Fullove v. Fullove

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 MARIANNE FULLOVE, Case No. 24-cv-02616-JSW

8 Plaintiff,

ORDER GRANTING MOTION TO

9 v. DISMISS SECOND AMENDED

COMPLAINT; GRANTING MOTION

10 SHALUINN FULLOVE, FOR LEAVE TO FILE THIRD

AMENDED COMPLAINT

Defendant.

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Re: Dkt. Nos. 45, 51

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13 Now before the Court is Defendant Shaluinn Fullove’s motion to dismiss the Second

14 Amended Complaint. Also before the Court is Plaintiff’s motion for leave to file a third amended

15 complaint. The Court has considered the parties’ papers, relevant legal authority, and the record in

16 this case, and it finds the matter suitable for disposition without oral argument. Civ. L.R. 7-1(b).

17 For the following reasons, the Court hereby GRANTS Defendant’s motion to dismiss, without

18 prejudice, and GRANTS Plaintiff’s request for leave to file a third amended complaint.

19 BACKGROUND

20 Plaintiff and Defendant are mother and daughter. (Dkt. No. 33-3, Second Am. Compl.

21 (“SAC”), ¶ 5.) In 2017, Defendant and her now ex-husband placed a deposit on a new-

22 construction condominium in Boulder, Colorado (the “Condo”). (Id. ¶ 9.) Sometime thereafter,

23 Defendant and her ex-husband separated. (Id.)

24 In the spring of 2019, Defendant asked Plaintiff to “go in on” the Condo together, because

25 Defendant knew that Plaintiff “had been looking for a second property.” (Id.) Plaintiff and

26 Defendant agreed to split equally the monthly expenditures for the Condo. (Id.) Plaintiff and

27 Defendant also discussed Plaintiff investing a lump sum as an initial payment. (Id.)

1 September 2, 2019, Plaintiff and Defendant together picked up the keys to the completed Condo

2 and “started setting up house.” (Id. ¶ 13.) Plaintiff and Defendant decorated the Condo with the

3 intention of making it their “Happy Place.” (Id. ¶ 19.)

4 During the August-September 2019 visit, Plaintiff orally told Defendant that she could

5 give Defendant $145,000 as a 15 percent deposit on the Condo. (Id.) The parties “also discussed

6 the approximate monthly costs, only allowing family and friends to use the condo, and possibly

7 renting it out in the future,” as well as a right of first refusal in the event of sale and splitting

8 profits or losses equally. (Id.) On September 4, 2019, Plaintiff wired $145,000 to Defendant.

9 (Id.)

10 The parties jointly visited the Condo seven times in 2019. Defendant acted as the financial

11 records keeper and accountant, and she forwarded emails to Plaintiff from the HOA Board and

12 property management company. (Id. ¶ 21.) Defendant set up the Google Home App with a Nest

13 thermostat and security cameras, and she gave Plaintiff access to the app. (Id. ¶ 22.)

14 On November 19, 2019, Defendant called Plaintiff and “said she urgently needed

15 [Plaintiff] to sign a document to protect the $145,000” wire from Defendant’s divorce settlement.

16 (Id. ¶ 24.) Defendant emailed Plaintiff a promissory note dated November 9, 2019, and she asked

17 Plaintiff to sign and return as soon as possible. (Id. ¶ 24.) Plaintiff returned a signed copy of the

18 note later the same day. (Id. ¶ 25.)

19 In December 2019, Defendant created and shared with Plaintiff a Google Sheets

20 spreadsheet for the Condo operating expenses. (Id. ¶ 26.) From December 2019 through

21 September 2021, Plaintiff sent 50 percent of the monthly expenses to Defendant via Zelle. (Id. ¶¶

22 27-48.)

23 During that time period, Plaintiff participated in HOA meetings and votes as an owner.

24 (Id. ¶¶ 56-60, 68, 78.) Defendant suggested Plaintiff join the HOA Board. (Id. ¶ 58.)

25 In September 2021, Defendant removed Plaintiff’s access to the Google Sheet and stopped

26 sending Plaintiff the monthly operating expense reports. (Id. ¶ 48.) From that time forward,

27 Defendant obstructed Plaintiff’s access to the Condo by requiring Plaintiff to make sure the Condo

1 occasions between September 2021 and December 2023. (Id. ¶ 50.)

