Judge Mark E. Windham, Case Number: 24STLC00667, Date: 2024-09-30 Tentative Ruling

Judge: Mark E. Windham, Case: 24STLC00667, Date: 2024-09-30 Tentative Ruling

Case Number: 24STLC00667 Hearing Date: September 30, 2024 Dept: 26

Covina Hills MHC v. Souza, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Francis Vinuya’s Demurrer to the Complaint is OVERRULED AS TO THE FIRST, FIFTH, AND SIXTH CAUSES OF ACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND, THIRD, FOURTH, AND SEVENTH CAUSES OF ACTION.

BASED ON THE RELIEF SOUGHT IN THE COMPLAINT, THE COURT SETS AN OSC RE BIFURCATION AND TRANSFFER OF THE FIFTH CAUSE OF ACTION FOR NOVEMBER 4, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On January 30, 2024, Plaintiff Covina Hills MHC (“Plaintiff”) filed this action against Defendants Eugenia Souza, Jermaine D. Souza, Julio Javier Romo, Francis Vinuya (erroneously sued as Francis Vinula) (“Defendant Vinuya”), and Does 1 through 100, alleging causes of action for: (1) Declaration of Mobile Home Abandoned; (2) Open Book Account; (3) Breach of Implied in Fact Contract; (4) Common Counts; (5) Declaratory Relief; (6) Breach of Written Contract; and (7) Intentional Misrepresentation.

On June 10, 2024, Defendant Vinuya filed the instant demurrer to the Complaint. On August 2, 2024, Plaintiff filed and served an opposition brief, to which Moving Defendant filed and served a reply brief on August 14, 2024.

Discussion

Allegations in the Complaint

Plaintiff operates a mobilehome park in La Puente, and served a 60-Day Notice to Terminate Possession (the “Notice”) on Defendants Eugenia Souza and Jermaine D. Souza (collectively, the “Souzas”) for having a pit bull dog that terrorized the community. (Compl., ¶7.) An incident occurred whereby the pit bull dog attacked a small child and his dog. (Ibid.) Defendant Eugenia Souza was told that if she removed the pit bull dog from the community that the Souzas’ tenancy would be reinstated but she refused. (Id. at ¶8.) The Souzas were given additional time to sell the mobilehome after the expiration of the Notice. (Ibid.) The Souzas, however, were unable to sell their mobilehome despite having a licensed real estate agent and brokerage firm. (Id. at ¶9.) Eviction proceedings were commenced against the Souzas. (Ibid.)

Prior to the case going to trial, Defendant Eugenia Souza represented to the court that she had vacated and moved from the mobilehome and Covina Hills MHC. (Complaint, ¶ 10.) Thereafter, the Souzas were asked to pay current the storage accounts due and to remove the mobilehome from the space. (Id. at ¶10.) The Souzas did not remove the mobilehome and pay back the storage charges so Plaintiff commenced abandonment proceedings which were later dismissed because of an apparent transfer of ownership of the mobilehome. (Id. at ¶10.) Defendant Vinuya, who is the brother of Defendant Eugenia Souza, represented to Plaintiff that the Souzas would pay the park storage charges until the mobilehome was sold and removed from the Covina Hills MHC property. (Id. at ¶11.) On more than one occasion, Defendant Vinuya represented that he had found a buyer for mobilehome and stated that if Plaintiff continued to store the mobilehome until sold, they would be paid at the time of sale. (Ibid.) In February 2023, Defendant Vinya verified that he sold the mobilehome to Antonio Geluz, however, on July 19, 2023, Defendant Eugenia Souza represented that she sold the mobilehome to Julio Javier Romo. (Id., at ¶¶ 13-14.) Plaintiff alleges that the issue of mobilehome ownership is convoluted. (Id. at ¶15.)

Demurrer to Complaint

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., § 430.41.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).) It is unclear if the meet and confer requirement was satisfied as the parties submit contradictory declarations. Defendant Vinuya declares that he attempted to meet and confer with Plaintiff but Plaintiff’s counsel disputes any such attempt. (Demurrer, Vinuya Decl., ¶6(A); Opp., Trevillyan Decl., ¶2). That being said, an insufficient meet and confer is not grounds to overrule or sustain a demurrer. The Court will rule on the merits of the demurrer.

Initially, the Court notes that only the second, third, fourth, and seventh causes of action are asserted against Defendant Vinuya. Therefore, Defendant Vinuya cannot demur to those causes of action not asserted against him. The Court overrules the demurrer to the first, fifth, and sixth causes of action.

