Currently before the Court are the demurrer and motion to strike by defendant Suerte Holdings, LLC (“Suerte”).
Factual and Procedural Background
This is an action for declaratory relief and interference with contractual relations. On December 2, 2010, a judgment was entered in favor of defendant Promenade, L.P. (“Promenade”) “in Los Angeles Superior Court Case No. BC 423285” against plaintiff Nancy Bushnell’s (“Nancy”) husband, Nolan Bushnell (“Nolan”).1 (First Amended Complaint (“FAC”), ¶ 8.)
Nancy owned real property located in Sunnyvale, California (“Property”) with her brother, plaintiff Robert Nino (“Nino”). (FAC, ¶ 10.) Nancy’s interest in the Property “was her separate property, and not part of community property she shares with Nolan.” (Ibid.) At some unidentified time, Nancy and Nino (collectively, “Plaintiffs”) sold the Property. (Id. at ¶ 11.)
On March 15, 2017, “the interest in the judgment was allegedly assigned to [Suerte].” (FAC, ¶ 9.)
Several months later, “prior to the close of escrow, [Promenade] and [Suerte] … filed an Ex Parte Motion in Los Angeles Superior Court seeking to attach the proceeds of the … Property in satisfaction of the judgment entered against Nolan.” (FAC, ¶ 12.) In early 2018, Suerte and Promenade withdrew the ex parte motion. (Id. at ¶ 13.) “However, [Suerte and Promenade] … indicated that they still intend to seek to attach the proceeds of the sale in satisfaction of the judgment against Nolan.” (Ibid.)
“Due to the efforts of [Suerte and Promenade] to attach the proceeds of the sale, the distribution out of escrow to Plaintiffs was delayed.” (FAC, ¶ 14.) Defendant Chicago Title Co. (“Chicago Title”), the escrow agent for the sale of the Property, “released the funds to [Nino], but … indicated that [it] will not release [Nancy’s] funds.” (Ibid.)
Based on the foregoing allegations, Plaintiffs filed the operative FAC against Promenade, Suerte, and Chicago Title, alleging causes of action for: (1) declaratory relief; and (2) tortious interference with contract.
On May 4, 2018, Suerte filed the instant demurrer and motion to strike. Plaintiffs filed papers in opposition to those matters on June 28, 2018. On July 5, 2018, Suerte filed a reply in support of its demurrer.
Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
A. Procedural Issue
As a preliminary matter, Suerte’s demurrer suffers from anomalies in terms of identifying the subject of the demurrer. In its moving papers, Suerte demurs to the FAC as a whole on the ground of failure to allege sufficient facts to state a cause of action. (See Dem., pp. 1:25-2:4, 3:2- 7, 4:8-10, 6:4-5, 8:15-17.) However, Suerte’s demurrer and memorandum of points and authorities only proffer arguments challenging the second cause of action, which suggests an intention to demur to the second cause of action alone. In addition, in its reply, Suerte states that it demurs only to the second cause of action of the FAC. (Reply, p. 1:22-24.)
This distinction is significant because a demurrer attacking the entire pleading must be denied if any cause of action is not vulnerable to objection. (Lord v. Garland (1946) 27 Cal.2d 840, 850 [“a demurrer which attacks an entire pleading should be overruled if one of the counts therein is not vulnerable to the objection”].)
Furthermore, a motion generally may not be made upon any grounds other than those enumerated in the notice of motion. (Hernandez v. Nat. Dairy Products Co. (1954) 126 Cal.App.2d 490, 493.) Nonetheless, the purpose of the notice requirements may be met if the supporting papers contain the grounds for the relief sought and the opposition addresses those grounds. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.)
Here, notwithstanding the statements made in the notice of demurrer and demurrer, Suerte’s supporting papers indicate that Suerte intended to demur only ...