Case Number
24CV01663
Case Type
Civil Law & Motion
Hearing Date / Time
Fri, 08/30/2024 - 10:00
Nature of Proceedings
CMC; Demurrer
Tentative Ruling
For all reasons discussed herein, the general demurrer of defendant as to the first, second, third, fourth, and fifth causes of action alleged in plaintiff’s complaint is sustained with leave to amend. Plaintiff Maria Pia Giordani shall file and serve her first amended complaint on or before September 13, 2024. Except as otherwise herein sustained, the demurrer is overruled.
Background:
As further discussed below, this action arises from the filing of an application (the application) by the City of Santa Barbara (the City), for a preliminary injunction in Superior Court of Santa Barbara County case number 22CV04233 (the Injunction Action). On March 22, 2024, plaintiff Maria Pia Giordani (Maria) filed in this action a verified complaint against the City alleging five causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) breach of contract; (4) declaratory relief; and (5) declaratory relief. (Note: Due to common surnames and to avoid confusion, the Court will refer to plaintiff and her late husband as further discussed below by their first names. No disrespect is intended.) As alleged in the complaint:
Forty years ago, Maria and her husband, Ettore Giordani (Ettore), owned real property identified as Santa Barbara County Tax Assessor’s Parcel Number 55-030-50, and which is located in the City of Santa Barbara, California (the City Property.) (Compl., ¶ 6.) Maria also owns property identified as Santa Barbara County Tax Assessor’s Parcel Number 55-030-49, which is located in the County of Santa Barbara, California (the County Property). (Id. at ¶ 5.) Ettore died on June 6, 1996. (Id. at ¶ 17.)
On January 11, 1983, the City filed as Santa Barbara Superior Court case number 1144056 (the Eminent Domain Action), a complaint against Maria and Ettore (collectively, the Giordanis), seeking easem*nts for its “Penstock” pipeline which would traverse the City Property and the County Property (collectively, the Properties). (Compl., ¶ 16.) To induce the Giordanis to execute easem*nts for the Penstock pipeline, the City offered them a high-pressure fire hydrant. (Id. at ¶ 20.)
On June 17, 1983, the City and the Giordanis entered into a court approved settlement agreement (the settlement agreement). (Compl., ¶ 16.) The specific rights and obligations of the City and the Giordanis under the settlement agreement are memorialized in a letter dated June 7, 1983, which was drafted by the City and entitled “Gibraltar Penstock Pipeline Realignment Letter Of Understanding For Execution Of Pipeline Easem*nts” (the LOU). (Id. at ¶ 21 & Exh. A.) The LOU includes language stating, in part, that the City “ ‘will include a fire hydrant installation on the [P]enstock pipeline at a location designated by the property Owner and acceptable to the City. The fire hydrant is for the sole purpose of fire protection.’ ” (Id. at 22; see also Exh. A.)
The City took possession of the easem*nts on June 17, 1983. (Compl., ¶ 32.) On June 24, 1983, two separate documents drafted by the City, each of which is dated June 2, 1983, and entitled “Waterline Easem*nt Deed and Agreement” (collectively, the Easem*nt Agreements), were recorded with the Santa Barbara Recorder’s Office with respect to the Properties. (Id. at ¶ 23 & Exhs. B-C.) The Giordanis specifically negotiated for the terms “non-exclusive” and “underground” to be included in the Easem*nt Agreements. (Id. at ¶ 23.) Maria believes that the City used the lure of a high-pressure fire hydrant to induce the Giordanis into executing the Easem*nt Agreements. (Id. at ¶ 31.)
The Penstock pipeline and the fire hydrant were installed in late December 1983 or the beginning of 1984. (Compl., ¶ 25.) The Giordanis sold the City Property in 1984. (Id. at ¶ 26.) After the Giordanis and the City were unable to reach an agreement as to valuation for the City’s taking of their real property, a contested court trial ensued resulting in a judgment in favor of the Giordanis on December 27, 1984, which was upheld on appeal. (Id. at ¶¶ 27-29.)
