Judge: Mark H. Epstein, Case: 24SMCV04242, Date: 2025-01-22 Tentative Ruling

Case Number: 24SMCV04242    Hearing Date: January 22, 2025    Dept: I

The demurrer is SUSTAINED.  Plaintiffs sue defendants for breach of contract.  Plaintiffs state that the parties entered into a lease agreement that defendants breached by boarding up the property on June 2, 2020.  Plaintiffs suggest that the demurrer should be rejected due to a lack of a proper meet and confer.  However, a demurrer cannot be overruled on that basis.  Rather, all the court could do would be to continue the matter.  The court exercises its discretion to hear the matter now.  Plaintiffs also contend that the demurrer is not timely.  However, the first demurrer was filed on October 9, 2024, which was timely given that defendants were served personally on September 9, 2024.  Even were that not the case, the court would exercise its discretion to hear the matter.

Turning to the merits, the court finds defendants’ statute of limitations argument dispositive.  The complaint states that the improper conduct occurred on June 2, 2020.  The pertinent statute is four years—the statute applicable to breach of a written contract.  That means that suit had to be filed by June 2, 2024.  But suit was not filed until September 2024.  That makes the cause of action untimely.  Plaintiffs suggest that the complaint says that the breach occurred on June 2, 2020 “and thereafter.”  That is not enough.  It appears plaintiffs are attempting to rely on the continuous accrual doctrine.  But that doctrine does not apply here.  That doctrine applies when there are serial breaches, each of which is another wrongful act.  For example, the failure to pay rent will accrue each month that rent is not paid.  As such, missing the statute for the first couple months does not doom the action—only the months beyond the statutory period.  There is nothing like that here.  The argument is that defendants boarded up the property in June 2020.  The fact that it stayed boarded up does not re-start the statute in perpetuity.  Nor do plaintiffs indicate what “and thereafter” might mean.  There are some instances where the doctrine implies that if any action occurs within the statutory period then the entire case is timely, but this is not such a case.

The court is also concerned about res judicata.  There was a prior action between the parties—case 21SMCV01421—for unpaid rent.  Judgment was entered in favor of the defense (plaintiff in that case).  Plaintiffs (defendants here) sought to vacate the judgment, but that request was denied although it appears to be on appeal.  Although the court need not, and does not, reach that issue now, the court is concerned that this doctrine might also prove fatal to plaintiffs here.  At present, at least while the matter is on appeal, that doctrine does not apply because the judgment is not final.  (The proper doctrine is a plea in abatement pending the resolution of the appeal.)  The court mentions it now only to put the parties on notice of it. 

The bottom line is that the demurrer is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.   The court will inquire as to whether there is a purpose in going forward with the CMC in the related case.