Judge: Elaine Lu, Case: 22STCV16690, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV16690    Hearing Date: April 20, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

             On May 20, 2022, Plaintiff Michelle Canizales (“Plaintiff”) filed the instant partition and quiet title action against Defendant Michael Canizales (“Defendant”).  The complaint alleges that Plaintiff and Defendant are co-owners of 14521 Jaguar Street, Los Angeles CA 91345 (“Subject Property”) with Plaintiff owning a 75% interest in the Subject Property and Defendant owning a 25% interest in the Subject Property.  (Complaint ¶¶ 6-7.)  There is a dispute in the parties’ respective ownership interests and in the use of the property.  (Id. ¶¶ 11, 13.)  Plaintiff seeks a determination of the parties’ ownership interests in the subject property and a partition by sale.

            On February 23, 2023, Defendant filed the instant demurrer to the complaint.  No opposition or reply has been filed.

            On April 19, 2023, Plaintiff filed a First Amended Complaint.

Legal Standard

A demurrer can be used only 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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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 Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  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.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “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.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)

Defendant has satisfied the meet and confer requirement.  (Rodriguez Decl. ¶¶ 2-3.)

Plaintiff’s Filing of a First Amended Complaint

            Plaintiff is entitled to amend at least once without leave to court before the answer or demurrer is filed; or if Defendant demurs, before the opposition is due on the hearing on the demurrer.  (CCP § 472(a).) 

On April 19, 2023 – long after Plaintiff’s opposition was due -- Plaintiff attempted to file a First Amended Complaint.  Plaintiff’s filing of a First Amended Complaint just one day before the hearing on the instant demurrer is untimely and does not moot the instant demurrer.

Discussion

            Defendant contends that the entire complaint fails because (1) there is no legal description of the property, (2) the complaint does not contain a date of which the determination is sought, and (3) Plaintiff failed to properly verify the complaint.

            “The purpose of a quiet title action is to establish title against any adverse claims to property or any interest therein.”  (Water for Citizens of Weed California v. Churchwell White LLP (2023) 88 Cal.App.5th 270, 281.)  A complaint seeking quiet title “shall be verified and shall include all of the following: [¶] (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. [¶] (c) The adverse claims to the title of the plaintiff against which a determination is sought. [¶] (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. [¶] (e) A prayer for the determination of the title of the plaintiff against the adverse claims.”  (CCP § 761.020.) 

            Legal Description

            Here, the complaint includes a legal description of the Subject Property in the exhibit attached to the complaint.  (Complaint, Exh. A [“Lot 12 of Tract No. 15363, as per map recorded in Book 544, Page(s) 26 and 27 of maps, in the office of the County Recorder of Los Angeles County, State of California. Property more commonly known as: 14521 Jaguar St., Mission Hills, CA 91345”].)  Accordingly, Defendant’s demurrer to the complaint for lack of legal description is overruled.

            Date of Determination

            Here, the complaint specifies that “Plaintiff seeks a determination of her fee simple title in this action as of October 8, 1999.”  (Complaint ¶ 17.)  Accordingly, the complaint clearly specifies a date of determination as required.  Therefore, Defendant’s demurrer to the complaint for lack of a date of determination is overruled.

            Verification

             “In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same.”  (CCP § 446(a).)

            Here, while the complaint is subscribed by the Plaintiff, the complaint does not include a verification under oath swearing that the information is true of her knowledge “except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true”.  (CCP § 446(a).)  Accordingly, the complaint is not properly verified as required.

            Accordingly, Defendant’s demurrer to the complaint based on the sufficiency of verification is SUSTAINED.

Leave to Amend

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. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

            “[T]he failure to verify a pleading—even where the verification is required by statute—is a mere defect curable by amendment.”  (United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 915.)  Accordingly, leave to amend is GRANTED.

CONCLUSIONS AND ORDER

Based on the forgoing, Defendant Michael Canizales’ demurrer to the complaint is SUSTAINED WITH LEAVE TO AMEND.

On April 19, 2023, Plaintiff attempted to file a First Amended Complaint.  The proposed First Amended Complaint appears to be verified, curing the defect noted above.  Accordingly, the Court Clerk shall file the First Amended Complaint that Plaintiff electronically lodged on April 19, 2023.

Defendant is to file and serve a responsive pleading within 30 days.

The case management conference is continued to May 24, 2023 at 8:30 am.  An OSC re proof of service of the First Amended Complaint on all defendants, including “all persons unknown, claiming any legal or equitable right, title, estate, lien or interest in the property” is set for May 24, 2023 at 8:30 am.  Plaintiff is ordered to appear on May 24, 2023 at 8:30 am and show cause why sanctions should not be imposed for failure to file timely proof of service on all defendants.  No later than five days prior to the OSC, Plaintiff’s Counsel is ordered to file a declaration explaining Plaintiff’s Counsel’s efforts to serve all defendants, including efforts to serve by publication, and explaining why monetary sanctions should not be imposed for failure to file proof of service of the First Amended Complaint on all defendants.

Moving Party is to give notice and file proof of service of such.

DATED: April 20, 2023                                                         ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court