Maria Eugenia Carrillo De Figueroa vs Sergio Xavier Barragan et al

Case Number

24CV06125

Case Type

Hearing Date / Time

Mon, 09/22/2025 - 10:00

Nature of Proceedings

Demurrer on First Amended Complaint

Tentative Ruling

Maria Eugenia Carrillo De Figueroa v. Sergio Xavier Barragan and Roselena Carrillo Aceves 

Case No. 24CV06125

           

Hearing Date: September 22, 2025                                       

                                                                                                                                             

HEARING:              (1)       Demurrer By Defendant Roselena Carrillo Aceves To First Amended Complaint

                             (2)       Demurrer By Defendant Sergio Xavier Barragan To First Amended Complaint

ATTORNEYS:        For Plaintiff Maria Eugenia Carrillo De Figueroa: Gregory J. Ramirez

                                    For Defendant Sergio Xavier Barragan: Self-represented

                                    For Defendant Roselena Carrillo Aceves: Kate Lee, Legal Aid Foundation of Santa Barbara County

TENTATIVE RULING:

The court sustains the demurrers of defendants Aceves and Barragan as to the third cause of action alleged in plaintiff’s first amended complaint only, with leave to amend. Plaintiff shall serve any amended pleading, which shall be designated as a second amended complaint, on or before October 3, 2025.

Background:

On October 31, 2024, plaintiff Maria Eugenia Carrillo De Figueroa filed her original complaint in this action against defendants Sergio Xavier Barragan (Barragan) and Roselena Carrillo Aceves (Aceves) (collectively, defendants), alleging two causes of action for breach of contract and common counts.

On January 31, 2025, plaintiff filed her first amended complaint (FAC) alleging three causes of action: (1) breach of oral contract; (2) common counts; and (3) intentional tort. In the FAC, plaintiff alleges that on May 10, 2020, she lent $20,000 to defendants who agreed to pay plaintiff when they sell the property they own in Mexico. (FAC, ¶¶ BC-1 & IT-1.) Plaintiff further alleges that defendants have continually represented to plaintiff over the last 4 years that they would repay her as soon as their property sold in Mexico. (Id. at ¶¶ BC-1, CC-1(a)(6), IT-1.) They made this representation to plaintiff as recently as six months ago. (Ibid.)

On February 28, 2025, Barragan filed a demurrer to the FAC.

On March 3, 2025, defendant Aceves filed a demurrer to the FAC.

Plaintiff filed oppositions to the demurrers of defendants.

On July 9, 2025, the court entered an order striking, on its own motion, the demurrers of defendants described above, for failure to comply with Code of Civil Procedure section 430.41, and taking the hearings on these demurrers off-calendar. Further, the court directed defendants to, on or before July 8, 2025, file and serve their respective responsive pleadings.

On June 26, 2025, Aceves filed a demurrer to the FAC. As to each cause of action alleged in the complaint, the demurrer of Aceves is made on the grounds that the FAC is time-barred under applicable statutes of limitation. Aceves further alleges that the third cause of action fails to plead facts with the requisite specificity, and that the first and third causes of action are uncertain.

On July 8, 2025, Barragan filed a demurrer to the FAC which is identical in all respects to the demurrer of Aceves.

Plaintiff opposes the demurrers.

Analysis:

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “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 (Quelimane).)

As to the special demurrers of defendants, a party against whom a complaint is filed may object to by demurrer on the grounds that “[t]he pleading is uncertain.” (Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “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.)

Defendants contend that the first and third causes of action alleged in the FAC are uncertain because plaintiff fails to allege details about the property in Mexico owned by defendants, including whether that property is real or personal, or sold, among other things.

The court, for present purposes, deems to be true the allegation that defendants agreed to pay plaintiff when defendants sold the property they owned in Mexico notwithstanding whether plaintiff can prove these allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) It can be inferred from these allegations that defendants necessarily possess knowledge of the property they purportedly own in Mexico that is the subject of the parties’ purported agreement as alleged in the FAC. (See, e.g., Quelimane, supra, 19 Cal.4th at p. 47.) For this reason, the first and third causes of action alleged in the FAC are not so incomprehensible that defendants cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

Moreover, defendants address the allegations on a substantive basis as to the elements of each cause of action alleged in the FAC, which suggests that the FAC is not so unintelligible or ambiguous that defendants cannot understand the issues or the nature of the claims alleged by plaintiff. (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”].) As defendants have, for all reasons discussed above, failed to show why the FAC is ambiguous, uncertain, or unintelligible, the court will overrule the special demurrers of defendants.

The demurring parties also both argue the application of the statutes of limitations to the first cause of action for breach of contract, the second cause of action for common counts, and the third cause of action for intentional tort alleged in the FAC.

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) “If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ….’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325, italics omitted.)

As to the first cause of action, an action on a contract “not founded upon an instrument of writing...” is subject to a two-year statute of limitations. (Code Civ. Proc., § 339, subd. (1).) “The statute of limitations for a breach of contract claim begins to run at the time of breach (that is, when one party fails to perform as contractually required).” (Piedmont Capital Management, LLC v. McElfish (2023) 94 Cal.App.5th 961, 964.)

For reasons detailed above, the FAC shows that defendants agreed to pay plaintiff upon the sale of defendants’ property in Mexico. Absent from the FAC are any allegations showing a date upon which defendants agreed to sell, or sold, their property in Mexico. For this reason, the FAC does not on its face allege a date on which defendants were contractually required to perform based on the purported agreement made by the parties on May 10, 2010. (See, e.g., Bendien v. Solov (1949) 89 Cal.App.2d 904, 907-908 [statute of limitations did not bar cause of action based on date plaintiffs were entitled to performance under an alleged oral agreement].)

The FAC also does not include allegations which fix a time within which defendants were required to perform under the May 10, 2010, agreement. (See Langdon v. Langdon (1941) 47 Cal.App.2d 28, 31 [general discussion].) Defendants also fail to explain why the allegations of the FAC show that defendants were required to but failed to perform by any date fixed for payment of the amount lent by plaintiff.

Further, the allegations of the FAC are sufficient to suggest or give rise to an inference that plaintiff deferred filing the present action based on plaintiff’s reliance on purported continuing representations by defendants that they would make repayment upon the sale of defendants’ property in Mexico. (See Getty v. Getty (1986) 187 Cal.App.3d 1159, 1171-1172 [general discussion of estoppel to assert statute of limitations where promise of payment is made].)

As the FAC does not, for all reasons discussed above, show on its face that the first cause of action is barred by the statute of limitations, the court will overrule the demurrers to that cause of action.

Defendants do not appear to dispute that the second cause of action for common counts is “factually identical to the ... contract claim.” (Leighton v. Forster (2017) 8 Cal.App.5th 467, 494; see Demurrers at p. 4.) The same analysis and reasoning apply as to the demurrer to the second cause of action on statute of limitations grounds, which the court will overrule for all reasons further discussed above. (Ibid.)

As to the demurrer of defendants to the third cause of action, which arises from purportedly false representations by defendants that they would repay plaintiff as soon as they sold their property in Mexico (FAC, ¶ IT-1), Code of Civil Procedure section 338, subdivision (d), provides that an “action for relief on the ground of fraud or mistake” is subject to a three-year statute of limitations.

An action for relief based on fraud “is not deemed accrued ‘until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.’ [Citation.] The courts interpret discovery in this context to mean not when the plaintiff became aware of the specific wrong alleged, but when the plaintiff suspected or should have suspected that an injury was caused by wrongdoing. The statute of limitations begins to run when the plaintiff has information which would put a reasonable person on inquiry.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373-1374.)

Defendants fail to explain why the FAC shows that plaintiff had a reason to suspect that defendants’ statements were false, or why plaintiff had any reason to discover a cause of action based on fraud more than three years prior to the date plaintiff filed suit. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807; see also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 [“the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim”].)

For example, plaintiff alleges in the FAC that defendants “have continued to repeat these false assurances that they would repay ... [p]laintiff ..., even as recently as six months ago.” (FAC, ¶ IT-1.) The FAC does not allege facts showing that plaintiff had a reason to discover that defendants’ purported representations or promises were false or at an earlier time. Furthermore, FAC is sufficient on its face to show that plaintiff did not discover any information to put plaintiff on inquiry of any fraudulent representations made by defendants.

For all reasons discussed above, the allegations of the FAC, including facts which may be inferred from those expressly alleged, do not disclose on their face that the third cause of action is barred by the statute of limitations.

Defendants also contend, as to the third cause of action, that “[i]t is not possible to determine what was said or by whom or in what manner”, that “[w]e do not know whether the statements were made in writing, or orally, or when they were made”, and that “[r]eliance is also insufficiently pled, with [p]laintiff merely stating that she relied on these representations without any further explanation.” (Demurrer at p. 5, ll. 16-20.) For these reasons, defendants contend, plaintiff has failed to allege a claim for fraud with the required specificity.

The allegations giving rise to the third cause of action are that defendants promised to repay plaintiff as soon as they sold their property in Mexico, and that these promises or representations “have always been false, and that defendants have never had any intention of re-paying the money that they borrowed from her.” (FAC, ¶ IT-1.)

“Under Civil Code section 1709, one is liable for fraudulent deceit if he ‘deceives another with intent to induce him to alter his position to his injury or risk... .’ [Citation.] Section 1710 of the Civil Code defines deceit for the purposes of Civil Code section 1709 as, inter alia, ‘[a] promise, made without any intention of performing it.’ [Citation.] ‘ “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.” [Citations.]’ [Citation.] Each element must be alleged with particularity.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1059-1060 (Beckwith).)

“ ‘A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]’ [Citation.] Thus, in a promissory fraud action, to sufficiently alleges [sic] defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.

“To sufficiently plead the first requirement, that the defendant made a promise, the complaint must state ‘ “facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” [Citation.]’ [Citation.] As for the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance. [Citation.] ‘The representation (implied) is that of the intention to perform [citation]; the truth is the lack of that intention. Purely evidentiary matters—usually circumstantial evidence or admissions showing lack of that intention—should not be pleaded. Hence, the only necessary averment is the general statement that the promise was made without the intention to perform it, or that the defendant did not intend to perform it.’ [Citation.]” (Beckwith, supra, 205 Cal.App.4th at p. 1060, original italics.)

“ ‘ “[A]ctual reliance occurs when a misrepresentation is ‘ “an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,” ’ and when, absent such representation,” the plaintiff “ ‘ “would not, in all reasonable probability, have entered into the contract or other transaction.” ’ ” ’ [Citation.] To allege actual reliance with the requisite specificity, ‘[t]he plaintiff must plead that he believed the representations to be true ... and that in reliance thereon (or induced thereby) he entered into the transaction. [Citation.]’ [Citation.]” (Beckwith, supra, 205 Cal.App.4th at pp. 1062-1063.)

The allegation that “defendants have never had any intention of re-paying the money that they borrowed” (FAC, ¶ IT-1) is sufficient to plead the falsity of the purported promise made by defendants and described above, without any intent to perform that promise. The FAC also sufficiently alleges that plaintiff personally lent money to defendants in reliance on defendants’ purportedly false promise.

Though the FAC sufficiently alleges the falsity of the promise by defendants to re-pay plaintiff upon the sale of defendants’ property in Mexico, and that plaintiff relied on that promise, absent from the FAC are any allegations showing how, when, where, or by what means defendants’ promise or representation was made, or that plaintiff believed that promise or representation to be true. For this reason, the court will sustain the demurrer, in part, and as to the third cause of action alleged in the FAC.

As the FAC does not on its face show that it is incapable of amendment as to the third cause of action for intentional tort, the court will grant plaintiff leave to amend. (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411-412 [denial of leave to amend under similar circumstances was an abuse of discretion].)

As the court will sustain the demurrer to the third cause of action, it is not necessary for the court to address defendants’ additional argument that the economic loss rule precludes that cause of action. The court notes, however, that tort damages are permitted in circumstances where a party is fraudulently induced to enter into the contract. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551-554 [“[c]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law”]; Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1238-1239 [also noting “no public policy is served by permitting a party who never intended to fulfill his obligations to fraudulently induce another to enter into an agreement”].)

To the extent defendants raise the economic loss rule in any future demurrer to any amended pleading that may be filed by plaintiff, the court expects defendants to address why the amended pleading involves only a breach of contract obligations, why any loss alleged by plaintiff was contemplated or provided for in any purported contract or agreement made by the parties, and why the allegations are insufficient to show a duty independent of any rights assumed or reasonably contemplated in that alleged contract or agreement.