Judge Jill Feeney, Case Number: 22STCV36063, Date: 2024-05-06 Tentative Ruling

A demurrer must be filed 30 days from the date the complaint was served pursuant to CCP Section 412.20. A motion to strike must be filed on the same timeline pursuant to CRC 3.1322(b). Here, Plaintiff filed a proof of service on October 18, 2023. The proof of service indicates that the summons and complaint were served on a party named CT Corporation. However, there is no CT Corporation named as a party in this matter.

During the pendency of the demurrer, Defendant LPC West filed a motion for summary judgment on April 11, 2024. The motion is scheduled for hearing on July 1, 2024. Defendant LPC West should be prepared to discuss how it plans to proceed in light of the pending motion for summary judgment.

This is an action for breach of contract, negligence, negligent infliction of emotional distress, breach of quiet enjoyment, breach of the implied covenant of good faith and fair dealing, and nuisance. Plaintiff William Miyazak dba “No Ghost Bears” alleges that in 2014, he entered into a commercial lease with Force Aryeh, LLC and operated a coffee shop. In 2021, a floor drain on the property began leaking sewage after another company engaged by Defendant performed work on the property. Defendant hired a cleaning company to clean the property after the leak. Defendant’s property management company, Lincoln Property Management (Lincoln), swabbed the property for contamination and reported that the swabs were clean. Plaintiff engaged a different company to perform swabbing and that company determined the property was contaminated by the sewer backup. Plaintiff was unable to operate his business as a result of the contamination.

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.) 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 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.)

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Here, LPC’s counsel testifies that he met and conferred with Plaintiff’s counsel, who initially agreed to file an amended pleading. (Emanuel Decl., ¶4.) Plaintiff’s counsel failed to file an amended complaint and instead notified LPC’s counsel that the Court ordered a response to the Complaint be filed by January 17, 2024. (Id., ¶¶4-5.) LPC satisfies meet and confer requirements.

LPC argues that the Complaint fails to comply with Cal. Rules of Court, Rule 2.112 because the Complaint fails to identify the parties against whom any of the causes of action alleged in the Complaint are being asserted. LPC also argues that because the Complaint fails to identify which causes of action are brought against which parties, the Complaint is uncertain as to LPC.

Rule 2.112 states that each separately stated cause of action, count, or defense must specifically state (1) its number, (2) its nature, (3) the party asserting it if more than one party is represented in the pleading, and (4) the party or parties to whom it is directed.

“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 California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Here, the Complaint fails to allege any facts as to LPC. The Complaint alleges that it leased the subject property from Defendant Force Aryeh, LLC (Aryeh). (Compl., ¶1.) Force Aryeh engaged the services of Acco Engineered Systems to perform work on an adjacent property. (Compl., ¶3.) The work Acco performed caused a sewage leak in Plaintiff’s leased premises. (Compl., ¶3.) Aryeh and its property manager, Lincoln Property Management (Lincoln), engaged the services of Blue Sky Cleaning (Blue Sky) to clean the property and swab it for contamination. (Compl., ¶¶4-5.) Although Lincoln reported the swabbing was clean, Plaintiff’s own testing showed the property was contaminated. (Compl., ¶¶6-9.) Lincoln also failed to produce evidence that the swabbing results showed no contamination. (Compl., ¶7.)

The Complaint fails to make any allegations about LPC. Although LPC was named as Doe 1, the Complaint merely states Doe 1 was negligent or otherwise responsible in some manner for the events described in the Complaint. (Compl., ¶12.) Because the Complaint fails to allege which causes of action Doe 1 must address and does not allege any facts pertaining to Doe 1, LPC cannot reasonably respond to the Complaint. Therefore, the Complaint is fatally uncertain as to LPC.

Although Plaintiff argues in opposition that all causes of action are against all Defendants, that LPC is a party to the lease contract, and that LPC was a property manager of Aryeh, this information is extraneous to the Complaint and cannot be considered on demurrer. Additionally, Plaintiff already named one property manager, Lincoln, and there are no other allegations as to any other property manager.

Because the Complaint is fatally uncertain as to LPC, the demurrer is sustained. The Court declines to reach the issue of sufficiency. Because Plaintiff alleges that LPC is a property manager and a party to the lease contract between Plaintiff and LPC, the Court grants Plaintiff’s request for leave to amend.

LPC moves to strike (1) the demand for damages or relief sought, (2) the request for attorney’s fees, and (3) the request for exemplary damages. However, because the demurrer was sustained in its entirety, LPC’s motion to strike is denied as moot.