Judge: Timothy Patrick Dillon, Case: 20STCV13714, Date: 2023-02-23 Tentative Ruling

Case Number: 20STCV13714    Hearing Date: February 23, 2023    Dept: 73

Henry Aguila v. Jung Hee Shin, et al. (20STCV13714)

Counsel for Plaintiff/opposing parties:  Plaintiff Henry Aguila in Pro Per

Counsel for Defendant Fox Property Holdings LLC/demurring party:  Carlos A. Alvarez, Jill K. Cohoe, Matthew W. Delbridge (Steyer Lowenthall Boodrookas Alvarez & Smith LLP)

demurrer (filed by Defendant Fox Property Holdings LLC on December 1, 2022)

TENTATIVE RULING

Defendant Fox Property Holdings LLC’s demurrer to the first cause of action for breach of contract and second cause of action for specific performance is SUSTAINED. Leave to amend is DENIED.

Background

On April 8, 2020, Plaintiff Harry Aguila (“Plaintiff”) brought this action against Defendants Jung Hee Shin AKA Jane Hwang (“Hwang”), Fox Property Holdings LLC (“Fox Property”), and Dayco Funding Corporation. After Fox Property demurred, Plaintiff filed a first amended complaint on October 31, 2022, asserting causes of action for: (1) breach of contract; (2) specific performance; and (3) breach of guarantee. Dayco Funding Corporation was not named in the FAC, leaving Hwang and Fox Property as the remaining Defendants.

Plaintiff alleges he acquired a lease to 370 W, Court Street, San Bernardino, CA 92401 (the "Property") in December of 2012 but Defendants are refusing to allow Plaintiff access the Property. The alleged lease is the basis of Plaintiff’s first and second causes of action for breach of contract and specific performance. The third cause of action for breach of guarantee is based on Plaintiff’s allegations that Hwang guaranteed a settlement agreement between her father and Plaintiff’s father. According to Plaintiff’s FAC, payments under the settlement were assigned to Plaintiff and Hwang has failed to pay despite Plaintiff’s demands.

On December 1, 2022, Fox Property demurred to the first and second causes of action in the FAC for breach of contract and specific performance. On December 20, 2022, Plaintiff filed an opposition, and on February 9, 2023, Fox Property replied.

Discussion

In support of its demurrer, Fox Property argues:

·                     There is no lease between Plaintiff and Defendants for the Property.

·                     Plaintiff’s claims are barred by res judicata.

¿      Plaintiff sued Fox Property’s predecessor (Dayco) and the court granted summary judgment for Dayco.

·                     Plaintiff’s causes of action for breach of contract and specific performance are time barred by the four-year statute of limitations.

In opposition, Plaintiff argues:

·                     Defendants are being disingenuous.

·                     Previous litigation established Plaintiff has a lease for the Property.

Fox Property replies:

·                     By reiterating its three arguments: No lease; Plaintiff’s claims barred by res judicata; Plaintiff’s causes of action for breach of contract and specific performance are barred by the statute of limitations.

REQUEST FOR JUDICIAL NOTICE

Plaintiff and Fox Property each make requests for judicial notice. The Court grants the requests.

ANALYSIS

A.      Timeliness 

A demurrer is due within 30 days of being served with a complaint. (Code Civ. Proc., §§ 430.40; 435, subd. (b)(1).)  

Plaintiff mailed his FAC to Defendants on October 31, 2022. Fox Property filed this demurrer on December 1, 2022. The demurrer is timely.

B.      Meet and Confer

A party is required to meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The meet and confer effort must occur at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).)

On November 30, 2022, counsel for Fox Property attempted to meet and confer with Defendant. (Cohoe Decl., ¶ 3.) Fox Property’s meet and confer efforts are untimely, but the Court will rule on the merits considering Fox Property’s previous attempt to meet and confer with Plaintiff regarding his original complaint. (See Id., ¶ 2.)

C.      Legal Standard for Demurrer

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds…The pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10.)

A demurrer tests the sufficiency of 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 contest—any 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. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

D.     Analysis

Fox Property demurs to Plaintiff’s first cause of action for breach of contract and second cause of action for specific performance on grounds that neither state sufficient facts to constitute a cause of action. In support, Fox Property raises three arguments: There is no lease between Plaintiff and Defendants for Property; Plaintiff’s claims are barred by res judicata; and Plaintiff’s causes of action for breach of contract and specific performance are time barred by the four-year statute of limitations.

Statute of Limitations

The time of commencement is four years for “[a]n action upon any contract, obligation or liability founded upon an instrument in writing.” (Code Civ. Proc. §337; Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 29 [four-year statute of limitations for actions upon written contracts applies to cause of action for specific performance]; Ventura v. Colgrove (1969) 270 Cal.App.2d 136, 163 [“so far as the third amended and supplemental complaint of plaintiffs' alleged causes of action for breach of, or for specific performance of the alleged contract . . . they are barred by the provisions of Code of Civil Procedure, section 337, paragraph 1, in that they were not filed within a period of four years from date thereof.”].) The four-year statute of limitations applies to actions seeking specific performance of an alleged lease agreement. (See Ibid.; McWilliams v. Holton (1967) 248 Cal.App.2d 447.)

Here, Plaintiff’s FAC alleges that on December 1, 2012, Plaintiff acquired the lease to the Property but Defendant Hwang changed the locks and denied him access. (FAC, ¶ 8.) This allegation is the basis of Plaintiff’s cause of action for breach of contract. (See FAC, ¶ 16.) Plaintiff alleges he filed case number CIVDS131049 and recorded a lis pendens on May 1, 2014. (FAC, £ 8.) Fox Property establishes by judicial notice that Plaintiff filed the action no. CIVDS131049 on August 29, 2013. (RJN Exh. 1, at p. 23.)  Plaintiff, however, did not file this action until April 8, 2020—over 7 years later. Plaintiff’s cause of action for breach of contract is barred by the four-year statute of limitations provided by Code of Civil Procedure section 337. Plaintiff also alleges that in February 2016 he met with Fox Property’s “predecessor in interest” and “discussed the Fox Theater Lawsuit and the lis pendens.” (FAC, £ 11.) This is also more than four years before Plaintiff filed this action. Plaintiff does not address, much less rebut, these fundamental statute of limitations problems in his opposition.

Furthermore, Plaintiff’s cause of action for specific performance asks the Court to “specifically enforce the Lease and order Defendant Fox Holdings to return possession of the Property to Plaintiff.” (Id., ¶ 21.) By the FAC’s allegations, however, Plaintiff was knowingly denied access starting on December 1, 2012. (Id., ¶ 8.) Plaintiff filed his lawsuit to gain access in August 2013 and, according to his complaint, had meetings in February 2016 about these issues.  Thus, Plaintiff’s cause of action for specific performance is also barred by the statute of limitations.

Because Plaintiff’s causes of action for breach of contract and specific performance are barred by the statute of limitations, Fox Property’s demurrer to the first and second causes of action in the FAC is SUSTAINED.

E.      Leave to Amend

“Where the complaint is defective, [i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint…However, if the plaintiff's causes of action is [sic] not viable, leave to amend should not be granted if there is no basis for the court to conclude further amendment would cure the defects.” (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 211, internal quotations omitted.) If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79).

The Court has sustained Fox Property’s demurrer to Plaintiff’s first and second cause of action because by Plaintiff’s own allegations he waited well over four years to bring his breach of contract claims.  Plaintiff offers no basis for the Court to conclude that further amendments would cure this fatal defect.

F.       Conclusion

Defendant Fox Property Holdings LLC’s demurrer to the first cause of action for breach of contract and second cause of action for specific performance is SUSTAINED. Leave to amend is DENIED.