Judge: Theresa M. Traber, Case: 24STCV08211, Date: 2024-09-18 Tentative Ruling
Case Number: 24STCV08211 Hearing Date: September 18, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: September 18, 2024 TRIAL DATE: NOT
SET
CASE: EMI, LLC, v. Bristol Central SPE, LLC.,
et al.
CASE NO.: 24STCV08211 
DEMURRER
TO COMPLAINT AND MOTION TO STRIKE COMPLAINT
MOVING PARTY: Defendant Bristol Central, L.P., erroneously sued as
Bristol Central SPE, LLC
RESPONDING PARTY(S): No response on
eCourt as of 09/13/24
CASE
HISTORY:
·
04/02/24: Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of contract and fraudulent inducement
arising from a commercial lease agreement. Plaintiff alleges that Defendants
did not permit it to post advertisements on portions of a vacant unit adjacent
to Plaintiff’s unit, despite Defendants’ prior representations to the contrary.
Defendant Bristol Central, L.P.
demurs to the Complaint in its entirety and moves to strike the Complaint.
TENTATIVE RULING:
Defendant Bristol Central, L.P.’s
Demurrer to the Complaint is SUSTAINED with leave to amend.
Plaintiff
shall have 30 days leave to amend the Complaint to either allege a basis for
standing or to join the real party in interest as a Plaintiff.
Defendant’s
Motion to Strike is MOOT.
//
DISCUSSION:
Demurrer to Complaint
Defendant
Bristol Central, L.P. demurs to the Complaint in its entirety.
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 Rick Augustini,
counsel for Defendant, in support of the Demurrer states that he sent two
emails to Plaintiff’s counsel on May 7 and May 8, 2024, but received no
response to either email. (Declaration of Rick Augustini ISO Dem. ¶ 2; Exh. A.)
That declaration, made in Nashville, TN, is not made “under penalty of perjury
under the laws of the State of California” as required by Code of Civil
Procedure section 2015.5(b), and for that reason alone is insufficient.
Further, Code of Civil Procedure section 430.41(a) requires the parties to meet
and confer in person or by telephone. The effort described in the
declaration qualifies as neither. Defendant has not complied with the statutory
meet-and-confer requirements. Nevertheless, the Court will consider the
demurrer on its merits.
Request for Judicial Notice
Defendant
requests that the Court take judicial notice of (1) a pending Unlawful Detainer
action, (2) the Notice of Related Case in this action, and (3) the Response to
Notice of Related Case. None of these materials are relevant to the Court’s
ruling, and, for that reason, Defendant’s request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d
296, 301 [“[J]udicial notice . . . is always confined to those matters which
are relevant to the issue at hand.”].)
Plaintiff’s Putative Amended Complaint
Plaintiff
presented a putative First Amended Complaint to the Court on September 11,
2024. Pursuant to Code of Civil Procedure section 472, a party may amend its
pleading once as of right at any time before the answer, demurrer, or
motion to strike is filed, or, after a demurrer or motion to strike is filed,
no later than the date for an opposition to the demurrer or motion. (Code Civ.
Proc. § 472(a).) As this matter is set for hearing on September 18, 2024, the
deadline to file an amended pleading as of right was September 5, 2024, nine
court days earlier. (See Code Civ. Proc. § 1005(b).) Plaintiff’s putative First
Amended Complaint is therefore improper and must be stricken.
Standing
Defendant
contends that Plaintiff lacks standing to assert claims for breach of contract,
fraudulent inducement, and declaratory relief arising from the commercial lease
agreement because Plaintiff is not a party to the agreement. All actions must
be prosecuted in the name of the real party in interest. (Code Civ. Proc. §
367.) A real party in interest is one who owns or holds title to the claim or
property involved. (E.g., Gantman v. United Pacific Ins. Co. (1991) 232
Cal.App.3d 1560, 1566.) One who is not party to a contract has no standing to
enforce the contract. (Id.) As Defendant argues, Plaintiff’s Complaint
alleges that Plaintiff leased commercial property from Defendants, based on the
representations by Defendants that a portion of an adjacent, unoccupied unit
could be used by Plaintiff for advertising space. (Complaint ¶¶ 12-13.)
However, Plaintiff alleges that Defendants refused to permit Plaintiff to post
advertisements in the adjacent unit and issued a Notice to Cure or Quit on
March 21, 2024. (Complaint ¶¶ 15-16.) Plaintiff therefore brought claims for
breach of contract, fraudulent inducement, and declaratory relief. (Id.
¶¶ 17-35.) However, the Shopping Center Lease attached to the Complaint plainly
states that the lease is between Defendant Bristol Central SPE, LLC, as
Landlord, and Elias Ruiz as tenant, not EMI LLC, the Plaintiff in this action.
(Complaint Exh. A.) As Defendant states, the contents of exhibits attached to a
pleading are given precedence over inconsistent allegations in the body of the
complaint. (Moran v. Prime Healthcare Management, Inc. (2016) 3
Cal.App.5th 1131, 1145-46.) Therefore, the face of the Complaint establishes
that this action is not brought by a party to the contract from which the
claims arise, and, therefore, that this Plaintiff does not have standing to
assert these claims.
Accordingly,
Defendant’s Demurrer is SUSTAINED.
Leave to Amend
When a
demurrer is sustained, the Court determines whether there is a reasonable
possibility that the defect can be cured by amendment. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the
general set of facts upon which his cause of action is based,” the court should
give the plaintiff an opportunity to amend his complaint, since plaintiff
should not “be deprived of his right to maintain his action on the ground that
his pleadings were defective for lack of particulars.” (Reed v. Norman
(1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the
burden on the plaintiffs to demonstrate the manner in which they can amend
their pleadings to state their claims against a defendant. (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend
constitutes an abuse of discretion unless the complaint shows on its face it is
incapable of amendment. [Citation.] Liberality in permitting
amendment is the rule, if a fair opportunity to correct any defect has not been
given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217,
1227.)
Plaintiff, having failed to respond
to this demurrer, has not demonstrated the means by which the Complaint might
be amended to cure these defects. Moreover, the face of the Complaint indicates
that this action may not be brought by the named Plaintiff in this action
because EMI, LLC is not the real party in interest. That said, as this is the
first challenge to the pleadings, the Court will exercise its discretion to
permit amendment to either allege a basis for this Plaintiff’s standing to
pursue contractual claims or, alternatively, to join the real party in interest
as a Plaintiff pursuant to Code of Civil Procedure section 378.
Conclusion
Accordingly, Defendant Bristol
Central, L.P.’s Demurrer to the Complaint is SUSTAINED with leave to amend.
Plaintiff
shall have 30 days leave to amend the Complaint to either allege a basis for
standing or to join the real party in interest as a Plaintiff.
Motion to
Strike
Defendant also moves to strike
portions of the Complaint. As the Court has sustained the Demurrer to the
Complaint in its entirety with leave to amend, Defendant’s Motion to Strike is
MOOT.
CONCLUSION:
Accordingly,
Defendant Bristol Central, L.P.’s Demurrer to the Complaint is SUSTAINED with
leave to amend.
Plaintiff
shall have 30 days leave to amend the Complaint to either allege a basis for
standing or to join the real party in interest as a Plaintiff.
Defendant’s
Motion to Strike is MOOT.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: September 18,
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.