The demurrer is brought on the grounds that the complaint does not state sufficient facts to constitute a cause of action, uncertainty, and it cannot be determined if the contract is oral, written, or implied. (Citing Code Civ. Proc., § 430.10, subds. (e), (f), (g).) Special demurrers are not permitted in the limited jurisdiction court. (Code Civ. Proc., §92, subd. (c).) The Court will not rule on the demurrer for uncertainty and that it cannot be determined if the contract is oral, written, or implied.

Res Judicata / Collateral Estoppel

Defendant Vinuya argues that the causes of action asserted in the Complaint are barred by the doctrines of res judicata and collateral estoppel based on a separate action, LASC Case No. 24STCP02034. (Demurrer at pp. 8-9.) On its face, however, the Complaint does not mention LASC Case No. 24STCP02034 and Defendant Vinuya has not requested judicial notice of that action. Also, Defendant Vinuya does not present any legal authority as to the elements needed to show the applicability of res judicata or collateral estoppel. “Contentions are waived when a party fails to support them with reasoned argument and citations to authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) The demurrer based on collateral estoppel and res judicata is overruled.

2nd Cause of Action for Open Book Account

“The term ‘book account’ means a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner . . . .” (Code Civ. Proc., § 337a, subd. (a).)

In the second cause of action, Plaintiff alleges that Defendants became indebted to Plaintiff on an open book account for money due for storage charges in the sum of $1,166.00 per month beginning May 1, 2022, at Defendants’ special insistence and request and for which Defendants agreed to pay the above sum. (Compl., ¶22.) Neither the whole nor the part of the above sum has been paid although demand therefore has been made. (Ibid.) The allegations, however, are that Defendant Vinuya promised that the Souzas—and not Moving Defendant himself—would pay park storage charges and that if Plaintiff continued to store the mobilehome until sold, the charges would be paid at the time of sale. (Id. at ¶11.) There is no allegation of Defendant Vinuya being a debtor of Plaintiff or that any records were kept in the regular course of business as required under Code of Civil Procedure section 337a, subdivision (a). The second cause of action is not sufficiently alleged. The demurrer to the second cause of action is sustained.

3rd Cause of Action for Breach of Implied in Fact Contract

To state a cause of action for breach of contract, Plaintiff must be able to establish “(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.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1230.)

Plaintiff has not alleged the existence of a contract. There are no allegations that Defendant Vinuya promised to perform in any way in exchange for performance by Plaintiff. As discussed above, Defendant Vinuya made promises regarding payment by the Souzas. Nor does the Complaint allege any facts showing by what conduct Defendant Vinuya obligated himself under a purported contract. The demurrer to the third cause of action is also sustained.

4th Cause of Action for Common Counts

The required elements of a common count claim are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted. “A common count is not a specific cause of action . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness . . . .” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) “When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (Ibid.) Here, the fourth cause of action is based on the same facts as the insufficient second and third causes of action. (Compl., ¶¶30-32.) Therefore, the fourth cause of action for common count is not sufficiently alleged. The demurrer to the fourth cause of action is sustained.

7th Cause of Action for Intentional Misrepresentation

“Fraud actions... are subject to strict requirements of particularity in pleading. The idea seems to be that allegations of fraud involve a serious attack on character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense.” (Committee on Children's Television v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 211.) “This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.” ’ ” (Lazar, supra, 12 Cal.4th at p. 645, 49 Cal.Rptr.2d 377, 909 P.2d 981.)” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 837.)

The Complaint does not allege facts showing how, when, where, to whom, and by what means the representations were tendered. It simply alleges that Defendant Vinuya represented to Plaintiff that the Souzas would pay the storage fees until the mobilehome was sold and removed. (Compl., ¶¶11, 43.) The demurrer to the seventh cause of action is sustained.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.) Plaintiff’s opposition cites no part of the Complaint to support its contention that any of these causes of action are sufficiently alleged, nor does it show that any facts can be alleged to correct the defects therein. Leave to amend is denied.

Transfer of Action to Unlimited Jurisdiction Court

Finally, the Court takes note of the fifth cause of action for declaratory relief regarding the issue of who owns the mobile home. (Compl., ¶34.) The limited jurisdiction court lacks jurisdiction to issue the declaratory relief sought in the Complaint. (See Code Civ. Proc., §§ 85, 86.) However, the first cause of action is one for a declaration that the mobilehome is abandoned. That is necessarily a limited jurisdiction case. (Code Civ. Proc., § 798.61, subd. (c).) The Court sets an order to show cause regarding bifurcation and subsequent transfer of the fifth cause of action to the unlimited jurisdiction court.

Conclusion

Court clerk to give notice.