in keeping Akot’s part of the bargain, Akot declined the offer of, and removed herself from consideration for, the subsidized senior housing, which is difficult to obtain and will be nearly impossible for Akot to reacquire. (Id. at p. 2, ll. 20-22 & ¶¶ 4, 13.)

During the course of Akot’s co-ownership with Flannery, Flannery demanded that Akot forbid her daughters from visiting Akot at the mobile home park, threatened to evict Akot, and, despite owning 50 percent of the mobile home, failed to contribute to space rent following the departure of Freeman. (Akot Compl., ¶¶ 11-12, 14, & 16.) Flannery’s demands were not part of the parties’ original promises to each other. (Id. at ¶ 11.) Flannery also altered the ownership papers for the mobile home to remove Akot as a co-owner, stopped accepting Akot’s space rent payments, and filed the Flannery Complaint against Akot. (Id. at ¶¶ 18-19.)

Analysis:

(1) Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The complaint is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and which appear in exhibits to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Procedural matters:

Relevant under the circumstances ostensibly present here, under Code of Civil Procedure section 472,“[a] party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).) Under subdivision (a) of Code of Civil Procedure section 472, a party is entitled to file as a matter of right an amended complaint in response to a demurrer provided the amended pleading is filed no later than the date for filing an opposition to the demurrer. (Barton v. Khan (2007) 157 Cal.App.4th 1216, 1220-1221 [general discussion].) Further, a timely filed amended complaint moots a demurrer directed to the prior complaint. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.)

Though available information suggests that Akot intends to file an amended complaint in response to the demurrer of Flannery, Akot did not file an amended pleading by the date for filing an opposition to the demurrer as required under section (a) of Code of Civil Procedure section 472. Moreover, available information indicates that the parties have not stipulated to any amendments to the Akot Complaint. (Code Civ. Proc., § 472, subd. (a) [“[a] party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties”].) Therefore, under the circumstances present here, the filing any amended complaint by Akot prior to the hearing on the demurrer of Flannery does not moot the hearing.

First cause of action for fraud:

As grounds for demurrer to the first cause of action for fraud, Flannery contends that Akot has failed to allege, with the requisite specificity, any statements or representations made by Flannery to Akot, that any statements or representations made by Flannery were false, that Flannery had any intent to defraud Akot, that Akot relied on any purported false representation or statement by Flannery, or that Akot suffered any detriment or damages. Flannery also contends that the allegations of the Akot Complaint are vague, ambiguous, and conclusory, and contradict other allegations asserted in the Akot Complaint. For these reasons, Flannery argues, Akot has failed to allege in the Akot Complaint a cause of action for fraud.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] … [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Id. at p. 645, original italics.)

In the Akot Complaint, Akot alleges that, to the extent Flannery asserts that Akot does not co-own or is not entitled to live in the mobile home, Flannery made multiple false representations by telling Akot that Akot would be a 50 percent co-owner of and could live forever in the mobile home, and by claiming that Akot would only have to pay 50 percent of the space rent and expenses associated with the mobile home. (Akot Compl., ¶ 33.) Akot further alleges that Flannery knew each of these representations were false or acted with recklessness as to the truth of these statements, that Flannery intended that Akot rely upon these statements, and that Akot relied on these statements by forfeiting the opportunity to obtain subsidized senior housing in order to remain in the mobile home, to Akot’s detriment. (Id. at ¶¶ 34-37.)

The allegations described above sufficiently describe the specific promises made by Flannery to Akot regarding the transfer of a 50 percent ownership interest, and Akot’s ability to reside, in the mobile home during Akot’s lifetime in exchange for the conditions or promises described above. Further, it can be reasonably inferred from the express allegations of the Akot Complaint that the promises were made by Flannery on September 3, 2020, or at the time that Flannery asked Akot to move into the mobile home, for the purposes of incentivizing Akot to move.

