Judge David A. Rosen, Case Number: 23GDCV01538, Date: 2023-09-08 Tentative Ruling

Judge: David A. Rosen, Case: 23GDCV01538, Date: 2023-09-08 Tentative Ruling

Case Number: 23GDCV01538 Hearing Date: September 8, 2023 Dept: E

Case No: 23GDCV01538
Hearing Date: 09/08/2023 – 10:00am

Trial Date: UNSET

Case Name: LOMA VISTA INVESTMENT, LLC, a California Limited Liability Company, v. CJ PRIME INVESTMENT, LLC; AA PREMIUM, INC.; TM PRIME, INC.; MARVIN C. HUR, an individual; CONNIE KIM HUR, an individual; JONATHAN HUR, an individual; JENNIFER HUR, an individual; and DOES 1-10 IN OCCUPANCY, inclusive

TENTATIVE RULING ON DEMURRER

I. RELIEF REQUESTED

Defendants, Connie Hur, Marvin Hur, Jennifer Hur, Jonathan Hur, CJ Prime Investment LLC, AA Premium Inc., and TM Prime Inc. will and herby demur to Plaintiff’s Unlawful Detainer action on the grounds that:

(1) The instant action is duplicative of another pending action for the same property between Loma Vista Investment, LLC (Plaintiff) and Connie Hur, Marvin Hur, Jennifer Hur, Jonathan Hur, CJ Prime Investment LLC, and AA Premium Inc.;

(2) The instant action is wholly frivolous, duplicative, and filed in bad faith;

(3) Defendant TM Prime Inc. is not in possession of the subject premises located at 2650 Foothill Boulevard, La Crescenta, CA 91214-3510;

(4) This action is based on a defective notice.

II. BACKGROUND

The instant action is case number 23GDCV01538.

By way of background, case number 22GDCV00586 was initially filed on 09/07/2022, and a Third Amended Complaint (TAC) was filed on 08/14/2023. In case number 22GDCV00586, the general allegations stem from CJ Prime Investment, LLC. (CJ Prime), Marvin C. Hur, Connie Kim Hur, Jonathan Hur, Jennifer Hur, and AA Premium Inc. alleging that Loma Vista Investment, LLC. (Loma Vista), Albert Ahdoot, and Special Default Services, Inc. wrongfully foreclosed the Subject Property of 2650 Foothill Boulevard, La Crescenta, CA 91214-3510.

In case number 23GDCV00481, filed on 03/09/2023, and related to 22GDCV00586, Loma Vista brought an unlawful detainer action against CJ Prime, Marvin C. Hur, Connie Kim Hur, Jonathan Hur, and Jennifer Hur relating to the Subject Property. [AA Premium Inc. was later added as a Defendant on 07/05/2023.]

Despite 22GDCV00586 and 23GDCV00481 being related, on 06/30/2023, in 22GDCV00586, the Plaintiffs’ motion to consolidate 22GDCV00586 with 23GDCV00481 was denied.

On 08/11/2023, the unlawful detainer action in 23GDCV00481 was dismissed.

In 22GDCV00586, a motion to consolidate 22GDCV00586 with 23GDCV01538 is on calendar for 09/29/2023.

The instant action, 23GDCV01538, was filed on 07/20/2023. In this action, Plaintiff, Loma Vista Investment, LLC, filed an unlawful detainer action against CJ Prime Investment, LLC, AA Premium, Inc., TM Prime, Inc., Marvin C. Hur, Connie Kim Hur, Jonathan Hur, and Jennifer Hur relating to the Subject Property.

III. LEGAL STANDARDS FOR DEMURRERS

A. 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.)

B, 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.)

IV. ANALYSIS

A. CCP §430.10(c)

The first ground upon which Defendants demur to the Complaint on is CCP §430.10(c). “There is another action pending between the same parties on the same cause of action.” (CCP §430.10(c).) Defendants argue that the instant action is the same as 23GDCV00481 because both actions are unlawful detainer actions involving the same real property, the issues are identical, and the evidence supporting the cause of action are identical. Defendants further argue that Plaintiff cannot maintain two separate unlawful detainer actions against Defendants.

