Judge: Theresa M. Traber, Case: 21STCV24841, Date: 2022-09-28 Tentative Ruling

Case Number: 21STCV24841    Hearing Date: September 28, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 28, 2022               TRIAL DATE: NOT SET

CASE:                         Irlanda Palomino, et al. v, Holmby Capital, LLC

CASE NO.:                 21STCV24841           

DEMURRER TO CROSS-COMPLAINT

MOVING PARTY:               Cross-Defendant Joan M. Pierce.

RESPONDING PARTY(S): Defendant and Cross-Complainant Holmby Capital, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract and for habitability defects filed on July 6, 2021. Defendant filed a cross-complaint against third party Cross-Defendant Joan M. Pierce for equitable indemnity on October 18, 2021.  

Cross-Defendant Joan M. Pierce demurs to the Cross-Complaint in its entirety.

TENTATIVE RULING:

Cross-Defendant’s Demurrer to the Cross-Complaint is OVERRULED.

DISCUSSION:

Cross-Defendant Joan M. Pierce demurs to the Cross-Complaint in its entirety for failure to state facts sufficient to constitute a cause of action.

Legal Standard

A demurrer 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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “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.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Michael J. Stiles in support of the demurrer states that the parties extensively met and conferred by email and telephone between March 30, 2022 and April 28, 2022, without successfully resolving this dispute. (Declaration of Michael J. Stiles ISO Demurrer ¶¶ 3-6.) Cross-Defendant has therefore satisfied the statutory meet and confer requirements.

Cross-Defendant’s Request for Judicial Notice

Cross-Defendant requests that the Court take judicial notice of a Residential and Income Property Purchase Agreement and Joint Escrow Instructions dated June 13, 2017, for the property located at 2906 S. San Pedro Street, Los Angeles, as amended by an Addendum No. 1 executed by the parties on October 24, 2017.

            Evidence Code section 452(h) provides that the Court may take judicial notice of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code § 452(h).) The Court must take judicial notice of matters specified in section 452 upon request if the requesting party provides sufficient notice and information. (Evid. Code § 453.) The existence and contents of a written agreement can be judicially noticed if there is no factual dispute regarding the authenticity and accuracy of the document. (See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666, fn. 2 [taking judicial notice of settlement agreements on demurrer “as there is and can be no factual dispute concerning the contents of the agreements”].)

            Cross-Complainant objects to this request on the basis that, under The Travelers Indemn. Co. of Conn. V. Navigators Specialty Ins. Co., (2021) 70 Cal.App.5th 341, the Court may not take judicial notice of a contract between private parties. Cross-Complainant’s recitation of the holding in Travelers is not quite correct. More precisely, the Court of Appeal in Travelers ruled that a contract between private parties could not be judicially noticed when the contract was, as in that case, disputed by the parties in that trial and the adverse party had objected to the request for judicial notice. (Travelers, supra, 70 Cal.App.5th at 351, 354-55.) The Court of Appeal specifically stated that when a party opposes the court’s consideration of an agreement in the context of a demurrer, “it is proper for the court to decline to consider the content” of the agreement. (Id. at 355, see also fn. 9 [stating that there is a “fundamental rule that private agreements are generally not proper subjects of judicial notice when the opposing party protests”].) Here, although the Cross-Complainant does not specifically dispute the existence or authenticity of the documents offered, it certainly cannot be denied that they have protested.

            Cross-Defendant has filed a “Response to Objections” in reply to Cross-Complainant’s objections to the request. Cross-Defendant cites no law or rule of court permitting such a filing. The Court therefore will not consider Cross-Defendant’s arguments in this filing. However, the Court will address the arguments raised in Cross-Defendant’s Reply brief. Cross-Defendant first contends that, under Scott v. JP Morgan Chase Bank, N.A, (2013) 241 Cal.App.4th 743, the Court is empowered to take judicial notice of the contract under Evidence Code section 452(h), and Travelers is somehow inapplicable because it did not address Scott’s discussion of section 452(h). Cross-Defendant cites no law for this proposition, and, in any event, Scott and Travelers can quite easily be harmonized. In Scott, the Court of Appeal held that the trial court could properly take judicial notice of a contract under section 452(h) when the opposing party did not raise specific objections to the contract, and instead relied upon boilerplate objections. (Scott, supra, 241 Cal.App.4th at 748, 750, 754-55.) By contrast, in Travelers, where specific objections were raised, judicial notice was improper. (Travelers, supra, 70 Cal.App.5th at 351, 354-55.) Here, Cross-Complainant has not raised boilerplate objections to the request for judicial notice, but specific and detailed objections. The Court cannot conclude, given the discussions in Scott and Travelers, that Cross-Complainant’s objections should be ignored based on these cases.

Second, Cross-Defendant attacks Cross-Complainant’s citation to Fremont Indemnity Co. v. Fremont Gen. Corp for recitation of the general rule regarding judicial notice, contending that Fremont is distinguishable because there was a “reasonable dispute” in Fremont, which, Cross-Defendant contends, is not true in this case. (Fremont Indemnity Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.) Cross-Defendant’s conclusory assertion that there is no reasonable dispute between the parties is not sufficient, however, to establish that the Court can or should take judicial notice of this document.

Finally, Cross-Defendant argues that Chacon v. Union Pac. R.R. is controlling authority for this case, contending that, “[i]f the language of the agreement is unambiguous and no disputed extrinsic evidence bears upon its meaning, interpretation of the document is a legal issue for the court.” (Chacon v. Union Pac. R.R. (2020) 56 Cal.App.5th 565, 573.) Cross-Complainant did not address Chacon in their opposition papers or objections. However, Chacon is distinguishable from this case in that, the plaintiff in Chacon did not object to the request for judicial notice of the release of claims and settlement agreement. (Chacon, supra, 56 Cal.App.5th at 571.) Thus, the Court of Appeal ruled that the trial court properly took notice of documents that were not disputed by the parties at trial. (Id. at 573.) Here, however, the Cross-Complainant has strenuously objected to consideration of these documents on multiple grounds. Thus, Union Pacific is not applicable to the instant case. Instead, Scott and Travelers are controlling, and under those cases, the Court finds that Cross-Complainant’s objections are meritorious.

            Based on Cross-Complainant’s extensive and strenuous objections, the Court finds that it would be improper to take judicial notice of the requested documents. Accordingly, Cross-Defendant’s Request for Judicial Notice is DENIED.

Disposition of Demurrer

            As the entirety of Cross-Defendant’s demurrer to the Cross-Complaint hinges on the terms of a contract which is not alleged in the pleadings and cannot be judicially noticed, Cross-Defendant’s Demurrer is OVERRULED in its entirety.   

CONCLUSION:

            Accordingly, Cross-Defendant’s Demurrer to the Cross-Complaint is OVERRULED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 28, 2022                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.