Judge: Michael E. Whitaker, Case: 23SMCV02404, Date: 2023-08-03 Tentative Ruling

Case Number: 23SMCV02404    Hearing Date: December 12, 2023    Dept: 207

TENTATIVE RULING

MOTIONS

This case stems from a dispute over Defendant’s alleged violation of a residential lease agreement.   Defendant Joseph Garcia (“Defendant”), in pro per, demurs to both causes of action alleged in Plaintiff Alan Ruzicka’s (“Plaintiff”) Complaint, for breach of contract and for common counts.  Plaintiff opposes the demurrer. 

Defendant filed a reply on December 7, 2023.  Under Code of Civil Procedure section 1005, subdivision (b), Defendant’s reply was due on December 5 – 5 court days before the hearing.  As such, the Court finds Defendant’s reply to be untimely.  Nevertheless, the Court exercises its discretion to consider the reply, except for the Declaration of Joseph Garica attached to the reply. [1] 

MEET AND CONFER REQUIREMENT

            Code of Civil Procedure section 430.41, subdivision (a) requires that “Before 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.” 

The statute further requires “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1).)  “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”  (Ibid.)

“The parties shall meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc., § 430.41, subd. (a)(2).)  “The demurring party shall file and serve with the demurrer a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request.  (Id., subd. (a)(3).) 

Here, Defendant has provided a declaration, signed under penalty of perjury, indicating, “On June 20, 2023, prior to filing any response to this action, I had my attorney attempt to meet and confer with Mr. Fidler regard in the defects in the Complaint , but got no response.” [sic]  (Garcia Decl.) 

In Opposition, Plaintiff argues (but does not provide any declaratory evidence) that this purported meet and confer never occurred.  Plaintiff also argues that the meet and confer is deficient because it purportedly occurred more than 4 months prior to the filing of the demurrer.

On its face, Defendant appears to have complied with the meet and confer requirements, and Plaintiff has not proffered any contrary evidence.  Moreover, the fact that the attempted meeting occurred four months prior to the filing of the demurrer is not unusual in this case, given that Defendant successfully challenged service of the summons and complaint.

Therefore, the Court finds that Defendant has satisfied the meet and confer requirements.

ANALYSIS

1.      DEMURRER

Defendant demurs to both causes of action in Plaintiff’s Complaint on the basis that they fail to state facts sufficient to constitute causes of action and for uncertainty pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f).

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Although Defendant argues that “[t]he complaint is uncertain as to the origin of the $50,340 demanded,” Defendant does not demonstrate that any portions of the Complaint are so bad that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against Defendant.  The Court thus declines to sustain Defendant’s demurrer on the basis of uncertainty. 

B.     FAILURE TO STATE A CAUSE OF ACTION

                                                                    i.            First Cause of Action – Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.”  (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) 

Here, Plaintiff alleges that on or about 6-14-2021, a written agreement was made between Plaintiff and Defendant and does 1 to 10, inclusive, a copy of which is attached to the Complaint as Exhibit A.  (Complaint at ¶ BC-1.)  The Complaint further alleges that on or about January 1, 2022, Defendant breached the agreement “By failing and/or refusing to pay monthly rent and other monetary Lease obligations.”  (Complaint at ¶ BC-2.)  The Complaint further alleges that “Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing” and “Plaintiff suffered damages legally (proximately) caused by defendant’s breach of the agreement” as “General and/or compensatory damages in the sum of $50,340.00 or in a sum according to proof.”  (Complaint at ¶¶ BC-3, BC-4.)

Defendant argues that because Plaintiff indicates in Attachment #9 to the Complaint that Plaintiff commenced an Unlawful Detainer Action against Defendant and the other 3 tenants of the unit at the time, that the lease agreement ceased by virtue of the unlawful detainer action, and therefore, Plaintiff did not owe Defendant any rent after that time, while he continued to occupy the premises.  In support, Defendant cites to Colyear v. Tobriner (1936) 7 Cal.2d 735, 742 (hereafter Colyear) and Balassy v. Superior Court (1986) 181 Cal.App.3d 1148, 1151 (hereafter Balassy).  Defendant’s cases are inapposite. 

In Colyear, the tenant leased premises at $45 per month, and the lease contained a two-year option to renew the lease at a monthly rental not to exceed 20% increase of the rent.  The trial court held that the tenant failed to exercise this option.  Subsequently, the landlord attempted to raise the monthly rent to $750 per month, via a defective notice to the tenant, who continued to hold over the tenancy.  The Supreme Court reversed and remanded to the trial court the issue of whether the tenant was liable for “the reasonable value of the use” or the prior rental rate of $45 per month during the holdover period.  Colyear does not stand for the proposition that a tenant who holds over after the termination of a lease is not obligated to pay any rent during the holdover period.

Balassy is similarly inapposite.  In Balassy, landlord commenced an unlawful detainer action based on nuisance.  The jury determined the tenant was not liable for unlawful detainer, and was entitled to the premises.  Yet, the tenant must pay landlord unpaid rent, or else judgment of possession would be awarded to the landlord.  The tenant timely paid and then appealed.  The Court of Appeal vacated the judgment and entered a new judgment in the tenant’s favor, which included a refund of the rents paid in connection with the unlawful detainer action, on the ground the trial court had no jurisdiction to condition entry of judgment for tenant’s possession upon payment of the rent where landlord failed to prove unlawful detainer, noting the landlord had other remedies to collect the unpaid rent.  Therefore Balassy also does not stand for the proposition that a tenant is not obligated to pay rent.

Moreover, the Court notes that Attachment 9 indicates that there is no other pending action by Plaintiff against Defendant which would necessarily include any unlawful detainer action.  (See Complaint, Attachment 9, ¶ (9).)  Further, in opposition, Plaintiff asserts that the aforementioned unlawful detainer action was dismissed voluntarily by Plaintiff.  (Opposition, p. 6.) 

Therefore, Plaintiff has validly stated a cause of action for breach of contract.

                                                                  ii.            Second Cause of Action – Common Counts

The elements of a cause of action for common counts are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.”  (Allen v. Powell (1967) 248 Cal.App.2d 502, 510.) 

Defendant concedes the Complaint alleges “that Defendant became indebted to Plaintiff in excess of $50,000.”  (Demurrer at p. 4.)  The Complaint also alleges that Defendant occupied Plaintiff’s premises without paying. 

Defendant argues that the common count cause of action fails because a common count exists only where there is no contract.  At the pleadings stage, a plaintiff may “plead in the alternative and make inconsistent allegations.”  (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)  The Court notes it is common for plaintiffs alleging a breach of contract to plead common counts in the alternative, lest no valid contract is ultimately found to exist between the parties.

Thus, the fact that Plaintiff has pleaded inconsistent causes of action is not, in itself, a basis to sustain a demurrer.

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendant’s Demurrer to the Complaint. 

Further, the Court orders Defendant to file an Answer to the Complaint on or before December 26, 2023. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  December 12, 2023                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court