Judge: Mark C. Kim, Case: 21LBCV00659, Date: 2022-09-20 Tentative Ruling
Case Number: 21LBCV00659 Hearing Date: September 20, 2022 Dept: S27
1. Background
Facts
Plaintiff, Hovik Keleshyan filed
this action against Defendants, Dorothy Smith and Oleria DeBose for specific performance
and interference with contract. Plaintiff
alleges he entered into a contract with Smith pursuant to which he was to purchase
Smith’s property, but Smith has refused to honor the contract. He alleges DeBose is Smith’s sister; DeBose
is running a sober living facility out of the subject house and has taken steps
to interfere with the sale of the property.
2.
Matters on Calendar Today
There are five matters on calendar
today: The matters are:
3.
Motion to Dismiss
DeBose filed a motion to dismiss. The motion is entitled “motion to dismiss
improper party by court order.” DeBose
brings her motion pursuant to Federal Rule of Civil Procedure P.12(B) and Title
28 of the United States Code §1404(a).
Plaintiff filed this case in state,
not federal, court. Therefore, state
laws of civil procedure and state substantive laws govern this action. Defendant has cited no controlling authority
for the position that the case should be dismissed, and DeBose’s declaration
and points and authorities do not reveal any recognized grounds for dismissal
of the action. The motion is therefore denied.
4. Demurrer
and Motion to Strike – DeBose
A demurrer is a pleading used to
test the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be.
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 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no “speaking
demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as
to any matter on its face or from which judicial notice may be taken], and §
430.50(a) [can be taken to the entire complaint or any cause of action
within]. Specifically, a demurrer may be
brought per CCP § 430.10(e) if insufficient facts are stated to support the cause
of action asserted. Per CCP §430.10(a) a
demurrer may be brought where the court has no jurisdiction of the subject of
the cause of action alleged in the pleading.
Furthermore, demurrer for uncertainty will be sustained only where the
complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).
However, in construing the allegations,
the court is to give effect to specific factual allegations that may modify or
limit inconsistent general or conclusory allegations. Financial Corporation of
America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in
the complaint are inconsistent with facts which are incorporated by reference
from exhibits attached to the complaint, the facts in the incorporated exhibits
control. Further, irrespective of the name or label given to a cause of action
by the plaintiff, a general demurrer must be overruled if the facts as pled in
the body of the complaint state some valid claim for relief. Special demurrers
are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v. Kennedy,
18 Cal.3d 335, 348 (1976). The burden is on the complainant to show the Court
that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
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.” (CCP § 430.41(a).) The parties are to meet and
confer at least five days before the date the responsive pleading is due. (CCP
§ 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration
detailing their meet and confer efforts. (CCP § 430.41(a)(3).)
Defendant did not file a meet and
confer declaration with her demurrer. The
Court has read and considered the demurrer despite this defect, but asks Defendant
to ensure compliance with the Code of Civil Procedure and all other governing
statutes in the future.
Defendant’s demurrer is premised
entirely on her version of facts, which cannot be considered on demurrer. The demurrer, as stated above, assumes all
facts pled in the complaint to be true. Defendant
fails to show how the facts, if ultimately proven true, would not state a cause
of action against her.
The Court notes that Defendant
submitted various exhibits with her demurrer.
Defendant did not file a request for judicial notice of these documents,
nor does there appear to be any available authority permitting the Court to take
judicial notice of these documents. The Court
has therefore not considered the exhibits.
Because Defendant did not show the
complaint, on its face or in light of judicially noticeable documents, fails to
state a cause of action or is uncertain, the demurrer is overruled.
The Court notes that the demurrer
purports to include a motion to strike, but there is no separate argument advanced
in connection with any request to strike all or any part of the pleading. To the extent there is a motion to strike on calendar,
it is denied.
5. Demurrer
and Motion to Strike -- Smith
Smith’s demurrer suffers from
defects similar to DeBose’s demurrer, discussed above. Smith argues, by way of example, that because
a residential sale did not complete for fraud by the seller’s agent, Civil Code
§51(a), which governs civil rights, precludes the action. Smith relies on Exhibit A to purportedly show
fraud. However, the Court cannot take
judicial notice of Exhibit A, and Smith’s argument relies entirely on facts
outside of the four corners of the complaint.
Smith also argues reduced capacity precludes her from entering into the
subject contract. This appears, at most,
to be the proper subject of an affirmative defense, which should be asserted by
way of Smith’s answer. She argues Plaintiff
committed fraud in connection with the transaction but, again, these purported
facts fall outside the four corners of the complaint. The demurrer is therefore overruled.
Smith argues Exhibit D to the complaint
should be stricken from the record because the document purports to request
mediation, but the time for mediation had already expired. The document, however, is merely foundational
and intended to set forth the parties’ relationship leading up to the filing of
the complaint. Smith failed to show any legal
reason that the document should be stricken from the record. The motion to strike is therefore denied.
6. Motion
to Continue Case Management Conference
Smith and DeBose filed motions to
continue the CMC, which is on calendar today with the demurrers, motions to strike,
and motion to dismiss. There is no reason
stated for the request. The Court holds CMCs
for the purpose of learning, from the parties, about the status of the
case. The Court will hold the CMC as
scheduled today.
7. Final
Note
The allegations against Defendants
are serious in nature, and could lead to the loss of the right to ownership of
the subject property if ultimately successful.
It is clear, from Defendants’ briefing of the issues on calendar today,
that Defendants are not familiar with California law. California law is very complicated. The Court strongly encourages Defendants to
retain a licensed California attorney if they wish to protect their interests
in the subject property.
8. Case
Management Conference
The parties are reminded that there
is a CMC on calendar today concurrently with the hearing on the other above
discussed matters. The Court asks the
parties to make arrangements to appear remotely at the CMC and hearing on the additional
matters.