Judge: Lee W. Tsao, Case: 24NWCV01443, Date: 2025-06-04 Tentative Ruling

Case Number: 24NWCV01443    Hearing Date: June 4, 2025    Dept: C

RUBEN MAS v. BONNIE K. KRESSLER, et al.

CASE NO.:  24NWCV01443

HEARING:  June 4, 2025 @ 9:30 a.m.

#4

TENTATIVE ORDER

Defendant Bonnie Kressler’s demurrer to complaint is SUSTAINED with 20 days leave to amend.  The motion to strike is MOOT.

Moving Party to give notice.

Meet and Confer

CCP §430.41(a) states that, before filing a demurrer, the moving party must engage in a specified meet and confer process with the party who filed the pleading at issue for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer/motion to strike. “[T]he demurring party 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. If an amended complaint…is filed, the responding party shall meet and confer again with the party who filed the amended pleading before a demurrer to the amended pleading.” (emphasis added.) (CCP §430.41(a).) A declaration setting forth such meet and confer efforts must accompany the demurrer. (CCP § 430.41(a)(3).) 

The Court finds that the Moving Defendant has met their meet and confer obligations.  (Garcia Decl., ¶ 2.)

Request for Judicial Notice

Defendant’s request for judicial notice numbers 1-5 are GRANTED pursuant to Evid. Code § 452(c).

Procedural History 

On November 7, 2024, Ruben Mas (“Plaintiff”) filed an action against Defendant Bonnie Kressler for Quiet Title, (2) Declaratory Relief, (3) Breach of the Implied Covenant of Good Faith and Fair Dealing, and (4) Specific Performance.  The complaint is regarding real property located at 9262 Parise Dr, Whittier, California 90603 (“the Property”).  The complaint alleges that on about March 21, 2024, Plaintiff and Defendant entered into a real estate written agreement regarding the Property.  (Compl., ¶ 11, Exh. A). Pursuant to the real estate agreement, Plaintiff was to deposit monies into escrow that was opened and Plaintiff was to pay Defendant $725,000. Defendant was aware that the property was to be sold by Plaintiff to a third party. After the documents were signed and escrow was in process, Plaintiff became aware that Defendant was trying to go around Plaintiff and sell the property to directly to that third party that Plaintiff had introduced to Defendant, likely resulting in a loss of over $100,000 to Plaintiff. (Id.)

Merits 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A court may strike any “irrelevant, false or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)

Defendant demurs to each cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action on which relief may be granted, that the second cause of action also is unlawfully duplicative of the first, and that the third cause of action is also uncertain.

First Cause of Action for Quiet Title

An action for quiet title seeks “to establish title against adverse claims to real or personal property or any interest therein.” (Code Civ. Proc. § 760.020(a).) In an action for quiet title, a plaintiff must plead (1) “[a] description of the property that is the subject of the action,” specifically the location of tangible personal property and the legal description and street address or common designation of real property, (2) “[t]he title of the plaintiff as to which a determination under this chapter is sought and the basis of the title,” (3) “[t]he adverse claims to the title of the plaintiff against which a determination is sought,” (4) “[t]he date as of which the determination is sought,” and (5) “[a] prayer for the determination of the title of the plaintiff against the adverse claims.”¿ (Code Civ. Proc. § 761.020.) 

Here, Plaintiff alleges that he entered into an agreement to purchase the property, but that Defendant did not complete the transaction.  (Compl., ¶ 11.)  Plaintiff does not allege the “title of the plaintiff as to which a determination under this chapter is sought and the basis of the title” as required. 

The demurrer to the first cause of action is SUSTAINED with 20 days leave to amend.

Second Cause of Action for Declaratory Relief

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, cleaned up.) “[T]here is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, cleaned up.) 

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (California Insurance Guarantee Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624), and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.)  Here, Plaintiff has not alleged any new facts in support of this cause of action.  Thus, it is duplicative.  Additionally, the facts as alleged relate to past wrongs. 

The demurrer to the second cause of action is SUSTAINED with 20 days leave to amend.

Third Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

“A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated ….¿ [T]he only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” (Id. at 1394-95.) To recover in tort for breach of the implied covenant, the defendant must “have acted unreasonably or without proper cause.” (Id. at 1395, cleaned up.)

In a contract for the sale of real property, the delivery of the deed and the payment of the purchase price are concurrent conditions, and neither party is in default until the other party tenders performance, so that the failure of both parties to perform the concurrent conditions discharges both parties’ duty to perform. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228.)  Here, Plaintiff’s complaint fails to allege that he tendered his performance, and therefore any failure of the defendant is not a breach, but discharges Plaintiff’s duty to perform as well. 

The demurrer to the third cause of action is SUSTAINED with 20 days leave to amend.

Fourth Cause of Action for Specific Performance

The elements of a cause of action for specific performance are (1) contract breach; (2) inadequacy of a legal remedy; (3) underlying contract reasonable and supported by adequate consideration; (4) existence of a mutuality of remedies; (5) contractual terms sufficiently definite to know what it is to enforce; and (6) substantial similarity between requested performance and promised performance. (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472. See also Patel v. Liebermensch (2008) 45 Cal.4th 344, 349 (if contract terms are certain enough, judges carry into effect ascertainable, reasonable intentions of the parties); Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 642 (“elements of a cause of action for specific performance of a contract include not only the contract …, but defendant's breach of the contract.”). But see Union Oil Co. of Cal. v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 134 (“‘Specific performance … decreed whenever: (1) … terms are sufficiently definite; (2) consideration is adequate; (3) there is substantial similarity of the requested performance to the contractual terms; (4) there is mutuality of remedies; and (5) plaintiff's legal remedy is inadequate.’”)  Here, as noted above, Plaintiff has not adequately pleaded breach of contract.

The demurrer to the fourth cause of action is SUSTAINED with 20 days leave to amend.

Motion to Strike Attorneys’ Fees

Defendant’s motion to strike the attorneys’ fees request is MOOT in light of the Court sustaining the demurrer in full.