Judge: Theresa M. Traber, Case: 24STCV21169, Date: 2024-10-22 Tentative Ruling

Case Number: 24STCV21169    Hearing Date: October 22, 2024    Dept: 47

Tentative Ruling

DEMURRER TO COMPLAINT

MOVING PARTY:               Defendant Linda J. Maultsby, in pro per

RESPONDING PARTY(S): Plaintiff Mural Media LLC 401k Plan

CASE HISTORY:

·         10/20/23: Complaint filed in 23STCV25637 Mural Media LLC 401k Plan v. Maultsby, et al.

·         06/11/24: First Amended Complaint filed in 23STCV25637 Mural Media LLC 401k Plan v. Maultsby, et al.

·         07/29/24: Demurrer to First Amended Complaint sustained without leave to amend.

·         08/20/24: Complaint filed.

·         09/06/24: Interlocutory Judgment entered pursuant to July 29, 2024 Minute Order in 23STCV25637 Mural Media LLC 401k Plan v. Maultsby, et al.

·         09/13/24: This case deemed related to 23STCV25637 Mural Media LLC 401k Plan v. Maultsby, et al [lead case].

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an unlawful detainer action. Plaintiff alleges that Defendant refused to permit an inspection of her rental unit which was necessary for Plaintiff to complete a sale of the property to a third party.

Defendant Linda J. Maultsby demurs to the Complaint in its entirety.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend.

            Plaintiff shall have 30 days leave from the date of this order to amend the Complaint.

DISCUSSION:

Defendant Linda J. Maultsby 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.) There is no meet and confer requirement for a demurrer in an action for unlawful detainer. (Code Civ. Proc. § 430.41(d).)

Requests for Judicial Notice

            Defendant requests that the Court take judicial notice of (1) the U.S. Department of Labor Records filed for Mural Media LLC 401k Plan; (2) the Oregon Secretary of State Certificate of No Record for Mural Media LLC; (3) The California Secretary of State’s Records for Mural Media, LLC; (4) The Oregon Secretary of State Certificate of No Record for Mural Media LLC 401k Plan; (5) a Certificate of Certified Copy of the Computer Generated Report for Mural Media LLC from the Oregon Secretary of State; (6) the September 3, 2024 Minute Order sustaining Defendant’s demurrer in the action entitled Mural Media LLC 401k Plan v. Maultsby, LASC Case No. 23STCV25631; (7) the July 29, 2024 Minute Order sustaining Defendant ‘s demurrer in the action entitled Mural Media LLC 401k Plan v. Maultsby, LASC Case No. 23STCV25637 (hereafter, the “Lead Action”); (8) the May 13, 2024 Minute Order Sustaining Defendant’s demurrer in the action entitled Mural Media LLC 401k Plan v. Maultsby, LASC Case No. 23STCV21301 (hereafter, the “First Action”); (9) Plaintiff’s July 16, 2024 Notice of Appeal in the First Action; (10) Plaintiff’s August 12, 2024 Notice of Abandonment in the First Action.

Defendants’ Requests Nos. 1-5 are GRANTED pursuant to Evidence Code section 452(c) (official acts); Requests Nos. 6-10 are GRANTED pursuant to subdivision (d) of that same section (court records).

Defendant also requests that the Court take judicial notice of additional documents in support of her reply. As the materials cited are not relevant to the Court’s ruling, Defendant’s supplemental requests are 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.”].) 

Procedural History

On September 1, 2023, Plaintiff in this action filed a complaint for unlawful detainer in the action Mural Media LLC 401k Plan v. Maultsby, et al., Case No. 23STCV21301 (the “First Action.”) As originally pled, the First Action alleged a single cause of action for unlawful detainer arising from a Three-Day Notice to Quit allegedly served on August 24, 2023. Plaintiff then amended the complaint in the First Action to allege unlawful detainer based on (1) an August 24, 2023 Notice to Quit for failure to permit inspection of Defendant’s unit; and (2) a February 29, 2024 Three Day Notice to Quit following a foreclosure sale. The Court sustained Defendant’s Demurrer in the First Action without leave to amend on May 13, 2024, on the grounds that the August 24, 2023 notice was defective and could not be cured by the second notice. (Defendant’s RJN Exh. G.)

In the meantime, Plaintiff filed a new action on October 20, 2023, entitled Mural Media LLC 401k Plan v. Maultsby, et al. Case NO. 23STCV25637 (the “Lead Action”), alleging a claim for unlawful detainer premised on an August 11, 2023 Three Day Notice to Quit and an August 24, 2023 Three Day Notice to Quit, both for failure to permit inspection of Defendant’s Unit. (See RJN Exh. G p.4.) Only the August 24, 2023 Notice was attached to the original Complaint in the Lead Action. (Id.) Thereafter, Plaintiff amended the Complaint to allege unlawful detainer based on (1) an August 24, 2023 Notice to Quit for failure to permit inspection of Defendant’s unit; and (2) a February 29, 2024 Three Day Notice to Quit following a foreclosure sale, though the text of the Amended Complaint stated that the Three-Day Notice was actually given on March 1, 2024. (Id.) On July 29, 2024, the Court sustained Defendant’s Demurrer to the First Amended Complaint in the Lead Action without leave to amend, finding that, under the doctrine of res judicata, the ruling in the First Action acted as a bar to the claims pled in the Lead Action. (RJN Exh. G p. 5.) However, at the time of that ruling, an appeal from the May 13, 2024 ruling in the first action was pending. (Id.) The Court therefore abated the Lead Action pending resolution of the appeal in the First Action, and ordered Defendant to prepare and submit a proposed interlocutory judgment by August 30, 2024. (Id.)

