Case Name: Matthew Wagoner, et al. v. Ruth Mejorado, et al.
Case No.: 18CV325398

I. Background

This is a nuisance action brought by plaintiffs Matthew Wagoner and Brenda Wagoner (“Plaintiffs”) against defendants Ruth Mejorado (“Mejorado”), Mario Burnias (“Burnias”), Armando Saldana (“Saldana”), and Jose Soto (“Soto”) (collectively, “Defendants”).

According to the complaint, Plaintiffs own a house located at 2168 Hillstone Drive in San Jose, California. Mejorado and Burnias own a house across the street at 4824 Byington Drive. Saldana and Soto live with Mejorado and Burnias, along with other unnamed occupants. Both houses are subject to the conditions, covenants, and restrictions (“the CC&Rs”) detailed in the Hillstone Declaration of Restrictions, recorded in the Official Records of Santa Clara County.

The CC&Rs sets forth various limitations as to how owners may use their property. For example, The CC&Rs sets forth various limitations as to how owners may use their property. For example, some of the conditions include the requirement that the owners use the property only for residential purposes, maintain the appearance of the property, lease the property subject to the CC&Rs, evict any tenant that breaches the CC&Rs, restrict noises that may disturb or annoy other property owners, refrain from keeping certain animals, and keep vehicles only on the owner’s property.

Since late 2017, Defendants have failed to abide by the CC&Rs. Among other things, the number of people residing in Defendants’ house often exceeds occupancy limits, Defendants and the house’s occupants dump trash on Plaintiffs’ and other neighbors’ properties, park on the street and Plaintiffs’ lawn, play loud music, keep restricted animals on the property, conduct business activities at the property, allow people to live in the converted garage, neglect maintenance of the yard, and trespass onto Plaintiffs’ property.

Plaintiffs assert causes of action for nuisance, trespass, and breach of contract. In addition to damages, Plaintiffs also seek to enjoin Defendants from continuing their offensive conduct and to compel Defendants to obey the CC&Rs.

Mejorado now demurs to each cause of action. Plaintiffs filed an opposition, accompanied by a request for judicial notice.

II. Preliminary Matters

A. Meet-and-Confer Requirement

Plaintiffs argue that Mejorado’s demurrer should be overruled because she failed to meet and confer prior to filing her demurrer.

A demurring party must meet and confer with the opposing party prior to filing a demurrer in an informal attempt to resolve objections to the pleading. (Code Civ. Proc., § 430.41, subd. (a).) If such efforts are unsuccessful and a demurrer is filed, the demurring party must file and serve a declaration describing the meet-and-confer process. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Here, Mejorado did not file a meet-and-confer declaration with her demurrer and Plaintiffs affirmatively state that no meet and confer occurred. However, an insufficient meet-and-confer process “shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).) Accordingly, although Mejorado failed to comply with the meet-and-confer requirement, the Court will reach the merits of the demurrer. With that said, Mejorado is expected to comply with the meet-and-confer requirement in the future.

B. Request for Judicial Notice

Plaintiffs request judicial notice of two court records from this case, namely the complaint and the second amended preliminary injunction, under Evidence Code section 452, subdivision (d), which permits judicial notice of court records. While the documents are generally proper subjects for judicial notice, it is not appropriate to take judicial notice of them here.
First, judicial notice of the complaint is unnecessary since it is the pleading under review. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Next, the second preliminary injunction is irrelevant to resolving the issues raised by the demurrer. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [a “precondition” to the taking of judicial notice is that the documents “must be relevant to a material issue”].)

Accordingly, Plaintiffs’ request for judicial notice is DENIED in its entirety.

III. Merits of the Motion

Mejorado demurs to the complaint on the grounds of failure to state sufficient facts to constitute a cause of action and uncertainty. (See Code Civ. Proc., § 430.10, subds. (e), (f).)
As a threshold matter, Plaintiffs argue the demurrer should be overruled because Mejorado did not state each ground of her demurrer in a separate paragraph as required by California Rules of Court, rule 3.1320(a).

Here, Mejorado’s notice and demurrer clearly state each ground for her demurrer but not in separate paragraphs. Instead, her grounds are all contained in one paragraph. Although Mejorado technically did not comply with rule 3.1320(a) in that regard, the Court will not overrule the demurrer on that basis since Plaintiffs were clearly on notice of the grounds for demurrer.
With that said, the demurrer is otherwise fatally deficient because Mejorado did not file a memorandum in support.

California Rules of Court, rule 3.1113(a) requires that a party file and serve a memorandum with its demurrer. The memorandum “must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) “The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (Id., rule 3.1113(a).)

Here, Mejorado only filed a notice and demurrer but no supporting memorandum. In her notice and demurrer, Mejorado only sets forth the grounds and standards for a demurrer. She does not present any arguments as to why the complaint is uncertain or fails to state facts sufficient to constitute a cause of action. Consequently, the Court has no basis upon which to evaluate the demurrer. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without authority in support is without foundation and requires no discussion].)

Accordingly, Mejorado’s demurrer on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action is OVERRULED.

The Court will prepare the Order.