Susan Flannery et al vs Anna Awitt Akot et al

Case Number

23CV05733

Case Type

Hearing Date / Time

Fri, 03/21/2025 - 10:00

Nature of Proceedings

Demurrer and Motion to Strike, CMC

Tentative Ruling

(1) For all reasons discussed herein, the demurrer of defendant Susan Flannery to the verified first amended complaint filed by plaintiff Anna Awiit Akot in consolidated case number 24CV00629, is continued to April 18, 2025. On or before April 1, 2025, defendant shall file and serve a supplemental reply brief, if any, as authorized herein with respect to the demurrer.

(2) For all reasons discussed herein, the motion of defendant Susan Flannery to strike portions of the verified first amended complaint filed by plaintiff Anna Awiit Akot in consolidated case number 24CV00629, is continued to April 18, 2025.

(3) Apart from the supplemental reply brief authorized herein, the parties shall not file additional papers in support of or in opposition to the motion to strike or demurrer of defendant Susan Flannery.

Background:

On December 28, 2023, plaintiff Susan Flannery (Flannery) filed a complaint (the Flannery Complaint) in this action (the Flannery Action and at times, this action) against defendant Anna Awiit Akot (Akot), alleging one 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), 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).)

On December 1 and December 15, 2023, Flannery separately 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.) Each of 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 these dates. (Id. at ¶ 9(b)(1) & (2).)

On January 8, 2024, Akot filed a demurrer to the Flannery Complaint, which was opposed by Flannery.

On February 7, 2024, Akot filed a notice of related case, identifying case number 24CV00629 entitled Anna Awiit Akot v. Susan Flannery (the Akot Action) as related to this action, and an ex parte application (the application) for an order consolidating the Akot Action with, and staying, this action. The Court granted the application, reserving the issue of a stay as to this action. (See Feb. 8, 2024, Minute Order.)

On February 9, 2024, the Court overruled the January 8, 2024, demurrer of Akot to the Flannery Complaint. (Feb. 9, 2024, Minute Order.)

On February 20, 2024, Akot filed an answer to the Flannery Complaint, responding to its allegations and asserting three affirmative defenses.

On March 21, 2024, the Court entered an order consolidating the Akot Action with this action, designating this action as the lead case, and requiring Akot to pay to Flannery specified sums for Akot’s occupancy at the premises during the pendency of the consolidated actions. (See 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 a motion to strike from the Akot Complaint allegations or claims for punitive or exemplary damages. Akot did not oppose Flannery’s demurrer to the Akot Complaint. (See, e.g., Sept. 6, 2024, Flannery “Reply” at p. 2, ll. 8-11 [stating that Akot would be filing an amended complaint].)

On September 13, 2024, the Court entered a Minute Order sustaining the June 4, 2024, demurrer of Flannery as to the second, fifth, and eighth causes of action alleged in the Akot Complaint, with leave to amend, and denying without prejudice Flannery’s June 4, 2024, motion to strike.

On September 17, 2024, Akot filed a verified first amended complaint (the FAAC), alleging seven causes of action against Flannery, each of which arise from or relate to the ownership of a mobile home at the premises (the mobile home): (1) promissory estoppel; (2) fraud; (3) breach of contract; (4) implied contract (restitution/unjust enrichment); (5) financial abuse of an elder; (6) declaratory judgment; and (7) unlawful discrimination in housing. As alleged in the FAAC:

Akot is an immigrant who struggled with language, societal customs, and business matters, and needed guidance. (FAAC, ¶ 3.) Flannery, who has more acumen and experience in financial matters than Akot including with respect to the mobile home, undertook to guide Akot which Akot accepted. (Id. at ¶¶ 3 & 5-6.) Akot and Flannery became long-time friends and associates and had a close, personal relationship for over 30 years, with Akot reposing trust and confidence in Flannery. (Id. at ¶¶ 1-3.) When Flannery was very ill, Akot cared for her, and Flannery expressed gratitude for the care and support provided by Akot. (Id. at ¶ 7.)

On September 3, 2020, Flannery asked Akot to move into the mobile home because Flannery wanted to place the mobile home in the Vista De Santa Barbara Mobile Home Park (the Park), which required that at least one occupant of the mobile home be an owner. (FAAC, ¶ 9.) To incentivize Akot to move into the mobile home, Flannery promised to transfer 50 percent ownership of the mobile home to Akot, who would then live in the mobile home until Flannery chose to leave or passed away. (Id. at ¶ 10.)

Flannery’s promise to give 50 percent ownership of the mobile home to Akot was subject to conditions: that Akot would devise her ownership of the mobile home to Flannery’s adopted daughter upon Akot’s death; that Flannery’s friend Michael Freeman (Freeman) could live with Akot in the mobile home during Freeman’s lifetime; that Akot would provide care and support to Freeman in the same manner that Akot had done for Flannery without further compensation apart from ownership in the mobile home; and that Akot and Freeman would equally pay the costs of “space rent” for the mobile home. (FAAC, ¶ 11.)

