Judge: Frank M. Tavelman, Case: 23BBCV00542, Date: 2023-10-20 Tentative Ruling

Case Number: 23BBCV00542    Hearing Date: October 20, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Chauvane and Derik Johnson (“Plaintiffs”) bring this action against Lida and Edward Giamela (“Defendants”) in connection with a commercial lease agreement for the property at 1415 Magnolia Blvd. Suite 202 Burbank, CA 91506. Plaintiffs are in pro per. Plaintiffs allege Defendants misrepresented that Plaintiffs could use the property as a commercial music studio and wrongfully evicted Plaintiffs after they had spent substantial funds improving the property.

On July 7, 2023, Defendants filed their cross-complaint against Plaintiffs alleging violation of commercial lease and seeking approximately $487,337.48 in damages for unpaid rent and costs associated with Plaintiffs’ eviction. On August 7, 2023, default was entered against Plaintiffs on the cross-complaint.

Defendants now demur to each cause of action in Plaintiffs’ Complaint. Plaintiffs have filed no opposition.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 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. (Id.)

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 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that 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.)

II.                 MERITS

The Court construes Plaintiff’s failure to oppose the Demurrer as an abandonment of the claims or an admission the Demurrer has merit. (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].)

Although the Demurrer is unopposed, the Court finds that Plaintiffs should be given an opportunity to cure the defects in the Complaint that were raised in the Demurrer. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Accordingly, Defendants demurrer is SUSTAINED with 20 days’ leave to amend.

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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 

Lida and Edward Giamela’s Demurrer came on regularly for hearing on October 20, 2023, 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 SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.  

THE COURT ADVANCES AND CONTINUES THE CASE MANAGEMENT CONFERENCE SET FOR OCTOBER 24, 2023, TO JANUARY 24, 2024 AT 9:00 A.M.

DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  October 20, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles