Filed 9/19/16 Thompson v. Lujan CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

MICHAEL THOMPSON,
                                                                                           F071658
         Plaintiff and Appellant,
                                                                              (Super. Ct. No. CV281151)
                   v.

MANOLITO LUJAN et al.,                                                                   OPINION
         Defendants and Respondents.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Lorna H.
Brumfield, Judge.
         Michael Thompson, in pro. per., for Plaintiff and Appellant.
         Borton Petrini and Samire K. Elhouty for Defendants and Respondents.
                                                        -ooOoo-
         Plaintiff appeals from the judgment entered against him after the demurrer to his
second amended complaint was sustained without leave to amend. The pleading alleged
claims that defendants improperly influenced plaintiff’s wife to transfer to defendants
businesses and real and personal property in which plaintiff held an interest. We
conclude the second amended complaint adequately states causes of action that are not


*        Before Hill, P.J., Gomes, J. and Kane, J.
defeated by the determination of the nullity of plaintiff’s marriage. Accordingly, we
reverse.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff’s second amended complaint alleged the following facts: Plaintiff and
Patricia Pavlik entered into a general partnership in 1986, co-owning and operating
numerous businesses in the tattoo and cosmetics industries. In 1988, they married. They
subsequently purchased a 22-acre ranch in Tehachapi, with the proceeds of their jointly
owned businesses, but put title in Pavlik’s name.1 They paid for the Tehachapi property
by 2000. Although plaintiff has been incarcerated since before he met Pavlik, Pavlik
visited him and communicated with him by telephone regularly. Plaintiff was fully
engaged in the operation of the businesses. Between 1993 and 1996, plaintiff contracted
for the construction of a laboratory, office facilities, and a caretaker’s residence on the
Tehachapi property. Under an alias, he founded the Tehachapi Mountain Research
Center (TMRC), a scientific public benefit corporation with its principal office on the
Tehachapi property.
       In 2000, Pavlik was diagnosed with emphysema. Plaintiff agreed to allow
defendants, Manolito and Mei Lujan, to live in the caretaker’s residence on the property
in exchange for caretaker services. Defendants used their position, their physical
presence on the property, their knowledge of Pavlik’s frail health, and their knowledge
that plaintiff was incarcerated, to coerce Pavlik with threats and misrepresentations that
her life was in danger and to extort from her property jointly owned by Pavlik and


1       The second amended complaint alleges plaintiff was housed in the Protective Housing
Unit of the prison as a protected witness. An attachment to the pleading indicates he testified
against members of the Aryan Brotherhood prison gang, as a result of which he was “among the
top five … on the Aryan Brotherhood murder contract ‘hit’ lists.” The second amended
complaint suggests plaintiff and Pavlik placed the Tehachapi property in Pavlik’s name, as an
unmarried woman, for her safety.




                                               2.
plaintiff. In 2006, defendants coerced Pavlik to file a marital dissolution proceeding
against plaintiff to obtain all rights to the business and property interests jointly owned by
Pavlik and plaintiff.
       In 2007, defendants forced Pavlik to transfer the jointly owned real property into a
trust in her name with her as the sole trustee, even though this violated the restraining
order imposed by the dissolution action. Defendants also submitted documents to the
Secretary of State listing Manolito as chief executive officer of TMRC. Pavlik executed
a fabricated loan agreement and deed of trust, indicating she owed $350,000 to Manolito,
secured by a deed of trust on the Tehachapi property. In 2010, defendants forced Pavlik
to use monies jointly owned by plaintiff and Pavlik to finance a restaurant for defendants.
       On February 5, 2012, Pavlik died. Plaintiff remained co-owner of the businesses
and property, real and personal, amassed by them over the previous 24 years. Plaintiff
was listed on her death certificate as her surviving spouse. On February 24, 2012, the
court in the dissolution action issued a ruling granting Pavlik’s motion determining the
marriage was a nullity. The ruling had no effect on plaintiff’s property rights because the
parties were still legally married at the time of Pavlik’s death. Plaintiff obtained from the
court a determination that Pavlik’s one-half interest in the Tehachapi property passed to
him as her surviving spouse on her death.
       Plaintiff subsequently discovered defendants had filed a change of ownership of
the Tehachapi property and held themselves out as owners; they had also taken
possession of the businesses owned by plaintiff. Manolito falsely claimed he was
Pavlik’s son and Pavlik bequeathed the businesses and property to him. Defendants have
no legitimate legal claim to the businesses or property formerly owned jointly by plaintiff
and Pavlik and, since her death, exclusively owned by plaintiff.
       The second amended complaint sought monetary damages, declaratory relief
regarding plaintiff’s rights of ownership of the businesses and property, real and personal,
co-owned by Pavlik and plaintiff prior to Pavlik’s death, and his standing as founder and

