Judge: Mark A. Young, Case: 24SMCV01815, Date: 2024-12-10 Tentative Ruling

Case Number: 24SMCV01815    Hearing Date: December 10, 2024    Dept: M

CASE NAME:             Beverly Wilshire Investment Company Inc. v. Boag, et al. 

CASE NO.:                   24SMCV01815

MOTION:                     Demurrer to the First Amended Complaint  

HEARING DATE:   12/10/2024

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.) 

ANALYSIS 

Defendants Carole Boag, The Carole Boag Company Inc., Tepper & Associates, and Foster Tepper demur to the entirety of Plaintiff Beverly Wilshire Investment Company LLC’s operative First Amended Complaint (“FAC”).

Uncertainty

Defendants assert a special demurrer for uncertainty against each of the causes of action. Defendants contend that the FAC is uncertain as to who was renting the Premises and on what terms. Defendants also contend that the FAC’s allegations are contradicted by the prior complaint’s allegations, and thus should be disregarded under the sham pleading doctrine. Defendants’ contentions do not aid the uncertainty analysis. The FAC’s five causes of action are not uncertain as defined by Code of Civil Procedure section 430.10(f). The causes of action are not “so bad” that Defendants cannot determine what issues must be admitted or denied, or what counts or claims are directed against them. Defendants’ arguments, at best, might support a general demurrer. However, Defendants have not made a general demurrer. Accordingly, the demurrer for uncertainty is OVERRULED.

Written, Oral, or Implied-by-Conduct

Defendants lodge a special demurrer to second through fifth causes of action on the grounds that the FAC fails to allege whether the subject contract(s) were written, oral or implied by conduct.

The Court is not convinced. First, the FAC expressly states a written contract exists between the parties. The FAC alleges that the subject contract(s) are written leases. (FAC ¶¶ 9-10.) The other causes of action are either dependent upon this contract, or not dependent upon a contract at all. For instance, the second and third causes of action are for account stated and open book, based upon the obligations incurred under the written leases. (¶ 23.) The fourth cause of action is quantum meruit, which does not require a written contract. (Chodos v. Borman (2014) 227 Cal.App.4th 76, 96 [“To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made [citations].’”].) Moreover, these causes of action are common counts. “In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

The fifth cause of action for declaratory relief is also not subject to the special demurrer. To the extent that Plaintiff needs to plead the existence of a written/oral contract to support the claim, the FAC alleges the nature of the contracts at issue. Moreover, the cause of action requests resolution of a controversy between Plaintiff and the Tepper Defendants regarding their failure to pay past due rents as subtenants pursuant to the Lease. (FAC ¶ 36.) Generally, if a complaint for declaratory relief alleges the existence of an “actual controversy,” the court will not sustain a demurrer merely because the “declaration would necessarily be adverse to the plaintiff.” (Teachers Management & Investment Cop. v. City of Santa Cruz (1976) 64 Cal.App.3d 438, 449; see Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 647 [“‘[S]ection 1060 does not require a breach of contract in order to obtain declaratory relief, only an ‘actual controversy.’”].) Here, the fifth cause of action states an actual controversy between the Tepper Defendants and Plaintiffs regarding their obligation to pay rent. The controversy is well-stated, whether or not such an obligation factually exists. Thus, the demurrer to the declaratory relief cause of action also cannot be sustained.

Accordingly, the demurrer is OVERRULED.

Defendants to file an answer within ten days.