On 03/06/2020 ERIC IVAN GARMENDEZ filed a Contract - Other Contract lawsuit against PUBLIC STORAGE. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Disposed - Dismissed.
Disposed - Dismissed
JAMES E. BLANCARTE
GARMENDEZ ERIC IVAN
Court documents are not available for this case.
DocketNotice of Ruling; Filed by: Public Storage (Defendant)Read MoreRead Less
DocketOn the Amended Complaint (1st) filed by Eric Ivan Garmendez on 04/02/2020, entered Order for Dismissal with prejudice as to the entire actionRead MoreRead Less
DocketMinute Order (Hearing on Motion to Dismiss)Read MoreRead Less
DocketHearing on Motion to Dismiss scheduled for 08/04/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 08/04/2021; Result Type to Held - Motion GrantedRead MoreRead Less
DocketNon-Jury Trial scheduled for 09/03/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/04/2021Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/10/2023 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/04/2021Read MoreRead Less
DocketNotice of Continuance of Hearing on Defendant's Motion to Dismiss Entire Action for Failure to Timely Amend after Demurrer; Filed by: Public Storage (Defendant); As to: Eric Ivan Garmendez (Plaintiff)Read MoreRead Less
DocketHearing on Motion to Dismiss scheduled for 08/04/2021 at 10:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketMinute Order (Court Order)Read MoreRead Less
DocketCertificate of Mailing for (Court Order) of 06/22/2021; Filed by: ClerkRead MoreRead Less
DocketRequest to Waive Court Fees; Filed by: Eric Ivan Garmendez (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: Eric Ivan Garmendez (Plaintiff); As to: Public Storage (Defendant)Read MoreRead Less
DocketUpdated -- Request to Waive Additional Court Fees (Superior Court): Filed By: Eric Ivan Garmendez (Plaintiff); Result: Entered; Result Date: 03/06/2020; As To Parties: removedRead MoreRead Less
DocketRequest to Waive Additional Court Fees (Superior Court); Filed by: Eric Ivan Garmendez (Plaintiff)Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/10/2023 at 08:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketNon-Jury Trial scheduled for 09/03/2021 at 08:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street CourthouseRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
Case Number: 20STLC02217 Hearing Date: August 4, 2021 Dept: 25
PROCEEDINGS: MOTION TO DISMISS PLAINTIFF’S\r\nENTIRE ACTION FOR FAILURE TO TIMELY AMEND AFTER DEMURRER\r\n\r\n
MOVING PARTY: Defendant Public Storage\r\n\r\n
RESP. PARTY: None\r\n\r\n
MOTION TO DISMISS\r\n\r\n
(CCP § 581)\r\n\r\n
Defendant\r\nPublic Storage’s Motion to Dismiss is GRANTED. The First Amended Complaint filed\r\non April 2, 2020 is HEREBY DISMISSED WITH PREJUDICE.\r\n\r\n
[X] Proof of Service Timely Filed (CRC,\r\nrule 3.1300) OK\r\n\r\n
[X] Correct Address (CCP §§ 1013, 1013a)\r\n OK\r\n\r\n
[X] 16/21 Court Days Lapsed (CCP §§ 12c,\r\n1005(b)) OK\r\n\r\n
OPPOSITION: None\r\nfiled as of July 30, 2021 [ ]\r\nLate [X] None\r\n\r\n
REPLY: None\r\nfiled as of July 30, 2021 [ ] Late [X] None\r\n\r\n
On March 6, 2020, Plaintiff Eric Ivan Garmendez\r\n(“Plaintiff”) filed the instant action, in pro per, against Defendant Public\r\nStorage (“Defendant”) alleging breach of contract and common counts causes of\r\naction. Plaintiff filed a First Amended Complaint (the “FAC”) on April 2, 2020\r\nalleging breach of contract, writ of possession, conversion, unjust enrichment,\r\nand open book account causes of action.\r\n\r\n
Defendant filed a demurrer to the entire Complaint on\r\nJune 2, 2020. On October 14, 2020, the Court sustained the demurrer with leave\r\nto amend the first and third causes of action but without leave as to the\r\nsecond, fourth, and fifth causes of action. (10/14/20 Minute Order.) Plaintiff\r\nwas granted 20 days’ leave to amend. (Id.)\r\n\r\n
On February 17, 2021, Defendant filed the instant Motion\r\nto Dismiss Plaintiff’s Entire Action for Failure to Timely Amend After Demurrer\r\n(the “Motion”). Plaintiff did not file an opposition.\r\n\r\n
II. \r\nLegal Standard & Discussion\r\n\r\n
The Court may dismiss a complaint\r\nas to a defendant when, after a demurrer to the complaint is sustained with\r\nleave to amend, the plaintiff fails to amend it within the time allowed by the\r\nCourt and either party moves for dismissal. (Code Civ. Proc., § 581, subd.\r\n(f)(2).)\r\n\r\n
On October 16, 2020, Defendant\r\nproperly served Plaintiff with written notice of the Court’s October 14, 2020\r\nOrder sustaining the demurrer with 20 days’ leave to amend. (10/16/20 Notice of\r\nRuling.) To date, Plaintiff has not filed an amended complaint. Accordingly, the\r\nMotion is GRANTED. Plaintiff’s First Amended Complaint is DISMISSED WITH\r\nPREJUDICE.\r\n\r\n
III. \r\nConclusion & Order\r\n\r\n
For the\r\nforegoing reasons, Defendant Public Storage’s Motion to Dismiss is GRANTED. The\r\nFirst Amended Complaint filed on April 2, 2020 is HEREBY DISMISSED WITH\r\nPREJUDICE.\r\n\r\n
Moving party is\r\nordered to give notice.'
