Judge Barbara M. Scheper, Case 20STCV47947 2022-08-22 Tentative Ruling

Judge: Barbara M. Scheper, Case: 20STCV47947, Date: 2022-08-22 Tentative Ruling

Case Number: 20STCV47947 Hearing Date: August 22, 2022 Dept: 30

Dept. 30

Calendar No.

Golan vs. Encino Villas Condominium Association, Inc. et. al., Case No. 20STCV47947

Tentative Ruling re: Defendant’s Demurrer to First Amended Complaint

Defendant Encino Villas Condominium Association, Inc (Defendant) demurs to the second and third causes of action in the First Amended Complaint (FAC) of Plaintiff Amir Golan (Plaintiff). The demurrer is sustained.

In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

Plaintiff’s original Complaint asserted three causes of action against Defendant for (1) Negligence, (2) Unfair Competition under Cal. Bus. & Prof. Code § 17200, and (3) Conversion of HOA Dues. The Court sustained Defendant’s unopposed demurrer to the Complaint without leave to amend on January 5, 2022. Plaintiff’s counsel did not appear at the hearing on the demurrer.

Plaintiff later sought relief from the Court’s January 5 Order on grounds of excusable neglect by Plaintiff’s counsel. The Court granted the motion for relief on June 2, 2022, and sustained the demurrer with ten days leave to amend.

Plaintiff filed the First Amended Complaint on June 13, 2022. The FAC asserts three causes of action against Defendant for: (1) Negligence; (2) Nuisance; and (3) Accounting and Restitution based on Unjust Enrichment.

Defendant demurs to the second and third causes of action solely on the grounds that Plaintiff has improperly added those new causes of action without obtaining leave of court. The Court agrees.

“[A] litigant does not have a positive right to amend his pleading after a demurrer thereto has been sustained. . .. Under section 472, a plaintiff may only amend as a matter of course before an answer or demurrer is filed or before trial of the issue of law raised in the demurrer. At that point ‘the plaintiff's right to amend as a matter of course is gone.’” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612–613.)

“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. [Citation.]” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Here, Plaintiff did not obtain leave to add new causes of action after the Court sustained the demurrer to the Complaint with leave to amend. The new causes of action exceed the scope of the Court’s order granting leave.

Plaintiff argues that Defendant must contest the pleadings on these grounds via a motion to strike, which Defendant has not requested. However, the court may strike out any part of a pleading not in conformity with a prior order either “upon a motion made pursuant to Section 435 [motion to strike], or at any time in its discretion.” (Code Civ. Proc. § 436 [emphasis added]; see Harris, supra, 185 Cal.App.4th at 1023 [sustaining demurrer to new cause of action for exceeding scope of order granting leave to amend].) Defendant’s requests for judicial notice of the January 5 and June 2 Orders are sufficient to show grounds for this demurrer.

Accordingly, the demurrer is sustained as to the second and third causes of action. Defendant is ordered to answer the first cause of action within ten (10) days of today’s date. If Plaintiff wishes to add new causes of action he must file a motion for leave to amend on regular notice.