Judge: Frank M. Tavelman, Case: 22BBCV00373, Date: 2022-07-29 Tentative Ruling

Case Number: 22BBCV00373    Hearing Date: July 29, 2022    Dept: A

ALLEGATIONS:

MGP XI-GPI Laurel Plaza, LLC ("Plaintiff") filed a commercial unlawful detainer against Winvest Ventures, LLC d.b.a. Whealthy Restaurant (“D/Winvest”) and Ronald Wizgan (“D/Wizgan”, and together, “Defendants”).

HISTORY:

The Court received the Demurrer filed by Defendants on June 27, 2022; the opposition filed by Plaintiff on July 18, 2022; and no reply was filed by Defendants.

RELIEF REQUESTED:

Defendants demur to the Complaint.

ANALYSIS:

I.          LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP §430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP §§430.10(e) and (f), a demur to the pleading is appropriate when the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II.        REQUEST FOR JUDICIAL NOTICE

A.    Defendants’ Request for Judicial Notice

Defendants request the Court take judicial notice of the summons and complaint in the instant action. The Court takes judicial notice of this document pursuant to Evid. Code §452(d).

B.     Plaintiff’s Request for Judicial Notice

The Court first notes that Plaintiff has not complied with local rules regarding requests for judicial notice. Pursuant to CRC 3.1113(l), a request for judicial notice must be made in a separate document listing the specific items for which notice is requested. Plaintiff instead requested judicial notice within the body of their opposition brief. The Court will nonetheless sua sponte take judicial notice of Case. No. 22BBCV00372 pursuant to Evid. Code § 452(d).

III.       MERITS

Defendants argue that they have no duty to pay rent under the written lease agreement because:  (1) there was an unmet condition precedent to Defendant’s rental obligation;  (2) there is another case pending (Case No. 22BBCV00372) between the parties on the same cause of action; and (3) the unlawful detainer cause of action is uncertain because the written lease agreement attached to the compliant also references 19 different exhibits, but none of the referenced exhibits were attached; and (4) the complaint is uncertain for failing to expressly state if the rental obligation in paragraph 6(d) was enacted through a written or oral agreement.

In opposition, Plaintiff argues that (1) the complaint sufficiently states all the elements for an unlawful detainer cause of action;  (2) although Case No. 22BBCV00372 is between Plaintiff and D/Wizgan, the two actions refer to different premises, furthermore, Case No. 22BBCV00372 also names D/Winvest Ventures, LLC d.b.a. Mr. Fries Man as a defendant, rather than Winvest Ventures, LLC d.b.a. Whealthy Restaurant; and (3) the complaint is not uncertain under the demurrer pleading standard.

A.    Conditions Precedent

On demurrer, the Court considers only the complaint, exhibits attached to the complaint, and judicially noticeable matters.  This includes Exhibit 1 to the complaint, represented as the “Project Lease” between Plaintiff and D/Winvest. On review of the lease agreement, the document states that rent is owed from the Rent Commencement Date onward; which is the the earlier of: (i) 150 days following the Term Commencement Date or (ii) the opening of the Premises to the general public for business. The Term Commencement Date initiates upon the “substantial completion of Landlord’s Work and delivery of the Premises to Defendants. (Complaint, Exh. 1, p. 4.) These terms do not, however, conflict with the allegations in the form complaint, which allege only that Defendants were served with a 3-day Notice to Pay Rent or Quiet. Defendants cite to no authority supporting their contention that a plaintiff must specifically and individually allege the satisfaction of every material provision in their agreement to maintain an unlawful detainer complaint. As the Court assumes the truth of all factual and material allegations properly pled in the complaint on demurrer, and as Plaintiff otherwise sufficiently alleges an unlawful detainer cause of action, the Court will not sustain the demurrer on this basis.

B.     Parallel Action

CCP §430.10(c) provides, in part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . (c) There is another action pending between the same parties on the same cause of action.”

On review of Case No. 22BBCV00372, the Court finds that this case is pled against different defendants and different premises, Unit #133, as opposed to the instant action, which concerns Unit #130. To the extent that Defendants demur on the basis of CCP §430.10(c), the Court will not sustain the demurrer on this basis.

C.     Uncertainty

A demurrer to a pleading lies where the pleading is uncertain. (CCP §430.10(f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; see also CCP §430.10(e).) Moreover, “[a] special demurrer should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643.)

The Court finds that the complaint is not uncertain because the pleading does not include the 19 exhibits referenced in the Project Lease, attached as Exhibit 1. The Court also finds that the unlawful detainer cause of action is not uncertain because the pleading does not specifically allege whether the “rent increase” referenced in paragraph 6(d) of the complaint was made through oral or written agreement. Defendants do not point to or explain how any issue or allegation that is rendered uncertain by either of these arguments. A demurrer for uncertainty is strictly construed, particularly when, as is the case here, the material allegations against a party are clear, and any ambiguity appears to be able to be clarified in discovery. The Court will thus not sustain the demurrer on this basis.

IV.       CONCLUSION

The Court thus overrules the demurrer.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Winvest Ventures, LLC d.b.a. Whealthy Restaurant and Ronald Wizgan’s Demurrer came on regularly for hearing on July 29, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS OVERRULED.

IT IS SO ORDERED.

DATE:  July 29, 2022                                   _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles