ZCA HOMES LLC VS. FELECIA A. JACKSON

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ 2:00 PM LINE 10 25-CIV-01197 ZCA HOMES LLC VS. FELECIA A. JACKSON

ZCA HOMES LLC MARIE G. QUASHNOCK FELECIA A. JACKSON THOMAS S. WROBEL

DEFENDANT FELICIA A. JACKSON’S DEMURRER TO PLAINTIFF ZCA HOMES LLC’S FIRST AMENDED COMPLAINT FOR SPECIFIC PERFORMANCE OF CONTRACT FOR SALE OF REAL PROPERTY; ALTERNATIVELY FOR DAMAGES FOR BREACH OF CONTRACT

TENTATIVE RULING:

As an initial matter, Department 28 is located at the Central Courthouse, Courtroom I, 800 North Humboldt Street, San Mateo, CA 94401. (See Cal. Rules of Court, Rule 3.1110 [the Notice “must specify” the location of the hearing].)

Defendant’s Demurrer is SUSTAINED. Plaintiff’s Request for Judicial Notice (RJN) is GRANTED.

A.

Background

The First Amended Complaint (FAC) alleges that plaintiff’s assignor offered to purchase the realty located at 219 Hillcrest Drive, Daly City, CA 94014 (the Property) from defendant for $700,000 on January 24, 2025, and defendant accepted the offer. (FAC, ¶¶ 1 & 6, exh. 1.) Plaintiff then deposited $5,010.00 of earnest money into escrow, but defendant breached the parties’ contract by failing to close escrow. (Id., ¶¶ 7-8.)

Defendant generally demurs to the FAC as to both (alternative) causes of action, asking that leave to amend be denied. (Code Civ. Proc., § 430.10, subd. (e).)

B. Legal Standards for Demurrer

“[I]t is well settled that a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief [citation].” (John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003, 1013 (John’s Grill), quoting Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 (Alcorn).)

A court reviewing a demurrer accepts as true the facts alleged in the complaint as well as those of which it may take judicial notice (John’s Grill, supra, 16 Cal.5th at p. 1008, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318), but does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967 (Aubry).)

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ “[I]t 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.” (Aubry, supra, 2 Cal.4th at p. 967.) The party seeking leave to amend has the burden of demonstrating the possibility that amendment can cure the legal defects of the pleading. (A.J. Fistes Corp. v. GL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 687.)

C. The Demurrer is Sustained

The Property at issue is the realty of an estate. (See Plaintiff’s RJN, ¶ 4; exh E, at p. 18.) “The rule is well settled that proceedings for the sale of the real property of a decedent are statutory, and that such a sale will be void unless the requirements of the statute are complied with.” (Hellman v. Merz (1896) 112 Cal. 661, 666 (Hellman), citations omitted.) As the governing law requires: “real property of the estate may be sold only after notice of sale has been published.” (Prob. Code, § 10300, subd. (a), emphasis added.) At the time of the alleged sale, defendant had only limited authority over the estate, and lacked the authority to sell the Property without court supervision. (Plaintiff’s RJN, ¶¶ 2-3; exhs. B & C; Prob. Code, § 10501, subd. (b)(1), & id., § 10308.)

The governing law further requires that:

all sales of real property shall be reported to and be confirmed by the court before title to the property passes to the purchaser, whether the sale is a private sale or a public auction sale and notwithstanding that the property is directed by the will to be sold or authority is given in the will to sell the property.

(Prob. Code, § 10308, subd. (a), emphasis added.) Then, “If the personal representative fails to file the report and a petition for confirmation of the sale within 30 days after the sale, the purchaser at the sale may file the report and petition for confirmation of the sale.” (Id., subd. (b).)

Plaintiff argues that it cannot petition for confirmation of the sale until defendant has performed by completing the sale, contradicting the governing statutes by taking the language of subdivision (b) to mean that it cannot petition for the court’s confirmation until after title has passed to it. However, defendant cannot close escrow and thus transfer title as plaintiff demands before obtaining confirmation from the court.

Plaintiff essentially argues that because defendant failed to fulfill the requirements of the Probate Code, including publishing a notice of sale, the alleged sale occurred outside the governance of the Probate Code. However, again, as a statute which plaintiff partially quotes requires: “real property of the estate may be sold only after notice of sale has been published.” (Prob. Code, § 10300, subd. (a), emphasis added.) Defendant’s failure to follow the law does not render the purported contract to sell real property of the estate enforceable.

Plaintiff’s authorities are not on point. Plaintiff cites language from Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 583-584, referring to the defendant’s arguments regarding a sale under the Probate Code, and describing language in another case regarding whether a sale was

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ “judicial” as “persuasive argument rather than authority.” (Id., at p. 584.) Plaintiff also attempts to rely upon Estate of Klauenberg 32 Cal.App.3d 1067, which was an appeal “from an order of the probate court confirming the sale of real property by the executor” (id., at p. 1069), in which the court found that the sale contract should be enforced. Plaintiff even quotes the requirement that if the representative of the estate proceeds timely to confirm the sale, then the contract is enforceable, which suggests that if the court has not approved the sale contract, then it is not enforceable. (Id., at p. 1070.)

