Filed 6/27/22 Gossai v. Frison-Randler CA2/3

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Reversed in part, affirmed in part, and remanded with directions.

Bobby Gossai, in pro. per., for Plaintiff and Appellant.

Knauss Law Group and Joanne Mirras Knauss for Defendant and Respondent.

_______________________________________

INTRODUCTION

In May 2021, Bobby Gossai sued Zoleta Frison-Randler (Randler), individually and as trustee of the Zoleta Frison-Randler Revocable Living Trust. Gossai, who represented himself below and does so in this appeal, asserted five causes of action in his original complaint, all arising out of a June 2017 contract between Randler and Mohamed E. Aboselim (Aboselim).[1] Gossai alleged that Randler breached the contract with Aboselim and, in March 2021, Aboselim assigned his rights and interests in the contract to Gossai.

Gossai appeals from the judgment of dismissal after the trial court sustained Randler’s demurrer without leave to amend as to all causes of action. We conclude Gossai stated a claim for breach of contract and the court erred in sustaining the demurrer to that cause of action. We also conclude, however, that Gossai has not shown the court erred in sustaining the demurrer to his other causes of action. We therefore reverse in part, affirm in part, and remand the matter for further proceedings.

background

According to the complaint’s allegations and attached exhibits, on June 28, 2017 Randler and Aboselim signed a written agreement (the contract) allowing Aboselim “to join partnership with [Randler] in the property at 22505 Dove Ave[.,] Gerber, CA 96035.” The contract stated that Aboselim “will pay the delinquent mortgage fees on the property in the amount of $3,690 to Wells Fargo home mortgage.” The contract also stated that each party “will pay thereafter, $615.00 a month an equal share of the mortgage payment until the property is sold.” Title to the property will remain in the name of “Zoleta Frison-Randler” because her ex-husband “[was] still on the loan along with [Randler].” Randler agreed, however, to try to remove her ex-husband’s name from the loan, and “submit the necessary legal documents to Wells Fargo home mortgage and have [Aboselim’s] name added to the loan.” Although not expressly stated in the contract, Randler also agreed to add Aboselim’s name to the title. The contract provided that “when the property is sold, [Aboselim] is entitled to the monies that he invested in the property. [Aboselim] will receive 40% and Zoleta Frison-Randler will receive 60%.”

As required by the contract, Aboselim “cured the delinquent payments of $3,690.00 and made all the monthly mortgage payments thereafter to the tune of [$]19,000.00” up to October 21, 2019. On September 9, 2019, however, Randler breached the contract by executing a notarized trust transfer deed placing “100% of the said property in [the Zoleta Frison-Randler Revocable Living] Trust and appointed herself as trustee of the Trust” without informing or compensating Aboselim.[2] Further, Randler failed to obtain adequate consideration for the transfer of her interest in the property, and “fraudulently encumbered” and “illegally” seized Aboselim’s 40% interest in the property. Aboselim did not learn about the September 9, 2019 transfer until after he had made monthly payments to Randler on September 18, 2019 and October 21, 2019. Randler’s actions make it difficult for creditors such as Aboselim to collect on the debts owed by Randler. In addition, Randler has made no effort in over two years to remove her ex-husband’s name from the title and replace it with Aboselim’s name. Randler’s actions show “she had no intention to honor” the contract. As a result of Randler’s failure to perform her contractual obligations, Aboselim has been damaged in the amount of at least $145,090: $122,400 for the value of his 40 percent interest in the property and $22,690 for payments made by him under the contract.

On March 20, 2021, Aboselim assigned his rights and interests in the contract to Gossai (the assignment). In a declaration attached to the complaint, Aboselim stated Gossai “is now the legal and lawful owner of the $22,690.00 plus 40% of [Aboselim’s] rights, titles, interest, and benefits in the said property located at 22505 Dove Ave[.]” The assignment reiterates that it included Aboselim’s “40% ownership interest in the real property[.]” Gossai informed Randler of the assignment and invited her to resolve the dispute “amicably and reasonably.”

On May 20, 2021, Gossai initiated this lawsuit by filing a 24-page complaint, plus seven attached exhibits, naming Randler, individually and as trustee of the Zoleta Frison-Randler Revocable Living Trust, as a defendant. The pleading asserts causes of action for breach of written promise/contract, fraud, constructive fraud and inducement, fraudulent conversion, and unjust enrichment. Gossai alleged that as Aboselim’s assignee, Gossai can sue Randler under the contract. Gossai also alleged Randler breached the contract by, among other things, not adding Aboselim’s name to the title and by placing 100 percent ownership of the property in a trust controlled by Randler without compensating Aboselim for his 40 percent interest and payments through October 2019.

