Judge: Michael P. Linfield, Case: 21STCV36297, Date: 2023-03-24 Tentative Ruling

Case Number: 21STCV36297    Hearing Date: March 24, 2023    Dept: 34

SUBJECT:         Demurrer

Moving Party:  Defendant Sanford Gendel

Resp. Party:    Plaintiff 1344 N. Highland Ave, LLC

Defendant’s Demurrer is OVERRULED.

BACKGROUND:

On October 1, 2021, Plaintiff 1344 N. Highland Ave, LLC filed its Complaint against Defendant Sanford Gendel on causes of action of breach of contract and common counts.

On March 21, 2022, the Court found cases 20STCV45971 and 21STCV36297 to be related and designated 20STCV45971 as the lead case.

On December 23, 2022, Plaintiff filed its First Amended Complaint (FAC).

On February 23, 2023, Defendant filed their Demurrer. Defendant concurrently filed: (1) Request for Judicial Notice; and (2) Declaration of Amber Miller.

On March 3, 2023, Plaintiff filed its Opposition.

On March 17, 2023, Defendant filed their Reply. Defendant concurrently filed an additional Declaration of Amber Miller.

ANALYSIS:

I.           Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of Plaintiff’s Articles of Organization, which were filed with the California Secretary of State.

Judicial notice is GRANTED.

II.        Demurrer

A.      Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for the purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within). 

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.) 

B.      Discussion

Defendant demurs to FAC, arguing: (1) that Plaintiff lacks capacity to sue for breach of contract because it has not complied with the provisions of the fictitious business name statute; and (2) that Plaintiff has failed to state a cause of action for breach of contract. (Demurrer, pp. 2:21–22, 3:27–28.)

Plaintiff opposes the Demurrer, arguing: (1) that Plaintiff’s complete legal name was correctly recited on the signature page of the lease; (2) that Civil Code section 1577 covers any mistake of fact made here; and (3) that there was nothing unconscionable about the terms of the lease agreement. (Opposition, pp. 2:9–10, 3:15–14, 5:16–20.)

Defendant argues in their Reply: (1) that Plaintiff did not oppose the demur to the cause of action for breach of contract; and (2) that the mistake of fact argument does not resolve the defects in the FAC. (Reply, 2:21, 3:22.)

        The Court does not find Defendant’s arguments to be persuasive.

Starting with the standing argument, Plaintiff’s registered name is 1344 N. Highland Ave, LLC. (Request for Judicial Notice, Ex. A.) Plaintiff sued under this name. (See Complaint; see also FAC.) While the name listed on the first page of the contract omits the word “Ave” from Plaintiff’s name, the exact name is listed on the signature. (Opposition, Ex. 1, pp. 1 (Item 1.1), 16.) Whether the actual party to the contract was “1344 N. Highland, LLC” or “1344 N. Highland Ave, LLC” is a question of fact, not law. That makes this inappropriate for resolution on a demurrer. For the purposes of a demurrer, the Court must take as true the allegations made in the FAC, which here includes the allegation that Plaintiff was a party to the contract.

(The Court also notes that this factual argument may well be irrelevant, since Plaintiff can always amend its complaint to proof.)

Regarding the sufficiency of pleading for the breach of contract claim, Plaintiff alleges: (1) that there was a written lease agreement; (2) that Plaintiff performed all obligations to Defendant except those obligations Plaintiff was prevented or excused from performing; (3) that Defendant breached the agreement by failing to pay rent, by failing to maintain the premises in good condition, and by causing extensive damages to the premises, in ways specifically described in the FAC; and (4) that damages resulted for unpaid rent, as well as for damages to the premises. (FAC, Items BC-2, BC-3, BC-4.) Assuming as true these allegations for the purposes of the demurrer, these allegations sufficiently plead the elements for a cause of action of breach of contract. (See, for example, Oasis W. Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

The Court OVERRULES the Demurrer.

C.      Conclusion 

Defendant’s Demurrer is OVERRULED.