In 2020, a City engineer informed Maria that the City intended to install a pressure relief valve and requested to meet at the Giordani property. (Compl., ¶ 35.) Maria asked her son, Giovanni (Gio), to attend for her and Gio subsequently held on-site meetings with the City engineers regarding the proposed air release valve. (Ibid.) The City employees who were present for the initial on site meeting denied any knowledge of the high pressure fire hydrant or any of the previously agreed upon terms. (Id. at ¶ 38.) At a second on site meeting on August 12, 2020, the City engineer stated that the fire hydrant would work if the line was pressurized. (Id. at ¶ 39.) Maria informed the City employee that she wanted a reaffirmation of the City’s commitment to abide by the terms of the settlement which required the City to provide high pressure fire hydrant service during fire events. (Id. at ¶ 40.) During a subsequent discussion, Maria stated to a City engineer that she needed additional information to assess the City’s request. (Id. at ¶ 36.) Maria also informed the City that the fire hydrant was located on her property for her benefit, and that the Easem*nt Agreements provide for only underground waterlines and appurtenances. (Id. at ¶ 37.)
After viewing the fire hydrant, the City informed Maria in writing that it intended to remove and replace the hydrant with the air release valve, and that the City would also pour a concrete pad and erect a cinderblock wall at the location of the hydrant. (Compl., ¶¶ 41-42.) Under the Easem*nt Agreements as they relate to the County parcel, Maria holds the “ ‘right to construct or install concrete and asphalt paving for driveways on said easem*nt, if said driveways so not interfere with the City’s operations of said waterlines.’ ” (Id. at ¶ 43.)
On June 28, 2022, City Attorney Daniel S. Hentschke (Hentschke) sent a letter to Maria notifying her that the City intended the “ ‘removal of the existing fire hydrant’ ”, that Hentschke had “ ‘personally searched the archive records of the Superior Court and located the [LOU]’ ”, and that “ ‘[n]either the [LOU], nor any other document, indicates that . . . the City is required to maintain a fire hydrant connected to the [P]enstock pipeline.’ ” (Compl., ¶ 44-46 & Exh. D.) In over 40 years, the City never notified Maria of an inability to perform, nor has Maria prevented the City from performing, maintenance on the fire hydrant. (Id. at ¶¶ 47-49.)
Because Maria would not grant the City permission to remove her “contractual consideration” of a high pressure fire hydrant, on October 27, 2022 the City filed the Injunction Action. (Compl., ¶¶ 50-51.) On December 8, 2022 the City filed the application in the Injunction Action seeking a “ ‘preliminary injunction enjoining, mandating and compelling’ ” Maria to comply with the provisions of the Easem*nt Agreements, specifically by allowing access in order to replace a “ ‘functionally obsolete fire hydrant with an air relief/vacuum valve.’ ” (Id. at ¶¶ 52-53 & Exh. E.) The application, which was opposed by Maria, was based exclusively on the declaration of Hentschke. (Id. at ¶¶ 54, 57-58 & Exh. F.)
In the Eminent Domain Action, the City had claimed that, in exchange and consideration for executing the Easem*nt Agreements, the Giordanis would receive the installation of the fire hydrant from the City which the City valued at $50,000. (Compl., ¶¶ 60-61.) The fire hydrant is located on Maria’s private property and is not included in the Easem*nt Agreements, nor have the Easem*nt Agreements ever been amended to include the fire hydrant or the property running to or under it. (Id. at ¶¶ 68-69 & 71.) The City knew that the fire hydrant was for the benefit of the Giordanis, and that the hydrant is located eighty-five feet from the Penstock pipeline, outside the easem*nt area, and on Maria’s private property. (Id. at ¶ 59.) In addition, any and all above surface rights in the easem*nt area were negotiated away by the City to obtain rights to install the Penstock pipeline in the specified area across the Giordanis’ property such that the Easem*nt Agreements do not grant the City authority to build above-ground structures or to pour concrete. (Id. at ¶¶ 66-67.) The City’s easem*nts are also nonexclusive and narrow in their scope. (Id. at ¶¶ 72-73.)
On March 15, 2023, City Attorney Brian English sent an email to Maria’s counsel stating that the City concurred that the fire hydrant is not located within the easem*nt and that the City would no longer seek to remove the hydrant. (Compl., ¶¶ 90-92.) On March 20, 2023, the City withdrew the application and on March 22, 2023, the City dismissed the Injunction Action. (Id. at ¶¶ 94-96.)