Here, the Court finds Defendants’ argument unavailing for several reasons.

First, the instant action and 23GDCV00481 technically do not involve the same parties. In the instant action, TM Prime, Inc. (TM Prime) is a Defendant, and TM Prime was not a Defendant in 23GDCV00481.

Second, 23GDCV00481 was dismissed on 08/11/2023 as noted in the Opposition and as conceded in the Reply. Therefore, Defendants’ arguments that there is a danger of conflicting rulings on issues of fact or law, that there would be an undue burden on Defendants, and that Plaintiff cannot maintain two separate unlawful detainer actions against Defendants pertaining to the same property are unavailing.

B, Defective Notice

Defendants argue that the demurrer should be sustained because the 3-day notice to quit is defective on its face because it cites multiple sections of the CCP that are inconsistent.

Defendants’ arguments on the 3-day notice are unavailing for several reasons.

Defendants state that Plaintiff bases its notice on CCP § 1161.1 and that the notice fails to meet the standard of 1161.1. Defendants also state that the notice is based on § 1161a(c), and Defendants argue that this section is inapplicable here.

Defendants’ arguments as to these two points are unavailing. The 3-day notice to quit, attached as Exhibit 2 to the Complaint, in relevant part states, “NOTICE IS HEREBY GIVEN pursuant to California Code of Civil Procedure §1161.l and/or §116la(b)(3) and/or § 1161 a( c) and/or California Civil Code §789 that your right to occupy the Property has been terminated as a result of a purchase of said Property sold in accordance with California Civil Code §2924 under a power of sale contained within a Deed of Trust which appeared of record against said Property. LOMA VISTA INVESTMENT, LLC has duly perfected title to said Property.” (Compl. Ex. 2.) Therefore, Defendants’ arguments about notice pursuant to 1161.1 and 1161a(c) being improper is unavailing because the 3-day notice was not necessarily given pursuant to those two sections. The 3-day notice said that notice is given pursuant to CCP 1161.1 and/or 1161a(b)(3) and/or 1161a(c) and or Civil Code §789.

Defendants then make several arguments with respect to CCP §1161a(b)(3) which are also unavailing.

Defendants argue that 1161(a)(b)(3) may apply to AA Premium Inc. as owner of the property at the time of the Trustee’s sale, but it does not apply to Connie Hur, Marvin Hur, Jennifer Hur, Jonathan Hur, and CJ Prime because they did not own the property at the time of the Trustee’s sale.

The Court does not find this argument availing because it is outside the scope of a hearing on a demurrer. “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. [Citation.]” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 citing SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)

Defendants also argue as follows:

More surprisingly, the caption of the complaint indicated that this action is based on 1161(a), and not on any of the CCP section cited in the notice. Any complaint for unlawful detainer must be based on the specific notice that was served, and the notice must be based on a specific section of the CCP, but Plaintiff failed to do so, making this notice defective on its face. There is no correspondence between the CCP cited in the notice and the one cited in the caption of the complaint. Also, neither of the sections of the CCP cited in the 3-day notice applies to Connie Hur, Marvin Hur Jennifer Hur, Jonathan Hur and CJ Prime Investment LLC. The notice is the entire premises of the unlawful detainer action and if the notice is improper, than even the complaint is uncurably defective.

(Def. Mot. p. 9.)

The Court finds these arguments unavailing for several reasons.

First, Defendants incorrectly state that the Complaint is based on § 1161(a). The caption of the Complaint indicates it is an action based on 1161a and not 1161(a).

Second, the argument that the action is not based on any of the CCP sections cited in the notice is incorrect. The Complaint indicates that the action is based on CCP §1161a. In relevant part, the 3-day notice states that notice is given pursuant to §§ 1161a(b)(3) and/or 1161a(c). Both §§ 1161a(b)(3) and 1161a(c) are subsections within the section 1161a. Therefore, to argue that the Complaint is not based on any of the sections cited in the notice is entirely incorrect.

