2012-00132939-CU-OR

Vibrantcare Outpatient Rehab vs. Pasquale X Montesano

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: McGee, Daniel D.

The demurrer of Defendant Pasquale X. Montesano, M.D. (“Dr. Montesano”) to
Plaintiff Vibrantcare Outpatient Rehabilitation West, Inc.’s (“Vibrantcare”) first amended
complaint (“FAC”) is SUSTAINED with leave to amend as follows:

This is a landlord/tenant dispute based on a commercial lease. Dr. Montesano was
the lessor, and Vibrantcare was the lessee. The lease obligated Vibrantcare to pay a
share of real property taxes based on a square footage formula. Vibrantcare alleges
that, despite the passage of several years after the tenancy commenced, Dr.
Montesano did not seek payment of real property taxes until just before the lease
expired. Vibrantcare further alleges that Dr. Montesano did not restore Vibrantcare’s
security deposit after the lease expired.

Vibrantcare’s FAC contains two causes of action for declaratory relief and breach of
the implied covenant of good faith and fair dealing. Dr. Montesano demurs on grounds
that the allegations fail to state facts sufficient to state a cause of action.

The First Cause of Action for Declaratory Relief

The demurrer is SUSTAINED with leave to amend.

As currently pleaded, this cause of action is aimed at obligations the time for
performance of which has already passed. Although Vibrantcare observes that the
prayer seeks a judicial declaration with respect to property taxes owed through the
present date, elsewhere the FAC makes clear that the obligation to pay property taxes terminated when the lease expired. (See FAC, ¶ 16.) Thus, the court does not
construe the declaratory relief cause of action as seeking anything other than
retrospective relief. The court sustains the demurrer because declaratory relief only
affords relief for disputes over prospective rights and duties. (See, e.g., Doan v. State
Farm Gen. Ins. Co. (2011) 195 Cal.App.4th 1082, 1096.)

Because this is the court’s first opportunity to consider Dr. Montesano’s objections to
Vibrantcare’s allegations, the court grants leave to amend. If Vibrantcare elects to
amend, it may attempt to plead a declaratory relief cause of action aimed at
prospective relief, or it may attempt to plead a cause of action directed at Dr.
Montesano’s alleged failure(s) to perform one or more obligations. The court
expresses no opinion about the validity of any such causes of action.

The Second Cause of Action for Breach of the Implied Covenant of Good Faith and
Fair Dealing

The demurrer is SUSTAINED with leave to amend.

Vibrantcare concedes that this cause of action is defective and requests leave to
amend. Leave to amend is therefore granted.

Judicial Notice

Dr. Montesano’s request for judicial notice is UNOPPOSED and GRANTED.

Conclusion

No later than October 28, 2013, Vibrantcare may file and serve a second amended
complaint (“SAC”); Dr. Montesano to file and serve his responsive pleading(s) within
10 days thereafter, 15 days if the SAC is served by mail. (Although not required by
any statute or rule of court, Vibrantcare is requested to attach a copy of the instant
minute order to the SAC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.