The City’s attempt to install a permanent structure in addition to removing Maria’s contractually provided for high pressure fire hydrant on her private property was wrongful, and forced Maria to incur damages to defend against the false claim that the hydrant is within the easem*nt boundary. (Compl., ¶¶ 75, 77-80, 89, 102.) In addition, the City’s attempt to expand the easem*nt boundary was without justification or compensation. (Id. at ¶ 101.) Based on the City’s concessions regarding the fire hydrant, the City is in breach of its obligation to test, inspect, and maintain the hydrant which has also caused Maria to incur costs for additional fire suppression equipment. (Id. at ¶¶ 93 & 102-103.)
Court records reflect that on April 29, 2024, Maria filed a notice of errata striking paragraph 81 of the complaint in its entirety.
On May 6, 2024, the City filed a notice of related case identifying Santa Barbara Superior Court case number 23CV01937 (the City Action) entitled the City of Santa Barbara v Maria Pia Giordani, et al., as related to the present action. On May 24, 2024, the Court ordered the present action related to the City Action.
On May 29, 2024, the City filed a demurrer to the complaint as a whole and to each cause of action alleged in the complaint, on grounds further discussed below. The demurrer of the City is opposed by Maria.
Court records further reflect that on August 6, 2024, Maria filed a document entitled “Certification of Trust” ostensibly under Probate Code section 18100.5.
Analysis:
In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The complaint is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and those appearing in attached exhibits. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
The City’s demurrer to the complaint as a whole:
As grounds for its demurrer to the complaint as a whole, the City asserts that a preliminary title report for property known as “APN 153-260-051”, which the City contends is the subject of this action, is owned by Maria as the Trustee of “the Survivor’s Trust created by the Giordani Family Trust of July 2, 1991 the community property share of Ettore Giordani” (the Trust). (Memo. at p. 14, ll. 10-14 & p. 25, ll. 6-9.) To support this contention, the City submits the declaration of its counsel, Mane Khachatryan (Khachatryan), who states that upon its review of an “Amended Preliminary Report” dated March 11, 2024 (the title report), and attached to the Khachatryan declaration as exhibit 5, the City discovered that property known as APN 153-260-051 is owned by Maria as Trustee of the Trust. (Khachatryan Decl., ¶ 5.) Therefore, the City contends, Maria cannot represent the interests of the Trust, cannot bring this lawsuit in any capacity other than as a trustee, and must be represented by counsel. For these reasons, the City argues that Maria lacks the legal capacity to sue the City.
“ ‘There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court.’ [Citation.] ‘Incapacity is merely a legal disability, such as infancy or insanity, which deprives a party of the right to come into court. The right to relief, on the other hand, goes to the existence of a cause of action ….’ [Citation.]” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604, original italics, fn. omitted.) “Standing” to sue “is the right to relief in court. [Citation.] Thus, although a plaintiff may have ‘capacity’ to sue [sic], if the complaint shows that he is not a real party in interest and therefore lacks ‘standing’ to sue, a ‘general’ demurrer will be sustained.” (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224.)
Appearing to conflate the issue of whether Maria has the capacity to sue the City with the issue of whether Maria has a right to the relief sought against the City in this action, the City offers no reasoned argument explaining why the allegations of the complaint show that Maria suffers from a legal disability depriving her of the right to come into court.
Moreover, to the extent that the demurrer is based on a lack of standing to sue, any defect in this regard must appear either on “face” of the complaint or from judicially noticeable matters. (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1008-1009.) The City has not requested judicial notice of the title report, which nonetheless is not a proper subject of judicial notice. (See Evid. Code, §§ 450-452.) For this reason, the title report constitutes matter extrinsic to the complaint which the Court cannot consider on demurrer. (See, generally, Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [the pleading must disclose the matter relied upon in support of the demurrer].) Furthermore, the City fails to explain why a title report that relates to property which bears a different parcel number than the parcel numbers expressly alleged in the complaint with respect to the Properties as further detailed above is relevant here. Accordingly, for all reasons discussed above, the Court will overrule the demurrer to the complaint as a whole to the extent it is based on Maria’s purported lack of legal capacity or standing to bring this action.