Akot agreed to and accepted Flannery’s offer. (FAAC, ¶ 12.) Flannery caused the mobile home to be registered in Akot and Flannery’s name. (Id. at 13.) On September 3, 2020, Akot and Flannery signed, as owners of the mobile home, a lease agreement with the Park. (Id. at ¶¶ 14-15 & Exh. A.)

In agreeing to Flannery’s offer, Akot forfeited her entitlement to a housing voucher in a subsidized housing program provided through the Santa Barbara Housing Authority, which Akot had applied for in 2016 and which is difficult to obtain. (FAAC, p. 2, ll. 18-20 & ¶¶ 8, 45.) In reliance on Flannery’s promise that Akot would co-own and could live in the mobile home throughout Akot’s lifetime, Akot removed herself from consideration for, and declined, the subsidized housing which will be nearly impossible for Akot to reacquire. (Id. at p. 2, ll. 8-13, ¶¶ 4 & 13.)

Akot moved into the mobile home and cared for Freeman for no other compensation apart from ownership in the mobile home. (FAAC, ¶ 20.) Akot and Freeman each paid 50 percent of the space rent, to which Flannery did not contribute. (Id. at ¶¶ 24-25.) Following Freeman’s departure from the mobile home, Akot continued to pay 50 percent of the space rent as requested by Flannery. (Id. at 26.)

During the course of Akot’s co-ownership of the mobile home with Flannery, Flannery demanded that Akot forbid her daughters from visiting Akot in the mobile home or at the Park, threatened to evict Akot, and failed to contribute to space rent following the departure of Freeman. (FAAC, ¶¶ 21-22 & 25.) Flannery’s demands were not part of the parties’ original promises to each other. (Id. at ¶ 21.) 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. (Id. at ¶¶ 28-29.)

On January 6, 2025, Flannery filed a motion to strike paragraphs 35 through 40, 66, and 79 through 84 of the FAAC, on the grounds that these allegations claim a right of action based on discrimination or indentured servitude without any legal or factual basis. (Notice at p. 2, ¶ 1.) Flannery also seeks to strike from the FAAC paragraphs 55, 71, and prayer paragraphs 2 and 6, on the grounds that Akot improperly seeks awards of punitive damages and attorney’s fees. (Id. at ¶¶ 2 & 5-7.) In addition, Flannery seeks to strike paragraphs 3, 48, 62, and 76 of the FAAC, on the grounds that Akot has improperly alleged that the parties were in a “confidential relationship”. (Id. at ¶¶ 3 & 8.) Further, Flannery seeks an order striking paragraphs 63 through 66 of the FAAC on the grounds that Akot improperly alleges a claim for restitution and unjust enrichment which Flannery contends is not an independent cause of action. (Id. at ¶ 4.)

On January 7, 2025, Flannery filed a demurrer to the FAAC on the grounds that Akot has failed to allege facts sufficient to constitute a cause of action, and that the FAAC and each of its causes of action are uncertain.

On March 11, 2025, Akot filed an opposition to the demurrer.

On March 12, 2025, Flannery separately filed reply papers with respect to the demurrer and motion to strike, asserting that neither Flannery nor her counsel were served with oppositions to the demurrer and motion to strike as of the date those replies were filed.

On March 14, 2025, Flannery filed a supplemental reply stating that, after Flannery filed and served the replies further described above, her counsel “received an e-mail from a paralegal at [Akot’s] counsel’s firm claiming to have mailed an opposition on March 11, and then a follow-up e-mail changing the alleged mail service date of March 11, claiming to have served James Ballantine by mail on March 10. [¶] No service whatsoever on Ms. Flannery’s other counsel, Betty L. Jeppesen, Esq., was claimed.” (Supp. Reply at p. 2, ll. 4-9.) Flannery further contends that “[o]n March 14, 2025, the opposition was received in the mail by one of … Flannery’s counsel with a post-mark of March 12, 2025.” (Id. at ll. 20-21.)

In the supplemental reply filed on March 14, 2025, Flannery contends that the filing and service of Akot’s opposition to the demurrer was improper and untimely. and requests that the Court deem the service of the opposition invalid and strike the opposition.

The Court’s records show that Akot did not file an opposition to the motion to strike.

Analysis:

(1) The Demurrer

All papers opposing a motion noticed under Code of Civil Procedure section 1005, subdivision (b), “shall be filed with the court and a copy served on each party at least nine court days, … before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise stated.) Under subdivision (b) of section 1005, Akot was required to file and serve papers opposing the demurrer and motion to strike on or before March 10, 2025. (Code Civ. Proc., § 12c, subd. (a); Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1038.) As Akot’s opposition to the demurrer was filed on March 11, 2025, it is untimely.

Moreover, Akot has not filed an opposition to the motion to strike.

In addition, papers opposing a motion “shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers … are filed.” (Code Civ. Proc., § 1005, subd. (c).)

