Demurrer to Amended Complaint
9 Navarro vs. American Honda Motor Co.
2021-01205671 Motion to Strike or Tax Costs
The court admonishes all counsel that before filing motions, counsel should weigh the time and expense in bringing a motion against the issues of the proposed motion. Meaningful meet and confer efforts may resolve the issue(s) of the motion and reduce costs and attorney’s fees.
Defendant American Honda Motor Co., Inc.’s motion to strike/tax costs is GRANTED IN PART, as follows.
Plaintiff Osvaldo Navarro’s memorandum of costs filed on 1/29/26 is hereby taxed in the total amount of $75 only, consisting of the $75 fee to “Court Appearance Professionals” for an attorney to make a special appearance at the 1/17/25 OSC hearing on behalf of plaintiff’s counsel. (See Code Civ. Proc., § 1033.5, subd. (c)(5)(A); Cal. Rules of Court, rule 3.1702 [noticed motion required where court must make prevailing party determination or fix the amount of fees/determine a “reasonable” fee]; see also ROA No. 99–Costs Memo. [see att. 15 & invoice No. S-INV159415]; ROA No. 81 [1/17/25 minute order, noting appearance by attorney Eric Alizade, “specially appearing” for plaintiff’s counsel].) Plaintiff may seek this fee via a duly noticed motion for attorney fees.
The court finds all of the other costs at issue were reasonably incurred in the prosecution of the action, namely, to file a joint stipulation agreed to by the parties, and to seek and file notices of continuances of an OSC hearing granted by the court. (See Civ. Code, § 1794, subd. (d); see also id., § 1033.5, subd. (a)(1), (14).)
Order to Show Cause re: Dismissal on Settled Case continued October 9, 2026 at 8:30 a.m. in Department C44.
Defendant shall give notice.
10 Niknafs vs. Gitibin
2025-01506015 Demurrer to Amended Complaint
Defendants Kavous Gitibin and Cindy Gitibin’s demurrer to plaintiff Nicholas Niknafs’ Second Amended Complaint [SAC] is OVERRULED. (
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
The SAC is not uncertain (Code Civ. Proc., § 430.10, subd. (f)), as sufficient facts are alleged to place moving defendants on notice of the nature of plaintiff’s claims. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 [demurrers for
uncertainty should be “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond”]; see also Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [uncertainty demurrers strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery”].)
Nor does the SAC “clearly and affirmatively” show that plaintiff’s claims are time-barred. (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781 [“In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred”]; Code Civ. Proc., § 339, subd. (1) [two-year statute of limitations for breach of oral contract]; Romano v.
Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 488) [breach of contract cause of action accrues at time of breach]; SAC, ¶¶ 13 [oral contract for Handrail Refinishing Project formed on or about 8-15- 23], 16 [plaintiff’s performance took place “over the course of several weeks”], action filed 8-22-25; see also Civ. Code, § 1657 [“If no time is specified for the performance of an act required to be performed, a reasonable time is allowed ... [i]f the act is in its nature capable of being done instantly--as, for example, if it consists in the payment of money only--it must be performed immediately upon the thing to be done being exactly ascertained;” emphasis added; Consolidated World Investments, Inc. v.
Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 381 [“What constitutes a ‘reasonable time’ for performance is a question of fact,” and “depends ... on the circumstances of each case;” internal citations omitted].)
The 1st cause of action for breach of contract states sufficient facts. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [breach of contract elements]; SAC, ¶¶ 12, 13, 17, 20 [oral contract for Handrail Refinishing Project], 16, 21 [plaintiff’s performance], 17, 22 [nonpayment as breach], 23 [proximately caused damages].) Whether the Handrail Refinishing Project fell within the scope of repairs pursuant to the purchase agreement as moving parties contend, cannot be determined at the pleading stage, given plaintiff’s allegations to the contrary. (SAC, ¶¶ 12-15 [alleging oral contract for Handrail Refinishing Project was outside the scope of the purchase agreement for the subject property]; Aragon- Haas v.
Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 239 [“So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as
correct plaintiff's allegations as to the meaning of the agreement”].)
The 2nd cause of action for common count - work, labor, and services rendered, states sufficient facts. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [“The only essential allegations of a common count are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment;” citation omitted]; CACI 371 [quantum meruit elements]; SAC, ¶¶ 12, 13, 20, 25 [oral contract for plaintiff to perform services, i.e. the Handrail Refinishing Project], 16, 21, 26 [plaintiff’s performance], 17, 22 [indebtedness via nonpayment], 23, 28 [$48,500 reasonable value of services].)
Moving defendants shall file an Answer to the SAC within 10 days.
Plaintiff shall give notice.
11 Vicuna vs. Frsteam by Custom Commercial
2025-01523569 Demurrer to Complaint
Defendants Custom Commercial Dry Cleaners, LLC, dba FRSTeam by Custom Commercial, and FRSTeam, LLC’s demurrer to the 3rd cause of action for conversion in plaintiff Robert Vicuna’s Complaint is OVERRULED.
The third cause of action states sufficient facts. (Code Civ. Proc., § 430.10, subd. (e) [demurrer for failure to state]; Lee v. Hanley (2015) 61 Cal.4th 1225, 1240 [conversion elements]; Complaint, ¶¶ 2, 27 [plaintiff’s ownership / possession of personal property], 6-9, 38 [deprivation of property for a significant period, failure to return property, and/or destroyed property, including “multiple missing .... items” (¶ 7), and “many of the items were not delivered” or “were lost” (¶ 8)], 39 [lack of consent], 13, 40-42 [proximately caused damages]; see also Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39 [a complaint is good against a general demurrer so long as it states a cause of action under any theory]; Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29 [“a plaintiff is permitted to plead inconsistent or ... alternative counts”].)
Moving parties’ notice of demurrer also cites Code Civ. Proc., § 430.10, subd. (f) [uncertainty], but the moving papers do not address this ground. In any event, demurrers for uncertainty should be sustained “only if the pleading is so incomprehensible that a defendant cannot reasonably respond” (A.J. Fistes Corp. v.