The City’s demurrer to the first cause of action for breach of contract:
As grounds for its demurrer to the first cause of action for breach of contract alleged in the complaint, the City contends that it is unclear from the allegations which document constitutes the purported contract that was allegedly breached by the City, and that Maria has failed to allege a breach by the City including when the City breached the purported contract, and failed to allege whether there exists any other contract pertaining to the fire hydrant. The City further contends that, because it never removed the fire hydrant, any intent or threats by the City to do so would not qualify as a breach of any contract.
“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.” (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 (Aragon-Haas).)
In the first cause of action, Maria alleges or effectively alleges, that the terms of the settlement agreement as memorialized in the LOU includes, as consideration for the Giordanis’ agreement to execute the Easem*nt Agreements, the installation of a fire hydrant by the City. (Compl., ¶¶ 106-107.) Maria also alleges that she and Ettore did all of the significant things that the settlement agreement, and the LOU, required them to do. (Id. at ¶ 109.) These allegations are sufficient to allege a contract (here, the settlement agreement) between the City and the Giordanis, as well as the performance by the Giordanis of their obligations under the settlement agreement.
Maria further alleges that, although the removal of the fire hydrant was not permitted and prohibited under the settlement agreement, the City notified Maria that it intended, and sued Maria, to remove the “contractually negotiated for” hydrant by filing the application under which the City sought to compel Maria to permit the City to remove the hydrant. (Compl., ¶¶ 110-111, 113-114, & 116-117.)
A reasonable interpretation of the LOU shows that, in exchange for the Giordanis’ agreement to execute the Easem*nt Agreements under which the Giordanis’ granted easem*nts to the City for its Penstock pipeline, the City agreed to install a fire hydrant “for the sole purpose of fire protection and for use by the City Fire Department.” (Compl., Exh. A at PDF p. 40, ¶ 2.) Ostensibly, the consideration provided to the Giordanis by the installation of a fire hydrant conferred a benefit to the Giordanis with respect to the fire protection expressly referenced in the LOU. For this reason, the terms of the LOU do not contradict the allegations of the complaint with respect to whether the fire hydrant served as consideration for the settlement agreement, which included the easem*nts at issue granted by the Giordanis to the City, nor does Maria’s construction of the relevant terms of the settlement agreement as memorialized in the LOU appear to be erroneous as to the City’s obligation under the settlement agreement to install the fire hydrant for the purpose of providing fire protection. (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627; Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 128.)
“A breach of contract is ‘[t]he wrongful, i.e., the unjustified or unexcused, failure to perform’ the terms of a contract. [Citation.]” (Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 570.) As the terms of the settlement agreement expressly require the City to install a fire hydrant for the purpose of fire protection in exchange for the Giordanis granting to the City easem*nts for the installation of its Penstock pipeline under the Easem*nt Agreements, these allegations are sufficient to give rise to a cause of action for breach of the settlement agreement to the extent the City sought to remove the fire hydrant. (Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 411-412 [a failure or refusal to perform constitutes a breach]; Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230 [general discussion of the failure to perform under a contract].)
In addition, to the extent the City intends to specially demur to the first cause of action on the grounds of uncertainty, the Court’s recitation of the allegations of the complaint demonstrates that it is not so unintelligible or ambiguous that the City cannot understand the issues or the nature of the claims alleged by Maria. (See Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”]; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) The allegations of the first cause of action are also not so incomprehensible that the City cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) For these reasons, the Court will overrule the demurrer of the City to the first cause of action alleged in the complaint on the grounds of uncertainty.
Notwithstanding that the allegations of the complaint are, for reasons further discussed above, sufficient to allege a contract (here, the settlement agreement), the Giordanis’ performance under the contract, and the City’s breach by a purported failure to perform under the contract, there exist deficiencies in the first cause of action with respect to the element of damages. For example, the express allegations of the complaint show that the fire hydrant was not removed by the City. In addition, the damages expressly alleged in the complaint resulting from the City’s purported breach of the settlement agreement consist of legal costs and attorney fees incurred by Maria to defend the Injunction Action and oppose the application. (Compl., ¶ 120.) Maria fails to explain the basis on which she may recover attorney fees incurred in the Injunction Action. (See, e.g., Code Civ. Proc., §§ 1021; 1032, 1033.5, subd. (10).) In addition, to the extent Maria is entitled to recover attorney fees or costs incurred in the Injunction Action, Maria fails to include allegations demonstrating why she may allege such fees and costs as damages in a separate action for breach of contract.
