Judge: Joseph Lipner, Case: 23STCV24526, Date: 2024-02-27 Tentative Ruling

Case Number: 23STCV24526    Hearing Date: February 27, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Tina Howland (“Howland”), in her capacity individually and as Trustee under the Rajdeep Singh Chhina and Tina Marie Howland Living Trust dated July 10, 2007, demurs to the complaint filed by Plaintiff Karmhjeet Chhina (“Plaintiff”).  Howland notes that she was erroneously sued as Tina Howland Chhina.

The Court OVERRULES Howland’s demurrer.

Background

This is a contract case. Plaintiff’s complaint alleges a loan by Plaintiff to Defendants Tina Howland Chhina and Raj Chhina (“Defendants”) pursuant to a written agreement. Plaintiff alleges that Defendants breached the agreement by failing to pay the amount due.

Plaintiff filed this action on October 9, 2023, raising claims for (1) breach of contract; (2) money had and received; and (3) money owed.

Default was entered against Howland on January 10, 2024.

Howland demurred to the Complaint on January 16, 2024. Plaintiff filed an opposition. Howland did not file a reply.

Request for Judicial Notice

The Court grants Howland’s request for judicial notice but notes that it is not necessary to take judicial notice of the complaint, which is already in the court record.

Legal Standard

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Discussion

“The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) “A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action[.]” (Brooks v. Nelson (1928) 95 Cal.App. 144, 147–148.)

Default was entered against Howland prior to the filing of the demurrer. The default against Howland has not been set aside. Thus, Howland may not demur to the Complaint. The Court therefore overrules the demurrer.