Judge Ashfaq G. Chowdhury, Case Number: 24NNCV02131, Date: 2024-11-06 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV02131, Date: 2024-11-06 Tentative Ruling

Case Number: 24NNCV02131 Hearing Date: November 6, 2024 Dept: E

Case No: 24NNCV02131
Hearing Date: 11/6/2024 – 8:30am

Trial Date: UNSET

Case Name: ROSEMEAD AND DEL MAR, GOSS FAMILY LLC, a California limited liability company, v. E-Z CAR RENTAL, INC., a California corporation; ROGER FARRAJ, an individual; and DOES 1-10

[TENTATIVE RULING - DEMURRER]

RELIEF REQUESTED
“Plaintiff and Cross-Defendant, Rosemead and Del Mar, Goss Family LLC, a California limited liability company, will and hereby does demur to Cross-Complainants E-Z Car Rental, Inc., a California corporation and Roger Farraj, an individual’s Cross-Complaint for Declaratory Relief on each of the following grounds:

1 . The Cross-Complaint is subject to demurrer under California Code of Civil Procedure section 430.10(a) in that the court has no jurisdiction of the subject of the cause of action, as such cause of action is an improper form of appeal.

2. The Cross-Complaint is subject to demurrer under California Code of Civil Procedure section 430.10(c) in that there is another action pending between the same parties on the same cause of action and the subject matter alleged in the pleading has already been judicially decided in that other action, and is subject to res judicata, claim preclusion and estoppel.

3. The Cross-Complaint is subject to demurrer under California Code of Civil Procedure section 430.10(e) in that the Cross-Complaint did not state facts sufficient to constitute its sole cause of action for declaratory relief.

This Demurrer is based upon this notice, the attached Memorandum of Points and Authorities filed herewith, on the pleadings and papers filed herewith, and on such further oral and/or documentary evidence as may be presented at the time of the hearing of said Demurrer.”

(Mot. p. 1-2.)

BACKGROUND
Plaintiff, Rosemead and Del Mar, Goss Family LLC, (Rosemead) filed the instant action on 6/7/2024.

Plaintiff’s Complaint alleges two causes of action for: (1) Breach of Contract, and (2) Breach of Guaranty.

Plaintiff alleges that Plaintiff, as Lessor, and Defendants, as E-Z Car Rental, Inc. (Roger Farraj), entered into a Standard Industrial/Commercial Single-Tenant Lease for the subject premises. (Compl. ¶ 11.) Plaintiff alleges that concurrently, Defendant Farraj (Guarantor) delivered a written Guaranty of Lease (Guaranty) guaranteeing Defendants’ full and faithful performance under the Lease. (Compl. ¶ 12.)

Plaintiff alleges that Defendants failed to timely pay the Base Rent, that Plaintiff served a Three (3) Day Notice to Pay Rent or Quit, and Plaintiff filed a limited unlawful detainer action on or about April 17, 2024 against Defendants in the Northeast – Pasadena District of the Los Angeles Superior Court, Case No. 24PDUD01370 (unlawful detainer action) for possession of premises and for recovery of unpaid Rent. (See Compl. ¶¶ 26-28.)

The first cause of action for breach of contract is alleged against both Defendants. Plaintiff alleges that Defendants breached the Lease by failing and refusing to pay the full amount of rent due and failing to perform its obligation under the Lease. (Compl ¶ 42.)

The second cause of action for breach of guaranty is alleged against Defendant Farraj for, as Guarantor, failing and refusing to honor the terms of the Guaranty and pay the full amount of rent and other monetary amounts owed under the terms and conditions of the Lease. (Compl. ¶ 52.)

On 9/3/2024, Defendants/Cross-Complainants, E-Z Car Rental, Inc. and Roger Farraj filed a Cross-Complaint against Plaintiff, Rosemead.

The Cross-Complaint alleges one cause of action for declaratory relief.

In relevant part, Paragraph 4 of the Cross-Complaint alleges:

There presently exists a controversy between E-Z, on the one hand, and cross-defendants, and each of them, on the other hand, in that E-Z contends that plaintiff is not entitled to the $20,000 alleged in Paragraph 17 thru 18 of the complaint as Paragraph 52 of the lease called for payment by Plaintiff and none was made. The lease refers to the payments as for tenant improvements and are not mentioned in any way as a rent reimbursement credit or inducement for signing the lease. Accordingly, a declaration of this Court is necessary to determine the rights and obligations existing between E-Z and each cross-defendant, and the same can be determined and declared in the present action thus avoiding circuity of action and multiple suits.