On August 12, 2024, apparently in anticipation of filing this action, Plaintiff abandoned the appeal in the First Action. (See RJN Exh. J.) On August 20, 2024, before the Court could enter the interlocutory judgment, Plaintiff filed this action, alleging the substantially identical facts and the same two causes of action for unlawful detainer, this time premised on (1) an August 13, 2024 Notice to Quit; and (2) the same February 29, 2024 Notice to Quit asserted in the First Amended Complaint in the Lead Action. (See Complaint.). On September 13, 2024, this case was deemed related to the Lead Action.

Abatement

            Defendant first demurs to the Complaint in its entirety on the grounds that the Lead Action is another pending action on the same claims, and therefore this action should be abated.

“A plea in abatement, without disputing the justness of plaintiff's claim, objects to the place, mode, or time of asserting it and requires pro hac vice that the judgment be given for the defendant, leaving it open to renew the suit in another place, or form, or at another time.” (V & P Trading Co. v. United Charter, LLC (2012) 212 Cal. App. 4th 126, 133 [citation omitted].) The proper mode of abatement in such a case is a stay of the action that may be lifted if and when the reason for abatement dissipates. (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 771 [“Where abatement is required, the second action should be stayed, not dismissed.”]; see also County of Santa Clara v. Escobar (2016) 244 Cal. App. 4th 555, 565 -568 [discussing supporting authorities].)

            Defendant contends that the Lead Action constitutes another action pending on the same claims asserted in this action. Not so. Although the Complaint in this action relies on substantially identical factual contentions, it is not premised on identical Notices to Quit, as the first cause of action is instead premised on a new Notice to Quit dated August 13, 2024. (See Complaint Exh. 2.) Moreover, the Court abated the Lead Action on the grounds that it presented the same issues as the First Action—namely, a claim for unlawful detainer on an invalid August 24, 2023 Notice to Quit; and a claim for unlawful detainer on a February 29, 2024 Notice to Quit that had not been asserted in the original pleading in each action. (RJN Exhs. G, H.) In fact, the Court expressly stated in the First Action that the February 29, 2024 Notice necessitated a separate action for unlawful detainer. (RJN Exh. H. p. 3.) In filing this Complaint, Plaintiff has done just that. The Court therefore does not find that the Lead Action constitutes another pending action on the same claims such that this action should be abated.

Capacity to Sue

            Defendant also demurs to the Complaint in its entirety on the grounds that Plaintiff is a retirement plan, not a limited liability corporation, and therefore has not established that it has the legal capacity to sue. Indeed, Plaintiff has expressly admitted in its opposition to this Demurrer that it is a retirement plan, and not an LLC.

            “‘A pension plan […] is a formal plan or program whereby funds are accumulated to pay for retirement income or other deferred income to employees of an employer, payable at a future date, generally at the normal retirement age as specified in the plan. The plan […] constitutes a separate entity from the employer[.]’” (Coastline JX Holdings LLC v. Bennett (2022) 80 Cal.App.5th 985, 1005 fn. 8 [internal citations omitted] [holding that profit-sharing plan established subject to ERISA was not subject to claims by creditors of the employer].) A limited liability company has the capacity to sue and be sued. (Corp. Code § 17701.05(b).)

            Mural Media LLC, which is not a plaintiff here, is a limited liability company organized in Oregon on December 31, 1996 and dissolved by the Oregon Secretary of State on February 28, 2019. (RJN Exh. E.) Mural Media was never reinstated in Oregon, and there are no active filings for the exact name Mural Media LLC in Oregon. (RJN Exh. B.) Mural Media LLC registered as a foreign LLC to conduct interstate transactions in California on March 30, 2000. (RJN Exh. C.) That registration was terminated by the California Secretary of State on February 14, 2022. (Id.)

            Plaintiff argues that Defendant has unsuccessfully raised this argument in other proceedings. However, as Plaintiff has not separately requested judicial notice of the rulings to which it refers, those issues are not properly before the Court. Moreover, other trial court proceedings are not binding on this Court except under the doctrines of issue or claim preclusion, neither of which are asserted by Plaintiff.

            Based on the judicially noticeable materials presented by Defendant, the Court is persuaded by Defendant’s position. Plaintiff affirmatively states that it is not a limited liability company, but does not state, either in the Complaint or in the opposition, the legal authority which empowers a retirement plan, as opposed to its administrator, to sue and be sued in the same manner as a corporation (Corp. Code § 17705) or a partnership or unincorporated association. (See Code Civ. Proc. § 369.5.) The Court therefore finds that Plaintiff has failed to establish its capacity to bring this action.

            Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED in its entirety.

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.) California law imposes the burden on the party who filed the pleading to demonstrate the manner in which they can amend their pleadings to state their claims.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the [pleading] 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 has not demonstrated the manner in which the Complaint might be amended to cure this deficiency. However, as the Court has sustained the demurrer on the basis that the Complaint fails to allege the legal basis for Plaintiff’s capacity to bring this action, the method by which the deficiency might be cured is readily apparent. Therefore, the Court will grant leave to amend the Complaint to assert a basis for Plaintiff’s legal capacity to sue and be sued.

CONCLUSION:

            Accordingly, Defendant’s Demurrer to the Complaint is SUSTAINED with leave to amend.

            Plaintiff shall have 30 days leave from the date of this order to amend the Complaint.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  October 22, 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.