Case Number: BC632200 Hearing Date: December 19, 2016 Dept: 39

William Scott Curtis, et al v. Icylyn Williams, BC632200

Demurrer by Defendant Icylyn Williams to Plaintiffs’ Complaint: OVERRULED. Defendant is to file an answer to the complaint by January 6, 2017.

This case arises out of a Residential Purchase Agreement whereby Plaintiffs Curtis and Thomas agreed to purchase real property from Defendant Williams. The Complaint alleges that Defendant unilaterally cancelled her short sale application and refused to close escrow in breach of the contract. The Complaint asserts causes of action for: (1) specific performance of a written purchase agreement; (2) breach of written purchase agreement.

Effective January 1, 2016, a party filing a demurrer “shall 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 of Civ.Proc. § 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code of Civ.Proc. § 430.41(a)(2).)

Defendant failed to provide a meet and confer declaration as required by statute. Failure to do so is not grounds to overrule or sustain a demurrer. (Code of Civ.Proc. § 430.41(a)(4).) Further, because Plaintiffs submitted an opposition, the court will address the demurrer on the merits.

A demurrer for sufficiency 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. (Code of Civ.Proc. §§ 430.30, 430.70). 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 747.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”].)

Here, the Defendant’s demurrer asserts that the causes of action in the Complaint fail, and asserts various affirmative defenses, such as misrepresentation, unilateral mistake, unclean hands, and undue influence. These affirmative defenses are more properly asserted in an answer, not a demurrer where, as here, there are no facts alleged in the Complaint establishing their application. The court must accept as true all allegations pled in the Complaint. (Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 998 [“the allegations of the complaint which for the purpose of demurrer must be regarded as true.”].)

The allegations in the Complaint are sufficient to state the causes of action asserted therein.

Therefore, the demurrer is OVERRULED in its entirety. Defendant has until January 6, 2017 by which to file an answer to the complaint.