Plaintiff further cites Wood v. Roach (1932) 125 Cal.App. 631, which provides that, “Since the above enactments an executor or administrator can negotiate a sale without first procuring an order, but no title passes until confirmation.” (Id., at p. 637, citation omitted.) Partially quoting this statement, plaintiff asserts that, “A representative ‘can negotiate a sale without first procuring an order,’ and what awaits confirmation is the passage of title, not the existence of the contract.” (Opp., at p. 1:21-23.)

Of course, negotiation does not necessarily mean that the contract exists, and even by its name, the petition is one to confirm the sale, without which title does not pass. Plaintiff quotes another case stating that where the executor had the power “to sell, still it was necessary to have the sale reported and confirmed by the court in order to convey the legal title” (In re Richards’ Estate (1908) 154 Cal. 478, 488) to support its contrary assertions that, “The object of confirmation is title.

It has never been the existence of the contract.” (Opp., at p. 6:11-12.)

Relying on Estate of Quackenbush (1975) 53 Cal.App.3d 751, 757-758 (Quackenbush), plaintiff asserts that where the decedent’s agreement is outside Probate Code, section 850, the Probate Court cannot order specific performance, so that plaintiff would bring this action before the Civil Division. However, Quackenbush, though addressing the exercise of an option, pertinently explains that:

“[A]fter lessor’s death, his executor lacked the power to bind the estate by his acceptance of the bid of any party without confirmation by the probate court.” As in that case, the instant “option” established no agreed upon price; it provided only that in the event of “a contemplated sale” during the term of the lease, the lessor will give lessee written notice of the “substance of the terms on which it is proposed to be made.” After decedent’s death the terms on which the property could be sold and the option exercised was subject to the control of the probate court.

(Quackenbush, supra, 53 Cal.App.3d at p. 755, citation omitted and emphasis added.)

This again shows that the sale contract is unenforceable until confirmed by the court. Then, title may transfer pursuant to the sale contract. Plaintiff devotes much energy to the idea that this court has jurisdiction over the instant action because the Civil Division and the Probate Division are one court. (Opp., at pp. 3:18-5:6.) However, this court has distinct divisions among which a case may be more appropriate to one than to another. Since the sale of a decedent’s

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ estate is governed by the Probate Code, this action sounds in probate law is most appropriately heard by the Probate Division (which is sometimes also referred to as the “Probate Court”).

Plaintiff also asserts that it has never contended that confirmation is unnecessary. (Opp., at p. 9:18.) Instead, it seeks specific performance of the contract so that title can be perfected. However, this argument presupposes that the contract is already enforceable. Apparently, plaintiff is arguing that the court should find the contract enforceable and then enforce it, citing In re Walker (1906) 149 Cal. 214 (Walker). But in Walker, the Court was concerned “solely with the question as to whether there is an existing trust, for the proper administration of which it is necessary that a trustee should be appointed.” (Walker, supra, at p. 218.)

Plaintiff contends that since defendant failed to fulfill the requirements of the law governing the sale of estate realty, the sale agreement should be treated as a privately negotiated contract outside of the probate law, and enforced. This attempts to evade the point that the sales contract is unenforceable unless and until confirmed by the court. Similarly, plaintiff argues that if the contract had been properly entered, then [Probate Code] section 9606 would shield defendant from personal liability and the demurrer would fail, but if not, then defendant is personally liable — but the latter part of this argument overlooks the point that there is as yet no enforceable contract under which defendant could be liable.

Also unpersuasively, plaintiff urges that the FAC alleges that defendant had the authority to be bound, and its allegations are to be treated as true, but whether defendant had the legal authority to be bound is a question of law rather than fact, and is not treated as true on demurrer. Plaintiff asserts that dismissal of the FAC with prejudice would be especially inappropriate since it would relieve defendant of any obligation to perform under the contract that she signed, and leave plaintiff without a remedy for its breach.

However, because the requirements of the Probate Code governing the sale of the realty of the estate had not been fulfilled, there was no valid contract for such a sale that could have been breached.

The second, alternative cause of action for breach of contract could state a claim only if there were a contract, that is, if plaintiff had an enforceable real estate sales contract that could have been breached. Because the sale of realty owned by an estate is governed by the Probate Code, which requires court confirmation of sale to become enforceable, the second cause of action does not state a claim.

Plaintiff further asserts that defendant cannot now demur on grounds that could have been raised in an earlier demurrer. (Code Civ. Proc., § 430.41, subd. (b).) However, this court expressly granted plaintiff leave to amend to contend with the language of Probate Code section 10308, subdivision (b) in the FAC (Order, filed on May 28, 2026), and the demurrer argues that the amendment fails to cure the pleading defects of the complaint.

Defendant also seeks an order removing the lis pendens and awarding attorney’s fees, which are beyond the scope of the demurrer. The court notes that a motion to expunge the lis pendens and for attorney’s fees is set for hearing on September 30, 2026.

September 2, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ D. Plaintiff’s Request for Judicial Notice in Opposition

Plaintiff’s Request for Judicial Notice (RJN) is GRANTED. (Evid. Code, § 452, subd. (d); § 453).

Judicial notice of these documents is limited to their existence, content, and authenticity, and does not extend to the truth of the factual matters contained therein. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, plaintiff’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, providing written notice of the ruling to all parties who have appeared in this action, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), which states in part that the “prevailing party on a tentative ruling is required to prepare a proposed order repeating verbatim the tentative ruling” (emphasis added). The order should be e-filed only, do not email or mail a hard copy to the court.