Randler demurred to all causes of action. She argued Gossai’s claims were not ripe for adjudication because the property was not sold. She also argued that because the transfer of title to her revocable trust was not a sale, the trust is not an appropriate party to the litigation. As for the first cause of action for breach of contract, Randler emphasized that Gossai “cannot truthfully allege” his assignor performed under the contract because Aboselim stopped making payments in 2019. Randler also contended the property was not sold—a condition precedent for her performance under the contract—because a transfer of ownership to a revocable trust is not a change of ownership under section 62 of the Revenue and Taxation Code. As for the second (fraud), third (constructive fraud), and fourth (fraudulent conversion) causes of action, Randler argued the pleading fails to set forth specific facts of any false representation. Finally, the fifth cause of action for unjust enrichment fails because Aboselim breached the contract first by not making additional monthly payments of $615 in 2019. Gossai opposed the demurrer.

On October 1, 2021, the court ruled that the only contract was between Randler and Aboselim—not Randler and Gossai—and there are no allegations in the pleading that Gossai has any contractual rights. The court also ruled that “it is contended that the allegations do not amount to breach of contract and the property has not been sold.” As for the other claims, “there are no specific allegations of fraudulent representations made” to Gossai or Aboselim in the complaint, “let alone any conversion.” The court sustained the demurrer without leave to amend as to each cause of action. Gossai timely appealed from the subsequent judgment of dismissal.

DISCUSSION

Gossai argues the trial court erred in ruling he did not state a claim for breach of contract because he did not allege the existence of a contractual relationship with Randler. Gossai also argues the court erred in ruling he did not allege sufficient facts to sue Randler for breach of contract as Aboselim’s assignee. We agree with both contentions.

1. Standard of Review

On appeal from an order sustaining a demurrer without leave to amend, “we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “In reviewing a demurrer, we ask only whether the plaintiff has alleged—or could allege—sufficient facts to state a cause of action against the defendant.” (Id. at pp. 155–156.)

If the allegations in the complaint conflict with attached exhibits, we rely on and accept as true the contents and legal effect of the exhibits. (Chisom v. Board of Retirement of Fresno County Employees’ Retirement Assn. (2013) 218 Cal.App.4th 400, 410.) However, “if the exhibits are ambiguous and can be construed in the manner suggested by plaintiff, then we must accept the construction offered by plaintiff.” (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) “ ‘So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s allegations as to the meaning of the agreement.’ [Citation.]” (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239.)

We review the court’s denial of leave to amend for abuse of discretion. (Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 722.) To determine whether the plaintiff can cure a defect, “we consider whether there is a ‘reasonable possibility’ that the defect in the complaint could be cured by amendment.” (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.)

2. Gossai alleged sufficient facts to sue Randler for breach of contract as Aboselim’s assignee.

The elements for breach of contract are “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, the court erred in ruling that the “only contract is between” Aboselim and Randler and “[t]here are no allegations that [Gossai] has any contractual rights[.]” Although Gossai alleged the June 2017 contract was between Aboselim and Randler, he also alleged Aboselim assigned his rights and interests in the contract to Gossai in March 2021. An assignee of a contracting party can sue for breach of the contract. (Applera Corp. v. MP Biomedicals, LLC (2009) 173 Cal.App.4th 769, 786.) Indeed, had Aboselim filed this action, Randler could have argued he did not have standing. (See Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Service Co. (2011) 191 Cal.App.4th 1394, 1402 [once a claim has been assigned, the assignee is the owner and has the right to sue on it]; Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1096 [assignor of contract lacks standing to sue on the contract].)

Gossai also alleged sufficient facts to sue Randler for breach of contract as Aboselim’s assignee. As a general matter, “t is sufficient for a plaintiff to simply allege that he has ‘duly performed all the conditions on his part.’ ” ([i]Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1389.) That is what Gossai alleged, and on demurrer we must assume Gossai’s allegations are true. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1229 [on demurrer “the trial court was required to construe all factual allegations in the complaint in [the plaintiff’s] favor”].) Gossai also asserted that in return for Aboselim’s payments to Randler or on her behalf, she promised to “allow [Aboselim] to join partnership with [Randler] in the property,” keep title to the property in her individual name until her ex-husband’s name was removed from the loan, add Aboselim’s name to the loan and title, and pay Aboselim certain sums when the property was sold. Finally, Gossai asserted that as a result of Randler’s failure to perform her contractual obligations, he suffered damages of at least $145,090. Gossai’s allegations, if true, established the required elements for a breach of contract claim and were sufficient to survive demurrer.