                                              3.
director of TMRC. Plaintiff also sought punitive damages, alleging defendants obtained
his business and property interests by means of extortion and by knowingly filing false
documents; they acted with malice and the intent to oppress Pavlik’s free will.
       Defendants filed a demurrer to plaintiff’s second amended complaint, along with a
motion to strike and a request for judicial notice. After the matter was heard and argued,
the trial court granted the request for judicial notice, sustained the demurrer without leave
to amend, determined the motion to strike was moot, and ordered the action dismissed
with prejudice. Plaintiff appeals from the dismissal of his action.
                                       DISCUSSION
I.     Standard of Review
       “On appeal from a dismissal after an order sustaining a demurrer, we review the
order de novo, exercising our independent judgment about whether the complaint states a
cause of action as a matter of law. [Citations.] We give the complaint a reasonable
interpretation, reading it as a whole and viewing its parts in context. [Citations.] We
deem to be true all material facts properly pled.” (Traders Sports, Inc. v. City of San
Leandro (2001) 93 Cal. App. 4th 37, 43.) We are not concerned here with whether the
plaintiff ultimately may be able to prove the allegations of his pleading; we determine
only whether any cause of action has been sufficiently alleged. (Sisemore v. Master
Financial, Inc. (2007) 151 Cal. App. 4th 1386, 1397.)
       “‘We do not review the reasons for the trial court’s ruling; if it is correct on any
theory, … even if the court made its ruling for the wrong reason, it will be affirmed.’”
(Curcini v. County of Alameda (2008) 164 Cal. App. 4th 629, 637.) “It is error for a trial
court to sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.)
       Denial of leave to amend, however, is reviewed for abuse of discretion; the denial
will be reversed if there is a reasonable possibility the pleading can be cured by
amendment. (Hernandez v. City of Pomona (1996) 49 Cal. App. 4th 1492, 1497–1498.)

                                              4.
II.    Sufficiency of the Record on Appeal
       Defendants contend plaintiff presented an inadequate record to establish error in
the judgment. They assert that, because the standard of review is abuse of discretion,
plaintiff must provide a record that demonstrates the trial court’s reasoning in reaching its
decision. The record, however, does not include defendants’ demurrer to the second
amended complaint or their request for judicial notice filed in support of the demurrer.
The record also does not include a reporter’s transcript or other record of the demurrer
hearing.
       As discussed previously, however, the standard of review of the trial court’s
determination of the sufficiency of the pleading is de novo, not abuse of discretion. In
reviewing that ruling, we assume the truth of the properly pleaded allegations and matters
of which judicial notice was taken. (Chapman v. Skype Inc. (2013) 220 Cal. App. 4th 217,
225.) We do not review the trial court’s reasoning.
       Defendants’ demurrer to the second amended complaint and their request for
judicial notice were not included in the record on appeal. Plaintiff designated them to be
part of the record, but they were apparently omitted by the clerk. The register of actions
reflects that both documents were filed with the trial court. Plaintiff, however, did not
move the court to correct the record to include those documents prior to filing his
opening brief. (See Cal. Rules of Court, rule 8.155(b).)2
       The trial court granted defendants’ request for judicial notice. According to
defendants’ opening brief filed in this court and plaintiff’s opposition to the demurrer
filed in the trial court, the subject of defendants’ request for judicial notice was a


2       We note plaintiff attached the omitted documents (and omitted pages from his second
amended complaint) to his opening brief. Attachments to a brief on appeal are permissible only
when they are copies of materials found in the appellate record or citable materials that are not
readily accessible. (Cal. Rules of Court, rule 8.204(d).) Because plaintiff did not request that the
clerk correct the omission of these documents from the record, they are not materials in the
appellate record and were not properly attached to the opening brief.


