Judge: Teresa A. Beaudet, Case: 22STCV10151, Date: 2022-08-22 Tentative Ruling

Case Number: 22STCV10151    Hearing Date: August 22, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On March 23, 2022, Plaintiff Burbank and Main Street, LLC (“B&M”) filed this action against Defendant Dominick Scarola (“Scarola”), asserting one cause of action for breach of written lease.

In the Complaint, B&M alleges that on or about October 14, 2003, B&M, through its predecessor-in-interest, 150 Golden Mall, L.P., entered into a “Standard Industrial/Commercial Multi-Tenant Lease – Net” agreement with Scarola’s predecessor-in-interest, Shamim Ahmed (“Ahmed”). (Compl., ¶ 5.) Ahmed and Scarola then entered into an assignment agreement dated November 15, 2007, whereby Scarola was assigned Ahmed’s rights, interest, and obligations under the subject lease. (Compl., ¶ 5.) Pursuant to the lease, Scarola leased from B&M certain commercial real property located at 212 East Orange Grove Avenue, Burbank, California 91502 (the “Subject Premises”). (Compl., ¶ 5.) Subsequently, the parties executed two amendments to the lease to extend the term of the lease. (Compl., ¶ 5.) B&M alleges that beginning on or around January 2020 and continuing thereafter through the expiration of the lease, Scarola breached the lease and defaulted thereunder by failing to pay to B&M the full amounts of monthly Rent due under the terms of the lease and abandoning the Subject Premises. (Compl., ¶ 9.) 

On April 14, 2022, Scarola filed a Cross-Complaint against B&M, asserting causes of action for (1) breach of contract, and (2) unjust enrichment. In the Cross-Complaint, Scarola alleges that pursuant to paragraph 7.2 of the subject lease, B&M was responsible for roof and interior wall repairs. (Cross-Compl., ¶ 8.) Scarola alleges that B&M is in breach of paragraph 7.2 because it allowed the roof and/or walls of the Subject Premises to leak water into Scarola’s premises, causing damage and loss of income to Scarola. (Cross-Compl., ¶ 15(b).) 

Scarola further alleges that as a condition of occupancy, he was required to and provided B&M with a deposit in the sum of $17,721.00, which was to be returned by B&M upon the termination of Scarola’s occupancy of the Subject Premises. (Cross-Compl., ¶ 11.) Scarola alleges that on or about September 29, 2020, B&M requested surrender of Subject Premises and the keys thereto, upon the representation that the Subject Property was being taken back by B&M for the purposes of seeking a new tenant. (Cross-Compl., ¶ 6.) In accordance with this request, Scarola surrendered the key to the Subject Premises on or about October 5, 2020. (Cross-Compl., ¶ 6.) However, B&M has refused to refund the $17,721.00 deposit, despite Scarola’s demand therefor. (Cross-Compl., ¶ 15(a).) 

            B&M now demurs to each of the causes of action of the Cross-Complaint on the ground that they fail to state facts sufficient to constitute a cause of action. Scarola opposes.  

Request for Judicial Notice

The Court grants B&M’s request that the Court take judicial notice of the Complaint filed in this action. The Court takes judicial notice of the fact of the filing of the Complaint, but the Court does not take judicial notice of the truth of any matters asserted therein.

Discussion

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, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)  

Breach of Contract Cause of Action

B&M asserts that Scarola’s first cause of action in the Cross-Complaint for breach of contract fails, because it is barred by two controlling provisions of the lease. 

B&M notes that “to the extent the factual allegations conflict with the content of the exhibits to the complaint, [the court] rel[ies] on and accept[s] as true the contents of the exhibits and treat[s] as surplusage the pleader’s allegations as to the legal effect of the exhibits.”(Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) As B&M also acknowledges, the Cross-Complaint does not attach a copy of the parties’ alleged lease agreement. Although the Cross-Complaint alleges that “[a] true and correct copy of the Original Lease is attached hereto as Exhibit ‘A’ and incorporated herein by this reference,” no Exhibit “A” is actually attached to the Cross-Complaint. (Cross-Compl., ¶ 4.) 

B&M asserts that “the fact that Scarola chose not to attach the Lease…does not stave off dismissal of the claims when the Lease is attached to the operative complaint in this matter and is cross-referenced in the Scarola Cross-Complaint.” (Demurrer at p. 3:3-6.) But B&M does not cite to any legal authority in support of this assertion. As set forth above, the Court only takes judicial notice of the fact of the filing of the Complaint in this action. The Court notes that “[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 [internal citations omitted.]) “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer.” (Id. at pp. 114-115.) 

In any event, Scarola indicates in the opposition that he “concedes that the claim for the water damage is barred by the provisions of the contract itself.” (Opp’n at p. 3:7-8.) However, he also asserts that the claim for recovery of his deposit remains viable.

As set forth above, Scarola alleges that B&M breached the lease by failing to refund Scarola’s deposit in the sum of $17,721.00. (Cross-Compl., ¶ 15(a).) B&M does not challenge Scarola’s breach of contract claim concerning the deposit in its demurrer. Rather, the demurrer addresses the breach of contract claim as it relates to B&M’s alleged failure to maintain the roof and exterior walls of the Subject Premises such that water leaked into the premises. The Court notes that “a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047; see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action.”].)

B&M argues for the first time in the reply that the breach of contract cause of action “contains none of the condition precedent allegations required to assert a breach of lease action against the Landlord tied to the disposition of the security deposit.” (Reply at p. 2:1-3.) The Court notes that “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Thus, the Court does not consider the points raised for the first time in B&M’s reply.   

In light of the foregoing, the Court overrules B&M’s demurrer to the first cause of action for breach of contract.

Unjust Enrichment Cause of Action

B&M asserts that Scarola’s second cause of action for unjust enrichment must fail. As an initial matter, B&M notes that “unjust enrichment is not a cause of action. Rather, it is a general principle underlying various doctrines and remedies, including quasi-contract.” (Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911 [internal citations omitted].) In the opposition, Scarola does not dispute that unjust enrichment is not a cause of action. Rather, he asserts that the unjust enrichment claim arises out of the retention of the deposit, and states that “[i]f the Cross-complaint for breach of contract survives the demurrer, then the Unjust Enrichment claim is redundant.” (Opp’n at p. 4:22-23.)

In light of the foregoing, the Court sustains B&M’s demurer to the second cause of action for unjust enrichment, without leave to amend. As noted by B&M, “[t]he plaintiff has the burden of proving that an amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

Conclusion

Based on the foregoing, the Court overrules B&M’s demurer to the first cause of action of the Cross-Complaint. The Court sustains B&M’s demurer to the second cause of action of the Cross-Complaint, without leave to amend.

The Court orders B&M to file and serve an answer to the Cross-Complaint within 10 days of the date of this Order.

B&M is ordered to give notice of this Order.

DATED:  August 22, 2022                             ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court