The purported falsity of the representations may be inferred from allegations regarding the alteration of the ownership papers for the mobile home by Flannery, Flannery’s conduct in seeking to evict Akot from the mobile home despite the purported promises described above, and the filing of an unlawful detainer action by Flannery. (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061 [discussion of elements of promissory fraud].) Moreover, Akot may use conclusory language to allege Flannery’s knowledge and intent to deceive, and is not required to allege the existence of a fiduciary relationship as Flannery appears to contend. (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803; see also Estate of Gump (1991) 1 Cal.App.4th 582, 601 [discussion of difference between actual and constructive fraud].)

Akot’s reliance on the allegedly false statements or promises, and the detriment suffered by Akot, is also expressly alleged with respect to the forfeit by Akot of the subsidized senior housing for which Akot had previously applied and which Akot cannot, or likely will not be able to, reacquire. For these and all reasons discussed above, Akot has alleged facts sufficient to state a cause of action for fraud. The Court does not consider for present purposes whether Akot can prove these allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)

To the extent Flannery contends that the allegations of the Akot Complaint are vague, ambiguous, or conclusory and render the first cause of action uncertain, “[a] special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.) The Court’s recitation of facts alleged in the Akot Complaint, and Flannery’s recitation of the promises alleged by Akot, demonstrate that the Akot Complaint is not unintelligible or ambiguous and that Flannery understands the issues and the nature of the claims alleged by Akot. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”]; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) For these reasons, the Akot Complaint is not so incomprehensible that Flannery cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

Furthermore, any statements or promises made by Flannery regarding Akot’s ownership or ability to reside in the mobile home, and the truth of those statements, are presumptively within the knowledge of Flannery. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [demurrer for uncertainty should be overruled when uncertain facts are within defendant’s knowledge].) To the extent there exists some uncertainty with respect to these allegations, any “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

For all reasons discussed above, the Court will overrule the demurrer to the first cause of action, without prejudice to any future pleading challenge that may be filed by Flannery directed to any amended complaint that may be filed by Akot prior to the hearing.

Second cause of action for constructive fraud and fifth cause of action for breach of fiduciary duty:

To the extent Flannery contends that the second cause of action for constructive fraud fails for all reasons further discussed above, the same reasoning and analysis applies.

Flannery also contends that Akot has failed to allege facts sufficient to show the existence of a fiduciary or confidential relationship between Akot and Flannery. For this reason, Flannery argues, the Akot Complaint fails to state facts sufficient to constitute a cause of action for constructive fraud.

Constructive fraud is defined under Civil Code section 1573 as “any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him” or “[i]n any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (Civ. Code, § 1573.) “The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517, fn. 14.) As with actual fraud, a cause of action for constructive fraud must be pleaded with specificity. (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 960-961.)

The specific allegations regarding the nature of the relationship between Akot and Flannery are further described above. In addition, in the second cause of action, Akot alleges that she “enjoyed a confidential relationship with” Flannery and “reposed confidence in” Flannery due to the parties “longstanding relationship, their moral, social, domestic and personal relationship, and [Akot’s] reliance upon [Flannery] for guidance regarding [Akot’s] living arrangements.” (Akot Compl., ¶ 41.)

Though the existence of a relationship giving rise to a fiduciary duty is a question of fact, the elements of a fiduciary relationship include “ ‘ “1) [t]he vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” ’ [Citations.] [¶] In short, vulnerability “is the necessary predicate of a confidential relation,” and “the law treats [it] as ‘absolutely essential”....’ [Citation.]” (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1161 (Persson).) In addition, though “a relationship need not be a fiduciary one in order to give rise to constructive fraud”, any alleged confidential relationship must be of the type that gives rise to fiduciary obligations. (Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 549; Persson, supra, 125 Cal.App.4th at p. 1162.)

Though the allegations of the Akot Complaint may be sufficient to show the existence of a personal friendship between the parties in which Akot reposed trust and confidence, the Akot Complaint lacks the requisite specificity of facts sufficient to establish a fiduciary relationship or the type of confidential relationship which would give rise to fiduciary duties, and is conclusory. (See, e.g., Ampuero v. Luce (1945) 68 Cal.App.2d 811, 819; Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140.) For example, apart from the conclusory allegations described above, there are no specific facts alleged in the Akot Complaint which demonstrate that Akot was vulnerable in some manner, or that there existed a “weaker” or “stronger” party in the alleged relationship between the parties. (Persson, supra, 125 Cal.App.4th at p. 1161-1162 [vulnerability is a “necessary predicate”].)

