Judge: Theresa M. Traber, Case: 24STCV22066, Date: 2025-01-06 Tentative Ruling
Case Number: 24STCV22066 Hearing Date: January 6, 2025 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: January 6, 2025 TRIAL
DATE: NOT SET
CASE: Varouj Krajian v. MC Montebello LLC
CASE NO.: 24STCV22066 
DEMURRER
TO COMPLAINT
MOVING PARTY: Defendants MC Montebello LLC and John H. Marshall
RESPONDING PARTY(S): Plaintiff Varouj
Krajian
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of contract that was filed on August 24,
2024. Defendants are the previous owners of a parcel of real property abutting
the parcel owned by Plaintiff. Defendants had executed a License Agreement—intended
to run with the land—with the prior owner of Plaintiff’s parcel to use a strip
of land on Defendants’ property to access a loading dock on Plaintiff’s
property. Plaintiff alleges that Defendants failed to apprise a subsequent
purchaser of the existence of the License Agreement.
Defendants demur to the Complaint
in its entirety.
TENTATIVE RULING:
Defendants’ Demurrer to the
Complaint is SUSTAINED without leave to amend.
DISCUSSION:
Defendants demur 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 Defendants’
counsel, Zagros S. Bassirian, states that counsel for the parties exchanged
meet-and-confer letters on October 16 and November 1, 2024. (Declaration of
Zagros S. Bassirian ISO Dem. ¶ 4.) A mere exchange of stationary asserting each
party’s respective position does not constitute a good-faith effort in
person or by telephone, as specified by the Code of Civil Procedure,
to informally resolve this dispute.
Request for Judicial Notice
Defendants
request that the Court take judicial notice of (1) the License Agreement
attached as Exhibit D to the Complaint in this action and (2) Plaintiff’s
Appellant Opening Brief filed April 5, 2024, in the Court of Appeal, Second
Appellate District, Division 3, in the matter of Krajian v. Razmer #3, LLC,
Case No. B331147. Defendants’ requests are GRANTED pursuant to Evidence Code
section 452(d) (court records).
Factual and Procedural History
On or
around February 25, 2011, non-party Tony Ishizaki, as owner of a parcel of real
property located at 728 South Vail Avenue, Montebello, CA, 90640 (the “Krajian
Property”), executed a License Agreement with Defendant MC Montebello, LLC, the
owner of the adjacent parcel, 760 South Vail Avenue, Montebello, CA 90640 (The
“Razmer Property”), for certain use rights over the Razmer Property. (Complaint
¶¶ 10-11; 14; Exh. D.) The License Agreement pertained to a strip of land 15
feet wide and 235 feet long on the Razmer Property, directly abutting the Krajian
Property. (Complaint ¶ 16; Exh. F.) As relevant here, the License Agreement
granted the owner of the Krajian Property an irrevocable, non-exclusive license
over the strip for ingress and egress purposes to allow the owner of the
Krajian Property to access and use a truck loading dock. (¶ 17.) The License
Agreement expressly states that the Agreement “shall run with the land so as to
bind successor owners of the property burdened thereby and to benefit successor
owners of the property thereby,” and that “the rights and obligations of
Licensee and Licensor […] shall be transferable upon the transfer” of the
respective properties. (Complaint Exh. D. § 3.) The License Agreement was never
recorded. (Complaint ¶ 17.)
Ishizaki
sold the Krajian Property to Plaintiff on or about July 22, 2011. (Complaint ¶
10; Exh. A.) On January 12, 2018, Defendant MC Montebello transferred an 80%
interest in the Razmer Property to 1602 Cats # 7, LLC and simultaneously
transferred the remaining 20% interest to Razmer #3, LLC. (Complaint ¶ 12.) On
May 5, 2021, Razmer recorded a subsequent grant deed identifying 1602 Cats #7
as an erroneous designation for Razmer and transferring the entire property
interest to Razmer. (Complaint ¶ 13, Exh. C.) In June 2021, Razmer instructed
Plaintiff to cease use of the License Area and began fencing the License Area
off so as to enforce that instruction. (Complaint ¶ 18.) On November 30, 2021, Plaintiff
commenced litigation against Razmer in the action entitled Krajian v. 1602
Cats #7, LLC, et al. LASC Case No. 21STCV36174. (Complaint ¶ 18; Exh. G.)
On February
2, 2023, Razmer moved for summary judgment, arguing, inter alia, that Razmer
was a good faith purchaser of the 760 South Vail property who did not have
notice of the License Agreement and therefore was not bound to it. (Complaint ¶
19; Exh. H.) The Court granted the motion, finding, inter alia, (1) that
Razmer had produced substantial evidence showing that the seller of the Razmer
Property—i.e., Defendant MC Montebello—had never provided Razmer with the
License Agreement nor advised Razmer of its existence, and, in fact,
affirmatively represented that no such license existed when Razmer conducted an
inquiry into the matter, and (2) that Plaintiff failed to produce substantial
responsive evidence establishing that Razmer was on actual or constructive
notice. (Complaint Exh. I pp. 6-9.) Plaintiff appealed that ruling, and filed
his opening brief on April 5, 2024, arguing that the evidence showed MC
Montebello had, in fact, disclosed the License Agreement to Razmer, such that
there was at minimum a triable issue of fact as to whether Razmer had actual or
constructive notice of the License Agreement. (Bassirian Decl. Exh. A [RJN No.
2] pp.14; 19-21.) Subsequently, Plaintiff filed this action on August 24, 2024,
alleging that MC Montebello breached its contractual obligations under the
License Agreement by failing to give notice to Razmer of the License
Agreement’s existence. (Complaint ¶¶ 23, 27, 33.)