For all reasons discussed above, because there exist deficiencies with respect to the pleading of damages, the Court will sustain the demurrer of the City to the first cause of action for breach of contract.
The City’s demurrer to the second cause of action for breach of the implied warranty of good faith and fair dealing:
As grounds for its demurrer to the second cause of action for breach of the implied warranty of good faith and fair dealing, the City contends that because Maria has not alleged facts sufficient to constitute a breach of contract with respect to the fire hydrant, Maria has also failed to allege facts sufficient to demonstrate the breach of any implied warranty by the City. A reasonable interpretation of the second cause of action demonstrates its theory of liability is also based on a purported breach of the settlement agreement by the City as further detailed above. (See, e.g., Compl., ¶¶ 123 [alleging the settlement agreement as the contract]; 126 [alleging the Giordanis’ performance of the terms of the settlement agreement]; 128-130 & 132-140 [alleging the City’s purported breaches of the settlement agreement].)
“Under California law, every contract includes an implied covenant of good faith and fair dealing.” (Prager University v. Google LLC (2022) 85 Cal.App.5th 1022, 1039.) This implied covenant “exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. [Citation.] The covenant thus cannot ‘ “be endowed with an existence independent of its contractual underpinnings.” ’ [Citations.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349-350, original italics.)
As the Court will sustain the demurrer to the first cause of action for breach of the settlement agreement from which the theory of liability alleged in the second cause of action arises, the Court will also sustain the demurrer to the second cause of action alleged in the complaint.
The City’s demurrer to the third cause of action for breach of contract:
As grounds for its demurrer to the third cause of action for breach of contract, the City contends that it is unclear whether the Easem*nt Agreements are the contracts at issue and allegedly breached by the City, and that Maria has failed to allege how or when the City breached the Easem*nt Agreements. For these reasons, the City argues, Maria has failed to allege facts sufficient to constitute a cause of action for breach of contract.
The express allegations of the third cause of action may be reasonably interpreted to assert that the Easem*nt Agreements, and their purported breach by the City, are at issue. (See, e.g., Compl., ¶ 151-159.) For the same reasons further discussed above, the complaint sufficiently alleges the existence the Easem*nt Agreements and the Giordanis’ performance under the Easem*nt Agreements. (Ibid.) In addition, to the extent the City specially demurs to the third cause of action on the grounds of uncertainty, the special demurrer is overruled for the same reasons further discussed above.
The breaches of the Easem*nt Agreements by the City alleged in the complaint include that the City sought to construct an above-ground permanent concrete structure specifically prohibited by and in violation of the Easem*nt Agreements, which provide for underground nonexclusive easem*nts only and not subsurface rights, and in a location which falls eighty-five feet outside of the easem*nt area. (Compl., ¶¶ 159-160, 162-164, & 166-168.) A similar analysis applies. It can be reasonably inferred from the allegations of the complaint, including facts appearing in the attached exhibits, that the Giordanis were obligated under the settlement agreement to grant an easem*nt to the City by executing the Easem*nt Agreements. (Id. at ¶¶ 19-25 [alleging the terms of the final negotiated result with respect to the scope of the easem*nts under the Easem*nt Agreements and the Giordanis’ performance under the settlement agreement with respect to the Easem*nt Agreements].) Notwithstanding whether or not Maria has alleged facts sufficient to show a breach of the Easem*nt Agreements by the City, the same deficiencies exist with respect to the element of damages as further discussed above.
In her opposition to the demurrer, Maria contends in the City Action, the City seeks to impose new conditions in violation of the Easem*nt Agreements which constitutes an ongoing breach. (Opp. at p. 14.) The allegations of the complaint do not expressly or by inference allege that the filing of the City Action nor does Maria allege expressly or by inference that the filing of the City Action also constitutes a breach of the Easem*nt Agreements. Therefore, for all reasons further discussed above, the filing of the City Action constitutes extrinsic matter which the Court may not consider for present purposes.
For the same reasons further discussed above, the Court will sustain the demurrer to the third cause of action for breach of contract.
