Judge Gail Killefer, Case Number: 22STCV35763, Date: 2024-01-05 Tentative Ruling

TENTATIVE: defendant’s demurrer is overruled. Defendant is to file an Answer within ten (10) days. The court sets an OSC Re: Answer for January 31, 2024, at 8:30 a.m. The Case Management Conference is also continued to January 31, 2024, at 8:30 a.m.

On November 14, 2022, Eyad Wahby (“Plaintiff”) filed a Complaint against Downtime Prime, LLC (“Defendant”) and Does 1 to 20. This action arises out of a dispute between Plaintiff as tenant, and Defendant as the owner, of property located at 555 S. San Pedro St., Los Angeles, CA 90021 (the “Property”).

The First Amended Complaint (“FAC”) alleges four causes of action: (1) Unfair Competition; (2) Fraud; (3) Breach of Contract; and (4) Breach of Implied Covenant of Good Faith and Fair Dealing. On July 5, 2023, the court sustained Defendant’s demurrer to the FAC with leave to amend.

On July 25, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging a single cause of action for Declaratory Relief. On September 25, 2023, the Defendant filed a demurrer to the SAC. Plaintiff opposes the Motion. The matter is now before the court.

Discussion

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and 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.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

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 complainant to show the Court that a pleading can be amended successfully. (Id.)

The SAC alleges under the Lease Agreement for the Property, rent is $4,300.00 per month for the first year with a 3% increase every year, with rent including water and electricity. (SAC ¶ 9, Ex. A at ¶ 1.5.) The SAC alleges that in violation of the Lease Agreement, in January 2022 Defendant presented Plaintiff with an invoice for rent that included a bill for electricity in the amount of $500.00. (SAC ¶ 12, Ex. B.) Without providing notice of the change in the terms of the Lease Agreement, in August 2022 Defendant presented Plaintiff with an invoice for rent in the amount of $5,000.00 and an invoice for rent in the amount of $6,000.00 in September 2022. (SAC ¶ 15, Ex. C, D. )

The SAC further alleges that Defendant presented Plaintiff with a “Notice of Violation” for making alteration or utility installations in violation of the Lease Agreement, a claim Plaintiff disputes. (SAC ¶ 21, 22.) This culminated in Defendant serving Plaintiff with a 3-Day Notice to Quit for Non-Compliance. (SAC ¶ 24, Ex. 4.) The SAC states that since October 2022, Defendant has continued to mail notices of rent increase that are substantially more than what the parties agreed to in the Lease Agreement. (SAC ¶ 25.) Plaintiff acknowledges that he has paid Defendant the $4,3000.00 in rent as originally agreed and has not paid the rent increase. (SAC ¶¶ 17, 19, 20.)

Plaintiff’s single cause of action for Declaratory Relief seeks a “judicial determination and declaration that the invoices attached as Exhibits B, C and D be withdrawn by Defendants and Plaintiff be given proper notice of any future rent increases, pursuant to the Lease and California law.” (SAC ¶ 27.) Plaintiff also seeks a judicial determination of the parties' rights and obligations with respect to the Lease Agreement concerning rent payment under the Lease and other alleged violation of the Lease Agreement, as alleged by the Defendant in the October 17 and October 18 Notice. (SAC ¶ 28.)

Defendant asserts that the SAC is deficient because Plaintiff has not alleged damages and the court did not grant Plaintiff leave to add a new cause of action. The parties do not dispute that the reason the demurrer to the FAC was sustained was because Plaintiff had failed to show he sustained actual damages since Plaintiff did not pay the rent increases. (Ruling of 7/5/23.) Plaintiff tried to remedy this fact by amending the pleading to allege a single new cause of action for declaratory relief.

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. (See CCP § 1060; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) One of the purposes of declaratory relief “is to liquidate doubts with respect to uncertainties or controversies which might otherwise result in subsequent litigation [citation].’ [Citation.]' [Citation.] One test of the right to institute proceedings for declaratory judgment is the necessity of present adjudication as a guide for plaintiff's future conduct in order to preserve his legal rights.’ [Citation.]” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 364–365 [internal citations and quotations omitted].)

The court finds that the SAC sufficiently alleges that an actual controversy exists between the parties and that a judicial determination is necessary to determine the rights and obligations of the parties under the Lease Agreement. Furthermore, a cause of action for declaratory relief does not require that Plaintiff suffer actual damages only that an actual controversy exists between the parties. Here the court finds that a judicial determination is necessary to determine the rights and obligations of the parties under the Lease Agreement. Therefore, the SAC is not deficient.

“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all. (Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [sustaining motion to strike because a new cause of action was added that was outside the scope of the order granting leave to amend].)

The court finds that although Plaintiff added a new cause of action, the cause of action stems from the same operative facts as the FAC and is responsive to this court’s basis for sustaining the prior demurrer, that Plaintiff failed to allege actual damages. (See Ruling of 7/5/23.) Accordingly, the court finds that the cause of action for Declaratory Relief falls within the scope of the order granting leave to amend. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend”].)

defendant’s demurrer is overruled. Defendant is to file an Answer within ten (10) days. The court sets an OSC Re: Answer for January 31, 2024, at 8:30 a.m. The Case Management Conference is also continued to January 31, 2024, at 8:30 a.m.

[1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. Defense counsel filed a declaration for an automatic extension stating that the parties have been unable to meet and confer due to Plaintiff’s counsel’s lack of response. “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP § 430.41(a)(4).) As the failure to meet and confer does not constitute grounds to overrule a demurrer, the court continues on the merits.