Filed 1/8/15 McBride v. Stewart CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


ANA McBRIDE,                                                         B249439

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC474777)
         v.

GIRLEE STEWART,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Roy L. Paul, Judge. Affirmed.
         Ana McBride, in pro per., for Plaintiff and Appellant.
         Marc S. Duvernay for Defendant and Respondent.
       Plaintiff Ana McBride filed suit against Girlee Stewart, individually and as the
administrator of the Estate of Brenda Pillors (the Estate) to establish her rights in certain
real property owned by Ms. Pillors at the time of her death in 2005. The trial court
granted the Estate’s demurrer to the complaint, ruling that plaintiff’s action was time-
barred. We conclude the complaint fails to state a cause of action upon which relief
could be granted, and so affirm the judgment.


                   FACTUAL AND PROCEDURAL BACKGROUND
       Prior to his death, Isaiah Pillors and his daughter, Brenda, held title as joint tenants
to residential real property located at 2621 Virginia Road in Los Angeles (the Property).
When Mr. Pillors died in 1999, Ms. Pillors became the fee simple owner of the Property.
       According to the factual allegations of the first amended complaint, which we take
to be true for purposes of this appeal, plaintiff and Ms. Pillors, a resident of Virginia,
entered into a written agreement for plaintiff’s purchase of the Property. That agreement
was destroyed by Ms. Pillors’s fiancé, Marwan Burgan, in 2005, shortly after Ms.
Pillors’s death; plaintiff did not produce a copy of the agreement. The complaint recites
the terms of the agreement as follows: “On or about March 1, 2004, Plaintiff and [Ms.
Pillors] entered into a written Agreement in which [Ms. Pillors] agreed to sell the Real
Property to the Plaintiff and further agreed that [Ms. Pillors] would pay for: water,
gardener, mortgage, property taxes and insurance. They agreed that Plaintiff would pay
for the repairs to get them started and [Ms. Pillors] would reimburse $4,000, and the
remaining expenses would be held towards the purchase of the property to take place in
August 2006. [¶] . . . Another consideration was the renovations done to the home; . . . in
return [Ms. Pillors] turned over possess[ion] of the property in March 2004, renovations
were completed in August 2004 and Plaintiff moved-in in mid-August of 2004.” The
complaint does not recite the price plaintiff agreed to pay to purchase the Property.
       Plaintiff alleges that the Estate “ratified” the foregoing agreement when, in April
2010, plaintiff and Girlee Stewart, Ms. Pillors’s great-aunt who commenced a probate
proceeding in Louisiana in connection with Ms. Pillor’s estate, executed a “California

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Residential Purchase Agreement and Joint Escrow Instructions” pursuant to which
plaintiff agreed to buy and Ms. Stewart agreed to sell the Property for the purchase price
of $160,000, to be financed by a lender of plaintiff’s choice, with a 90-day escrow period.
The sale did not close, however, because the title company would not insure the title
without an order for sale issued by a California probate court, and the lender would not
finance the purchase in the absence of title insurance.
       In late December 2010, after Ms. Stewart commenced a probate proceeding in
California, a second “California Residential Purchase Agreement and Joint Escrow
Instructions” was executed by plaintiff and Ms. Stewart on behalf of the Estate, on
substantially the same terms as the April 2010 agreement. The escrow period provided
for in the agreement was set to expire on March 29, 2011. Plaintiff had difficulty
securing financing for the purchase, due in part to the deteriorated condition of the
Property. On March 15, 2011, plaintiff sent an e-mail to the Estate’s attorney asking “if I
get another lender to step[ ]in would the estate be willing to ex[t]end the escrow period?”
The Estate’s attorney replied the following day, informing plaintiff that neither the
administrator nor the beneficiaries of the Estate would agree to extend the escrow period.
Consequently, the sale of the Property to plaintiff was not consummated.
       Thereafter, Ms. Stewart, on behalf of the Estate, filed two unlawful detainer
actions to obtain possession of the Property, which ultimately resulted in plaintiff’s
removal from the Property on January 25, 2012.
       On December 7, 2011, plaintiff filed this lawsuit against the Estate and Doe
defendants alleging causes of action for breach of contract and adverse possession, and
seeking specific performance, declaratory relief, quiet title, a preliminary and permanent
injunction, and monetary damages. On July 16, 2012, at plaintiff’s request, the Estate’s
default was entered. The Estate moved to set aside the entry of default on August 6,
2012, on the grounds that the default was taken through the Estate’s mistake,
inadvertence, surprise or excusable neglect or, in the alternative, through the mistake,




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inadvertence, surprise or excusable neglect of the Estate’s attorney. The motion was
accompanied by an attorney affidavit of fault pursuant to Code of Civil Procedure section
473, subdivision (b), but did not include the Estate’s proposed responsive pleading, also
required by that section. On October 12, 2012, the Estate filed its demurrer to the
complaint. The trial court thereafter granted the motion and set aside the default.
       After a noticed hearing, the trial court sustained the Estate’s demurrer to the
original complaint with leave to amend. Plaintiff filed a first amended complaint, to
which the Estate again demurred. The trial court sustained that demurrer without leave to
amend, ruling that all of plaintiff’s claims were based on the 2004 agreement entered into
with Ms. Pillors, and that any claims arising under that agreement were barred by the
statute of limitations.
       Plaintiff timely appealed the resulting judgment of dismissal.


                                        DISCUSSION
       1. Motion to set aside the default
       Plaintiff challenges the propriety of the trial court proceedings because the
Estate’s application for relief from default was not accompanied by its answer to the
complaint as required by Code of Civil Procedure section 473, subdivision (b). The
argument is not well-taken. Although the Estate’s application to set aside the default did
not include its proposed responsive pleading as required by statute, the Estate corrected
this deficiency by filing a demurrer to the original complaint before the trial court ruled
on the motion. Contrary to plaintiff’s contention, the court was not required to deny the
application simply because the Estate had not included its demurrer with the motion to set
aside the default. A trial court has discretion to permit the untimely filing of a demurrer.
(Jackson v. Doe (2011) 192 Cal.App.4th 742, 750; McAllister v. County of Monterey
(2007) 147 Cal.App.4th 253, 281 [“Even assuming for argument’s sake that the demurrer
was filed late, the trial court nevertheless had discretion to entertain it”].)




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       2. Demurrer to the complaint
       Plaintiff maintains that her amended complaint properly set forth causes of action
for breach of contract and adverse possession such that the trial court erred in sustaining
the Estate’s demurrer.
       “Our Supreme Court has set forth the standard of review for ruling on a demurrer
dismissal as follows: ‘On appeal from a judgment dismissing an action after sustaining a
demurrer without leave to amend, the standard of review is well settled. The reviewing
court gives the complaint a reasonable interpretation, and treats the demurrer as admitting
all material facts properly pleaded. [Citations.] The court does not, however, assume the
truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]”
[Citation.] However, 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. [Citation.] And it is an
abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows
there is a reasonable possibility any defect identified by the defendant can be cured by
amendment. [Citation.]’ [Citations.]” (Payne v. National Collection Systems, Inc.
(2001) 91 Cal.App.4th 1037, 1043–1044.)
       We begin by noting that while plaintiff’s complaint set forth six “causes of
action,” she claims an interest in the subject Property based on two discrete legal
theories: a contractual right to purchase to the Property and a claim of ownership through
adverse possession. Plaintiff’s remaining “causes of action” for specific performance,
declaratory relief, quiet title and injunctive relief are dependent upon the success of the
breach of contract or adverse possession claims. We therefore discuss these two theories
which plaintiff maintains establish her rights in the Property.




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       a. Breach of contract
       “[T]he elements of a cause of action 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.)
       Plaintiff relies on the original agreement with Ms. Pillors to establish her right to
purchase the Property, and contends that the Estate breached that agreement by failing to
transfer to Property to her. According to the amended complaint, the subject agreement
was entered into in March of 2004 and anticipated a closing date in August 2006. The
allegations of the complaint establish that the four year statute of limitations for breach of
a contract in writing (Code Civ. Proc., § 337) expired in or about August of 2010, well
before plaintiff filed this lawsuit in December 2011.
       Plaintiff also maintains that the Estate breached the December 2010 agreement to
sell the Property to her.1 However, plaintiff admits that she could not obtain FHA
financing for the purchase due to needed repairs, and therefore requested an extension of
the closing date in order to locate a new lender. The Estate declined to extend the closing
date, which it had a right to do under the terms of the purchase agreement. Consequently,
plaintiff does not, and cannot, allege that she fully performed all obligations required of
her pursuant to the terms of the December 2010 purchase agreement.
       Based upon the foregoing, we conclude that the complaint fails to state a cause of
action for breach of contract. Moreover, plaintiff proffered no additional facts which, by
amendment of the complaint, would state an actionable breach of contract claim.
Consequently, the trial court properly sustained the demurrer to her cause of action for
breach of contract without leave to amend.




1
       Because this agreement superceded the April 2010 purchase and sale contract, we
do not discuss the latter agreement.
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       b. Adverse possession
       “The elements necessary to establish title by adverse possession are: (1) tax
payments, (2) actual possession which is (3) open and notorious, (4) continuous and
uninterrupted for five years, (5) hostile and adverse to the true owner’s title, and (6)
under either color of title or claim of right. The party asserting title by adverse
possession has the burden of proving affirmatively each one of these elements.”
(California Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803.) A
complaint seeking to quiet title based on adverse possession “shall allege the specific
facts constituting the adverse possession.” (Code Civ. Proc., § 761.020.)
       Plaintiff pleads her claim of adverse possession in conclusory terms: “Plaintiff’s
possession has been actual, open, hostile, continuous, and exclusive from March 2004 to
January 25, 2012, when defendants . . . forcibly remove[d] the plaintiff after seven years
and ten months of possession.” As indicated above, the initial possession was pursuant to
her agreement with Ms. Pillors, and thus was not hostile and adverse to the true owner’s
title. The complaint sets forth certain “hostile” actions of Ms. Pillors’s fiancé,
Mr. Burgan (who tore up the written contract) and Ms. Stewart (who hired a real estate
broker and attempted to sell the property in 2007 before she was appointed personal
representative of the Estate). She does not, however, explain how her permitted
possession of the Property was transformed into hostile possession, other than to assert
that the Estate breached her original contract with Ms. Pillors. And indeed, plaintiff cites
ongoing discussions with Mr. Burgan and Ms. Stewart in which they did not object to but
rather acquiesced in her continued possession of the Property. Moreover, in April 2010
and again in December 2010, plaintiff executed a “California Residential Purchase
Agreement and Joint Escrow Instructions,” both of which described the Property as being
“tenant-occupied,” with the tenant (that is, plaintiff) to remain in possession subsequent
to the close of escrow, and impliedly acknowledged that the Estate’s title was superior to
any interest plaintiff had in the Property.




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       In sum, the first amended complaint fails to state a claim for which relief may be
granted, and plaintiff has suggested no further amendment to the complaint which would
correct the deficiencies noted above. Consequently, the trial court properly sustained the
Estate’s demurrer to the amended complaint. And because neither of the legal theories
upon which plaintiff claimed an interest in the Property survived demurrer, her additional
causes of action for specific performance, declaratory relief, quiet title and injunctive
relief were properly dismissed as well.


                                      DISPOSITION
       The judgment is affirmed.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                            GOODMAN, J.
We concur:



       TURNER, P.J.



       MOSK, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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