Judge: Mark A. Young, Case: 23SMCV06046, Date: 2024-10-08 Tentative Ruling
Case Number: 23SMCV06046 Hearing Date: October 8, 2024 Dept: M
CASE NAME: Snukal v. 926 Broadway LLC
CASE NO.: 23SMCV06046
MOTION: Demurrer to the
Complaint
HEARING DATE: 10/8/2024
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.) When considering demurrers, courts read the allegations
liberally and in context. 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
REQUEST FOR JUDICIAL NOTICE
Defendants’ requests for judicial notice are
GRANTED. (Evid. Code § 452(d).)
Plaintiff’s request for judicial notice of a
transcript is DENIED, as the proffered transcript is not a court record.
ANALYSIS
Defendant demurs to the
complaint, arguing that the entire complaint should be abated pending the
earlier-filed action and is barred by the statute of limitations.
Plea in Abatement
Defendant argues that
this action must be stayed until the judgment in the earlier filed
case of Snukal,
et al. v. 926 Broadway, LLC, et al., case no. 19SMCV00603 ("the
Underlying Action") becomes final. A
plea in abatement may be made by demurrer or answer when there is another
action pending between the same parties on the same cause of action. (Plant
Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.)
The later-filed suit is “abated” (stayed) pending resolution of the earlier
action which, if concluded on the merits will be res judicata and if not, the
later action will proceed. (Ibid.) The court can take
judicial notice of the court files in determining the basis for this
ground. (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189,
191-192.)
“In order to sustain the plea of another
action pending it is essential that it shall appear: (1) That both suits are
predicated upon the same cause of action; (2) that both suits are pending in
the same jurisdiction; and (3) that both suits are contested by the same
parties. [Citation.] Where the plea is sustained the order should be merely an
abatement or continuance of the second action, and it is error to give judgment
for the defendant on the merits. [Citation.] In the instant action, assuming
arguendo that it is subject to abatement, it is clear that the trial court erred
insofar as it purported to render a judgment of dismissal on the ground that
another action was pending. The only relief to which a litigant is entitled
upon the plea, whether by demurrer or answer, is that the second action
abate.”
(Colvig v. RKO General, Inc.
(1965) 232 Cal.App.2d 56, 70-71.)
The doctrine of res judicata generally
precludes parties from relitigating a cause of action determined with finality
in a prior proceeding. (Smith v. ExxonMobil Oil Corp. (2007) 153
Cal.App.4th 1407, 1413-14; Wright v. Ripley (1998) 65 Cal.App.4th 1189,
1193.) The doctrine has two aspects: claim preclusion, which applies to a
previously litigated cause of action, and issue preclusion, which applies to
issues necessarily decided in a prior action. (Vandenberg v. Superior Court
(1999) 21 Cal.4th 815, 828.) “[R]es judicata does not merely bar relitigation
of identical claims or causes of action. Instead, in its collateral estoppel
aspect, the doctrine may also preclude a party to prior litigation from
redisputing issues therein decided against him, even when those issues
bear on different claims raised in a later case. Moreover, because the estoppel
need not be mutual, it is not necessary that the earlier and later proceedings
involve the identical parties or their privies. Only the party against whom the
doctrine is invoked must be bound by the prior proceeding. [Citations.]” (Ibid.) Issue
preclusion will apply if the party to be bound agreed expressly or impliedly to
submit an issue to prior adjudication and had a full and fair opportunity to
litigate under circumstances affording due process protections. (Ayala v. Dawson¿(2017)
13 Cal.App.5th 1319, 1327.)
When applying res judicata, “the
key issue is whether the same cause of action is involved in both suits.
California law approaches the issue by focusing on the ‘primary right’ at
stake: if two actions involve the same injury to the plaintiff and the same
wrong by the defendant then the same primary right is at stake even if in the
second suit the plaintiff pleads different theories of recovery, seeks
different forms of relief and/or adds new facts supporting recovery.” (Deleon
v. Verizon Wireless (2008) 88 Cal.Rptr.3d 29, 35.) “As far as its content
is concerned, the primary right is simply the plaintiff's right to be free from
the particular injury suffered…” (Villacres v. ABM Indus. Inc. (2010)
189 Cal.App.4th 562, 575–76.) Also, when
a matter is pending appeal, the judgment in the underlying action is not final.
(Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936-937 (trial
court judgment pending appeal “is not final and will not be given res judicata
effect.”).) Thus, a plea in abatement would still be proper during the pendency
of the appeal.