Case Number: 20STLC02217 Hearing Date: October 14, 2020 Dept: 25
HEARING DATE: Wed., October 14, 2020 JUDGE /DEPT: Blancarte/25
CASE NAME: Garmendez v. Public Storage COMPL. FILED: 03-06-20
CASE NUMBER: 20STLC02217 DISC. C/O: 08-04-21
NOTICE: OK DISC. MOT. C/O: 08-19-21
TRIAL DATE: 09-03-21
PROCEEDINGS: DEMURRER TO FIRST AMENDED COMPLAINT
MOVING PARTY: Defendant Public Storage
RESP. PARTY: None
(CCP § 430.41 et seq.)
Defendant Public Storage’s Demurrer to First Amended Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT as to the first and third causes of action but SUSTAINED WITHOUT LEAVE TO AMEND as to the second, fourth, and fifth causes of action.
[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X] Correct Address (CCP §§ 1013, 1013a) OK
[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: None filed as of October 7, 2020 [ ] Late [X] None
REPLY: None filed as of October 7, 2020 [ ] Late [X] None
On March 6, 2020, Plaintiff Eric Ivan Garmendez (“Plaintiff”) filed the instant action, in pro per, against Defendant Public Storage (“Defendant”) for breach of contract and common counts. Plaintiff filed a First Amended Complaint (the “FAC”) on April 2, 2020 alleging breach of contract, writ of possession, conversion, unjust enrichment, and open book account causes of action.
Defendant filed the instant Demurrer to First Amended Complaint (the “Demurrer”) on June 2, 2020. To date, Plaintiff has not filed an opposition.
Request for Judicial Notice
Defendant requests that the Court take judicial notice of (1) Plaintiff’s FAC filed on April 2, 2020; (2) the purported rental agreement the parties entered into on July 14, 2019; (3) the Huntington Park Police Department Incident Report dated August 4, 2019 describing the alleged burglary of Plaintiff’s belongings; (4) the original Complaint filed on March 6, 2020; and (5) Judge Mitchell Beckloff’s April 2, 2020 order denying Plaintiff’s ex parte writ of attachment. (Dem., RJN ¶¶ 1-5, Exhs. A-E.)
Defendant’s request is GRANTED as to items 1, 4, and 5. (Evid. Code., § 452, subd. (d).) However, Defendant’s request as to items 2 and 3 is DENIED. Defendant argues these documents, which are not already part of the Court’s record, may be judicially noticed pursuant to Evidence Code section 452, subdivision (h). However, facts contemplated by subdivision (h) generally include “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) Neither the parties’ purported agreement nor the Huntington Park Police Report constitute such widely accepted matter.
“The primary function of a pleading is to give the other party notice so that it may prepare its
case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to
affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)
“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of
America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges
facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not
“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the
complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,
N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded
factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of
which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,
however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.
Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)
A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)
Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)
Defendant argues the FAC is uncertain and that it fails to state sufficient facts to constitute a cause of action. As noted above, demurrers brought on the basis of uncertainty are special demurrers, and special demurrers are not permitted in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Thus, the Court cannot consider Defendant’s demurrer on the basis of uncertainty.
A. First Cause of Action – Breach of Contract
“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)
In pertinent part, Plaintiff alleges the following: that the parties entered into an agreement on or about July 14, 2019; that under the agreement, Defendant was to provide to Plaintiff insurance of $15,000.00 against theft or damage for the property stored in a locker unit; that pursuant to the agreement, Plaintiff leased a locker in which he stored his personal belongings; that Plaintiff’s property has been lost; that on or about August 4, 2019, Defendant failed to reimburse Plaintiff for his loss or damage as required by the parties’ agreement; and that Defendant refuses to pay $15,000.00 to Plaintiff as required by the parties’ agreement. (FAC, ¶¶ 7-11.) Plaintiff incorporates the terms of the parties’ alleged agreement by reference to Exhibit A. (Id. at ¶ 7.) However, Plaintiff did not include any attachments with his FAC.