The proof of service attached to Akot’s opposition to the demurrer states that the opposition was mailed to one of Flannery’s multiple counsel on March 10, 2025. Though the proof of service was executed under penalty of perjury on March 11, 2025, it is not unreasonable to infer that a copy of the opposition was mailed to Flannery’s counsel on March 10, 2025, notwithstanding the date on which the proof of service was signed. Though the declaration appearing in the proof of service attached to Akot’s opposition to the demurrer appears sufficient to create a rebuttable presumption that the opposition was served on March 10, 2025, (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478-1479), there exists some question as to whether the means of service described in the proof of service was reasonably calculated to ensure delivery of the opposition to Flannery no later than the next business day after the opposition was filed.

Further, though service of Akot’s opposition to the demurrer on one of Flannery’s multiple counsel of record is effective to provide notice of that opposition (Adaimy v. Ruhl (2008) 160 Cal.App.4th 583, 588), Flannery submits with the supplemental reply described above, undisputed evidence which shows that Flannery’s counsel did not receive a copy of the opposition until March 14, 2025, and which suggests that the opposition received by Flannery’s counsel on that date was mailed by Akot’s counsel on March 12, 2025. (Supp. Reply at p. 2, l. 21 & pdf p. 5 [copy of envelope].)

“[A] trial court has broad discretion to accept or reject late-filed papers.” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262; see also Cal. Rules of Court, rule 3.1300(d).) Relevant here, as the demurrer of Flannery tests only the legal sufficiency of the FAAC, Flannery has raised only issues of law and not issues of fact with respect to the allegations of the FAAC, which, for present purposes, are accepted as true. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1397.) For these reasons, any failure by Akot to timely file an opposition to the demurrer is not a sufficient ground upon which the Court may, alone, sustain the demurrer. (See, e.g., Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111; Code Civ. Proc., §§ 430.10 [listing grounds for demurrer] & 472d [a court’s decision sustaining a demurrer must include the “specific” grounds on which the decision is based].)

The record further described above reflects that Akot’s opposition to the demurrer was filed one day late and received by Flannery one week prior to the hearing on the demurrer. Though Akot fails to offer sufficient justification for the late submission of the opposition, Flannery also offers no reasoned argument to show why she was prejudiced by any late filing or service of Akot’s opposition, including with respect to the preparation of any reply to the opposition. Flannery also does not address whether or to what extent any prejudice arising from the late filing of Akot’s opposition to the demurrer can be cured by an order permitting Flannery to file a supplemental reply brief in response to the late-filed opposition. (See, e.g., Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168.)

For all reasons further discussed above, under the circumstances present here, and to permit the matters raised in the demurrer to be resolved on their merits, the Court will exercise its discretion to consider the late-filed opposition of Akot to the demurrer. The Court will provide Flannery with an opportunity to address, counter, or rebut any issues or points raised by Akot in her opposition to the demurrer by authorizing the filing of a supplemental reply brief by Flannery in response to the late-filed opposition. Nothing herein shall authorize any party to file any additional papers in support of or in opposition to the demurrer apart from the supplemental reply brief described above.

(2) Motion To Strike

“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).)

The motion to strike is brought in part on the grounds that Akot has failed to plead facts sufficient to support an award of either punitive damages or attorney’s fees. A reasonable interpretation of the allegations of the FAAC indicate that Akot’s claim for punitive damages arise from what Akot contends is financial elder abuse under Welfare and Institutions Code section 15610.30, and fraud, by Flannery. (See, e.g., FAAC, ¶¶ 55, 71, & prayer ¶ 2.) Akot’s claim for attorney’s fees also arises from the purported financial elder abuse of Akot by Flannery. (Id. at ¶ 71.)

Welfare and Institutions Code section 15657.5 permits a plaintiff to recover reasonable attorney’s fees and costs “[w]here it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30….” (Welf. & Inst. Code, § 15657.5, subd. (a).) The statute also “permits a plaintiff who has suffered financial elder abuse to seek punitive damages pursuant to Civil Code section 3294[]” and where it is proven by clear and convincing evidence that the defendant has been guilty of oppression or fraud, among other thigs. (Cameron v. Las Orchidias Properties, LLC (2022) 82 Cal.App.5th 481, 507; Welf. & Inst. Code, § 15657.5, subds. (b) & (d).) Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is also shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud.

The demurrer of Flannery is directed to each of the causes of action alleged by Akot in the FAAC, including the second cause of action for fraud and the fifth cause of action for financial abuse of an elder. (Demurrer at pp. 16-19 & 23.) For all reasons discussed above, to the extent Akot has alleged facts sufficient to state a cause of action for fraud, Akot has also alleged facts sufficient to support an award of punitive damages. In addition, to the extent Akot has allege facts sufficient to state a cause of action for financial elder abuse by Flannery, Akot has also alleged facts sufficient to support an award of statutory attorney’s fees. Because the Court will continue the hearing on the demurrer, the Court will also continue the hearing on the motion to strike to avoid piecemeal rulings. The parties shall not be permitted to file any additional papers in support of or in opposition to Flannery’s motion to strike.