MOTION TO STRIKE

Defendant Alex Alizadeh?s motion to strike Plaintiffs Shehak and Varuhi Tuna?s First Amended Complaint (?FAC?) is denied.

Defendant seeks an order striking Plaintiffs? FAC on the ground that the FAC was untimely.? Pursuant to Code of Civil Procedure section 436, subdivision (b), the court may strike out ?all or any part of any pleadingnot drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.?

On January 4, 2019, the Court sustained in part and overruled in part Defendant?s demurrer to Plaintiffs? initial complaint.? Plaintiffs were granted 15 days leave to amend.? The parties waived notice, as noted in the minute order for the hearing.? Plaintiffs? deadline to file the FAC was January 22, 2019.? (Code Civ. Proc., ? 472b.)? Plaintiffs filed the FAC on January 23, 2019 — one day late.? Plaintiffs? counsel indicate they failed to file the FAC on January 22, 2019 due to a calendaring error.? (Weber Decl., ?? 2-5.)

The Court exercises its discretion to accept the late filed FAC without a noticed motion.? (Harlan v. Department of Transportation?(2005) 132 Cal.App.4th 868, 873.)

The motion to strike is denied.

DEMURRER

Defendant?s demurrer to Plaintiffs? FAC is sustained in part and overruled in part. ?The special demurrer based upon failure to include indispensable parties is sustained with 15 days leave to amend. The general demurrer as to the first cause of action is sustained with 15 days leave to amend.? The remainder of the demurrer is overruled.

Special Demurrer on the Ground that the Court Lacks Subject Matter Jurisdiction

Defendant also contends the Court lacks subject matter jurisdiction because the Court has no jurisdiction over waterways that are navigable and accessible to the Pacific Ocean.? (Demurrer, at p. 4:15-20.)? Defendant did not properly notice this ground for demurrer.? In any event, the FAC does not allege any facts that show the Court lacks subject matter jurisdiction.? Accordingly, the special demurrer is overruled.

Special Demurrer Based Upon Failure to Include Indispensable Parties

Defendant demurs to the FAC on the ground that Plaintiffs failed to include indispensable parties.

Like the initial Complaint, the FAC defines the Tuna Property as two parcels. The second parcel is described as: ?an easement for locating, construction, maintaining, using and operating decks, docks, wharfs, slips, ramps, piers, floats, landings and other floating structures in and over the wharfage area appertaining to parcel 1 above, as said area is described in exhibit ?B? of the declaration of restrictions recorded in Book 7656 Page 278 of official records said wharfage area being a portion of Lot ?D? of said tract no. 5481.? (FAC, ? 8.)

The FAC defines the Tuna Boat Slip Easement as an exclusive easement, on the Tuna Property, ?over a specific portion of the adjoining wharfage area for the purposes of locating, construction, maintaining, using and operating decks, docks, wharfs, slips, ramps, piers, floats, landings and other floating structures in and over the wharfage area, as mapped by Exhibit B of the CC&Rs and which originally constituted boa slip no. 184S in its original dimensions.? (FAC, ? 10.)

?An easement is an incorporeal interest in the land of another that gives the owner of the easement the limited right to use another’s property or to prevent the property owner’s use of his or her property. It is a nonpossessory restricted right to a specific use or activity on the land of another that is less than ownership but may be a permanent right or a right for a limited period of time. An easement is an intangible property right that does not relate to physical objects but instead is imposed on the servient land to benefit the dominant tenement land.? (Miller & Starr, Cal. Real Estate (4th ed. 2018 update) ? 15.5 [footnotes omitted].) ?[A]n easement is merely a right to use the land of another. With an easement, the owner of the burdened land is said to own the servient tenement, and the owner of the easement is said to have the dominant tenement. Every incident of ownership not inconsistent with the enjoyment of the easement is reserved to the owner of the servient tenement.? (Silacci v. Abramson?(1996) 45 Cal.App.4th 558, 562.)

The elements of a quiet title action include a ?prayer for the determination of the title of the plaintiff against the adverse claims.?? (Code Civ. Proc., ? 761.020, subd. (e).)? The parties? property rights are based upon an easement.? (FAC, ?? 8, 10, 11, & 13.) ?Code of Civil Procedure section 762.060 requires a plaintiff to name as defendants the persons having adverse claims that are of record or known to the plaintiff or reasonably apparent from an inspection of the property. (Code Civ. Proc., ? 762.060, subd. (b).)

