Judge: Maurice A. Leiter, Case: 22STCV17343, Date: 2022-12-05 Tentative Ruling

Case Number: 22STCV17343    Hearing Date: December 5, 2022    Dept: 54

Hearing Date: December 5, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendants Jose Jaime and Dagoberto Jamie

Responding Party: Plaintiff Arthur Edward Ezor

T/R:    DEFENDANTS’ DEMURRER IS OVERRULED.

            DEFENDANTS to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. 

            The Court considers the moving papers and opposition.

BACKGROUND

            On May 26, 2022, Plaintiff Arthur Edward Ezor filed a complaint against Defendants Ellie Page, Masoud Koshki, Shlomo Harari, Norma Diller, Jose Jaime, Dagoberto Jaime, P&J Labrea, LLC, and Does 2-100, inclusive. The complaint asserts causes of action for (1) Negligence; (2) Declaratory Relief to Set Aside Sheriff’s Sale; (3) Recission Voiding or Cancelling Sheriff’s Sale; (4) Wrongful Foreclosure; (5) Unjust Enrichment; (6) Violation of California Business and Professions Code § 17200; (7) Quiet Title; (8) Conspiracy to Commit Fraudulent Conveyance; (9) Intentional Interference with Economic Relations; and (10) Breach of Oral Contract.

Plaintiff alleges that Defendants caused his property to be sold at a sheriff’s sale that was fraudulent and illegal. (Compl. ¶¶ 18, 21.) Plaintiff alleges that Defendants Jose and Dagoberto Jamie failed to pay rental obligations due to Plaintiff for their use of the Property after the unlawful Sheriff’s Sale. (Compl. ¶ 24.)

REQUESTS FOR JUDICIAL NOTICE

            Jaime Defendants request that the Court take judicial notice of (1) Amended Order Authorizing the Sale of Real Property under Case No. BP101210; (2) Writ of Execution; (3) Sheriff’s Deed of Sale of Real Property; and (4) Request for Dismissal filed by Plaintiff in Case No. BC707854.

            The Court grants these requests pursuant to Evid. Code § 452(d).

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Jaime Defendants demur to the tenth cause of action for breach of oral contract, the only cause of action alleged against them, on the grounds that this cause of action does not state sufficient facts, is uncertain, is barred by the statute of limitations, and is barred by the statute of frauds.

The Complaint alleges that Jaime Defendants “failed and refused…to pay rental monies due and payable to Ezor for their use of and residing in the La Brea Property…Their non-payment of rental obligations and sums due Ezor happened after the bad faith and unlawful Sheriff’s Sale of said property.” (Compl. ¶ 24.) The Complaint further alleges that within the last four years, Plaintiff and Jaime Defendants entered into “respective oral contracts or agreements respective oral contracts or agreements…that they would respectively rent the two units in the LARREA PROPERTY from Plaintiff at a monthly rent of $ 1,200.00 per duplex… At all times relevant hereto, and continuing to the present, said Defendants, and each of them. knew that the subject property was owned by Plaintiff and that there was an illegal and fraudulent sale of the property.” (Compl. ¶ 66.) The Complaint also alleges that Jaime Defendants breached their oral contracts by not paying Plaintiff rental income. (Compl. ¶ 67.)

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Jaime Defendants argue that the agreement was no longer supported by consideration when Plaintiff lost title to the Property. Jaime Defendants rely on the Sheriff’s Deed of Sale of Real Property that took place on June 12, 2018. But the Complaint alleges that this sale was unlawful and fraudulent. (Compl. ¶ 21.) Plaintiff properly alleges he is the rightful owner of the property; he could establish a valid oral contract with the Jaime Defendants. Although the existence of the Sheriff’s Deed of Sale is judicially noticeable, the Court cannot in a demurrer take judicial notice of the truth or legality of this document. Indeed, the legality of the sale is the subject of this dispute. (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.)  

Jaime Defendants argue that the claim is “uncertain,” particularly with respect to the “oral agreements” alleged and who made the oral agreements. The complaint is not uncertain. Plaintiff is alleging that both Jaime Defendants agreed to pay rent to Plaintiff in exchange for living on the La Brea Property.

Jaime Defendants also argue that the claim is barred by the statute of limitations. The relevant statute of limitations for breach of oral contract is two years under Cal. Civ. Proc. § 339(1). The Complaint alleges that equitable tolling applies. (Compl. ¶ 25.) The Complaint also alleges that the contract was breached from four years ago to the present.

Each breach of a recurring obligation is independently actionable. The continuous accrual doctrine applies where contractual performance is divisible into intervals. (See Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1388-1389.) On the face of the Complaint it appears that each breach of the contract occurred at when Defendants were supposed to make their monthly rent payment. Although certain missed payments may fall outside the statute of limitations, the Complaint also alleges that the Defendants have been missing rental payments within the past two years.  

Jaime Defendants argue that the claim is barred by the statute of frauds. Leases for more than one year fall within the statute of frauds. (Civ. Code § 1624.) However, the Complaint does not clearly allege that the lease was more than one year; rather, the complaint only states that the Plaintiffs would rent the two units at a monthly rent of $1,200 per unit. (Compl. ¶ 66.) The complaint must, on its face, disclose the statute of frauds as a bar to recovery. (See Parker v. Solomon (1959) 171 Cal.App.2d 125, 136.) Because the complaint makes it unclear if the oral agreement was for more than one year or month-to-month, the statute of frauds is not grounds for demurrer.

The demurrer is OVERRULED.