                                                 5.
February 24, 2012, order entered in plaintiff and Pavlik’s dissolution proceeding, which
determined that their purported marriage was a nullity because plaintiff was never
properly divorced from his first wife. Plaintiff has requested that this court take judicial
notice of the clerk’s transcript in his appeal from the nullity order in the dissolution
action; that transcript includes the February 24, 2014, nullity order. Defendants have not
objected to plaintiff’s request for judicial notice. Accordingly, we grant plaintiff’s
request and will consider the effect of that order in determining this appeal. The
appellate record and the matters of which we take judicial notice are adequate for review
of the challenged judgment.
III.   Sufficiency of the Pleading
        “The general rule is that allegations of a complaint are to be liberally construed
with a view to substantive justice between the parties.” (Careau & Co. v. Security
Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1387.) If the factual
allegations of the complaint are adequate to state a cause of action under any legal theory,
the demurrer must be overruled. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19
Cal. 4th 26, 38.) The cause of action alleged need not be the cause of action intended by
the plaintiff. (Id. at pp. 38–39.)
       A.     Declaratory relief
       “A declaratory judgment action provides litigants with a quick, efficient means of
resolving a disputed issue.… [A] party may ask the court for a declaration of rights or
duties and the court may make a binding declaration of these rights.” (Mycogen Corp. v.
Monsanto Co. (2002) 28 Cal. 4th 888, 897.) The declaratory relief statute provides: “Any
person … who desires a declaration of his or her rights or duties with respect to another,
or in respect to, in, over or upon property, … may, in cases of actual controversy relating
to the legal rights and duties of the respective parties, bring an original action or cross-
complaint in the superior court for a declaration of his or her rights and duties in the
premises .… He or she may ask for a declaration of rights or duties, either alone or with

                                              6.
other relief; and the court may make a binding declaration of these rights or duties,
whether or not further relief is or could be claimed at the time.” (Code Civ. Proc.,
§ 1060.)
       “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 parties under a written instrument or with respect to property and requests that the
rights and duties of the parties be adjudged by the court. [Citations.] If these
requirements are met and no basis for declining declaratory relief appears, the court
should declare the rights of the parties whether or not the facts alleged establish that the
plaintiff is entitled to favorable declaration.” (Wellenkamp v. Bank of America (1978) 21
Cal. 3d 943, 947.)
       The second amended complaint alleged plaintiff held an interest, as partner and
husband of Pavlik, in their jointly owned business and the real property placed in her
name for her safety. It alleged Pavlik wrongfully transferred ownership of the real
property to a trust, of which she was the sole trustee, while the dissolution proceeding
was pending and she was restrained from transferring any property she owned,
individually or jointly. Additionally, she allegedly was coerced by defendants to execute
a deed of trust to Manolito, securing a fabricated debt of $350,000, also in violation of
the restraining order. As a result, defendants obtained the property after Pavlik’s death,
although plaintiff was still a co-owner of the property at the time of Pavlik’s death, and
plaintiff should have become the sole owner on her death. Defendants have since held
themselves out as owners of the Tehachapi property. The second amended complaint
further alleged defendants have taken possession of the business, TMRC, and Manolito
somehow became listed with the Secretary of State as chief executive officer of TMRC,
although defendants had no legitimate claim to the corporation or any of its offices.
       The second amended complaint sought, among other relief, a declaration of
plaintiff’s “rights of ownership of all businesses and property, both personal and real, co-

                                               7.
owned by Ms. Pavlik and plaintiff prior to her death and exclusively owned by plaintiff
thereafter.” Plaintiff also sought “declaratory relief as to his legitimate standing as the
founder, initial director and Chairman of the Board of Directors” of TMRC.
       The second amended complaint adequately alleged facts showing the existence of
an actual controversy relating to the legal rights and duties of the parties with respect to
the Tehachapi property and TMRC. It requested a determination and declaration by the
court of those rights and duties. Consequently, the second amended complaint
adequately alleges a cause of action for declaratory relief, and the demurrer should have
been overruled on that ground.
       B.     Conversion
       The second amended complaint indicated it was a complaint for “theft.”
Defendants contend there is no civil cause of action for “theft,” and the closest tort cause
of action is for conversion. They contend the second amended complaint did not
adequately allege the elements of a cause of action for conversion.
       “‘Conversion is generally described as the wrongful exercise of dominion over the
personal property of another. [Citation.] The basic elements of the tort are (1) the
plaintiff’s ownership or right to possession of personal property; (2) the defendant’s
disposition of the property in a manner that is inconsistent with the plaintiff’s property
rights; and (3) resulting damages. [Citation.]’ [Citation.] ‘Conversion is a strict liability
tort. The foundation of the action rests neither in the knowledge nor the intent of the
defendant. Instead, the tort consists in the breach of an absolute duty; the act of
conversion itself is tortious. Therefore, questions of the defendant’s good faith, lack of
knowledge, and motive are ordinarily immaterial.’” (Regent Alliance Ltd. v. Rabizadeh
(2014) 231 Cal. App. 4th 1177, 1181.)
       Defendants assert the first element was not met, because plaintiff alleged
conversion of real property, rather than personal property, and because he admitted he
lacked title to the property. The allegations of the second amended complaint are not so