Examining the two complaints at
issue, Plaintiff has not asserted the same cause of action because the two
cases involve different primary rights. In the underlying action, Plaintiffs
sought damages for fraud and breach of their lease, alleging that Defendants
schemed to induce Plaintiffs into a long-term commercial lease in a unit rife
with undisclosed structural and non-structural problems. The alleged breaches
included (a) failing to disclose numerous defects at 930 Broadway, including
but not limited to the roof’s warrantability and the lack of plumbing plans in
the building; (b) failing to repair the roof and maintain the roof’s warranty;
and (c) failing to repair plumbing, mold and rodent issues. (Underlying Compl.,
¶ 33.) Plaintiffs further claimed damages from Defendants’ misrepresentations
concerning the building and their ability to maintain the building, and their
knowing omission of the defects with the building, including the lack of base
plumbing. (Id., ¶¶ 42-50.) The injury pled here is not the same. The instant complaint
alleges that, following the verdict in the underlying action, Plaintiffs
demanded return of the security deposit but Defendants refused to return the
deposit. (Compl., ¶¶ 24-25.) The complaint alleges that Defendants materially
breached its contractual obligations under the Lease Agreement by failing to
return any portion of the security deposit to Plaintiff. (¶ 26.) The complaint
thus seeks return of the security deposit, which Plaintiff would be entitled to
under statute, independent of any breaches of the Lease alleged in the
underlying complaint. (Civ. Code § 1950.7(c).)
Defendants argue that Plaintiffs
presented evidence of the security deposit at the trial in the underlying
action. Even if the Court takes judicial notice of the evidence at trial, the
record still does not suggest that the complaint included a claim for return of
the security deposit. Defendants cite testimony that Plaintiffs paid a
“security deposit.” (RJN Ex. 3 at p. 4.) The cited testimony does not assign
any value to this deposit, but only briefly notes that a security deposit was
paid. The security deposit payment evidences Plaintiffs’ performance under the subject
lease, a necessary element to establish a breach of contract. Even if there was
evidence that there was a security deposit, this does not change the primary
rights at play in the underlying complaint. The pleadings do not show that
Plaintiff sought the return of the deposit in the underlying action, sought to
recover the deposit as damages in the underlying action, or otherwise recovered
the security deposit as part of the underlying action.
Defendants also argue that the
doctrine of exclusive concurrent jurisdiction applies here. ¿The rule of
exclusive concurrent jurisdiction provides that “‘when two superior courts
have concurrent jurisdiction over the subject matter and all parties involved
in litigation, the first to assume jurisdiction has exclusive and continuing
jurisdiction over the subject matter and all parties involved until such time
as all necessarily related matters have been resolved.’” (Plant
Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-87.)
The two actions here are not split between two superior courts which have
concurrent jurisdiction. Instead, the same department (Santa Monica Courthouse,
Dept. M) in the same superior court (Los Angeles Superior Court) has both
actions. Thus, the rule of exclusive concurrent jurisdiction would simply not
apply here.
Statute of Limitations
Defendants
contend that the four-year statute of limitations applicable to breach of
contract causes would bar the instant action.
Unless a complaint affirmatively discloses on its face that the statute
of limitations has run, a demurrer on such grounds must be overruled. (Lockley
v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001)
91 Cal.App.4th 875, 881.)
Defendants
note that a claim for return of a security deposit would accrue pursuant to Civil
Code section 1950.7. This section provides that a landlord to a commercial
lease has a duty to return any remaining amounts of a security deposit as
mutually agreed, but “in no event later than 30 days from the date the landlord
receives possession of the premises.” (Civ. Code § 1950.7(c)(1)-(3).) Defendants
argue that the this “undeniably occurred” prior to March 28, 2019. Defendants
cite the underlying complaint, filed that day, which alleges that Plaintiffs
were forced to close down the restaurant as a whole. (Underlying Complaint ¶ 26.)
Read liberally, this allegation does not show that Defendants regained
possession on or before March 28, 2019. At best, this shows that Plaintiffs
stopped operating their restaurant at the premises prior to March 28, 2019.
There is no allegation that Plaintiffs returned possession of the premises at
that time. There are no allegations establishing when Defendants regained
possession of the premises. Thus, the Court cannot conclude that the statute of
limitations has run on the security deposit return.
Accordingly,
the demurrer is OVERRULED.