Judge: H. Jay Ford, III, Case: 22SMCV00203, Date: 2022-09-22 Tentative Ruling

Case Number: 22SMCV00203    Hearing Date: September 22, 2022    Dept: O

Case Name:  8^th Street MB, LLC v. Grimm Investments, LLC, et al.

SUBJECT:                DEMURRER TO FAC

MOVING PARTY:   Defendant Grimm Investments, LLC

RESP. PARTY:         Plaintiff 8^th Street MB, LLC

TENTATIVE RULING

            Defendant Grimm Investments, LLC’s Demurrer to the First Amended Complaint (FAC) is OVERRULED.  Defendant Grimm to answer in 10 days.

            On a demurrer, the Court must accept as true all factual allegations in the complaint.  See Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 597.  “The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.  This principle means that if the pleading sufficiently states a cause of action the demurrer cannot be granted on the basis of a showing of extrinsic matters by inference from attached exhibits, affidavits or otherwise except those matters which are subject to judicial notice.”  Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499/ 

            Defendant Grimm argues that Plaintiff’s claims are barred by the release attached as Exhibit A to the demurrer.  Defendant Grimm argues the Release attached as Exhibit A (the “Release Agreement”) is attached to the FAC and may be considered on demurrer. 

Defendant Grimm is incorrect.  The FAC attaches the parties’ Deed in Lieu of Foreclosure Agreement as Exhibit 9.  Exhibit F to the Deed in Lieu of Foreclosure Agreement is an unexecuted “Form of Mutual Release” (the Form Release”).  The Form Release and the Release Agreement are different documents, and the Form Release is unexecuted.  The Release Agreement is not attached to the FAC.  The Release Agreement therefore may not be considered on demurrer.