Case Number: BC533799 Hearing Date: June 11, 2014 Dept: 34

Moving Party: Defendant 1100 Wilshire Property Owners Association (“defendant”)

Resp. Party: Plaintiff JPMorgan Chase Bank, N.A. (“plaintiff”)

Defendant’s demurrer to plaintiff’s complaint is OVERRULED.

BACKGROUND:

Plaintiff commenced this action for declaratory relief on 1/21/14. In August 2013, plaintiff and defendant entered into a lease agreement authorizing plaintiff to install and maintain a high-rise sign bearing the Chase name and logo for an initial 10 year term at the building located at 1100 Wilshire Blvd. (Compl., ¶ 7.) Plaintiff agreed to pay defendant a base rent starting at $210,000.00 per year for the first five years and increasing every five years until the rent reached $338,207.10 per year. (Id., ¶ 8.) When the lease was entered into, an 1100 Wilshire sign sat atop the property, and the lease authorized plaintiff to remove the sign if such removal was required by the local agency as a condition to approving plaintiff’s signage. (Id., ¶ 9.) Plaintiff applied for and received the proper permits and authorization from the City of Los Angeles to install its sign. (Id., ¶ 13.) The permits and authorization required plaintiff to remove the 1100 Wilshire sign. (Id., ¶ 14.) Plaintiff, at its sole cost and expense, carefully removed the 1100 Wilshire sign and paid all rent due under the lease. (Id., ¶¶ 16-17.) In December 2013, defendant accused plaintiff of breaching the lease by removing the 1100 Wilshire sign. (Id., ¶ 18.) Defendant claimed that removal of the sign was not “required” and thus it should not have been removed and, even if plaintiff were authorized to remove the sign, it should have been removed more carefully. (Ibid.) Defendant asserted that it had been damaged by the loss of the value of the sign and damage inflicted on the sign during removal. (Ibid.) Defendant demanded that plaintiff take steps to replace the sign and re-position it on the building. (Ibid.) Plaintiff maintains that the installation of the Chase sign was properly permitted by the City and that the removal of the 1100 Wilshire sign was a required component of the permission granted to plaintiff to install the Chase sign. (Id., ¶ 20.) Plaintiff maintains that it used appropriate care when removing the sign. (Ibid.)

ANALYSIS:

Defendant demurs to sole cause of action for declaratory relief on the ground that it fails to state sufficient facts to constitute a cause of action and is uncertain.

Uncertainty

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 7:85.) “Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, ¶ 7:85 [citing Khoury, 14 Cal.App.4th at p. 616].)

Here, the allegations are not so unclear that defendant cannot reasonably respond. Plaintiff clearly articulates a dispute between the parties regarding the removal of the 1100 Wilshire sign. To the extent that defendant wishes to learn more information about the claims, such information may be sought during the discovery process.

Failure to Allege Sufficient Facts

There are two essential elements for declaratory relief: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [plaintiff’s] rights or obligations.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

Defendant argues that plaintiff’s declaratory relief claim fails because plaintiff is attempting to disguise a damages claim and plaintiff has an adequate remedy at law.

“Any person interested under a written instrument … or under a contract … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.) “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (Code Civ. Proc., § 1061.) “ ‘The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief. The refusal to exercise the power is within the court’s legal discretion and will not be disturbed on appeal except for abuse of discretion. [Citation.]’ [Citation.]” (California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624.)

Nothing on the face of the complaint establishes that there is another form of relief adequate to remedy plaintiff’s claims. Plaintiff is not seeking damages for itself or a determination of damages owed to defendant; instead, plaintiff seeks a declaration of the parties’ rights and duties under the lease, that plaintiff did not breach the lease, that plaintiff is not required to replace and reposition the 1100 Wilshire sign, and that plaintiff’s sign may remain atop the building. (See Compl., ¶¶ 20, 28; Prayer, ¶¶ 2-4.) This is sufficient to assert a claim for declaratory relief.

Defendant next argues that plaintiff is attempting to seek redress for past wrongs. (See Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 407 [declaratory relief may be denied where there is an accrued cause of action for breach of contract or tort].) This argument is not well taken. Plaintiff’s claims do not merely pertain to damages caused by the removal of the 1100 Wilshire sign; the claims address a current dispute as to whether plaintiff is presently obligated to replace and reposition the sign.

Judicial reference

Defendant also attacks the request for judicial reference in the complaint and prayer for relief. (See Compl., ¶ 12; Prayer, ¶ 1.) This is not a proper challenge for a demurrer because the request for judicial reference is not a cause of action. Such a challenge should have been raised in a motion to strike. (See Weil & Brown, ¶¶ 7:42.4, 7:188.1.) Plaintiff has not yet moved to compel judicial reference, and thus defendant’s challenge to such is premature.

Defendant’s demurrer is OVERRULED.