The Demurrer filed by Defendant 12151 Brookhurst LLC (“Owner”) to Plaintiff’s First Amended Complaint (the “FAC”) is OVERRULED.

Owner here has attempted to demur to all causes of action (“COAs”) in the FAC, without reference to and apparently without regard to the Court’s prior ruling on Owner’s prior demurrer to the original Complaint.

The Court overruled the prior Demurrer except as to COA 4, which was sustained with leave to amend. Under C.C.P. § 430.41(b), a “party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” (C.C.P. § 430.41(b) [emphasis added].)

Owner’s current demurrer does not comply.  No argument is presented as to the amendment to COA 4. Instead, a number of arguments are asserted as to the FAC, all of which could have been made previously, including some that were in fact made and were specifically rejected.  (See MO of 2/16/18 [“it is not self-evident from the terms of the Lease that Plaintiffs were solely responsible for repair of any alleged roof leaks”] and [“Whether ¶ 8.8 was to apply to perils beyond the scope of ¶ 8.4 is beyond the scope of demurrer…the Court thus cannot conclude that ¶ 8.8 necessarily bars Plaintiffs’ claims.”].)  Nor does Owner’s claim as to notice comport with the pleading. (See FAC at ¶¶ 19, 27, & 34.) The Demurrer is thus overruled in its entirety.

Owner’s Request for Judicial Notice is GRANTED as to Ex. 2, under Ev. Code §452(d), as to the existence of that judgment.  (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) The Request is DENIED as to Ex. 1, as no basis for judicial notice of the document as presented has been shown.

Owner is to answer the FAC within 10 days, and is to give notice of this ruling.

image_pdfimage_print