Third, Defendants’ argument that “Any complaint for unlawful detainer must be based on the specific notice that was served, and the notice must be based on a specific section of the CCP but Plaintiff failed to do so, making this notice defective on its face,” is unavailing. Defendants cited no case law or statute to support their argument. Also, The Complaint is based on 1161a, and the 3-day notice explicitly mentions 2 specific subsections of 1161a.

Fourth, Defendants’ argument about neither of the sections of the CCP cited in the 3-day notice applying to Connie, Marvin, Jonatha, and CJ Prime is unavailing. Defendants’ cite no legal support for this assertion. Further, while it is not entirely clear what argument Defendants are trying to make here, it is likely that this argument is outside the scope of a hearing on a demurrer.

In Reply, Defendants argue that although the Opposition states that notice was based on § 1161a(b)(3), since Plaintiff cited § 1161a(b)(3) in addition to other CCP sections in the notice, the notice is defective because a notice based on different grounds and sections of the CCP is ambiguous and vague. In Reply, Defendants also argue it is not clear if the notice is requesting the payment of rent or if the notice is evicting the occupants regardless of if they paid rent.

Here, Defendants’ arguments are unavailing. Plaintiff’s Complaint sets forth the facts on which Plaintiff seeks to recover. Defendants cite no legal support for their argument that the notice must state if Plaintiff is requesting payment of rent or if they are evicting the occupants regardless of if they paid rent. Defendants also provide no legal support for their argument that the notice is not allowed to mention several sections upon which notice is given.

Under CCP §1166(a):

The complaint shall:

(1) Be verified and include the typed or printed name of the person verifying the complaint.

(2) Set forth the facts on which the plaintiff seeks to recover.

(3) Describe the premises with reasonable certainty.

(4) If the action is based on paragraph (2) of Section 1161, state the amount of rent in default.

(5) State specifically the method used to serve the defendant with the notice or notices of termination upon which the complaint is based. This requirement may be satisfied by using and completing all items relating to service of the notice or notices in an appropriate Judicial Council form complaint, or by attaching a proof of service of the notice or notices of termination served on the defendant.

(CCP §1166(a)(1)-(5).)

Here, Plaintiff appears to have complied with the requirements of 1166(a). Further, Defendants made no arguments with respect to 1166(a).

C, Jennifer Hur

Reply argues that this action should dismissed as to Jennifer Hur and that the demurrer should be sustained as to Jennifer Hur because: (1) Jennifer Hur is not an occupant of the Subject Property; (2) Jennifer is not a member or employee of AA Premium Inc that operates the restaurant on the Subject Property; (3) If possession is not at issue as to Jennifer Hur, then this court lacks jurisdiction over this Defendant.

Defendants’ arguments are unavailing and outside the scope of demurrer.

D. TM Prime, Inc.

Defendants’ arguments in their moving papers that the demurrer should be sustained as to TM Prime are unavailing because their arguments are outside the scope of a demurrer hearing.

However, as noted in the Reply, Plaintiff and Defendants reached a stipulation for the dismissal of Defendant TM Prime Inc. Because the Court signed the stipulation on 08/29/2023, the demurrer is deemed moot.

E.Sanctions/Frivolous/Duplicative

Defendants request sanctions against Plaintiff totaling $6,518.61 based on the theory that Plaintiff filed a frivolous duplicative lawsuit in bad faith. Defendants cite CCP §§ 128.5(a), 128.5(b)(1), and 128.5(b)(2) and argue that Plaintiff filed a frivolous unlawful detainer action because it was filed for no other purpose than to harass Defendants and to force Defendants in simultaneously defending two separate unlawful detainer lawsuits for the possession of the same property based on the same set of facts.

Opposition does not argue against sanctions.