Nevertheless, Randler contends she had no obligations under the contract because they were based on a condition precedent, sale of the property, and the property was not sold. And since none of Gossai’s claims were ripe for adjudication, the court properly sustained the demurrer on that basis. We disagree.

The complaint identified Randler’s various obligations (and breaches). While one of those obligations, paying Aboselim for “the monies that he invested in the property,” was triggered by the “sale” of the property, Gossai also alleged Randler had other obligations that were not dependent on the sale of the property. For example, Randler was required to: (1) maintain title to the property in her individual name (i.e., not in the name of a trust); (2) obtain adequate consideration for the transfer of her interest in the property; and (3) attempt to remove her ex-husband’s name from the loan and title and replace it with Aboselim’s name.

We also note that the contract does not contain language indicating that the written agreement is the final and complete expression of the parties’ intent, and it does not define the term “sale.” In the absence of an integration clause and a definition of “sale,” we must construe the agreement between Randler and Aboselim in the manner suggested by Gossai: the obligation to pay Aboselim for the monies he invested in the property was also triggered when Randler executed the trust transfer deed. (See SC Manufactured Homes, Inc. v. Liebert, supra, 162 Cal.App.4th at p. 83.) Put differently, Gossai’s interpretation of the term “sale” to include an unauthorized transfer of title does not place a clearly erroneous construction upon the provisions of the contract, especially where the contract provides for Aboselim “to join partnership with [Randler] in the property.” (See Aragon-Haas v. Family Security Ins. Services, Inc., supra, 231 Cal.App.3d at p. 239.)

Randler also contends her contractual obligations were discharged because Aboselim stopped making the required $615 monthly payments in 2019. Certainly, we agree that a party’s failure to perform a contractual obligation may constitute a material breach of the contract and, as a result, the other party may be discharged from its duty to perform under the contract. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–278.) Normally, however, the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question for the trier of fact. (See Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516, 529–530; see also Whitney Inv. Co. v. Westview Dev. Co. (1969) 273 Cal.App.2d 594, 601 [“Whether a breach is so material as to constitute cause for the injured party to terminate a contract is ordinarily a question for the trier of fact.”].)

And, in any event, Aboselim stopped making monthly payments only after he discovered in October 2019 that Randler had, on September 9, 2019, secretly transferred title to the property to her trust for no consideration in violation of the parties’ agreement. Gossai also alleged that Randler’s actions show “she had no intention to honor” the contract. A trier of fact could reasonably conclude that Randler’s actions excused any further performance by Aboselim. (See County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1276 [promisor’s anticipatory repudiation permits the promisee to recover damages immediately for a total breach of contract without performing any conditions precedent under the contract].) That is, Aboselim’s failure to make monthly payments after October 2019 is not fatal to the breach of contract claim.

In short, the court erred in sustaining the demurrer to the first cause of action for breach of contract.

3. Gossai did not show the court erred in sustaining the demurrer to the second through fifth causes of action.

Although Gossai’s briefs focus on the first cause of action for breach of contract, he also appears to contend that the court erred by sustaining the demurrer to his second, third, fourth, and fifth causes of action. The fact that we examine the complaint de novo does not mean that Gossai need only tender the complaint and hope we can discern a cause of action. On appeal, it is his burden to show either that the demurrer was sustained erroneously or that the trial court’s denial of leave to amend was an abuse of discretion. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1576.) A point only raised in a perfunctory way, without adequate analysis and authority, is passed as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) “When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700.)

Even giving Gossai’s briefs the most generous reading, we are unable to discern coherent legal arguments as to why the court erred in sustaining the demurrer to his fraud, constructive fraud, fraudulent conversion, and unjust enrichment causes of action. We conclude, therefore, that Gossai has forfeited any challenge to the court’s order sustaining the demurrer to those causes of action, and that portion of the order will not be disturbed.

DISPOSITION

The judgment of dismissal is reversed in part, and affirmed in part. On remand, the court shall enter a new order overruling the demurrer to the first cause of action for breach of contract. The parties shall bear their own appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.

[1] At times, the parties refer to Aboselim as Mohamed Elshahat Mohamed.

[2] Although the trust transfer deed was signed and notarized on September 9, 2019, it was not recorded until March 11, 2021. No consideration was paid for the transfer of the deed from Randler to the trust.