Judge: Theresa M. Traber, Case: 24SMCV03406, Date: 2024-09-20 Tentative Ruling

Case Number: 24SMCV03406    Hearing Date: September 20, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 20, 2024               TRIAL DATE: NOT SET

CASE:                         8210 Sunset, LLC v. Wilton Holdings & Management LLC

CASE NO.:                 24SMCV03406           

DEMURRER TO COMPLAINT; MOTION TO STRIKE COMPLAINT

MOVING PARTY:               Defendant Wilton Holdings & Management, LLC

RESPONDING PARTY(S): Plaintiff 8210 Sunset, LLC

CASE HISTORY:

·         07/15/24: Complaint filed.

·         08/13/24: Case deemed related to Wilton Management & Holdings, LLC v. Kermani et al., LASC Case No. 24STCV00859 [lead case]

·         08/28/24: Cases partially consolidated for discovery and summary judgment purposes.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an unlawful detainer action. Plaintiff is a master tenant who subleased commercial premises to Defendant’s predecessor in interest, who subsequently assigned rights, title, obligations, and interest to Defendant. Plaintiff alleges that Defendant has not paid rent owed pursuant to the sublease agreement.

Defendant demurs to the Complaint and moves to strike the Complaint.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is OVERRULED.

            Defendant’s Motion to Strike is DENIED.

            Defendant is ordered to file and serve its Answer within 5 days of this order.

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DISCUSSION:

Demurrer to Complaint

            Defendant demurs to the Complaint for improper venue, another action pending, failure to join necessary parties, and 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.) There is no meet and confer requirement for a demurrer in an action for unlawful detainer. (Code Civ. Proc. § 430.41(d).)

Request for Judicial Notice

            Defendant requests that the Court take judicial notice of (1) an array of statutes; (2) a series of cases; and (3) the entire record for the action Wilton Management & Holdings, LLC v. Kermani et al., LASC Case No. 24STCV00859. Defendant need not request judicial notice of statutes or cases, as such material may simply be cited in the body of the moving papers as relevant. As to Request No. 3, Defendant’s request is GRANTED pursuant to Evidence Code section 452(d) (court records). In so doing, the Court emphasizes that, with respect to the parties’ filings in that action, the Court takes notice only of the existence of those filings and not the truth of their contents.

Improper Venue

            Defendant first demurs to the Complaint on the grounds that the Complaint was filed in the Santa Monica courthouse rather than the Stanley Mosk courthouse, and therefore was not filed in the proper venue under Code of Civil Procedure section 396b. First, this contention is not a proper basis for demurrer, as the remedy for an improper venue is a motion to transfer. (Code Civ. Proc. § 396b subd. (a).) Second, both the Santa Monica and Stanley Mosk courthouses are branches of the same Court for the purposes of the venue statutes, as both courthouses are part of the Superior Court of California for the County of Los Angeles. (See Code Civ. Proc. §§ 392-395, 396a, 396b.) Finally, after demurrer was filed, the action was reassigned to Stanley Mosk Department 47 pursuant to the August 13, 2024 order regarding a Notice of Related Case. (See August 13, 2024 Minute Order.) Defendant’s challenge on this basis is therefore moot.

Another Action Pending

            Defendant also demurs to this action on the basis that there is another action pending between the same parties involving the same cause of action pursuant to Code of Civil Procedure section 430.10(c), specifically referencing the civil action Wilton Management & Holdings, LLC v. Kermani et al., LASC Case No. 24STCV00859. Demurrers under subdivision (c) of section 430.10 are considered pleas in abatement, which may only be maintained “where a judgment in the first action would be a complete bar to the second action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788-89.)

            Here, however, Defendant makes no showing that a judgment in the civil action would be a complete bar to this action, nor do the pleadings in either action demonstrate this fact. Defendant’s complaint in the civil action alleges claims for breach of contract and implied covenants, tortious interference with business, and wrongful eviction, grounded in the allegations that the master tenant, i.e., Plaintiff in this action, breached the assignment agreement and attempted to evict the subtenant by changing the locks, rather than proceeding through an unlawful detainer action. (See Civil Complaint filed January 12, 2024.) These claims are not identical to the claim for possession asserted here, and therefore could not serve as a bar—i.e., an application of the doctrine of claim preclusion—to this claim. (See Childs v. Eltinge (1973) 29 Cal.App.3d 843, 854-55 [abatement involves application of “bar” doctrine rather than collateral estoppel].) Defendant has failed to demonstrate that the demurrer should be sustained on this basis.

Failure to Join Necessary Parties

            Defendant contends that the Complaint is defective because it has not named Elan Kermani, who purportedly signed the Assignment Agreement, nor Boulevard Nightlife Group, the entity whose rights and obligations were assigned to Defendant, as parties to this action. This contention is belied by the plain language of Code of Civil Procedure section 1164, which states that only the tenant or subtenant in actual occupation of the premises need be made parties to the proceeding, and the failure to join any other potential defendant is not a basis for abatement or nonsuit. (Code Civ. Proc. § 1164.) Defendant cites no controlling authority to the contrary, and Defendant’s references to appellate authority—which lack citations to relevant excerpts—are not on point for Defendant’s contention. (See Fremont Indem Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97 [not an unlawful detainer proceeding]; Martin v. Pacific Southwest Royalties (1940) 41 Cal.App.2d 161 [not a ruling on a demurrer]; Cardenas v. Noren (1991) 235 Cal.App.3d 1344 [remedy for individual in possession not named is a claim of right to possession].) Defendant has failed to demonstrate the deficiency of the Complaint in this respect.

Failure to State Cause of Action

            Defendant’s final challenge to the Complaint is that it fails to state facts sufficient to constitute a cause of action because the Assignment Agreement on which the action is based is not referenced and because Plaintiff is not a party to the Assignment. These contentions are entirely unpersuasive. First, paragraph 8 of the Complaint in this action plainly alleges the existence of the assignment agreement, stating that:

On or about June 27, 2023, BNG, as assignor, and Defendant, as assignee, entered  into an Assignment Agreement, pursuant to which BNG assigned and transferred to Defendant  all of BNG's rights, title, interest and future obligations in, to, and under the Sublease and  Defendant assumed and agreed to all of BNG's obligations under the Sublease from and after the  effective date of the Assignment Agreement, including payment of rent.

(Complaint ¶ 8.) Second, the operative agreement on which this action rests is not the Assignment Agreement, but the Sublease Agreement, attached to the Complaint as Exhibit A. That document expressly states that the parties to the Sublease are Plaintiff 8210 Sunset, LLC and either BNG Group or its Assignee. (Complaint Exh. A. § 1.1.) As the Complaint alleges that Defendant is that Assignee, the Court is not persuaded that Plaintiff has failed to establish contractual privity for the purpose of a demurrer, as Defendant contends. Defendant has therefore failed to demonstrate the deficiency of the Complaint on this basis.

Conclusion

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

Motion to Strike

            Defendant purports to move to strike portions of the Complaint as improper. However, Defendant did not provide any notice of a motion to strike in its papers, and, more crucially, does not identify what specific allegations it seeks to strike. Defendant’s Motion to Strike is therefore DENIED.

CONCLUSION:

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

            Defendant’s Motion to Strike is DENIED.

            Defendant is ordered to file and serve its Answer within 5 days of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  September 20, 2024                           ___________________________________

                                                                                    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.