Fullove v. Fullove

Background

Marianne Fullove sued Shaluinn Fullove over their alleged agreement concerning a condominium in Boulder, Colorado. The opinion states that the parties are mother and daughter. Marianne alleged that Shaluinn asked her to contribute to the condominium, that Marianne wired $145,000 to Shaluinn, and that they agreed to split monthly expenses, share access and control, allow certain use of the property, possibly rent it, and share profits or losses. Marianne also alleged that she made payments toward operating expenses, participated in homeowners’ association meetings and votes, and later was denied access to the condominium.

Marianne asserted six claims: financial elder abuse under California’s Elder Abuse Act, breach of an express joint venture agreement, breach of an implied joint venture agreement, breach of fiduciary duty, intentional misrepresentation, and conversion. Shaluinn moved to dismiss the Second Amended Complaint under Rule 12(b)(6), which allows dismissal for failure to state a legally sufficient claim. Marianne moved for permission to file a Third Amended Complaint.

Promissory Note and Judicial Notice

The court found that the promissory note dated November 9, 2019, attached to the Second Amended Complaint and cited in it, was incorporated by reference into the complaint and could be considered when deciding the motion to dismiss. The court denied Shaluinn’s request for judicial notice of a different version of the note signed by both parties because that version was not attached to or incorporated into the complaint, and its authenticity was disputed.

Statute of Frauds

The court held that, as currently pleaded, California’s statute of frauds barred relief on Marianne’s claims. That statute generally requires an agreement for the sale of real property or an interest in real property to be in writing and signed by the party against whom enforcement is sought. Marianne did not dispute that the alleged agreement was oral, but argued that exceptions applied.

The court rejected the joint-venture exception. Although Marianne alleged a shared interest, an agreement to share profits and losses, and joint control, the allegations did not show a business undertaking. The court viewed the alleged plans as primarily involving personal use of the condominium by the parties, friends, and family. The possible future rental arrangement was too vague and indefinite to support the exception.

The court also rejected the partial-performance exception. Under that exception, a party must show performance clearly related to the oral agreement and a substantial change in position that would make enforcement of the statute of frauds unjust or unconscionable. The court found that Marianne had not adequately alleged possession of the condominium as an owner would, and that her payments, decorating, maintenance, attendance at a homeowners’ association meeting, and hiring of a plumber did not amount to the required partial performance or substantial improvements.

The court further found that estoppel did not apply. Marianne argued that Shaluinn would be unjustly enriched by retaining her money, but the court found that the allegations showed no more than a violation of general fairness principles. The court also noted that Marianne could seek recovery through an action on the promissory note, making estoppel unavailable on the allegations presented.

Finally, the court found that the oral agreement could not be severed into enforceable and unenforceable portions. The alleged rights to access, possess, exclude others, rent the condominium, and receive a right of first refusal were central to Marianne’s claims. The complaint also did not clearly connect particular payments or services to separate promises that could be enforced independently.

Financial Elder-Abuse Claim

The court separately addressed Marianne’s financial elder-abuse claim. Marianne conceded that she had not alleged that she was over 65 and a California resident when the alleged abuse occurred. The court stated that amendment to allege California residency at the relevant times would not resolve the requirement that diversity jurisdiction is determined when the lawsuit begins. The court dismissed the elder-abuse claim with leave to amend.

Disposition

Judge Jeffrey White granted Shaluinn’s motion to dismiss the Second Amended Complaint without prejudice and granted Marianne’s request for leave to file a Third Amended Complaint. The conclusion states that Marianne may file an amended complaint within 21 days of the order. The court also denied Shaluinn’s request for judicial notice of the disputed, countersigned version of the promissory note.