PLEASE TAKE NOTICE THAT on ______________ at 8:30 a.m. Or as soon thereafter
as counsel may be heard in Department 11 of the above-entitled Court, located at
________________________, California, cross-defendant RB will demur to CrossDefendant LBH’s entire Cross-Complaint as follows:
AS TO THE ENTIRE CROSS-COMPLAINT
1. The entire Cross-complaint fails to allege sufficient facts to state a claim.
2. The entire cross-complaint is uncertain.
Cross-defendant RB respectfully requests this Court to sustain her general demurrer to
cross-complainant's cross-complaint without leave to amend and grant further relief as
the court finds proper.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
This action arose when LBH leased an uninhabitable property in which it has no
interest to RB using a Lease Agreement which fails to conform to numerous Civil code
sections governing leases and therefore is not enforceable.
RB, after taking possession of the subject property ("the RESIDENCE") quickly
discovered that the RESIDENCE violated numerous building codes, had expired building
permits, and had been engaged in substantial "remodeling" projects without necessary
building permits or applications for building permits, and that the resulting "remodel"
violated California's warranty of implied habitability and City of Long Beach Building
Codes.
This property, warranted by LBH to be habitable pursuant to California law, was in
fact owned by EBI, the Real Party In Interest. It is uncertain whether even EBI owned
the property, because the signers on the title to the RESIDENCE were not managers of
EBI, but the unrelated MM Family Trust.
LBH entered into a lease agreement for a real property in which it has no interest,
then sought to sue RB for not paying rent on a non-conforming, uninhabitable property
which, at the time of the signing of the non-conforming lease, was under jurisdiction of
the City of Long Beach's Code Enforcements division. Pursuant to these foregoing facts,
plaintiff and cross-defendant RB will demonstrate that LBH has no standing to sue and
that its cross-complaint should be dismissed.
II.
ARGUMENT
A. A General Demurrer Is Appropriate In This Matter.
This Court may properly sustain cross-defendant's demurrer in this matter. Code of Civil
Procedure section 430.10 sets forth the grounds for a demurrer as follows:
“The party against whom a complaint . . . has been filed may object, by demurrer or
answer as provided in Section 430.10, to the pleading on any one or more of the
following grounds:
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(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous
and unintelligible.”
B. The Pleading Is Uncertain As To Standing To Sue
1. LBH Is Not the Owner of Record
Cross-Complainant alleges in paragraph 5 of the cross-complaint that “LBH is the owner
and landlord of the real property located at XX Avenue, Long Beach, California (“the
Property”). At all relevant times mentioned herein, LBH was responsible for the
management of the Property.”
Cross-Defendant respectfully requests this Court to take judicial notice of the title to the
Property, attached hereto as Exhibit A, which indicates that LBH is not the owner of the
property, and thus is not the real-party-in-interest.
At all times relevant to plaintiff's First Amended Complaint, LBH was not the owner of
the subject property or the real party in interest. As LBH is not the real-party-in-interest,
it lacks standing to bring an action. Friendly Village Community Assn No IV v. Silva &
Hill Constr. Co. (1973) 31 Cal.App.3d 220.
It is further uncertain as to who LBH is or what its relationship is to EBI, the true owner
of the property. Because, according to the title, LBH is not the owner of the Property and
is not the real-party-in-interest, it therefore lacks standing to sue. Based upon the
foregoing, cross-defendant respectfully requests this Court to uphold Cross-defendant's
demurrer without leave to amend and dismiss LBH's cross-complaint.
C. The Lease Agreement Incorporated Into the Pleading Does Not Provide a Cause of
Action Upon Which to Sue.
When incorporated by reference, a contract controls the pleading and any additional
matter stated in the pleading is surplus.
1. To Be Enforceable, A Lease Agreement For A Term of Longer Than One Year Must
be Executed By The Landlord.
LBH additionally lacks standing to sue because the Lease Agreement under which it
seeks to bring suit is void. The lease term under the Lease Agreement runs from
September 1, 2010 to September 1, 2011, 366 days, a period longer than one year. It then
automatically extends unless tenant notifies LBH thirty days in advance that it wishes to
terminate the lease. Pursuant to Civil Code sections 1091 and 1971, a lease for a term of
more than than one year must be executed by the landlord to be enforceable.
As is evident from looking at the Lease Agreement, it was not executed by anyone. The
signature line for LBH is blank. The lease then, according to Civil Code sections 1091
and 1971, is not enforceable, and LBH therefore lacks standing to bring a suit under the
terms of the Lease Agreement. For the reasons stated above, cross-defendant respectfully
requests that LBH's cross-complaint be dismissed, because the Lease Agreement is not
enforceable.
2. To Be Enforceable, the Identity of a Party Entering A Lease Agreement Must Be
“Ascertainable.”
LBH lacks standing to sue because the Lease Agreement under which it seeks to bring
suit is void, as demonstrated above. The identity of the party entering a lease agreement
must be “ascertaintable.” Civil Code 1558. Accordingly, a lease should set for the the
names of the parties, their legal status, and the nature of their interests in the property.
Losson v. Blodgett 1934 1 CA2 13; Dodd v. Pasch 5 CA 686. LBH's Lease Agreement
fails to set forth the nature of its interest in the property. Please see the title attached
hereto as Exhibit A, which indicates that LBH is not an owner of the subject property.
Please see a copy of the Lease Agreement attached hereto as Exhibit B. No mention is
made in the Lease Agreement of LBH's nature of interest in the property. LBH's interest
in the property then is ambiguous and uncertain and, based upon these facts, it lacks
standing to sue.
For the reasons stated hereinabove, cross-defendant respectfully requests this Court to
uphold cross-defendant's demurrer without leave to amend.
CONCLUSION
Cross-defendant has demonstrated that LBH is not the owner of the Property, it is
uncertain what relationship LBH has to the Property, and the Lease Agreement between
LBH and cross-defendant is not enforceable. For all of the foregoing reasons, crossdefendant respectfully requests this Court to uphold its general demurrer to the entire
cross-complaint without leave to amend, and to dismiss LBH's cross-action.