The examples offered above are intended to be illustrative but not exhaustive. For all reasons discussed above, the allegations of the Akot Complaint are conclusory and fail to allege, with the requisite specificity, facts sufficient to show the existence of either a fiduciary or the requisite confidential relationship between Flannery and Akot. For this reason, Akot has failed to allege facts sufficient to state a cause of action for constructive fraud. Therefore, the Court will sustain the demurrer to the second cause of action alleged in the Akot Complaint.

Flannery also contends, as grounds for the demurrer to the fifth cause of action for breach of fiduciary duty, that Akot has failed to allege facts sufficient to establish a fiduciary relationship between the parties. The same reasoning and analysis applies. As Akot has failed to allege facts showing the existence of a fiduciary relationship for all reasons discussed above, the Court will also sustain the demurrer to the fifth cause of action alleged in the Akot Complaint.

Third cause of action for breach of contract:

As grounds for demurrer to the third cause of action for breach of contract alleged in the Akot Complaint, Flannery contends that Akot has failed to allege the existence of a contract between the parties, whether the purported contract was written or oral, and has failed to allege consideration for the parties’ alleged promises. Therefore, Flannery argues, Akot has failed to state facts sufficient to constitute a cause of action for breach of contract.

“A breach of contract is ‘[t]he wrongful, i.e., the unjustified or unexcused, failure to perform’ the terms of a contract. [Citation.]” (Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 570.) “A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

In addition to the allegations set forth above, Akot alleges in the third cause of action that she accepted Flannery’s offer of co-ownership of and a right to live in the mobile home under the conditions and in exchange for the promises described above, which include the performance by Akot of the services to Freeman described in the Akot Complaint. (Akot Compl., ¶ 47.) Akot further alleges that she forfeited subsidized senior housing for which she had been approved to move into the mobile home resulting in a loss of that housing, rendered services to Freeman during his residency in the mobile home, and paid space rent for the mobile home as allegedly agreed to by the parties. (Id. at ¶ 48.) The breach alleged in the Akot Complaint consists of attempts by Flannery to evict Akot from the mobile home. (Id. at ¶ 51.)

Accepting as true the facts alleged in the Akot Complaint as further described above, and giving the Akot Complaint a reasonable interpretation, Akot has sufficiently alleged the existence of an agreement between the parties with respect to Akot’s ownership of and ability to reside in the mobile home. Akot also alleges facts sufficient to show Akot’s performance of the parties’ agreement, which includes the purported rendering of care to Freeman and payment of space rent as further described above. Allegations that Flannery seeks to evict Akot and that Akot will be rendered homeless due to an inability to reacquire subsidized housing are also sufficient to state a breach of the purported contract by Flannery and damages resulting from the purported breach. (Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 411-412 [a failure or refusal to perform a contract constitutes a breach]; Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230 [general discussion of the failure to perform under a contract].) Though Flannery contends that Akot has failed to allege any agreement by Akot or Flannery to pay the costs of ownership of the mobile home, the allegations of the Akot Complaint indicate that the parties’ purported agreement did not contemplate payment by Akot of all ownership costs, apart from space rent, as consideration for the parties’ mutual promises.

In addition, though it can be inferred from the express allegations of the complaint that the purported agreement between the parties was oral, a contract may also be inferred from the conduct of the parties. (Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317, 328; see also Civ. Code, §§ 1619.) “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.) “ ‘ “An implied contract ‘ “... in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively established.” ’[Citation.] ... Although an implied in fact contract may be inferred from the ‘conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise.’ [Citation.]” [Citations.]’ ” (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1507-1508.”

Akot alleges or effectively alleges an agreement to the conditions described above in exchange for co-ownership and an ability to reside in the mobile home during Akot’s lifetime. Because Akot also alleges that she performed the conditions or services in reliance on Flannery’s purported promise to transfer 50 ownership of and permit Akot to reside in the mobile home, a reasonable implication arises that an implied contract based on the parties’ conduct was formed between Akot and Flannery. Furthermore, and for all reasons discussed above, Akot has sufficiently pled Flannery’s purported breach of the contract or agreement and damages sustained by Akot as a result of that breach. As noted above, the Court does not, for present purposes, consider whether Akot can prove an implied contract with Flannery.