2 In August 2022, Defendant’s divorce finalized, and Defendant was awarded the Condo as

3 separate property. (Id. ¶ 16.)

4 Plaintiff stopped contributing to monthly expenses until June 2023, when Plaintiff and her

5 guests stayed at the Condo for two weeks. (Id. ¶ 50.) Plaintiff also paid for a plumber to

6 investigate wall cracks for suspected water damage. (Id. ¶ 73.)

7 On April 21, 2024, Plaintiff emailed Defendant that Plaintiff would be using the Condo in

8 June 2024. (Id. ¶ 89.) Defendant responded that there were conflicts and the Condo would not be

9 available. (Id.) When Plaintiff inquired when the Condo would be available, Defendant

10 responded by calling Plaintiff and informing her that the Condo would no longer be available to

11 Plaintiff for use. (Id.)

12 Based on these allegations, Plaintiff brings six causes of action against Defendant: (1)

13 financial elder abuse in violation of California’s Elder Abuse Act, Cal. Welf. & Inst. Code section

14 15600 et seq.; (2) breach of express joint venture agreement; (3) breach of implied joint venture

15 agreement; (4) breach of fiduciary duty; (5) intentional misrepresentation; and (6) conversion.

16 ANALYSIS

17 A. Legal Standards Applicable to Motions to Dismiss.

18 A complaint must contain a “short and plain statement of the claim showing that the

19 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[D]etailed factual allegations are not

20 required” to survive a motion to dismiss if the complaint contains sufficient factual allegations to

21 “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

22 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.

23 1955, 167 L.Ed.2d 929 (2007)). “Labels and conclusions[] and a formulaic recitation of the

24 elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

25 When a party moves to dismiss for failure to state a claim under Rule 12(b)(6), a district

26 court accepts as true all well-pleaded material facts and draws all reasonable inferences in favor of

27 the plaintiff. Faulkner v. ADT Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). A district court

1 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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B. The Court Denies Defendant’s Request for Judicial Notice, but Finds the Promissory

3 Note Incorporated by Reference.

4 District courts may consider materials outside the pleadings without converting a motion

5 under Rule 12(b)(6) to a motion for summary judgment under Rule 12(d) when the materials are

6 incorporated by reference or subject to judicial notice. Khoja v. Orexigen Therapeutics, Inc., 899

7 F.3d 988, 998 (9th Cir. 2018). Exhibits attached to the complaint are considered part of the

8 complaint and incorporated by reference. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.

9 2007) (holding district court may consider “allegations contained in the pleadings, exhibits

10 attached to the complaint, and matters properly subject to judicial notice”).

11 The promissory note dated November 9, 2019 was attached to the SAC as Exhibit 6 and

12 cited numerous times within the SAC. In Plaintiff’s version of the note, there is no signature from

13 Defendant. Plaintiff relies on the note in alleging her elder abuse claims. The Court finds that the

14 note is incorporated by reference into the SAC, and the Court will consider the note in resolving

15 the motion to dismiss.

16 Defendant seeks judicial notice of a version of the promissory note signed by both Plaintiff

17 and Defendant. (Dkt. No. 46, Request for Judicial Notice, at Ex. 1.) This version is not attached

18 to or incorporated by reference into the SAC. The SAC alleges that Plaintiff never received a

19 countersigned version of the note. (SAC ¶ 24.) The versions of the note attached to the original

20 Complaint and First Amended Complaint are also not signed by Defendant. (See Dkt. No. 1,

21 Compl., Ex. 1; Dkt. No. 25, Am. Compl., Ex. 1.) Given this discrepancy, the authenticity of

22 Defendant’s version of the promissory note is not beyond dispute. Accordingly, the Court denies

23 Defendant’s request for judicial notice, and it does not rely on Defendant’s version of the

24 promissory note in resolving the motion to dismiss.1

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1 Defendant misrepresented to the Court that the promissory note was not attached to the SAC.