Defendant requests judicial notice of the parties’ alleged agreement and argues that, under the terms of the contract, it disclaimed any duty or other obligation to safeguard Plaintiff’s property and that Plaintiff was required to have his own insurance for his stored belongings. (Dem., pp. 1:23-2:7.) However, as noted above, the Court cannot take judicial notice of the parties’ purported agreement because it is not judicially noticeable matter.
Plaintiff has alleged the existence of a contract, Defendant’s breach, and the damages Plaintiff sustained as a result of Defendant’s breach, but has not alleged that he performed his side of the bargain or that he was otherwise excused from performing.
Thus, Defendant’s demurrer as to the first cause of action is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND. Plaintiff should also ensure any intended attachments are actually attached to his amended pleading.
B. Second Cause of Action – Writ of Possession
A writ of possession is a remedy for the immediate possession of tangible personal property which may be sought by filing an application in accordance with Code of Civil Procedure section 512.010. Because a writ of possession is a remedy, not a cause of action, Defendant’s demurrer as to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.
C. Third Cause of Action – Conversion
“Conversion is the wrongful exercise of dominion over the property of another. The elements of conversion are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages…” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.)
Plaintiff alleges in pertinent part that he was the legal owner of the leased locker unit for a certain time as provided by agreement; that he was entitled to “immediate possession of the sum of $15,000.00 per [the] agreement”; that “Defendant wrongfully exercised dominion and control over, and thereby interfered with Plaintiff’s right to immediate possession of the locker as [collateral] until the amount of $15,000.00 [had] been paid in full”; that Defendant failed to surrender the $15,000.00 after their “default of the agreement…[and] then [used] the storage locker for their own benefit, profit, or enjoyment without returning belongings nor payment as agreed upon to the Plaintiff…”; that the value of the property lost is $15,000.00; and that as a result of Defendant’s actions, Plaintiff was damaged in the amount of $15,000.00 plus interest. (FAC, ¶¶ 31-36.)
Defendant argues Plaintiff fails to state a cause of action because he did not allege Defendant either stole his stored property or is in possession of it. (Dem., p. 4:19-20.) Relying on the Huntington Park Police Report, Defendant notes that Plaintiff identifies the theft suspects as two unidentified individuals who entered Defendant’s facility using Plaintiff’s unique passcode. (Id. at p. 4:20-25.) Thus, Defendant argues, the conversion cause of action fails against it. However, as noted above, the Court cannot take judicial notice of the police report and thus cannot consider it in ruling on this Demurrer.
To the extent Plaintiff alleges Defendant is guilty of conversion because it failed to pay $15,000.00 as required by the parties’ agreement, that is insufficient. The simple failure to pay money owed does not constitute conversion. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284.) “A cause of action for conversion of money can be stated only where a defendant interferes with a plaintiff’s possessory interest in a specific, identifiable sum, such as when a trustee or agent misappropriates the money entrusted to him.” (Id.) (Italics in original.) The Court notes that Plaintiff also appears to allege that Defendant interfered with Plaintiff’s possessory right to the storage unit he leased, but it is unclear as no damages are sought for that alleged interference.
Defendant’s demurrer as to the third cause of action is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND.
D. Fourth Cause of Action – Unjust Enrichment
While some California courts recognize unjust enrichment as a cause of action, it is not recognized in the second appellate district. (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) Rather, unjust enrichment is a “general principle, underlying various legal doctrines and remedies” and is “synonymous with restitution.” (McBride v. Boughton (2004) 13 Cal.App.4th 379, 387; see also Levine v. Blue Shield of California (2010) Cal.App.4th 1117, 1138.) Restitution can be awarded in lieu of damages when an express contract exists but is void because it was procured by fraud or is unenforceable for some other reason or was rescinded. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 233 Cal.App.4th 221, 231.) “A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of a contract.” (Ibid.)
However, because restitution is a remedy and not a cause of action (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 362), Defendant’s demurrer to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.
E. Fifth Cause of Action – Open Book Account
A “book account” is defined as “a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in reasonably permanent form and manner and is (1) in a bound book or (2) a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of permanent character or is kept in any other reasonably permanent form and manner.” (Code Civ. Proc., § 337a.) (Italics added.) “ ‘A book account is ‘open’ where a balance remains due on the account.’ “(Professional Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 691.)
As previously noted, Plaintiff’s allegations against Defendant arise out of the parties’ alleged agreement that Defendant would provide insurance in the amount of $15,000.00 to cover damage or theft to personal property and Defendant’s alleged failure to pay said $15,000.00 to Plaintiff after a claim was made.
None of Plaintiff’s allegations indicate that the parties had the kind of creditor/debtor relationship or fiduciary relationship contemplated by an open book account cause of action. Thus, Defendant’s demurrer as to the fifth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.
Conclusion & Order
For the foregoing reasons, Defendant Public Storage’s Demurrer to First Amended Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT as to the first and third causes of action but SUSTAINED WITHOUT LEAVE TO AMEND as to the second, fourth, and fifth causes of action.
Moving party is ordered to give notice.
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