The allegations of the third cause of action for breach of contract are not so uncertain that Flannery cannot understand the issues and the nature of the claims alleged by Akot. For all reasons discussed above, Akot has alleged facts sufficient to state a claim for breach of contract. Therefore, the Court will overrule the demurrer of Flannery to the third cause of action alleged in the Akot Complaint, without prejudice.

Sixth cause of action for financial abuse of an elder:

As grounds for demurrer to the sixth cause of action for financial abuse of an elder, Flannery contends that Akot has failed to allege facts sufficient to show that Flannery secreted, appropriated, obtained, or retained property of Akot for a wrongful use, with the intent to defraud, or through undue influence, considering that Akot alleges that she provided care to Flannery. In the sixth cause of action, Akot alleges that the actions of Flannery have resulted in harm to Akot because Akot has lost her subsidized housing, and has rendered services due to Flannery’s wrongful conduct. (Akot Compl., ¶ 65.)

Under Welfare and Institutions Code section 15600 et seq., an “elder” is defined as “any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.) Financial abuse of an elder occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder” for a “wrongful use” or with “intent to defraud”, or by undue influence. (Welf. & Inst. Code, § 15610.30, subds. (a)(1) & (3).) A party may engage in elder abuse by misappropriating property to which an elder is entitled under a contract. (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 656 (Paslay).) “[T]o establish a ‘wrongful use’ of property to which an elder has a contract right, the elder must demonstrate a breach of the contract, or other improper conduct.” (Id. at p. 657.)

Akot alleges that she is an “elder” for purposes of the sixth cause of action. (Akot Compl., p. 2, ll., 11-12 & ¶ 4.) Flannery does not challenge this allegation. As further discussed above, because Akot has sufficiently alleged causes of action for fraud and breach of contract, Akot has also, for present purposes, sufficiently pled a cause of action for elder financial abuse. (Paslay, supra, 248 Cal.App.4th at p. 656.) Therefore, the Court will overrule the demurrer to the sixth cause of action alleged in the Akot Complaint, also without prejudice.

Eighth cause of action for deprivation of civil rights:

In the eighth cause of action of the Akot Complaint, Akot alleges that she “is entitled to the protections of the United States Constitution, including civil rights under the 13th and 14th amendments”, that Flannery’s conduct “in procuring [Akot’s] services in exchange for unkept promises subjects [Akot] to indentured servitude”, and that Flannery’s actions against Akot “are motivated by [Flannery’s] prejudice toward and discrimination against” Akot. (Akot Compl., ¶¶ 74-76.) Therefore, Akot alleges, Flannery has “under color of any law” subjected Akot to the deprivation of rights and privileges under the “United States Constitution.” (Id. at ¶ 77.)

Though it is not clear under what specific “law” Akot seeks to hold Flannery liable for any deprivation of rights or privileges, to the extent Akot alleges a claim under the federal Civil Rights Act, codified at 42 U.S.C. § 1983 (the Act), subject to exceptions under circumstances which do not appear to be present here, private parties “ordinarily are not subject to suit under” the Act (Robbins v. Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683.) There are no allegations of fact showing that Flannery was acting within the scope or in the course of any official duties owed by Flannery with respect to the events alleged in the Akot Complaint. (Hafer v. Melo (1991) 502 U.S. 21, 24.) Therefore, the Court will, at this stage of the proceedings, sustain the demurrer to the eighth cause of action alleged in the Akot Complaint.

Fourth cause of action for restitution/unjust enrichment and seventh cause of action for declaratory judgment:

Flannery contends that the claims alleged in the fourth cause of action for restitution/unjust enrichment constitute remedies and not independent causes of action, and that Akot has failed to allege facts showing any receipt or retention of any benefit by Flannery. In the fourth cause of action, Akot alleges that Flannery has received the benefit of the contract through deception and fraud such that it would be manifestly unjust to allow Flannery to retain any benefits obtained by Flannery’s purported deceit and breaches of duty. (Akot Compl., ¶¶ 54-55.)

