Judge: Carolyn M. Caietti, Case: 37-2022-00017088-CU-PO-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00017088-CU-PO-CTL MEDINA VS SURTI DEVELOPERS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Surti Developers' unopposed Demurrer to Plaintiff's Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

A demurrer can only be used to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) This demurrer is to the third (nuisance) and fifth (breach of contract) causes of action for failure to state sufficient facts to constitute a cause of action. The Court previously sustained Defendant's demurrer to these causes of action with leave to amend. (ROA 43 – Minute Order dated March 24, 2023.) Here, Plaintiff did not oppose the demurrer and impliedly conceded on the merits. (San Diego Local Rule 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious.'].) Notwithstanding, the same defects in the original complaint persist in the FAC. The FAC does not allege sufficient facts to constitute nuisance. It remains unclear whether Plaintiffs allege private nuisance, public nuisance or both. For private nuisance, Plaintiffs did not allege the required actual ownership interest as mere lodgers. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125; see also, Sloan v. Court Hotel (1945) 72 Cal.App.2d 308, 314.) For public nuisance, the FAC does not allege the bedbug infestation actually affected 'an entire community or neighborhood, or any considerable number of persons.' (Civ. Code, § 3480.) At most, it alleges the infestation 'can spread.' (E.g., FAC, at ¶ 78.) The FAC also does not sufficiently allege facts constituting a breach of contract. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The FAC again refers to Exhibit A, a screenshot of what Plaintiffs allege is a receipt, which does not include any contract terms. But the FAC also states the 'Hotel Receipt...did not contain all the terms of the rental agreement...' (FAC, at ¶ 112.) The FAC then Calendar No.: Event ID:  TENTATIVE RULINGS

2963432  45 CASE NUMBER: CASE TITLE:  MEDINA VS SURTI DEVELOPERS LLC [IMAGED]  37-2022-00017088-CU-PO-CTL alleges 'implied' terms exist. (FAC, at ¶ 113.) Further, '[o]ne term that is not expressed in the hotel rental agreement...is the covenant of good faith and fair dealing.' (Id., at ¶ 117.) A breach of the covenant of good faith and fair dealing is not a breach of a contract, but a separate cause of action.

Taken as a whole, Plaintiffs have not alleged they entered into a contract with Defendant and how it was breached.

Plaintiff does not request leave to amend, nor identify how these defects can be cured.

Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Concluding Orders Defendant is ordered to file and serve an answer by October 27, 2023.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendant is also ordered to serve written notice of the Court's final order on all parties by October 17, 2023, unless all parties submit on the Court's tentative ruling or waive notice at the hearing.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

Calendar No.: Event ID:  TENTATIVE RULINGS

2963432  45