Judge: Michael E. Whitaker, Case: 23SMCV02619, Date: 2023-09-29 Tentative Ruling

Case Number: 23SMCV02619    Hearing Date: February 5, 2024    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a dispute between neighbors over allegedly overgrown trees on Defendant Connie Chein’s (“Defendant”) property, obstructing the view from the property of Plaintiffs Skye Hoppus and Mark Hoppus, as trustees of the Rollo Tomassi Trust (“Plaintiffs”). 

Defendant demurs to the single cause of action alleged in Plaintiffs’ complaint for enforcement of Beverly Hills Resolution No. 1840, pursuant to Code of Civil Procedure section 430.10, subdivision (d), on the grounds that Plaintiffs failed to join a necessary party, Southpac Trust International, Inc., as co-owner of Defendant’s property. 

Plaintiffs oppose the demurrer and Defendant replies.

REQUESTS FOR JUDICIAL NOTICE

            Defendant requests judicial notice of the Grant Deed of the subject property, dated November 4, 1993 recorded as Document Number 93-2163667 by the Los Angeles County Recorder. 

            Plaintiff requests judicial notice of the Covenant View Restoration Permit for the real property located at 1100 Maytor Place, Beverly Hills, CA 90210, recorded with the Los Angeles County Recorder’s Office on November 26, 2018.

            Defendant objects to Plaintiff’s request for judicial notice on the grounds that it is not a grant deed and is not dispositive of who are the legal title owners of the property.

Courts can take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed.  (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-65.)  “The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.”  (Ibid.)  Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions.  (Ibid.)

            Therefore, the Court grants both requests and takes judicial notice of both documents, as well as the legal effect of both documents, but not the absolute truth of the matters asserted therein. 

UNTIMELINESS OF DEMURRER

Under Code of Civil Procedure sections 430.41 and 435.5, before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the subject pleading at least five days before the responsive pleading is due. (Code Civ. Proc., §§ 430.41, subd. (a), 435.5, subd. (a).) If the parties are not able to meet and confer at least five days prior to the date demurrer or motion to strike must be filed, the demurring/moving party shall be granted an automatic 30-day extension of time within which to file a demurrer or motion to strike, by filing and serving, on or before the date on which a demurrer or motion to strike would be due, “a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., §§ 430.41, subd. (a)(2), 435.5, subd. (a)(2).)        

            Here, following Defendant’s unsuccessful motion to quash service of the summons and complaint, the Court ordered Defendant to file and serve a response to the complaint on or before October 30, 2023.  (See September 29, 2023 Minute Order.)  On October 30, Defendant’s counsel filed a declaration indicating:

4. On October 27, 2023, I sent a meet and confer letter to David P. Schack and Jonathan K. Boustani. In this letter, I identified the grounds for the demurrer. I requested a time and date to facilitate a direct phone conversation.

5. As of October 30, 2023, Plaintiffs’ counsel have not yet replied to my meet and confer letter, so the parties have been unable to meet and confer and likewise have failed to reach an agreement concerning Defendant’s objection to the Complaint.

[…]

7. I file this declaration consistent with Code of Civil Procedure § 430.41 to invoke the automatic filing extension for demurrer.

(Fu Decl. at ¶¶ 4-5, 7.)  Defendant filed the instant Demurrer on December 6, 2023.         

Plaintiffs argue that the Demurrer should be overruled as untimely because (1) Defendant failed to attempt to meet and confer until after the October 25 deadline; and (2) even if the automatic 30-day extension applies, Defendant did not demur until December 6, which is past the extended November 29 deadline.

Defendant counters that Plaintiffs waived any objection to the untimely demurrer, because they asked for substantive relief (that the demurrer be overruled) instead of formally moving to strike the demurrer. 

The Court finds that Defendant has not established by the October 30, 2023 declaration, that counsel attempted to meet and confer in good faith prior to the October 25, 2023 deadline, or reasons why the parties could not meet and confer prior to October 25.

Moreover, even if the automatic 30-day extension did apply, Defendant’s deadline to file and serve the demurrer would have been November 29, yet Defendant did not file and serve the demurrer until December 6.

Nonetheless, the law strongly favors disposition on the merits, and ultimately the Court has discretion whether to consider late-filed papers.  (California Rules of Court, rule 3.1300(d).)  Therefore, the Court exercises its discretion and nonetheless considers Defendant’s untimely demurrer.

ANALYSIS

1.      DEMURRER

“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.    DEFECT OR MISJOINDER OF PARTIES

A demurrer for defect or misjoinder of parties lies only where it appears from the face of the complaint (or matters judicially noticed) that: (1) some third person is a necessary or indispensable party to the action; and hence must be joined before the action may proceed. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:78.)

Code of Civil Procedure section 379 provides, in pertinent part: “(c) Where the plaintiff is in doubt as to the person from whom he or she is entitled to redress, he or she may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties.” (Code Civ. Proc., § 379.)

Here, Defendant contends that by virtue of the 1993 grant deed, the true owners of the property in question are both Defendant and Southpac Trust International Inc. (“Southpac”) making Southpac a joint tenant.  As such, Southpac is an indispensable party with respect to any legal action affecting the rights or responsibilities concerning the subject property.

However, a careful review of the grant deed indicates that the property is owned by Defendant and Southpac “as Trustees of the Connie Chien Inter Vivos Settlement[.]”  Thus, the property belongs to the trust, and Defendant and Southpac are co-trustees of the trust.

Defendant does not cite to any authority that both co-trustees of a trust are always necessary and indispensable parties with respect to property owned by the trust, nor does Defendant cite to any allegation on the face of the complaint or in the judicially-noticeable documents demonstrating that Southpac is necessary or indispensable to the present litigation.

CONCLUSION AND ORDER

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

Defendant shall file and serve an Answer to the Complaint on or before February 16, 2024. 

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

DATED:  February 5, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court