                                              8.
limited, however. The pleading alleged: Plaintiff and Pavlik entered into a partnership
and “pursued the successful co-ownership of numerous businesses,” which were listed
and described. They accrued substantial assets, including the Tehachapi property. They
agreed that, “upon the death of either partner, the surviving partner/spouse would become
sole owner of all business and property interests, both real and personal.” Defendants
used their position as caretakers of the Tehachapi property to facilitate the theft of
plaintiff’s property, “both personal and real.”
       The second amended complaint repeatedly referred to the theft of plaintiff’s
property, “both personal and real.” It concluded that plaintiff was “the victim of theft of
his rightful businesses, … and his rightful property, both personal and real, including its
possession and use.” Thus, the second amended complaint adequately alleged personal
property as the subject of the alleged conversion.
       Defendants also argue that plaintiff lacked title to the real property and could not
establish a community property interest in it because his marriage to Pavlik was nullified
in the dissolution action. Title to the real property is irrelevant to the conversion cause of
action. Defendants have pointed to nothing in the second amended complaint or in any
matter of which the trial court took judicial notice that established plaintiff lacked an
ownership interest in the personal property plaintiff alleged was converted by defendants.
Consequently, the second amended complaint adequately alleged plaintiff’s ownership of
personal property, defendants’ theft of it by extortion (a disposition of the property in a
manner that is inconsistent with the plaintiff’s property rights), and plaintiff’s damage.
The demurrer should have been overruled on this ground as well.
       C.     Action to establish a constructive trust
       The second amended complaint also alleged facts sufficient to constitute a cause
of action to establish a constructive trust over the real property. “‘A constructive trust is
an involuntary equitable trust created by operation of law as a remedy to compel the
transfer of property from the person wrongfully holding it to the rightful owner.

                                              9.
[Citations.] The essence of the theory of constructive trust is to prevent unjust
enrichment and to prevent a person from taking advantage of his or her own
wrongdoing.’” (Burlesci v. Petersen (1998) 68 Cal. App. 4th 1062, 1069.) The main
situations in which a constructive trust may be imposed are set out in the Civil Code.
“One who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of
the owner.” (Civ. Code, § 2223.) “One who gains a thing by fraud, accident, mistake,
undue influence, the violation of a trust, or other wrongful act, is, unless he or she has
some other and better right thereto, an involuntary trustee of the thing gained, for the
benefit of the person who would otherwise have had it.” (Civ. Code, § 2224.)
       These sections state the only conditions necessary to create a constructive trust.
(GHK Associates v. Mayer Group, Inc. (1990) 224 Cal. App. 3d 856, 878.) “‘In order to
provide the necessary flexibility to apply an equitable doctrine to individual cases, these
sections state general principles for a court’s guidance rather than restrictive rules.
[Citation.] Thus, it has been pointed out that “a constructive trust may be imposed in
practically any case where there is a wrongful acquisition or detention of property to
which another is entitled.”’” (Ibid.)
       The second amended complaint alleged plaintiff and Pavlik became business
partners and later married. They purchased the Tehachapi property as co-owners with the
proceeds from their businesses, but put title in Pavlik’s name for her safety. Defendants
forced Pavlik to transfer the jointly owned real property into a trust as her separate
property, in her name only, with herself as the sole trustee. The pleading alleged this
breached a contract between plaintiff and Pavlik and violated a restraining order imposed
in the dissolution action. It also alleged Pavlik gave a deed of trust on the Tehachapi
property to Manolito to secure a fabricated debt, then transferred title to him in payment
of the debt. After Pavlik’s death, the Kern County Superior Court issued an order
indicating the Tehachapi property passed to plaintiff as Pavlik’s surviving spouse.
Nonetheless, defendants “illegally filed a change of ownership for the property … and