(Cross-Complaint (CC) ¶ 4.)

For reference, Paragraphs 17-18 of the Complaint state:

17. The Lease also included an “inducement” provision by which Lessor agreed to reimburse Lessee a total amount of $20,000.00, for tenant improvements. (Lease Section 51.)

18. However, under Section 13.3, any Inducement Provisions (as defined in the Lease), including any tenant improvement costs, “shall be deemed conditioned upon Lessee’s full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor….”

(Compl. ¶¶ 17-18.)

PROCEDURAL ANALYSIS
Moving Party: Plaintiff/Cross-Defendant, Rosemead and Del Mar, Goss Family LLC, a California limited liability company

Responding Party: No Opposition by either Defendant/Cross-Complainant, E-Z Car Rental, Inc. or Roger Farraj

Moving Papers: Notice/Demurrer; Request for Judicial Notice; Proposed Order

Opposition Papers: No Opposition

Reply Papers: Declaration of Tammy M.J. Hong re: Non-Opposition

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): No – Plaintiff/Cross-Defendant served the instant demurrer via electronic mail/e-service to Defendant’s counsel at rguerrero@tellerialevy.com. Problematic with this is that on eCourt Defendant’s counsel’s email address is listed as lawaft@aol.com. Not only did Plaintiff not serve the email address that is listed on eCourt for Defendant’s counsel, but Defendant did not submit an Opposition. Therefore, this issue is to be addressed at the hearing.

Meet and Confer
A party filing a demurrer “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 parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

Here, Plaintiff’s counsel, Tammy M.J. Hong, appears to have met and conferred. (Hong Decl. ¶¶ 3-4.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) 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 pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

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 … 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.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

TENTATIVE RULING

Service
Plaintiff/Cross-Defendant served the instant demurrer via electronic mail/e-service to Defendant’s counsel at rguerrero@tellerialevy.com. Problematic with this is that on eCourt, Defendant’s counsel’s email address is listed as lawaft@aol.com. Not only did Plaintiff not serve the email address that is listed on eCourt for Defendant’s counsel, but Defendant did not submit an Opposition. Therefore, this issue is to be discussed at the hearing.

Declaratory Relief
Defendant/Cross-Complainant’s Cross-Complaint alleges in relevant part:

(Cross-Complaint (CC) ¶ 4.)

The premise behind Plaintiff/Cross-Defendant’s demurrer to the Cross-Complaint is that Defendant seeking declaratory relief in the Cross-Complaint for the $20,000 is improper because the Court in the unlawful detainer action already entered judgment in favor of Plaintiff for the full amount due, including the $20,000 amount. Plaintiff argues that the issue of whether the $20,000 amount would be included as “rent due” was already adjudged in favor of Plaintiff in the unlawful detainer action; therefore, by seeking declaratory relief as to Plaintiff’s entitlement to the $20,000 inducement recapture amount in the Cross-Complaint is seeking a second bite at the apple. Plaintiff argues this is improper because this has already been judicially determined, and Defendant did not seek an appeal in the UD action; therefore, Defendant cannot seek to relitigate that issue here.

Here, the Court finds Movant/Plaintiff’s argument availing.

In Plaintiff’s request for judicial notice, Plaintiff attached the Minute Order re: Ruling on Submitted Matter of June 11, 2024 in 24PDUD01370.

In 24PDUD01370, Plaintiff, Rosemead and Del Mar, Goss Family LLC, a California limited liability company, filed an unlawful detainer action against Defendant E-Z Car Rental, Inc., a California corporation; Roger Farraj, an individual.

In the Three-Day Notice to Pay Rent or Quit, Plaintiff sought, among other things, $20,000 for Recapture of Inducement Provisions.

In relevant part of the June 11, 2024 Minute Order, the Court stated:

The Court, having taken the matter under submission on 06/11/2024 for Non-Jury Trial, now rules as follows:

This action in unlawful detainer is based on the Standard Commercial Single Tenant Lease – Net , Exhibit 1, and the Three-Day Notice to Pay or Quit, Exhibit 2, which demanded rent of $25,640 or return of the rental property. At ¶ 4.1 the lease defines "rent" to be “all monetary obligations of lessee to lessor under the terms of this Lease" excepting only the security deposit.

Plaintiff proved service of the notice which included base rent, late fees, and $20,000 for the Recapture of Inducement Provisions found in ¶ 13.3 of the lease. ¶ 4.1 requires the court to classify the Recapture of Inducement Provisions as rent. This is a commercial case, so the parties were free to define rent as they wished and the lessor was entitled to demand estimated sums under Code of Civil Procedure §1161.1 as was done here.

