MIP, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS MONITOR POLISHING & PLATING, INC., A CALIFORNIA CORPORATION, ET AL.

Tentative Rulings

Case Number: *******0628 Hearing Date: September 24, 2021 Dept: A

Demurrer

ALLEGATIONS:

Plaintiff MIP, LLC, a California Limited Liability Company("Plaintiff") filed suit against Defendants Monitor Polishing & Plating, Inc., a California Corporation ("MPP"); Miguel Mercado ("Miguel"); and Cristina Mercado ("Cristina", and collectively, "Defendants"), alleging that Plaintiff and MPP entered into a written commercial lease agreement ("Commercial Lease") on or about September 12, 2005, with Miguel and Cristina as guarantors. Plaintiff alleges that MPP defaulted on rental payments due on June 08, 2020 and utilized hazardous substances on the premises in violation of the Commercial Lease; and that both Miguel and Cristina have also refused to pay the sum owed.

Plaintiff filed a Complaint on July 14, 2021 alleging six (6) causes of action sounding in: (1) Breach of Contract; (2) Breach of Guaranty; (3) Open Book Account; (4) Account Stated; (5) Trespass; and (6) Nuisance.

PRESENTATION:

The Court received the Demurrer filed by Defendants on August 25, 2021; and the opposition filed by Plaintiff on September 20, 2021. The Court has not received any reply.

RELIEF REQUESTED:

Defendants demur to the Complaint.

DISCUSSION:

Untimely Opposition – Plaintiff\'s opposition is untimely filed pursuant to CCP ; 1005, which requires opposition briefing to be filed nine court days before the hearing date. Nonetheless, in light of the simple circumstances surrounding the demurrer, the Court should rule on the merits of the demurrer.

Merits – Defendants demur to the Complaint based on a single issue of uncertainty, as the pleading purports to reference and incorporate four attached exhibits but failed to include such exhibits. In opposition, Plaintiff represents that the four exhibits have been filed in a Notice of Errata to Complaint filed on September 08, 2021. This notice cures the sole issue of uncertainty, and so the Court will overrule the demurrer.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff MIP, LLC\'s Demurrer came on regularly for hearing on September 24, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS OVERRULED.

DATE: _______________ _______________________________

JUDGE