Judge: H. Jay Ford, III, Case: SS027333, Date: 2022-08-11 Tentative Ruling

Case Number: SS027333    Hearing Date: August 11, 2022    Dept: O

Case Name:               2400 Willow Lane v. Jason Emer, M.D., et al.

SUBJECT:                 DEMURRER TO CROSS COMPLAINT

MOVING PARTIES: Plaintiffs and Cross-Defendants 2400 Willow Lane and Associates Limited Partnerships West Hollywood Property Limited Partnership

RESP. PARTY:         Defendant and Cross-Complainant Gregory Jon Kozak

TENTATIVE RULING

The Demurrer to the Cross Complaint FOR DECLARATORY RELIEF is OVERRULED.  Cross Defendants are to answer within 10 days.

Generally, a demurrer is not an appropriate response to an action for declaratory relief, because a demurrer would “leave the parties where they were, with no binding determination of their rights, to await an actual breach and ensuing litigation.”  See Lockheed Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 222.  “Strictly speaking, a general demurrer [or dispositive motion] is not an appropriate means of testing the merits of the controversy in a declaratory relief action because plaintiff is entitled to a declaration of his rights even if it be adverse.”  Taschner v. City Council (1973) 31 Cal.App.3d 48, 57 (disapproved of by Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582 on other grounds). 

“The complaint is sufficient if it shows an actual controversy; it need not show that plaintiff is in the right.”  See Lockheed Corp. v. Continental Ins. Co., supra, 134 Cal.App.4th at 222 (citing 5 Witkin, Cal. Procedure, (4th ed. 1997) Pleading § 831, pp. 288-289.).   “A complaint for declaratory relief is sufficient if it sets forth facts showing the existence of a controversy relating to the legal rights and duties of the parties under a written instrument and requests that those rights and duties be adjudicated.”  Taschner, supra, 31 Cal.App.3d at 57.

The Court is not persuaded the absence of any controversy can be determined as a matter of law from the terms of the waiver and tolling agreement attached to the complaint.