The City’s demurrer to the fourth and fifth causes of action for declaratory relief:
In its demurrer to the fourth cause of action for declaratory relief, the City argues that Maria’s claim is based on hypothetical statements, and that Maria seeks preemptive relief regarding matters which have not yet occurred. For these reasons, the City contends, Maria has failed to sufficiently allege an actual controversy between the parties. As grounds for its demurrer to the fifth cause of action for declaratory relief, in which Maria seeks a judicial determination with respect to the parties’ rights and obligations under the Easem*nt Agreements, the City contends that it also seeks declaratory relief in the City Action with respect to the terms of the subject easem*nt. Therefore, the City argues, the fifth cause of action is duplicative.
“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties … and requests that these rights and duties be adjudged by the court.” (Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719, 728; see also Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 751 [“[a] general demurrer is usually not an appropriate method for testing the merits of a declaratory relief action, because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff’s interest”].)
With respect to the demurrer of the City to the fifth cause of action, redundancy is not grounds for a demurrer, and Maria is entitled to seek any relief “consistent with the facts alleged” in the complaint regardless of whether the City seeks the same relief in the City Action. (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 302-303; Santa Clara County v. Hayes Co. (1954) 43 Cal.2d 615, 619-620.) Though the grounds for its demurrer to the fifth cause of action are without merit, the claims for declaratory relief alleged in the fourth and fifth causes of action appear to arise from and be based on the claims alleged in the first and third causes of action. Because the Court will sustain the demurrer as to first and third causes of action, the Court will also, for present purposes, sustain the demurrer to fourth and fifth causes of action.
Leave to amend:
In her opposition to the demurrer, Maria generally requests leave to amend. Though Maria fails to demonstrate in what manner the defects discussed herein can be cured by amendment (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), as the complaint is an original pleading which does not necessarily show on its face that it is incapable of amendment, the Court will grant Maria leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.)
The City’s request for judicial notice:
In support of its demurrer, the City requests that the Court take judicial notice of a claim for damages submitted to the City by Maria on August 9, 2023, and attached to the Khachatryan declaration as exhibit 1. (City RFJN at p. 2, ll. 1-7.) The City also requests that the Court take judicial notice of Government Code section 911.2, which provides that a claim relating to a cause of action other than one for injury to person or personal property shall be presented as provided in Government Code section 915, et seq. (City RFJN at p. 2, ll. 8-16.)
Though not necessary, the Court will grant the request of the City for judicial notice of Government Code section 911.2. (Evid. Code, § 452, subd. (a).) However, as the City does not, in its demurrer, appear to contend that the complaint is defective based on any failure by Maria to submit a claim under Government Code sections 911.2 or 915, the City has failed to establish the relevance of the claim for damages submitted by Maria to the City to the issues presented on demurrer. (See Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Therefore, the Court will deny the request of the City for judicial notice of the claim for damages further described above.
The City also requests that the Court take judicial notice of the complaint filed by the City in the City Action, the notice of related case filed in this action as further detailed above, and a case management conference statement also filed by the City in this action. (City RFJN at p. 2, ll. 17-27.) Though not necessary, the Court will grant judicial notice of these court records but not the truth of any matters stated in the records. (Evid. Code, § 452, subd. (d)(1); Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
Maria’s request for judicial notice:
Maria requests that the Court take judicial notice of the Certification of Trust filed in this action on August 6, 2024; a request for dismissal filed by the City in the Injunction Action on March 22, 2023; the complaint filed by the City in the City Action; that in Injunction Action, Maria filed an answer to the City’s first amended complaint; that Maria opposed the application; that the filing of the complaint in this action on March 22, 2024, commenced this lawsuit; and that the amendment to complaint filed by the City in the City Action identified Doe 1 as “Maria Pia Giordani, the Trustee of the Survivor’s Trust created by the Giordani Family Trust of July 2, 1991, the community property share of Ettore Giordani,” (Maria RFJN at nos. 1-7 & Exhs. 1-6.)
The Court will grant the request of Maria for judicial notice of the request for dismissal filed by the City in the Injunction Action, and the complaint filed by the City in the City Action. (Evid. Code, § 452, subd. (d)(1).) The Certification of Trust and the facts stated in paragraphs 4 through 7 of Maria’s request for judicial notice are not necessary or relevant to the Court’s determination of the demurrer. Therefore, the Court declines to take judicial notice of the Certification of Trust and the facts stated in paragraphs 4 through 7 of Maria’s request.
