Case Name: Kathleen Feuling v. David Scoffone
Case No.: 16CV295929

This is a dispute between two individuals who formerly lived together over ownership of several items of property. Currently before the Court is the demurrer by Defendant David Scoffone (“Defendant”) to Plaintiff’s original Complaint alleging conversion, trespass to chattel and declaratory relief.

The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed. “While inconsistent theories of recovery are permitted, a pleader cannot blow hot and cold as to the facts positively stated.” (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449, internal citation omitted. See also Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice §3(3) [“It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.”])

Requests for Judicial Notice
Both sides have submitted requests for judicial notice. A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

Defendant’s request for judicial notice pursuant to Evid. Code §452(c) & (h) of a copy of a verified motion to enforce settlement apparently filed in a prior probate action between these parties in San Diego County Superior Court is DENIED. The submitted copy is not file-endorsed. More importantly, Defendant’s belief that because a motion that may have been filed in a prior action is verified its contents can be noticed as to their truth is mistaken. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 [court may take judicial notice of existence of declaration but not of facts asserted in it]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [court may not notice the truth of declarations or affidavits filed in court proceedings]; Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22 [“Although the existence of statements contained in a deposition transcript filed as part of the court record can be judicially noticed, their truth is not subject to judicial notice.”]) While previously filed declarations or verifications can be noticed as to their existence and filing date as court records (if file-endorsed), this has little practical use and has no relevance to the present issue before the Court.

Plaintiff’s request for judicial notice of two documents is GRANTED in part and DENIED in part. The request for judicial notice of the certificate of title for a Ford F-550 is GRANTED pursuant to Evid. Code §452(c) only. The certificate only establishes that Plaintiff was the registered owner on the date it was issued, which has no real relevance here. The request for judicial notice of a copy of a tentative ruling issued by San Diego County Superior Court on March 6, 2014 is DENIED. The document does not indicate if it is the final order of the San Diego Superior Court and, given the denial of Defendant’s request for judicial notice, this tentative ruling has no relevance to the demurrer.

Defendant’s demurrer to the entire Complaint on the ground that “Plaintiffs’ complaint does not state facts sufficient to constitute a cause of action for unlawful detainer,” (Defendant’s Notice of Demurrer and Demurrer at 2:6-7) is OVERRULED. The Complaint does not state any claim for unlawful detainer. Even if this critical defect were overlooked, Defendant’s apparently intended demurrer to the entire complaint on the ground that it fails to state sufficient facts because it is barred by the statute of limitations would still be overruled. Given the denial of Defendant’s request for judicial notice, it is not apparent from the face of the Complaint that any of the claims are time-barred. “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325, internal citations omitted.)

Even if the request for judicial notice could properly be granted, Defendant’s statute of limitations argument would then still only apply to a single item of property and the demurrer would still be overruled. A general demurrer does not lie to only part of any cause of action. (See Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046; PH II v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)