TENTATIVE RULING

Plaintiff Bradmore Lincoln, LLC’s Demurrer to Defendant’s First Amended Cross-Complaint is SUSTAINED without leave to amend as to the first and fourth causes of action and SUSTAINED with thirty (30) days leave to amend as to the second and third cause of action.

Defendant Clare | Matrix may amend its cross-complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Plaintiff Bradmore Lincoln, LLC to give notice. 

REASONING

Request for Judicial Notice

Plaintiff Bradmore Lincoln, LLC (“Plaintiff”) requests judicial notice of the Court’s order in this action dated January 25, 2024 and five court records in Los Angeles Superior Court Case No. 22SMCV00465 (Bradmore Lincoln, LLC v. Clare Foundation, Inc.). Plaintiff’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d). The Court notes that it only takes “judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)

First Cause of Action: 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, quotation marks and brackets omitted.)

In the first cause of action, Defendant Clare | Matrix (“Defendant”) seeks a judicial determination that Plaintiff’s complaint is barred by res judicata. On January 25, 2024, the Court considered Defendant’s demurrer on the same basis and overruled the demurrer, finding that the notice of settlement, request for dismissal, and notice of ruling in the prior action do not establish that the present action is barred by res judicata. Specifically, the notice of settlement indicated that dismissal was conditioned on certain payment of past due rent, damages, fees and costs, and returning possession, and the action was dismissed, but this did not indicate on the face of the documents that the amounts sought in this action, specifically base rent, parking rent, estimated insurance, insurance, estimated tax, and tax reimbursement for January through July 2023, were part of the settlement agreement. It was not clear how much was paid to Plaintiff, i.e., there was no evidence that the settlement satisfied all of the obligations alleged in the complaint. Given that the Court has already ruled that Plaintiff’s action does not appear to be barred by res judicata, it cannot conclude that Defendant is entitled to declaratory relief on that basis, and amendment would not cure this defect. Accordingly, Plaintiff’s demurrer to the first cause of action is SUSTAINED without leave to amend.

Second Cause of Action: Breach of Lease

To state a cause of action for breach of contract, Defendant must sufficiently allege “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Defendant alleges that Plaintiff breached the lease for the premises by failing to properly calculate the actual charges and by passing on charges to Defendant that were not the actual costs as set forth in the lease. (First Am. Cross-Compl. ¶ 15.) Defendant has failed to allege the specific funds improperly retained by Plaintiff and the manner by which those funds were paid, i.e., Defendant alleges only that Plaintiff continues to hold at least $42,645.95, but the trier of fact could not find a breach of the lease without further facts. Accordingly, Plaintiff’s demurrer to the second cause of action is SUSTAINED with thirty (30) days leave to amend.

Third Cause of Action: Conversion

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

Defendant alleges that Plaintiff has converted the money paid that exceeded actual costs. Simply retaining money paid pursuant to contract based on improper calculation of funds owed does not allege conversion. Further, “[a] generalized claim for money is not actionable as conversion,” and “[m]oney cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1042, quotation marks and brackets omitted.) Here, Defendant’s claim for conversion does not allege a specific, identifiable sum. Thus, Plaintiff’s demurrer to the third cause of action is SUSTAINED with thirty (30) days leave to amend.

Fourth Cause of Action: Accounting

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179, citations and paragraph break omitted.)

Confusingly, Defendant’s fourth cause of action is represented in the case caption to be one for accounting, but the body of the cause of action, identified again at the third cause of action, labels itself as one for conversion. (First Am. Cross-Compl., p. 7.) In the claim, Defendant alleges that an accounting is necessary to determine the proper amount due to Defendant for payments made that were not actually owed, but Defendant fails to allege facts supporting a conclusion that the sum cannot be made certain by calculation. Accordingly, Plaintiff’s demurrer to the fourth cause of action is SUSTAINED without leave to amend.