1 C. The Statute of Frauds Bars Plaintiffs’ Claims as Currently Pleaded.

2 Defendant argues that all of Plaintiff’s claims fail because they are premised on an oral

3 agreement for an interest in real property, which is invalid under the statute of frauds. California’s

4 statute of frauds requires agreements “for the sale of real property, or of an interest therein” to be

5 “in writing and subscribed by the party to be charged.” Cal. Civ. Code § 1624(a)(3). Text

6 messages, instant messages, and other electronic messages “of an ephemeral nature” are

7 “insufficient . . . to constitute a contract to convey real property” under the statute. Id. § 1624(d).

8 Plaintiff does not dispute that the agreement was oral. Plaintiff claims that the agreement

9 is nevertheless valid because it falls into three potential exceptions to the statutory bar: (1) the

10 joint venture exception; (2) partial performance; or (3) estoppel. To the extent the statute of frauds

11 does apply, Plaintiff contends that any unenforceable provisions of the oral agreement may be

12 severed.

13 The Court agrees with Defendant: as pleaded, the statute of frauds bars relief.

14 1. The Joint Venture Exception to the Statute of Frauds Does Not Apply.

15 California law recognizes “a distinction between an interest in the land itself and an

16 interest in the money obtained from the sale of the land.” Miller v. Lerdo Land Co., 186 Cal. 1, 6

17 (1921). Creation or conveyance of the former requires a writing; creation or conveyance of the

18 latter does not. Dutton v. Interstate Inv. Corp., 19 Cal. 2d 65, 70 (1941). Plaintiff contends that

19 the latter interest exists here, because she and Defendant agreed to form a joint venture to purchase

20 the Condo.

21 “A joint venture is ‘an undertaking by two or more persons jointly to carry out a single

22 business enterprise for profit.’ ” Weiner v. Fleischman, 54 Cal.3d 476, 482 (1991) (quoting

23 Nelson v. Abraham, 29 Cal.2d 745, 749 (1947)). The parties must have “[1] a joint interest, [2] in

24 a common business undertaking, and [3] an understanding as to the sharing of profits and losses,

25 and [4] a right of joint control.” Connor v. Great Western Sav. & Loan Ass’n, 69 Cal.2d 850, 863

26 (1968). A joint interest exists where each party shares in the other’s profits or losses. Id.

27 Plaintiff argues that a joint venture existed because she and Defendant agreed to the

(1) Marianne would invest the sum of $145,000 into the joint venture, which

1 was 15% of the purchase price of the Condo; (2) Marianne and Shaluinn would

equally split the monthly operating expenses of the joint venture; (3) that only

2 friends and family would be allowed to use the Condo in addition to Marianne

and Shaluinn; (4) that if both Marianne and Shaluinn decided to sell the condo,

3 they would split any profits and [l]osses equally; (5) that they could rent out the

condo if both agreed and split the net rental proceeds after paying the mortgage;

4 (6) that each would have equal access to the Condo; (7) each would have joint

control over the Condo; (8) each would have joint participation in the

5 management and control of the business of the Condo; (9) each would jointly

furnish the Condo and (10) that if one of them wanted to sell their half, the other

6 partner would have the right of first refusal.

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8 (Dkt. No. 60, Opp., at 8:4-14 (citing SAC ¶¶ 13, 111).) These allegations account for a joint

9 interest, an understanding of sharing profits and losses, and a right of joint control, but do not

10 indicate the existence of a business undertaking.

11 The SAC suggests that the parties purchased the Condo for personal, not business, use.

12 Plaintiff and Defendant agreed to each use the Condo for personal use and to permit friends and

13 family to do the same. (SAC ¶ 13.) Plaintiff and Defendant decorated the Condo with the

14 intention of making it their “Happy Place.” (Id. ¶ 19.) Plaintiff does not allege plans to resell the

15 Condo for profit. Any plans to rent out the Condo for profit were vague and indefinite. (See, e.g.,

16 id. ¶ 20 (recounting text from Defendant to Plaintiff regarding cost of furniture “[if] we had renters

17 in there at some point”); Opp. at 8:4-14 (noting the parties “could rent out the condo if both

18 agreed” at some unspecified point).) Plaintiff does not claim that Defendant wrongfully withheld

19 any profits, but rather that she was ousted from possession of the Condo. (SAC ¶ 76.)