Civil Code section 1689 sets forth the grounds on which a party may rescind a contract. (See Civ. Code, § 1689, subd. (b)(1)-(7).) In addition, “ ‘[u]njust enrichment is not a cause of action.’ It is ‘just a restitution claim.’ [Citation.]” (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) Notwithstanding the manner in which Akot has titled the relief sought in the fourth cause of action, rescission is an equitable remedy and unjust enrichment “is ‘ “a general principle, underlying various legal doctrines and remedies,” ’ rather than a remedy itself. [Citation.]” (Cameron v. Evans Securities Corp. (1931) 119 Cal.App. 164, 172; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [also noting that unjust enrichment is “synonymous with restitution”].)

Though a party may attack a remedy demanded in a complaint by filing an appropriate motion to strike, to the extent the demurrer of Flannery to the fourth cause of action challenges Akot’s ability to allege or establish whether Akot is entitled to the remedy of restitution or recission against Flannery based on the general principle of unjust enrichment, it cannot be rightfully sustained. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) For these reasons, the Court will overrule the demurrer to the fourth cause of action, without prejudice.

Flannery demurs to the seventh cause of action for declaratory relief on similar grounds, contending that Akot has failed to allege any legally cognizable claims or any actual controversy in the Akot Complaint, and that the declaratory relief cause of action is unnecessary. In the seventh cause of action, Akot alleges that she possesses a legal or equitable ownership interest in the mobile home which has been “stolen” by Flannery by fraudulent means. (Akot Compl., ¶¶ 68-69.) Akot requests that she be declared a fifty percent owner in the mobile home with the ability to reside there for the remainder of Akot’s life. (Id. at ¶¶ 71-72.)

“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties … and requests that these rights and duties be adjudged by the court.” (Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719, 728; see also Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 751 [“[a] general demurrer is usually not an appropriate method for testing the merits of a declaratory relief action, because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff's interest”].) In addition, “declaratory relief may be asked alone or with other relief[.]” (Herrmann v. Fireman’s Fund Ins. Co. (1954) 127 Cal.App.2d 560, 566.) A party’s right to proceed is therefore not barred by the fact that alternative remedies are available. (Ibid.)

For all reasons discussed above, Akot has alleged facts sufficient to demonstrate an actual controversy relating to the legal rights and duties of the parties with respect to the parties’ respective ownership of, and Akot’s right to reside in, the mobile home. For all reasons discussed above, the allegations of the Akot Complaint are sufficient to establish an actual controversy between the parties. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [discussing requirements of actual controversy and pleading of facts].) In addition, because declaratory relief is not intended to be an exclusive remedy, the availability of other remedies does not render Akot’s cause of action for declaratory relief duplicative. (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59.) Moreover, redundancy “is not a cause for demurrer.” (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 303.) For these reasons, the Court will overrule the demurrer to the seventh cause of action for declaratory relief alleged in the Akot Complaint, without prejudice.

Leave to amend:

As Akot has not filed an opposition to the demurrer, Akot has failed to meet her burden to show a reasonable possibility that the defects discussed herein can be cured by amendment to the Akot Complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, the Akot Complaint does not necessarily show on its face that it is incapable of amendment with respect to the second, fifth, and eighth causes of action alleged therein. Therefore, as this is Akot’s original complaint, the Court will grant leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.) The Court will deem any amended complaint that may be filed by Akot prior to the hearing on the demurrer as the amended pleading authorized herein.

(2) Motion To Strike

To the extent Akot files an amended complaint prior to the hearing on the motion to strike of Flannery, the amended pleading does not moot the hearing on the motion to strike for all reasons further discussed above.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Flannery contends that Akot has failed to plead facts sufficient to demonstrate any entitlement to an award of punitive damages. Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property, legal rights, or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Because Akot has alleged facts sufficient to state a cause of action for fraud for reasons further discussed above, Akot has also alleged facts sufficient to support an award of punitive damages. Therefore, the Court will deny the motion of Flannery to strike claims for punitive damages from the Akot Complaint, without prejudice.