Judge Alison Mackenzie, Case 22SMCV02713 2023-05-23 Tentative Ruling

Judge: Alison Mackenzie, Case: 22SMCV02713, Date: 2023-05-23 Tentative Ruling

Case Number: 22SMCV02713 Hearing Date: May 23, 2023 Dept: 207

Background

Plaintiff Seyed Farid Hajimirsadeghi (“Plaintiff”) was a tenant of an apartment building owned by Defendant SM 10000 Property, LLC (“Defendant”). Plaintiff brings this action against Defendant arising from the theft of a collection of watches stored at his apartment worth $1,000,000. Plaintiff alleges Defendant either improperly failed to deactivate lost key cards to his apartment or, alternatively, that one or more of Defendant’s employees improperly access his apartment unit to steal his watches.

On February 3, 2023, Defendant filed a Cross-Complaint against Plaintiff alleging a sole cause of action for breach of contract, alleging Plaintiff breached his obligation under the lease agreement to obtain and maintain adequate renter’s insurance naming Defendant as an additional insured. Plaintiff now brings a demurrer to Defendant’s Cross-Complaint, arguing it fails to set forth sufficient facts to constitute a cause of action against him under Code Civ. Proc. § 430.10(e) and there is another action pending between the parties under Code Civ. Proc. § 430.10(c). Defendant opposes Plaintiff’s demurrer.

Legal Standard

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

Analysis

1. Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to “meet and confer in person or by telephone” with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading to resolve the objections to be raised in the demurrer. (C.C.P. § 430.41(a).) Plaintiff has not satisfied this meet and confer requirement. The declaration of counsel attached to Plaintiff’s motion indicates Plaintiff’s counsel sent a single letter to Defendant’s counsel prior to filing the demurrer without making any attempt to meet and confer by telephone or in person as required by section 430.41(a). (Eftekhari Decl. at ¶2.) Nonetheless, the Court will consider the merits of Plaintiff’s demurrer (C.C.P. § 430.41(a)(4)), however counsel are cautioned that any further failure to comply with these requirements will result in the relevant motion being taken off calendar.

2. Failure to State a Cause of Action

While Plaintiff purports to bring this demurrer under Code Civ. Proc. § 430.10(e) for failure to state sufficient facts to constitute a cause of action against it, Plaintiff offers no argument under this provision of the Code of Civil Procedure and instead Plaintiff’s demurrer focuses exclusively on the pendency of another action pending between these parties under Code Civ. Proc. § 430.10(c). Accordingly, the Court OVERRULES Plaintiff’s demurrer under section 430.10(e).

3. Abatement

A special demurrer to a complaint may be brought on the ground that another action is pending between the same parties on the same causes of action. (C.C.P. § 430.10(c); see also People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.) Although the existence of another substantially similar action will rarely appear on the face of a pleading, a demurrer on this ground may be based upon judicially noticed facts. (See Branson v. Sun–Diamond Growers (1994) 24 Cal.App.4th 327, 336 n.2; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 191–192.) The other pending action must involve the same parties in the same relationship, that is as plaintiff or defendant (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789), and must involve the identical cause of action in both suits such that a judgment in the first would be res judicata on the claim in the second (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384). However, abatement is required (or mandatory) only where the multiple actions are pending in courts of the same state. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.)

A plea in abatement is disfavored, but it will be successful if “(1) That both suits are predicated upon the same cause of action; (2) that both suits are pending in the same jurisdiction; and (3) that both suits are contested by the same parties.” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176.) Moreover, in order to qualify as “another action pending,” first, the parties must stand in the same relationship (i.e., plaintiff or defendant) in both suits. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) Second, the identical cause of action must be involved in both suits, so that a judgment in the first action would be res judicata on the claim in the present lawsuit. (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) The fact that some of the same issues are involved so that a finding in either case would give rise to collateral estoppel in the other is not enough if in fact two different causes of action are involved. (Id.) Further, courts have concluded that the fact that the same evidence tends to prove both causes is not enough if the causes of action are different. (Conservatorship of Pacheco, 224 Cal.App.3d at 176.)

Whether the causes of action are identical involves a comparison of the facts alleged which show the nature of the invasion of plaintiff’s primary right. (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) A plea in abatement may only be maintained where a judgment in the first action would be a complete bar to the second action. (Plant Insulation Co., supra, 224 Cal.App.3d at 787-88.) A plea in abatement is generally disfavored. (Williams v. State of California (1976) 62 Cal.App.3d 960, 964.)

Plaintiff’s argument under Code Civ. Proc. § 430.10(c) stems from Defendant’s prior filing of an unlawful detainer action against him on October 7, 2022, Case No. 22SMCV01764. (Ex. 1 to Plaintiff’s RJN.) Plaintiff argues the unlawful detainer action—which was filed before Plaintiff filed this instant action—is based on Plaintiff’s alleged nonpayment of rent as required by the lease agreement. Plaintiff claims that Defendant’s instant Cross-Complaint thus constitutes improper claim splitting because it is also based on Plaintiff’s alleged breach of the lease agreement. Plaintiff argues, without citation to any authority, that Defendant’s unlawful detainer action implicates the same primary right as Defendant’s instant Cross-Complaint because both actions are based on Plaintiff’s alleged failure to perform under the lease. Assertions unsupported by legal authority are presumed to lack merit. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, In Re Marriage of Nichols (1994) 27 Cal.App.4th 661, 673; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807.)

“[U]nder the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right,” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) Plaintiff has not demonstrated Defendant’s unlawful detainer action seeks compensation for the same harm alleged in the instant Cross-Complaint. Defendant’s unlawful detainer action seeks compensation for Plaintiff’s unpaid rent. The Cross-Complaint in this action seeks compensation for Plaintiff’s alleged failure to secure adequate renter’s insurance naming Defendant as an additional insured, which caused Plaintiff’s insurer to refuse Defendant’s claim relating to the theft which forms the basis of this action. Plaintiff has made no showing that a finding in the unlawful detainer action that he does not owe any rent for the property would constitute res judicata or collateral estoppel in this action regarding his asserted failure to obtain the renter’s insurance required by the lease.

The Court finds Plaintiff has failed to show the existence of “another action pending between the same parties on the same cause of action” under Code Civ. Proc. § 430.10(c). Plaintiff’s demurrer is OVERRULED.