20 Because—as currently pleaded—none of the allegations supports an inference that a

21 business enterprise existed, Plaintiff cannot avoid the statute of frauds under the joint venture

22 exception.

23 2. Plaintiff Did Not Partially Perform.

24 An oral agreement regarding real property may be enforceable if a party has (1) partially

25 performed and (2) materially changed her position in reliance on the agreement. Sutton v. Warner,

26 12 Cal. App. 4th 415, 422 (1993). A buyer partially performs when she “has taken possession of

27 the property and either makes a full or partial payment of the purchase price, or makes valuable

1 Miller & Starr, Cal. Real Estate 2d § 1:60, p. 168 (1989)) (emphasis in original). The part

2 performance must “clearly relate to, and be pursuant to, the terms of the oral agreement.” Id.

3 “[P]ayment of money alone” does not constitute sufficient part performance to evade the statute of

4 frauds. Secrest v. Sec. Nat'l Mortg. Loan Tr. 2002-2, 167 Cal. App. 4th 544, 548 (2008), as

5 modified on denial of reh'g (Nov. 3, 2008). The plaintiff’s change in position must be “to such an

6 extent that application of the statute of frauds would result in an unjust or unconscionable loss,

7 amounting in effect to a fraud.” Id. at 555. However, “the mere failure to perform an oral promise

8 to convey real property is not itself fraud.” Mazzera v. Wolf, 30 Cal.2d 531, 535 (1947).

9 Plaintiff argues that she invested money, time, and energy into managing the Condo. The

10 SAC includes allegations that Plaintiff was physically present for repairs, maintenance, and

11 inspections, and that Plaintiff attended an HOA meeting as an owner. (SAC ¶¶ 47, 64.)

12 These allegations fail to rise to the level of “partial performance” required to take the oral

13 agreement out of the statute of frauds for two reasons. First, Plaintiff fails to adequately allege

14 possession of the Condo. Plaintiff does not contend, for example, that she had keys to the Condo

15 or that she could use it at any time without Defendant’s permission as a true owner would.

16 Second, Plaintiff’s allegations of spending time, energy, and money on the Condo fail to

17 demonstrate “substantial improvements” to the property. Instead, they appear to reflect ordinary

18 maintenance and care. Compare Sutton, 12 Cal. App. 4th at 423-24 (noting disputed issue of fact

19 whether “painting the interior of the house and [] installation of a toilet and entry lamp”

20 constituted “substantial improvements”) with SAC ¶¶ 12, 20 (alleging Plaintiff helped “decorate”

21 the Condo) and id. ¶¶ 71-74 (alleging Plaintiff noticed wall cracks and hired plumber to inspect).

22 By alleging only payment of money and surface improvements, Plaintiff has failed to

23 invoke the partial performance exception to the statute of frauds.

24 3. Plaintiff Has Not Shown Estoppel Applies.

25 “To estop a defendant from asserting the statute of frauds, a plaintiff must show

26 unconscionable injury or unjust enrichment if the promise is not enforced.” Jones v. Wachovia

27 Bank, 230 Cal. App. 4th 935, 944 (2014). The plaintiff must have “been induced by the

1 defendant must be unjustly enriched by the plaintiff’s performance. Monarco v. Lo Greco, 35

2 Cal.2d 621, 623 (1950). A defendant is unjustly enriched if the plaintiff has “a better legal or

3 equitable right” to the benefit. City of Oakland v. Oakland Raiders, 83 Cal. App. 5th 458, 479

4 (2022) (quoting Rest. (3d) Restitution and Unjust Enrichment, § 48). This rule is “highly

5 restrictive,” and requires more than a showing that the “defendant’s retention of payment as

6 against the plaintiff violates rules of good faith, basic fairness, or common decency.” Id. (internal

7 marks omitted). If a plaintiff has legal means to recover money paid to the defendant, estoppel is

8 inappropriate. See Secrest, 167 Cal. App. 4th at 557 (holding plaintiffs not entitled to estoppel

9 where could recover downpayment on property through action in law).