…

The argument that the $20,000 simply was not subject to being reclaimed has appeal as a commonsense approach. Furthermore, requiring the tenant to "pay back" such a large sum seems to be akin to a forfeiture of the type that the law abhors. Nevertheless, the problem for reading the lease as defendants do is that the lease is clear in saying that the $20,000 for "loss of tenant improvements" constitutes "inducement provisions" which can be recaptured on any breach. See ¶ 13.3. Even if the court were to read that paragraph as applying only to material breaches, the result still seems to support plaintiff's view of the case.

For all these reasons, the court finds for the plaintiff.

WHEREFORE, THE COURT ORDERS JUDGMENT IN FAVOR OF THE PLAINTIFF AND AGAINST THE DEFENDANT FOR POSSESSION OF THE REAL PROPERTY AT ISSUE, FOR FORFEITURE OF THE LEASE, FOR RENT IN THE AMOUNT OF $25,090, FOR RENTAL DAMAGES FROM MAY 1, 2024 TO THE DATE OF JUDGMENT IN THE AMOUNT OF $5526.39, FOR RECOVERABLE COURT COSTS TO BE PROVEN BY A MEMORANDUM OF COSTS AND FOR ATTORNEY'S FEES IF LAWFUL TO BE PROVEN BY MOTION.

The Clerk will give notice.

It is so ordered.

Court orders judgment entered for Plaintiff Rosemead and Del Mar, Goss Family, LLC, a California limited liability company against Defendant E-Z Car Rental, Inc., a California corporation and Defendant Roger Farraj on the Complaint filed by Rosemead and Del Mar, Goss Family, LLC, a California limited liability company on 04/17/2024 for past rent due in the amount of $25,090.00 and holdover damages $5,526.39 for a total of $30,616.39.

(Min. Order 24PDUD01370, 6/11/2024, p. 1-2.)

Therefore, the Court finds Plaintiff’s argument availing that Defendant’s action for declaratory relief in the Cross-Complaint with respect to the $20,000 is improper because the Court in the UD action already ruled that Plaintiff was entitled to the $20,000 as included in rent due.

Further, the Court notes how Plaintiff’s demurrer explained that the inducement provision was only referenced in ¶¶ 17 and 18 of Plaintiff’s Complaint to provide a factual background, but that this Complaint does not seek damages related to the inducement provision because such damages were already sought in the UD action.

As stated in Burke v. City and Count of San Francisco:

Declaratory relief is a broad remedy, and the rule that a complaint is to be liberally construed is particularly *34 applicable to one for declaratory relief (Foster v. Masters Pontiac Co., 158 Cal.App.2d 481 [322 P.2d 592]). The distinguishing characteristic of the action for declaratory relief is that it may be brought before an actual invasion of rights has occurred (2 Witkin, Cal. Procedure (1954) § 447).

But there are limits to the availability of the remedy. It will not lie to determine a matter which is or has become moot (Pittenger v. Home Sav. & Loan Assn., 166 Cal.App.2d 32, 36 [332 P.2d 399]). Nor is resort to it warranted when “[t]here is no more than a conjecture or supposition ... that at some time in the future a controversy may arise ...” (Merkley v. Merkley, 12 Cal.2d 543, 547 [86 P.2d 89]). The controversy must be justiciable, as distinguished from a difference or dispute of a hypothetical or abstract character, and it must be definite, concrete and of a character which admits of specific and conclusive relief by judgment (Monahan v. Department of Water & Power, 48 Cal.App.2d 746, 751 [120 P.2d 730]; see also Wilson v. Transit Authority, 199 Cal.App.2d 716, 724 [19 Cal.Rptr. 59]; Conroy v. Civil Service Com., 75 Cal.App.2d 450, 456 [171 P.2d 500]).

(Burke v. City and County of San Francisco (1968) 258 Cal.App.2d 32, 33-34.)

Here, Plaintiff has demonstrated that the issue which Defendant/Cross-Complainant’s Cross-Complaint seeks relief for is moot because the UD Court already determined that Plaintiff was entitled to the $20,000 recapture of inducement provision as rent.

Cross-Defendant/Plaintiff’s demurrer to Defendant/Cross-Complainant’s Cross-Complaint for declaratory relief is SUSTAINED without leave to amend if Plaintiff demonstrates service of the instant demurrer. Further, the Court grants Plaintiff’s requests for judicial notice.