Case Name: Ali Heidari v. James M. Kelley, et al.
Case No.: 18CV338299

This is a demurrer brought by Defendant James M. Kelley (“Defendant”) to the original complaint in this limited civil action filed by Plaintiff Ali Heidari (“Plaintiff”). Only general demurrers are permitted in limited civil actions. (See Code of Civil Procedure (“CCP”) § 92.) The Complaint states a single cause of action for unlawful detainer.

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.) The Court in ruling on a demurrer considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. A general demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167; 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 [“A demurrer does not lie to a portion of a cause of action.”].)

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.)

1) Defendant’s request
Defendant’s request for judicial notice of three documents (exhibits 1-3 to the request) submitted with his demurrer is GRANTED in part and DENIED in part.

Defendant’s request for judicial notice of a Deed of Trust relating to the subject property recorded July 31, 2007 (exhibit 1) is GRANTED pursuant to Evidence Code §§ 452(c) and (h). Evidence Code §452(c) states the court may take judicial notice of “any official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” This has been interpreted to include documents recorded by a government department. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265, disapproved on other grounds in Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919 (“Yvanova”). Defendant’s request for judicial notice of a copy of his Notice of Appeal filed in case no. 17CV309595 on June 25, 2018 (exhibit 2) is GRANTED pursuant to Evidence Code § 452(d). Notice of a copy of the cover page of the second amended complaint in case no. 17CV309595 (exhibit 3) is DENIED as irrelevant to the material issue before the Court.

2) Plaintiff’s request
Plaintiff’s request for judicial notice of six documents (exhibits 1-6), filed with the opposition to the demurrer, is GRANTED in part and DENIED in part.

Notice of exhibit 2 (a copy of a Trustee’s Deed Upon Sale recorded May 23, 2017, the same document attached to the Complaint as exhibit A) and exhibit 5 (a copy of a Grant Deed recorded on November 13, 2018, the same document attached to the Complaint as exhibit B) is GRANTED pursuant to Evidence Code §§ 452(c) and (h). Notice of exhibit 5, a certified copy of this Court’s July 9, 2018 Order granting motion to expunge lis pendens, recorded on August 2, 2018, is GRANTED pursuant to Evidence Code §§ 452(c), (d) and (h). Notice of exhibit 1 (a copy of a printout of the docket in case no, 17CV309595), exhibit 4 (a copy of a request for judicial notice filed in federal court) and exhibit 6 (a copy of the complaint in this action) is DENIED as irrelevant and unnecessary. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

Demurrer to Complaint
Defendant demurs to the Complaint on only two grounds. (See Notice of Demurrer and Demurrer at 2:1-7.)

Defendant’s demurrer to the entire Complaint on the basis that it is “facially invalid” because the caption does not include a reference to CCP §1161a (see Notice of Demurrer and Demurer at p. 6:1-13) is OVERRULED.

Assuming for purposes of argument that this is a valid basis for a general demurrer in a limited civil action, Defendant cites no authority for the proposition that a failure to comply with CCP §1166(c) constitutes a failure to state sufficient facts or by itself renders an unlawful detainer action invalid. The Court notes that the verified Complaint plainly states (at ¶¶ 6-7) that the unlawful detainer action is brought pursuant to CCP §1161a(b). Exhibit C to the Complaint, a copy of the Notice to Quit served on Plaintiff, also plainly references CCP §1161a(b).

Defendant’s demurrer to “Plaintiff’s claim for possession on the basis that Plaintiff fails to state facts sufficient to state a cause of action,” (Notice of Demurrer and Demurrer at p. 2:6-7) is OVERRULED.

The Complaint states a single cause of action for unlawful detainer. “An unlawful detainer action is a summary proceeding, the primary purpose of which is to obtain the possession of real property in the situations specified by statute.” (Vasey v. Cal. Dance Co. (1977) 70 Cal.App.3d 742, 746; Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 973 [“An unlawful detainer action is a summary proceeding ordinarily limited to resolution of the question of possession.”].) Pursuant to CCP § 1161a, this summary proceeding may be used to evict an individual following a foreclosure. (Gross v. Super. Ct. (1985) 171 Cal.App.3d 265, 271; accord Bank of New York Mellon v. Preciado (2013) 224 Cal.App.4th.Supp. 1, 9.) CCP § 1161a, subdivision (b) states “a person who holds over and continues in possession of. . . real property after a three-day written notice to quit the property has been served upon the person. . . may be removed therefrom. . .[w]here the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected.” The Complaint’s factual allegations in paragraphs 4-6 (assumed to be true for purposes of demurrer, supported by attached exhibits A-C) adequately state a claim for unlawful detainer.

Defendant cites no authority supporting his specific argument that no unlawful detainer action may be filed when an appeal of a judgment in a prior action involving the same subject real property has been filed or that the absence of any reference to such an appeal in an unlawful detainer complaint constitutes a failure to state sufficient facts. As Plaintiff points out, the applicable authority is contrary to Defendant’s argument. “The Legislature has provided that upon recordation of the order expunging a lis pendens, persons not party to the litigation are deemed not to have notice of the real property claim, ‘irrespective of whether that person possessed actual knowledge of the action or matter and irrespective of whether or how the knowledge was obtained.’ (§ 405.61.) Further, the Legislature has declared that it intended, when it adopted section 405.61, to ‘provide for the absolute and complete free transferability of real property after the expungement or withdrawal of a notice of pendency of action.’ (Ibid.) Thus, given a choice between two systems, (1) where property can be readily freed up for sale after trial court litigation or (2) where property will continue to be tied up for a long period pending an appeal if a claimant can come up with some nonfrivolous argument on which to base that appeal, it is apparent that the Legislature chose free transferability of the property by the prevailing property owner as the preferred option.” (Mix v. Superior Court (2004) 124 Cal.App.4th 987, 994.)

Accordingly, once this Court’s order granting the motion to expunge lis pendens in case no. 17CV309595 was recorded on August 2, 2018 (see exhibit 3 to Plaintiff’s RJN), the fact that Defendant had already filed an appeal in case no. 17CV309595 did not bar JPMorgan Chase Bank, N.A. (the prevailing party in case no. 17CV309595) from selling the subject real property to Plaintiff, nor does that pending appeal bar Plaintiff from bringing this action for unlawful detainer or establish any failure to state sufficient facts to support that claim.