Judge Gregory Keosian, Case 22STCV02452 2022-10-28 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV02452, Date: 2022-10-28 Tentative Ruling

Case Number: 22STCV02452 Hearing Date: October 28, 2022 Dept: 61

Defendant Diego Gonzalez’s Demurrer to the Complaint is OVERRULED. Defendant to answer within 5 days.

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Diego Gonzalez (Defendant) demurrer to the second through fourth causes of action for breach of implied-in-fact contract, money had and received, and ejectment. Defendant argues that the implied contract claim fails because it is alleged concurrently with a claim for breach of express contract governing the same matter, and because it fails to plead the terms of any such implied agreement. (Demurrer at pp. 6–7.) Defendant further argues that the third cause of action for money had and received seeks the return of funds that Plaintiff never paid to Defendants. (Demurrer at pp. 7–8.) Finally, Defendant argues that the last claim for ejectment fails because Plaintiff does not plead that it possesses a present right to possession of the premises. (Demurrer at p. 8.)

The first argument against the implied contract claim is unpersuasive. Defendant identifies no authority for the proposition that claims for express and implied-in-fact contracts may be pleaded together, and it is the general rule that a party may plead “alternative and inconsistent legal theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477.) Nor is there merit to the contention that the terms of the contract have not been pleaded: the Complaint alleges that Defendants agreed to take possession of the premises to use for an exhibition, and to pay Plaintiff the reasonable value for use of the premises for that purpose. (Complaint ¶¶ 21–22.)

The argument against the money had and received claim also fails. “A cause of action for money had and received is stated if it is alleged [that] the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.” (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454, internal quotation marks omitted.) Although there is no allegation that Plaintiff gave money to Defendants, there are allegations that Defendants made money from using Plaintiff’s premises, for which they have not compensated Plaintiff. (Complaint ¶¶ 26–27.)

The ejectment claim also withstands demurrer. “The essential elements of an ejectment action are (1) the plaintiff's valid interest in the property and (2) the defendant's wrongful possession and withholding thereof.” (2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 866.) Here, it is alleged that Plaintiff has title to the property, leased the property to Defendants, and that defendants have failed to pay any rents due under the lease. (Complaint ¶ 3.) Thus present right to possession is alleged.

The demurrer is OVERRULED.