10 Here, Plaintiff contends that Defendant would be unjustly enriched if the statute of frauds

11 were to apply because Plaintiff “invested her time, energy and over $202,000.00 into the joint

12 venture.” (Opp., at 11:7-8.) Plaintiff further argues she forewent other investment opportunities,

13 but she does not point to any allegations regarding specific opportunities.

14 These alleged facts do not show that Defendant did more than violate “rules of good faith,

15 basic fairness, or common decency.” City of Oakland, 83 Cal. App. 5th at 479. Plaintiff must

16 allege something more to demonstrate that Defendant’s retention of Plaintiff’s money is unjust.

17 Moreover, Plaintiff could recoup her investment through an action on the promissory note. See

18 Secrest, 167 Cal. App. 4th at 557 (holding estoppel not available where money recoverable

19 through legal means).

20 As currently pleaded, estoppel does not apply to bar the application of the statute of frauds.

21 4. The Oral Agreement Is Not Severable.

22 Under California law, “[w]hen a promise that is not within the statute of frauds is coupled

23 with one that is, the entire contract is unenforceable unless the promises are held ‘divisible.’ ”

24 Polyanna Homes, Inc. v. Berney, 56 Cal.2d 676, 678 (1961). A contract is generally considered to

25 be divisible if the consideration is apportioned among the promises. Texaco, Inc. v. Ponsoldt, 939

26 F.3d 794, 801 (9th Cir. 1991) (applying California law). Courts will also sever an unenforceable

27 promise from the remainder of the contract if it is “clearly ancillary to the contract as a whole.”

1 Here, Plaintiff agrees that one portion of the alleged agreement—the alleged right of first

2 refusal in event of sale—may be a property right, but she argues that the joint promise for right of

3 first refusal is severable from the remaining promises in the oral agreement. Even if true, the right

4 of first refusal is not the only promise concerning property rights enumerated by Plaintiff: she

5 argues the parties agreed to share in rights to access, possess, and exclude. (Opp., at 8:4-14.); see

6 Cal. Code Civ. P. § 405.4 (defining “real property claim” as a cause of action “which would, if

7 meritorious, affect. . . title to, or the right to possession of, specific real property”); Ralphs

8 Grocery Co. v. Victory Consultants, Inc., 17 Cal. App. 5th 245, 258 (2017) (noting right to

9 exclude is “fundamental aspect of private property ownership”). Severance of the right of first

10 refusal would leave these additional property rights in the oral agreement.

11 Plaintiff has further not pleaded facts to show that the oral agreement is “divisible.”

12 Plaintiff arguably provided consideration for the oral agreement in three ways: (1) the initial

13 payment of $145,000; (2) monthly payments for half of the operating expenses; and (3) assisting

14 with upkeep and maintenance. There is no clear, corresponding promise from Defendant to which

15 each measure of consideration was apportioned. See, e.g., White Lighting Co. v. Wolfson, 68

16 Cal.2d 336, 346 (1968) (finding contract divisible and excluding mutual promise for purchase of

17 stock in exchange for $15,000 but enforcing promise for salary and travel expenses in exchange

18 for term of employment).

19 Nor has Plaintiff pleaded that the property rights she seeks to vindicate are ancillary to her

20 claims. Plaintiff’s ouster from the Condo, and her corresponding loss of use, right to rent out, and

21 right of first refusal are central to the SAC. Accordingly, the alleged oral agreement may not be

22 enforced by severing the portions which violate the statute of frauds.

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D. Plaintiff Has Not Alleged California Residency as Required for her Elder Abuse

24 Claim.

25 Plaintiff concedes she did not allege she was over 65 years old and a resident of California

26 when the alleged elder abuse occurred.

27 Amendment to show Plaintiff resided in California at the relevant times would not

] determining diversity is the time of commencing the lawsuit, not the time of the alleged conduct.

2 || See Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570-71 (2004) (noting the “time-of-

3 filing rule is hornbook law’).

4 Therefore, the Court dismisses Plaintiffs claim for elder abuse, with leave to amend.

5 CONCLUSION

6 For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. Plaintiff may file

7 || an amended complaint within twenty-one (21) days of this Order.

8 IT IS SO ORDERED.

9 Dated: December 2, 2024 fo)

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11 United Spits Distrigt Judge

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