                                             10.
currently hold themselves out as the owners of said property.” Attached to the pleading
is a grant deed, which indicates the successor trustee of Pavlik’s trust transferred the
property to Manolito after Pavlik’s death.
       Defendants argue plaintiff held no ownership interest in the property because the
determination of the nullity of his marriage to Pavlik deprived him of any community
property interest in property held in her name. This argument ignores the allegations that
plaintiff held an interest in the property as Pavlik’s business partner. Further, the
determination of the nullity of the marriage of Pavlik and plaintiff did not nullify
plaintiff’s ownership interest (if any) in the property acquired by the parties during the
invalid marriage.
       When a marriage is void or voidable, but one party or both parties believed in
good faith it was valid, a party with a good faith belief that the marriage was valid is
deemed a putative spouse, and property acquired during the void marriage that would
have been community property if the marriage had been valid is divided as if it were
community property. (Fam. Code, § 2251.) In In re Marriage of Tejeda (2009) 179
Cal. App. 4th 973, the court concluded: Once either party is determined to be a putative
spouse, the union is a putative marriage and the statute requires the property of the
putative marriage to be divided as if it were community property. (Id. at pp. 982–983;
but see, In re Marriage of Guo & Sun (2010) 186 Cal. App. 4th 1491, 1500–1501
(disapproved on another ground in Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal. 4th
1113, 1126, 1128 fn. 12), disagreeing with Tejeda and concluding putative spouse status
may be invoked only by the innocent spouse.)
       Even if both parties were aware of the facts rendering their marriage invalid, they
may be entitled to equitable division of property in which each held an interest. In
Schotte v. Schotte (1962) 203 Cal. App. 2d 28 (Schotte), wife petitioned for dissolution and
husband sought annulment on the ground wife’s Mexican divorce from her previous
husband was not valid and she had still been married to him at the time of the parties’

                                             11.
purported marriage. (Id. at pp. 29–30.) Husband also filed a separate action to impose a
constructive trust on real property owned by wife, alleging he had advanced $12,000 for
improvements, based on wife’s promise she would make him a co-owner of the property.
(Id. at p. 30.) Wife contended husband was estopped to deny the validity of their
marriage because he was aware of the circumstances of the Mexican divorce at the time
he married wife. (Id. at pp. 30–31.)
       The court reversed the judgment of annulment: “A man who, with full knowledge
of the circumstances under which an invalid divorce was obtained by a previously
married woman, relies upon that decree, participates in a marriage ceremony with the
purportedly divorced woman and, thereafter, lives with her as husband and wife, is
estopped to deny the validity of the marriage which they attempted to effect. [Citations.]
The theory applied to such a situation ‘is that the marriage is not made valid by reason of
the estoppel but that the estopped person may not take a position that the divorce or latter
marriage was invalid.’” (Schotte, supra, 203 Cal.App.2d at p. 31.)
       Husband had contributed his separate funds to build rental units on wife’s real
property. (Schotte, supra, 203 Cal.App.2d at p. 32.) When he had questioned wife about
the promised joint deed, she had put him off, then refused to transfer any interest to him.
(Ibid.) The court concluded: “Where a husband invests his separate funds in improving
the property of his wife relying upon her oral promise to convey to him an interest therein
if he would do so, in the event she refuses to convey as promised her agreement will be
enforced by imposing a constructive trust on that property in favor of the husband,
because the breach of her oral promise constitutes a violation of the confidential
relationship between them.… In many instances, in order to effect equity and justice the
law disregards the difference between a valid and an invalid or void marriage.
[Citations.] Furthermore, the evidence herein establishes that, regardless of their marital
status, an actual confidential relationship existed between the subject parties, and this fact
supports an application of the foregoing constructive trust rule.” (Id. at pp. 32–33.)

                                             12.
Additionally, the imposition of a constructive trust in favor of husband was correct on a
theory that husband’s contribution to the improvement of wife’s property was obtained
by undue influence. (Id. at p. 33.) The judgment in favor of husband on the property
issue was affirmed.3
       Thus, the finding of nullity of the marriage of Pavlik and plaintiff in the
dissolution action was not dispositive of whether plaintiff held an interest in their
allegedly jointly owned businesses, real property, and personal property. Nothing in the
record of this action or the dissolution action indicates the court in the dissolution action
made any division or determination of the ownership of the property of Pavlik and
plaintiff. Defendants have not established that the nullity order or anything else prevents
plaintiff, as a matter of law, from pursuing the causes of action alleged in his second
amended complaint.
                                       DISPOSITION
       The judgment is reversed. The trial court is directed to vacate its order sustaining
defendants’ demurrer to plaintiff’s second amended complaint without leave to amend
and to enter a new order overruling the demurrer. Plaintiff is entitled to his costs on
appeal.




3       We note that, even when parties cohabit without benefit of marriage, one party may have
an interest in property acquired by the other during the course of their relationship, when the
parties so agreed in an express contract or when their conduct demonstrated “an implied contract,
agreement of partnership or joint venture, or some other tacit understanding between the parties.
The courts may also employ the doctrine of quantum meruit, or equitable remedies such as
constructive or resulting trusts, when warranted by the facts of the case.” (Marvin v. Marvin
(1976) 18 Cal. 3d 660, 665.)


                                              13.