Case Name: The Point – A Church of the Nazarene v. Thomas Horio, et al.

Case No.: 2016-1-CV-292535

Demurrer to Plaintiff’s Complaint by Defendant Thomas Horio

On or about December 8, 1998, plaintiff The Point – A Church of the Nazarene (“Plaintiff”) and defendant Thomas Horio (“Horio”) entered into a written contract entitled, “Life Estate Agreement,” (hereafter, “Agreement”) regarding certain real property located at 3661 Rose Terrasse Circle in San Jose (“Property”). (Complaint, ¶¶8 – 9.) At the time of the Agreement, a single family residence located on the Property was in a good/ excellent state of repair, but has since become dilapidated and uninhabitable. (Complaint, ¶¶11 – 12.) In addition, dry grass and weeds have accumulated at the Property, posing a fire hazard to neighboring properties. (Complaint, ¶13.) Defendant Horio has repudiated the Agreement by nonfeasance and failure to keep the residence at the Property in good repair and failure to keep the Property free of waste. (Complaint, ¶15.)

On March 10, 2016, Plaintiff filed a complaint against defendant Horio asserting causes of action for:

(1) Breach of Contract
(2) Breach of the Implied Covenant of Good Faith and Fair Dealing
(3) Nuisance
(4) Breach of Fiduciary Duty
(5) Economic Waste
(6) Declaratory Relief
(7) Quiet Title
(8) Fraud

On April 25, 2016, defendant Horio filed this demurrer to Plaintiff’s complaint.

I. Defendant Horio’s demurrer is SUSTAINED, in part, and OVERRULED, in part.

A. Defendant Horio’s demurrer to the first cause of action for breach of contract is OVERRULED.

“A complaint for the breach of contract must include the following: (1) the existence of a contract, (2) plaintiff’s performance or excuse for non-performance, (3) defendant’s breach, and (4) damages to plaintiff therefrom.” (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913.)

Defendant Horio demurs to the first cause of action by arguing, initially, that there is no contract. Some general legal principles apply here. “In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (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.)

Plaintiff has alleged the existence of an agreement at paragraphs 8 and 9 of the complaint and attached a copy as Exhibit A. Defendant’s denial of the existence of the agreement is not a compelling argument on demurrer.

Next, defendant Horio contends it is impossible to determine the specific conduct which amounts to breach or the dates of breach. Yet, at paragraphs 11, 12, 13, and 15, Plaintiff adequately alleges the conduct which amounts to defendant’s breach of the Agreement which states, among other things, that defendant has a “duty to maintain and keep the buildings on their respective parcels in repair from ordinary waste.” More specificity is not required.

Defendant Horio argues further that Plaintiff has not alleged any resulting damage. Such allegation is found at paragraph 20 of the complaint where it is alleged, “As a proximate result of Defendant’s breach of contract and the LIFE ESTATE AGREEMENT, Plaintiff has been damaged by the Defendant through Defendant’s deprivation of Plaintiff’s existing interest in the single-family residence, as well as Plaintiff’s future interest in the residence, situated on the real property in an amount to be established according to proof at the time of Trial.” Defendant Horio focuses on the allegation regarding injury to Plaintiff’s future interest as speculative. However, as discussed above, the court is not concerned at the pleading stage with Plaintiff’s ability to prove the allegations.

Accordingly, defendant Horio’s demurrer to the first cause of action in Plaintiff’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

B. Defendant Horio’s demurrer to the second through eighth causes of action is SUSTAINED.

Defendant Horio also demurs to the second through eighth causes of action on various grounds. In opposition, Plaintiff does not address any of the points raised by defendant Horio’s demurrer to the second through eighth causes of action and, instead, simply requests leave to amend.

There being no substantive opposition, defendant Horio’s demurrer to the second through eighth causes of action in Plaintiff’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is SUSTAINED with 10 days’ leave to amend.