Judge Michelle Williams Court, Case 21STCV32506 2022-08-12 Tentative Ruling

Judge: Michelle Williams Court, Case: 21STCV32506, Date: 2022-08-12 Tentative Ruling

Case Number: 21STCV32506 Hearing Date: August 12, 2022 Dept: 74

21STCV32506 ROXBURY LANE LP vs JENNIFER GULOTTA

Demurrer to First Amended Complaint

TENTATIVE RULING: The demurrer is OVERRULED. Defendant shall have 20 days leave to answer the First Amended Complaint.

Background

On September 1, 2021, Plaintiff Roxbury Lane, LP filed this action against Defendant Jennifer Gulotta. On June 17, 2022, Plaintiff filed the operative First Amended Complaint for Declaratory Relief. Plaintiff alleges the Defendant is residing in one of Plaintiff’s residential units without a lease agreement. The parties previously litigated a forcible detainer action 20STUD03600 Roxbury Lane LP vs Jennifer Gulotta in which the jury returned a verdict in favor of Defendant Gulotta.

Demurrer

On June 17, 2022, Defendant filed the instant demurrer to the only cause of action asserted in the FAC on the grounds that it fails to state a cause of action and is uncertain.

Opposition

In opposition, Plaintiff contends the FAC adequately alleges a declaratory relief claim to determine the rights of the parties after the jury in the forcible retainer case found Defendant had a legal right to occupy the premises.

Reply

Defendant did not file a timely reply. (Code Civ. Proc. § 1005(c).)

Discussion

Meet and Confer

Defendant submitted the declaration of James K. Sadigh, which satisfies the requirements of Code of Civil Procedure section 430.41.

Demurrer

Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts noting plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

A special demurrer to a complaint is appropriate when the grounds of the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor demurrers based on uncertainty, which the court strictly construes even when the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

If the demurrer is sustained, plaintiff must prove the possibility of cure by amendment. (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79).) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)

Declaratory Relief

Pursuant to Code of Civil Procedure section 1060, “[a]ny person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

The Court of Appeal for the Second District held that a demurrer is not the proper vehicle to address a stand alone claim for declaratory relief. (See Nede Mgmt., Inc. v. Aspen American Ins. Co. (2021) 68 Cal.App.5th 1121; 284 Cal.Rptr.3d 122, 129 (“we will apply the rule in Maguire. Here, the Darwish family adequately alleged an ‘actual controversy’ under the declaratory relief statute, so the trial court technically should have overruled the demurrer.”): Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 (“Strictly speaking, a demurrer is not an appropriate weapon to attack a claim for declaratory relief inasmuch as the plaintiff is entitled to a declaration of its rights, even if adverse.”).)

The First Amended Complaint alleges the existence of an actual controversy between Plaintiff and Defendant regarding the fair market value to rent the property occupied by Defendant. (FAC ¶ 11.) Nothing further is needed to state a cause of action for declaratory relief as Plaintiff has alleged an actual controversy regarding the legal rights and duties of the parties in respect to the property. (Code Civ. Proc. § 1060.)

Defendant contends “this entire action appears to be founded upon a stipulation that was

entered into a prior forcible detainer action by Plaintiff in which Plaintiff lost that case” and the stipulation “was expressly contingent upon Plaintiff prevailing in said action.” (Dem. at 6:19-24.) As argued by Plaintiff, the stipulation is cited merely as evidence of the claimed fair market rent.

Defendant also argues declaratory relief is not proper where there is an accrued cause of action arising out of the same issues. (Dem. at 6:1-19.) Defendant relies upon the prior version of the complaint which contained a breach of contract claim. (Id. at 6:16-18 (“In the case at bar, there is an alleged accrued cause of action for breach of contract arising out of the identical issues.”).) The First Amended Complaint does not include a breach of contract claim and this argument lacks merit.

Finally, Defendant contends the First Amended Complaint is uncertain. (Dem. at 6:20-7:5.) Defendant argues “it cannot be ascertained how, or in what manner, Defendant is alleged to owe rent, nor can it be ascertained what is the alleged relationship between Plaintiff and Defendant.” (Dem. at 6:22-24.) However, the FAC alleges Defendant is occupying the property pursuant to “an email from someone in Plaintiff’s office allowing her to occupy the Property” as found by the jury in the parties’ forcible detainer action. (FAC ¶ 8.) The FAC also alleges Defendant seeks to rent the property at a rate of $1,150.00 per month. (FAC ¶ 9.) “[I]n the ordinary course of business the occupancy of premises by one person with the consent of the owner creates the relation of landlord and tenant, and in the absence of an understanding to the contrary, implies an agreement on the part of the tenant to pay a reasonable rent for such occupation.” (Ross v. City of Long Beach (1944) 24 Cal.2d 258, 263.) Plaintiff’s FAC seeks a declaration of the reasonable rent and the FAC is not fatally uncertain.