Judge: Jon R. Takasugi, Case: 23STCV13519, Date: 2024-03-29 Tentative Ruling

Case Number: 23STCV13519    Hearing Date: March 29, 2024    Dept: 17

Superior Court of
California

County of Los
Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrer
is OVERRULED.

            On October 3, 2023,
Plaintiff 26 Star, LLC (“Plaintiff”) filed a first amended complaint (“FAC”)
against the Estate of Reynaldo Perez Ortiz (“Estate” or “Defendant”), alleging:
(1) breach of contract, and (2) intentional interference with prospective
economic relations. Reynaldo Perez Ortiz (“Decedent”) died testate on November
29, 2020. On March 1, 2021, Virginia Perez Arreola (“Executor”) filed a
petition for probate of Decedent’s will under case no. 21STPB01852 (the “Probate
Matter”) and was appointed the Executor of the Estate on November 10, 2022.

            On February 1, 2018,
Plaintiff and Decedent entered into a written agreement (the “Agreement”) under
which Plaintiff renewed Decedent's lease of the commercial property located at
2130 South San Pedro Street, Los Angeles, California 90011 (the “Subject Premises”).
(FAC ¶ 8; Exh. A.) Decedent had been a commercial tenant at the Subject
Premises for approximately twenty years prior to the Agreement, operating a bar
and restaurant at the site. (FAC ¶9.)

On or around April 1, 2020, Decedent ceased
payment of rent. (FAC, ¶ 13.) The COVID-19 pandemic had caused the State of
California to restrict business operations for restaurants. The State had also
instituted a moratorium on evictions, so Plaintiff

did not attempt to evict Decedent. (Id.) Decedent passed away on
November 29, 2020. Plaintiff was not notified of Decedent’s death at that time,
and continued to hold Decedent’s personal property at the Subject Premises.
(FAC, ¶ 14.)

            Plaintiff filed a
creditor claim in the Probate Matter on February 14, 2022. (FAC, ¶ 15.) Plaintiff
attempted to resolve the matter with the Executor and her counsel, Ms.
Rodriguez. Ms. Rodriguez refused to turn over the keys and insisted that
Decedent’s personal property could not be removed until the Court had appointed
an executor. (FAC, ¶ 17.) Rodriguez threatened legal action should Plaintiff
attempt to remove Decedent’s property from the Subject Premises. (Id.)
Defendant refused to cooperate even after Plaintiff advised them that a
prospective tenant was prepared to lease the Subject Premises. (FAC, ¶ 21.)
Defendant continued to store Decedent’s personal property after the lease
expired on January 31, 2023. (FAC, ¶ 22.)

            As a result, Plaintiff
initiated this action on June 12, 2023. The operative FAC was filed on October
3, 2023. Plaintiff seeks compensatory damages, attorney fees and costs.

            On February 9, 2024,
Defendant filed the instant demurrer to the entire complaint under CCP §
430.90(e) and (f) for insufficient allegations and uncertainty.

Legal Standard

A demurrer for
sufficiency tests whether the complaint states a cause of action.¿ (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the
allegations liberally and in context.¿ (Taylor v. City of Los Angeles
Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer
proceeding, the defects must be apparent on the face of the pleading or via
proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.)¿ “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.”¿ (SKF
Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only
issue involved in a demurrer hearing is whether the complaint, as it stands,
unconnected with extraneous matters, states a cause of action.”¿ (Hahn,
supra, 147 Cal.App.4th at p. 747.) 

Request for Judicial Notice

            At Plaintiff’s request,
the Court takes judicial notice of:

1.     
The November 9, 2021 Minute Order in case no. 21STPB01852 appointing Ms. Arreola as Executor of the
Estate;

2.     
The Letters
Testamentary dated November 10, 2022, appointing Ms. Arreola as Executor of the
Estate; and

3.     
The creditor’s
claim filed by plaintiff on February 14, 2022 in case no. 21STPB01852.

Discussion

            The Court notes, as a
preliminary matter, that the declaration of Virginia Arreola Perez, Executor,
in support of the demurrer is incomplete. The referenced exhibits are missing.

Defendant demurs to the entire complaint
pursuant to CCP § 430.90(e) and (f) for insufficient allegations and
uncertainty. First, Defendant argues in the moving papers that Plaintiff’s
creditor claim in the Probate Matter is untimely. Under Probate Code § 9100(a),
a creditor’s claim must be filed within four months after date letters are
first issued or sixty days after a date notice of administration is delivered
to the creditor, whichever is later. Defendant claims that a notice of
administration was published to creditors on March 12, 15 and 19, 2021. (Arreola
Decl., ¶ 5.) However, the referenced exhibit B is not attached to the declaration.
Plaintiff argues that its creditor’s claim was timely filed because it was
filed less than four months after the appointment of Ms. Arreola. Ms. Arreola
was appointed executor on November 9, 2021 and Plaintiff filed its creditor’s
claim on February 14, 2022. Plaintiff’s claim is timely.

Second, Defendant argues that this action is
untimely under CCP § 366.2. Section 366.2 provides that a lawsuit against a
decedent must be commenced within one year after the date of death. Plaintiff’s
suit is untimely because it was brought two years and seven months after
Decedent’s death. In opposition, Plaintiff argues that the continuing violation
doctrine has tolled the limitations period. The doctrine applies because
Decedent’s personal property continues to encumber the Subject Premises.
Plaintiff contends that Defendant improperly qualified the personal property as
“trash”, suggesting that Plaintiff may easily dispose of them. In opposition,
Plaintiff submits the declaration of David Soleymani, the manager of 26 Star,
LLC, containing photographs of the property left behind, which includes a pool
table, furniture, kitchen equipment, sports memorabilia and televisions.
(Soleymani Decl., ¶¶3-4; Exh. A.) Defendant does not address the continuing
violation argument in reply.

Defendant’s demurrer to the First Amended
Complaint is overruled.

It is so ordered.

Dated: March 29, 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. 
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