In Reply, Defendants concede that 23GDCV00481 has been dismissed, but Defendants argue sanctions should be sustained because Plaintiff subjected Defendants to unnecessary attorney fees to draft a motion to strike as well as a substantial portion of the demurrer. Defendants again cite to 128.5(a), 128.5(b)(1), and 128.5(b)(2).

Here, Defendants’ sanctions request is DENIED.

As a preliminary matter, Defendants submit no evidence, nor do they provide a cogent argument as to how there was bad faith on behalf of the Plaintiff.

Further, it appears to the Court as if Defendants requesting sanctions under § 128.5(a) is improper.

“A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (CCP §128.5(a).)

However, Defendants fail to cite to § 128.5(f)(1)(A)-(B).

“A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.” (CCP §128.5(f)(1)(A).)

“If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (CCP §128.5(f)(1)(B).)

Here, Defendants do not appear to comply with either 128.5(f)(1)(A) or 128.5(f)(1)(B). More importantly, Defendants have not demonstrated bad faith, or that the actions/tactics were frivolous or solely intended to cause unnecessary delay.

V. TENTATIVE RULING ON DEMURRER

Defendants’ demurrer as to Defendant TM Prime, Inc. is OVERRULED as moot.

Defendants’ demurrer as to all other Defendants is OVERRULED.

Defendants’ sanctions request is DENIED.

Plaintiff’s evidentiary objection to the Declaration of Connie Hur that was attached to the Demurrer is SUSTAINED.

TENTATIVE RULING ON MOTION TO STRIKE

I. RELIEF REQUESTED

Defendants, Connie Hur, Marvin Hur, Jennifer Hur, Jonathan Hur, CJ Prime Investment LLC, AA Premium Inc., and TM Prime Inc. move to strike Plaintiff’s entire unlawful detainer case in 23GDCV01538.

This motion is based upon the grounds that (1) the instant action is duplicative of another pending action for the same property between the same parties and is wholly frivolous, and filed in bad faith; (2) TM Prime Inc. is not in possession of the subject premises.

II. Legal Standard Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

Further, CCP §431.10(a)-(c) states as follows:

(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

(CCP §431.10(a)-(c).)

III. ANALYSIS

Defendants move to strike the instant Complaint under two theories.

The first theory is that Defendants argue this action was filed in bad faith, knowing there is an identical matter already active and pending against Connie Hur, Marvin Hur, Jennifer Hur, Jonathan Hur, CJ Prime, and AA Premium in 23GDCV00481. Defendants argue that the only difference between 23GDCV00481 and the instant action is that Plaintiff added TM Prime Inc. to the instant action as a Defendant.

The second theory is that Defendants argue the Complaint should be stricken as to Defendant TM Prime Inc. because: (1) TM Prime is not in possession of the Subject Property; (2) TM Prime was suspended by the California Secretary of State on September 24, 2019 and by the California Franchise Tax Board since November 1, 2019; and (3) Since TM Prime is not in possession, this Court lacks jurisdiction over Defendant.

As to Defendants’ first theory for striking the Complaint based on 23GDCV00481 being an identical action, the Court finds this argument unavailing. As noted in the Opposition, 23GDCV00481 was dismissed on 08/11/2023.

As to Defendants’ second theory for striking TM Prime, the Court does not find Defendants’ arguments availing as a reason to strike TM Prime. However, as noted in the Opposition, the parties executed a written stipulation that Plaintiff agreed to dismiss the Complaint as to TM Prime without prejudice.

IV. TENTATIVE RULING ON MOTION TO STRIKE

Defendants’ motion to strike the entire Complaint is DENIED.

Defendants’ motion to strike the entire Complaint as to TM Prime is DENIED as moot.

In both Defendants’ demurrer and motion to strike, Defendants request judicial notice of the unlawful detainer case No. 23GDCV00481, attached as Exhibit A, pursuant to Evidence Code §§452 and 453 et seq.

Here, the Court GRANTS Defendants’ request for judicial notice in their demurrer and motion to strike.