Judge: Jon R. Takasugi, Case: 21STCV40738, Date: 2023-08-14 Tentative Ruling

Case Number: 21STCV40738    Hearing Date: April 8, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Fusion’s demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND.

On 11/4/2021, the Jeffrey S. Marks Separate Property Trust established under the Jeffery and Loretta Marks Family Trust, Jeffrey S. Mark as trustee, the Mae Durant family Trust, and South Main Street Properties, LLC (collectively, Plaintiffs) initiated this action.

            On 2/8/2024, Plaintiffs filed a verified third amended complaint (TAC) against the Harb Family Trust dated 11/1/1996, the Irrevocable Trust of chou Bo Chan Chiu (1997) for the benefit of Samson Chiu, and Fusion Investments, LLC (Fusion) alleging: (1) declaratory relief; and (2) quiet title-adverse possession.

            On 3/7/2024, Fusion demurred to Plaintiff’s TAC.

Discussion

            Fusion argues that Plaintiffs’ TAC still fails to allege sufficient facts to support a claim, and contains an impermissible amendment.

            As to the latter claim, the Court agrees. Where a court grants leave to amend after sustaining a demurrer, “such granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” (People v. Clausen (1967) 248 Cal.App.2d 770, 785-786.)

Here, Plaintiff did not obtain leave to amend to allege a new cause of action for adverse possession. Accordingly, the Court strikes this cause of action from the TAC and does not consider it.

This leaves only the first cause of action for declaratory relief.  The Court agrees with Defendant that it is insufficiently pled given that there is no specific controversy alleged. Instead, Plaintiffs allege: “an actual controversy has arisen and now exists between Plaintiff and the Defendants concerning their respective rights and duties relative to and under the Indenture” (3AC, ¶ 32), and “[t]here exists a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” (3AC, ¶ 35). To state a cause of action for declaratory relief, ‘the actual, present controversy must be pleaded specifically.’” (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513- 14 (emphasis added), abrogated on other grounds by Yvanova v. New Century Mort. Corp. (2016) 62 Cal.4th 919.) “Thus, a claim must provide specific facts, as opposed to conclusions of law, which show a ‘controversy of concrete actuality.’” (Id. at p. 514.)

Plaintiff will be afforded leave to amend for two reasons. First, given that the demurrer was sustained as to the first cause of action for lack of specificity, there is a chance Plaintiff could assert a valid claim if adequately supported by facts. Second, while Plaintiff’s addition of the adverse possession claim was procedurally improper, it does indicate that Plaintiff may be able to allege a valid claim. Plaintiff is granted leave to amend to allege this claim. This is in the interest of judicial economy, and given that the policy favoring leave to amend is so strong that it is an abuse of discretion to deny an amendment unless the adverse party can show meaningful prejudice. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

Based on the foregoing, Defendant’s demurrer is sustained, with 15 days leave to amend.

It is so ordered.

Dated:  April    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.