Sham Pleading Doctrine
Defendants
contend that Plaintiff’s Complaint in this action, alleging that MC Montebello failed
to inform Razmer of the License Agreement, is a sham pleading because it
contradicts Plaintiff’s express arguments in the prior action and in his recent
Appellate Opening Brief contending that MC Montebello did provide notice of the
Agreement.
The Court
of Appeal describes the sham pleading doctrine thus:
Both trial and
appellate courts may properly take judicial notice of a party's earlier
pleadings and positions as well as established facts from both the same case and
other cases. (Evid. Code, § 452; Code Civ. Proc., § 430.70; Colapinto
v. County of Riverside (1991) 230 Cal.App.3d 147, 151 [ 281 Cal.Rptr.
191]; Morton v. Loveman (1968) 267 Cal.App.2d 712, 717-719 [73
Cal.Rptr. 623].) The complaint should be read as containing the judicially
noticeable facts, “even when the pleading contains an express allegation to the
contrary.” (Chavez v. Times-Mirror Co. (1921) 185 Cal. 20, 23
[195 P. 666].) A plaintiff may not avoid a demurrer by pleading facts or
positions in an amended complaint that contradict the facts pleaded in the
original complaint or by suppressing facts which prove the pleaded facts false.
(Colapinto v. County of Riverside, supra, 230 Cal.App.3d at p.
151.) Likewise, the plaintiff may not plead facts that contradict the facts
or positions that the plaintiff pleaded in earlier actions or suppress facts
that prove the pleaded facts false. (Morton v. Loveman, supra,
267 Cal.App.2d at pp. 717-719.)
“‘The principle is
that of truthful pleading.’” (Original italics.) (Watson v. Los Altos
School Dist., supra, 149 Cal.App.2d at p. 771.) When the plaintiff pleads
inconsistently in separate actions, the plaintiff's complaint is nothing
more than a sham that seeks to avoid the effect of a demurrer. (Id., at
p. 771; accord Morton v. Loveman, supra, 267 Cal.App.2d at pp.
717-719; Pike v. Archibald (1953) 118 Cal.App.2d 114, 116-119
[257 P.2d 480].) Under such circumstances, the court will disregard the falsely
pleaded facts and affirm the demurrer.
(Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th
857, 877 [italics in original].)
Here, as Defendants forcefully
argue, it appears that Plaintiff has triggered the sham pleading doctrine by
asserting facts in this case—i.e., that Defendants concealed the License
Agreement—which contradict his prior position that Defendants disclosed
the License Agreement. In contrast to the position taken in this lawsuit,
Plaintiff’s summary judgment opposition and related appeal are grounded on
evidence that MC Montebello’s attorneys, Procopio, Cory, Hargreaves &
Savitch, LLC, disclosed the License Agreement to Razmer and his manager via a
ShareFile, and that another agent of MC Montebello, Peter Bacci, had
discussions with Razmer’s agent, Jack Cline, Jr., about the License Agreement and
gave him a copy of it before the sale. (Defendants’
Exh. A, pp. 13-14, 21.)
Plaintiff asserts that a party
“should not be bound by admissions in an earlier lawsuit and should be allowed
to explain contradictions in present pleadings,” citing Magnolia Square
Homeowners Association v. Safeco Insurance Company (1990) 221 Cal.App.3d
1049 at page 1061. (See Opposition p.9:11-13.) The excerpt on which Plaintiff
relies states that a party seeking to escape the force of prior admissions in a
previous pleading may show that they “were inadvertently made or were not
authorized by him or made under mistake of fact.” (Magnolia Square
Homeowner’s Association, supra, 221 Cal.App.3d at 1061 [Emphasis in
original; citation omitted].) The case does not deal with the sham pleading
doctrine, but even if it did, Plaintiff has not satisfied the standard set
forth in Magnolia Square Homeowners Association to explain the apparent
conflict in Plaintiff’s positions in the two cases here. Plaintiff argues that it was not until
January 2023 when he learned that Razner was given a Property Information Sheet
in 2017 in which Defendants denied the existence of any licenses or other
encumbrances on the property. Because
Plaintiff had this information before the motion for summary judgment was filed
in his first lawsuit and before his opposition and subsequent appeal, the January
2023 disclosure of the Property Information Sheet cannot be used to justify Plaintiff’s
subsequently asserted positions as inadvertent, unauthorized, or based on a
mistake of fact. Instead, the record
reveals Plaintiff knew of the Property Information Sheet before he opposed the
summary judgment motion and challenged the trial court’s adverse ruling on
appeal.
The sham pleading doctrine
therefore requires that the Court disregard the contention that Defendants
concealed the License Agreement and take judicial notice of the prior, contrary
contention that Defendants disclosed the License Agreement. As the disregarded
contention is the principal factual claim on which both the first cause of
action for breach of contract and the second cause of action for breach of the
implied covenant of good faith and fair dealing are grounded, the Court is
forced to conclude that both claims fail to state facts sufficient to
constitute a cause of action.
Accordingly,
Defendants’ 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). 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.)
Here,
Plaintiff has not demonstrated how the Complaint might be amended to cure the
inconsistency between the allegations in this action and the averments in
Plaintiff’s Appellate Opening Brief. Moreover, the entire Complaint is premised
on a contention that Defendants concealed the License Agreement, which is flatly
and directly contradicted by Plaintiff’s prior averments on appeal. The Court
therefore concludes that no amendment could cure this deficiency because there
is no explanation which could reconcile such directly opposing positions.
CONCLUSION:
Accordingly,
Defendants’ Demurrer to the Complaint is SUSTAINED without leave
to amend.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: January 6,
2025 ___________________________________
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
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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.