Judge: Gail Killefer, Case: 23STCV26165, Date: 2024-03-06 Tentative Ruling

Case Number: 23STCV26165    Hearing Date: March 6, 2024    Dept: 37

HEARING DATE:                 Wednesday, March 6, 2024

CASE NUMBER:                   23STCV26165

CASE NAME:                        Maria Camas Chavez v. Otilia Jimenez, as Trustee of the Otilia Luna Trust, et al.

MOVING PARTY:                 Otilia Luna Jimenez, as trustee of the Otilia Luna Trust; Alfonso Luna, as trustee of the Otilia Luna Trust.

OPPOSING PARTY:             Plaintiffs Maria Camas Chavez, Hermenegildo Mendez Chale, Landi Mendez, Jose Antonio Noh Ake, Jenny Del Carmen Mendez, Daisy Evelyn Mendez a minor by and through her guardian ad litem, Landi Mendez; and Dylan Antonio Noh a minor by and her his guardian ad litem, Lani Mendez

TRIAL DATE:                        Not Set.

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer to Complaint with Motion to Strike

OPPOSITION:                        15 February 2024

REPLY:                                  None filed.

TENTATIVE:                         Defendants’ demurrer to the Complaint is overruled as to the first, second, and third causes of action and sustained with leave to amend as to the fourth cause of action for breach of contract. The motion to strike is denied. Plaintiffs are granted 30 days leave to amend. OSC re: Amended Complaint set for __.

Background

On October 26, 2023, Maria Camas Chavez, Hermenegildo Mendez Chale, Landi Mendez, Jose Antonio Noh Ake, Jenny Del Carmen Mendez, Daisy Evelyn Mendez a minor by and through her guardian ad litem, Landi Mendez; and Dylan Antonio Noh a minor by and her his guardian ad litem, Lani Mendez (collectively “Plaintiffs”) filed A Complaint against Otilia Luna Jimenez, as trustee of the Otilia Luna Trust; Alfonso Luna, as trustee of the Otilia Luna Trust (collectively “Defendants”); and Does 1 to 50.

The operative Complaint alleges four causes of action for (1) breach of warranty of habitability, (2) breach of covenant of quiet enjoyment, (3) negligence, and (4) breach of contract.

On January 18, 2024, Defendants in pro per, filed a demurrer to Plaintiff’s Complaint. On January 29, 2024, Defendants filed a motion to strike the Complaint. Plaintiffs filed opposing papers on February 15, 2024. No reply has been filed.

Demurrer

I.         Legal Standard

A.        Demurrer 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ 

B.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

C.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

II.        Discussion

The court notes that Defendants have failed to comply with the mandatory requirements of CCP §§ 430.41 and section 435.5(a) which requires the parties to meet and confer before filing a demurrer or motion to strike. “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 to the merits.

Defendants single page demurrer as follows:

A.        Breach of Warranty of Habitability

Defendants argue that Plaintiffs’ allegations are false because Defendant Otilia Luna fixed everything that needed to be fixed and around the property such that this action is an extortion.

Whether Defendants fixed everything that needed to be fixed, is a disputed question of fact not subject to demurrer. (See Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422.) Accordingly, the demurrer to this cause of action is overruled.

B.        Breach of the Covenant of Quiet Enjoyment

Defendants assert that they “feel that Plaintiffs have brought these frivolous actions against defendants to shake the defendants down for some cash which is extortion.” (Demurrer, at p. 3:8:10.)

"Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) At the pleading stage, the court is not concerned whether Plaintiff will be able to prove their claims, rather the court looks to see if the Complaint pleads a viable cause of action. As Defendants fail to show that the claim for breach of the covenant of quiet enjoyment is improperly pled, the demurrer as this cause of action is overruled.

C.        Negligence

Defendants allege the negligence cause of action is extortion because Defendant Otilia Luna has fixed everything that need to be fixed and Defendant Otilia Luna “alleges that it is Plaintiffs who refuse to allow defendant Otilia Luna in the property to fix what they the Plaintiffs have complaint [sic] about.” (Demurrer, at p. 3:13-15.)

As stated above, whether Defendants have fixed all issues with the property and whether Plaintiffs have prevented Defendants from fixing all the issues are questions of fact not subject to demurrer. Accordingly, the demurrer is overruled as the negligence cause of action.

D.        Breach of Contract

Defendants allege that they only have a rental agreement with Plaintiff Hermenegildo Mendez Chale. Whether this assertion is true remains a disputed question of fact not subject to demurrer as the Complaint alleges that “Plaintiffs entered into a residential lease agreement with Defendants” that set “forth the parties, date, monthly, payment amount, and certain other terms.” (Compl. ¶ 77.) However, when a breach of written contract claim is alleged “the terms [of the contract] must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459 [internal citations omitted].)

As Plaintiffs failed to state verbatim the terms of the Lease or attach a copy of the Lease to the Complaint, the demurrer to the breach of contract claim is sustained with leave to amend.

As to Defendants’ other basis for demurring to the breach of contract claim, if Defendants seek to recover payment for higher water bills due to their being more tenants in the unit than agreed to in the Lease, Defendants should file cross-complaint.  The purpose of a demurrer is not to allege a cause of action against the plaintiff. (See CCP § 426.10.)

Lastly, whether the Plaintiffs are in fact undocumented is a disputed issue of fact and irrelevant to this action and the court has no discretion to consider irrelevant evidence. (See Velasquez v. Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1211-1212.) “Access to the courts is ‘a right guaranteed to all persons by the federal and state Constitutions.’ “(Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 465.) Accordingly, the Plaintiffs’ immigration status has no bearing on the disposition of this demurrer or this action.

Defendants’ motion to strike is without merit and is denied.

Conclusion

Defendants’ demurrer to the Complaint is overruled as to the first, second, and third causes of action and sustained with leave to amend as to the fourth cause of action for breach of contract. The motion to strike is denied. Plaintiffs are granted 30 days leave to amend. OSC re: Amended Complaint set for __.