Although Plaintiffs? FAC rephrased the first cause of action for quiet title and prayer for the cause of action and limited the claim to Defendants? interest in the Tuna Property and right to interfere with Plaintiffs? use of the Tuna Boat Slip Easement, this does not obviate the requirement to name all indispensable parties (i.e. persons that may have an adverse claim per Code of Civil Procedure section 762.060).

Plaintiffs have not complied with Code of Civil Procedure section 762.060. On the face of the FAC, the FAC is deficient for failing to join indispensable parties, that is the property owner and possibly other easement holders. (Code Civ. Proc., ?? 762.010 & 762.020.) Accordingly, the special demurrer is sustained with 15 days leave to amend.

Special Demurrer Based on Uncertainty

Defendant demurs to the first, second, fifth, and sixth causes of action on the ground of uncertainty. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.? (Khoury v. Maly?s of California, Inc.?(1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by ?the inept pleader? are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss?(1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant?s knowledge. (Khoury v. Maly?s of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on ?uncertainty? grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept.?(1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in?Katzberg v. Regents of the University of California?(2002) 29 Cal.4th 300.) Here, the first, second, fifth, and sixth causes of action are not so unintelligible that Defendant cannot reasonably respond. Any ambiguities can be clarified through discovery. (Lickiss v. Financial Industry Regulatory Authority?(2012) 208 Cal.App.4th 1125, 1135;?Khoury v. Maly?s of California, Inc., supra, 14 Cal.App.4th at p. 616.) Accordingly, the special demurrer for uncertainty is overruled.

General Demurrer

Quiet Title (First Cause of Action)

Quiet title is equitable in nature. (Caira v. Offner?(2005) 126 Cal.App.4th 12, 25.) To state a cause of action for quiet title, the complaint must be verified and include: (1) a description of the property; (2) plaintiff?s title and the basis upon which it is asserted; (3) the adverse claims as against which a determination is sought; and (4) a prayer for determination of plaintiff?s title against the adverse claims. (Code Civ. Proc., ? 761.020.) A ?claim? includes a ?legal or equitable right, title, estate, lien, or interest in property or cloud upon title.? (Code Civ. Proc., ? 760.010.)

As discussed above, Plaintiffs did not comply with Code of Civil Procedure section 762.060. In addition, Plaintiffs? FAC did not include a prayer for determination of Plaintiffs? title against the adverse claims.? (Code Civ. Proc., ? 761.020, subd. (e).)? Accordingly, the general demurrer as to the first cause of action is sustained with 15 days leave to amend.

Slander of Title (Second Cause of Action)

To state a cause of action for slander of title, a plaintiff must allege: ?(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.? (Manhattan Loft, LLC v. Mercury Liquors, Inc.?(2009) 173 Cal.App.4th 1040, 1051.) Publication does not require recordation. Publication of the disparagement to a third party may be oral or written. (Miller & Starr, Cal. Real Estate (4th ed. 2018 update) ? 10.44.)

Plaintiffs alleged sufficient facts to support this cause of action.? (FAC, ?? 23, 29-33.)? Accordingly, the demurrer as to the second cause of action is overruled.

Breach of Contract (Sixth Cause of Action)

?A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff?s performance or excuse for nonperformance; (3) defendant?s breach; and (4) damages to plaintiff as a result of the breach.? (Miles v. Deutsche Bank National Trust Company?(2015) 236 Cal.App.4th 394, 402.) In pleading a breach of contract cause of action, plaintiff must allege whether the contract is written, oral, or implied by conduct. (See Otworth v. Southern Pac. Transportation Co.?(1985) 166 Cal.App.3d 452, 458-459.) To the extent that the agreement is written, the terms of the contract must be stated verbatim in the complaint or, in the alternative, the contract must be attached to and incorporated into the Complaint. (Id. at p. 459.)??To plead a third-party beneficiary claim, Plaintiffs must allege facts to show the contracting parties intended to benefit that person and the intent must appear in the terms of the agreement.? (Brinton v. Bankers Pension Services, Inc.?(1999) 76 Cal.App.4th 550, 558.)

Plaintiffs alleged sufficient facts to support this cause of action.? (FAC, ?? 52-56.)? Although the FAC does not allege a direct agreement between Plaintiffs and Alizadeh, Plaintiffs now allege the CC&Rs apply to each owner for the mutual benefit of all lots, parts, and parcels and their respective owners.? (FAC, ? 52.)? In addition, by purchasing the Tuna Property and the Alizadeh Property, the owners agreed to the terms of the CC&Rs, which constitutes a written contract between each property owner.? (FAC, ? 53.) Accordingly, the demurrer as to the sixth cause of action is overruled.

Defendant Alex Alizadeh shall give notice of the ruling.