Judge: Andrew E. Cooper, Case: 24CHCV03137, Date: 2025-03-03 Tentative Ruling

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Case Number: 24CHCV03137    Hearing Date: March 3, 2025    Dept: F51

Dept. F-51 

Date: 3/3/25

Case #24CHCV03137

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

DEMURRER

Demurrer filed: 12/10/24

MOVING PARTY: Defendant 2017-2 IH Borrower LP (“Defendant”)

RESPONDING PARTY: Plaintiff Julian Lawrence Colberg (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire first amended complaint (“FAC”).

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend.

BACKGROUND

Plaintiff alleges that he leased three different homes from Defendant, in Pacoima, California; Las Vegas, Nevada; and Mission Hills, California, over the course of six years, and that “each of the three homes was Ill prepared for move-in and each of the three homes showed fundamental dangerous issues at move-in.” (Compl. 2:5–7.)

On 8/30/24, Plaintiff filed his complaint against Defendant, alleging the following causes of action: (1) Trespass; (2) Fraud; (3) Negligence; (4) Wrongful Death – Loss of Consortium; (5) Breach of Duty of Care; (6) Unjust Enrichment; (7) Racial Discrimination & Ableism; and (8) Antitrust Collusion.

On 11/25/24, Plaintiff filed his FAC, alleging against Defendant the following causes of action: (1) Negligence; and (2) Breach of Contract.

On 12/10/24, Defendant filed the instant demurrer. On 2/18/25, Plaintiff filed his opposition.[1] No reply has been filed to date.

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ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) 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 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. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Defendant¿demurs to Plaintiff’s entire FAC on the basis that Plaintiff fails¿to allege facts sufficient to¿state¿any cause of action and is fatally uncertain.

A.    Meet-and-Confer 

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Defendant’s counsel declares that beginning on 10/28/24, he met and conferred telephonically and via email with Plaintiff regarding the issues raised in the instant demurrer, but the parties were unable to come to a resolution. (Decl. of Sean E. Smith ¶¶ 4–7.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Uncertainty

As a preliminary matter, Defendant argues that Plaintiff’s claims are time-barred by the applicable statutes of limitations. A statute of limitations begins to run when a cause of action accrues, and “a cause of action accrues at the time when the cause of action is complete with all of its elements.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806–807 [quotations and citations omitted].) Here, the relevant statutes of limitations for Plaintiff’s claims require suit to be filed within two years of accrual. (Code Civ. Proc. § 335.1.)

In the FAC, Plaintiff alleges that he was injured by the conditions of the subject properties in 2019, 2020, and 2023. (Compl. 3:20, 4:11–12, 5:7–8.) The Court notes that while Plaintiff’s second cause of action is labeled as one for Breach of Contract, the substantive allegations amount to premises liability and negligent misrepresentation. (Id. at 7:1–8:24.) To the extent that Plaintiff alleges a breach of contract, the Court agrees with Defendant that “the FAC fails to identify any contract, and thus, does not satisfy the first element for breach of contract.” (Dem. 9:10–11; Code Civ. Proc. § 430.10, subd. (g).)

Based on the foregoing, the Court agrees with Defendant that “Plaintiff’s FAC is uncertain as to: (1) time and (2) the nature of the alleged torts.” (Dem. 7:7; Code Civ. Proc. § 430.10, subd. (f).) Accordingly, the demurrer against Plaintiff’s FAC is sustained.

C.    Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the first demurrer brought against Plaintiff’s operative pleading. Therefore, based on the Court’s liberal policy in granting leave to amend, the Court grants Plaintiff 30 days leave to amend the FAC so that he may allege facts sufficient to state his causes of action.

CONCLUSION

The demurrer is sustained with 30 days leave to amend.