DEMURRER TO THE PETITION FOR PEREMPTORY WRIT OF MANDATE IN THE FIRST INSTANCE (CCP §1085)
July 28, 2026 Law and Motion Calendar PAGE 20 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
2:00 PM LINE 8 26-CIV-00963 ROBSON GONCALVES DE OLIVEIRA VS. CITY OF BURLINGAME
ROBSON GONCALVES DE OLIVEIRA PRO SE CITY OF BURLINGAME SUSAN A. DENARDO
DEMURRER TO THE PETITION FOR PEREMPTORY WRIT OF MANDATE IN THE FIRST INSTANCE (CCP §1085)
CONTINUED FROM 6/16/2026
TENTATIVE RULING:
The court SUSTAINS without leave respondent City of Burlingame’s unopposed demurrer to the petition of petitioner Robson Goncalves de Oliveira.
The purpose of a demurrer is to test the legal sufficiency of the facts alleged in the operative complaint to see whether they state a cause of action under any legal theory, as a matter of law. (New Livable Cal. v. Association of Bay Area Gov’ts (2020) 59 Cal.App.5th 709, 714–715; Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1014.) The demurrer may be made to the entire complaint or to any of the cause of action therein. (Code of Civ. Proc., § 430.50, subd. (a).)
In determining whether a complaint states facts sufficient to constitute a cause of action, courts accept the factual allegations of the complaint and any matters of which judicial notice can be taken but disregards contentions, deductions, and conclusions. (Code of Civ. Proc., § 430.30, subd. (a); Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.) “The complaint must be given a reasonable interpretation and read as a whole with its parts considered in their context.” (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824
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“[B]ecause standing goes to the existence of a cause of action, lack of standing may be raised by demurrer.” (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 813.)
Code of Civil Procedure section 1086 provides a writ of mandate “must be issued upon the verified petition of the party beneficially interested.” (Code Civ. Proc. §1086.) In County of San Luis Obispo v. Superior Court (Munari) (2001) 90 Cal. App.4th 288, 291-296, the court held that a landowner who lost his property through foreclosure could no longer maintain a mandamus action challenging the county’s denial of his development application.
Here, like in Munari, Petitioner is no longer beneficially interested in the property at 1050 Carolan Avenue, Unit 120. Petitioner went to trial in an unlawful detainer action and lost. (RJN Nos. 2, 3.) Judgment was entered in favor of Equity Management LLC, who was allowed to
July 28, 2026 Law and Motion Calendar PAGE 21 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ proceed with a writ of execution. (RJN Nos. 2, 3, 10.) While the Court allowed for a conditional stay of the judgement, Petitioner sought to revise the conditions. (RJN Nos. 9, 10.) The Court denied his request to revise the conditions of the stay on March 2, 2026. (RJN No. 10.) Therefore, Petitioner does not have legal possession of the property and thus lacks beneficial interest to establish standing to pursue this petition.
Accordingly, Respondent’s demurrer is SUSTAINED, without leave to amend. If Petitioner believes that he has facts to state a cause of action, he shall properly contest the tentative ruling and appear at the hearing to provide facts to support the Court granting leave to amend. Although leave to amend is liberally allowed, such leave should not be granted where, in all probability as it appears to be in this case, amendment would be futile. (Foroudi v. Aerospace Corp. (2020) 57 Cal.App.5th 992, 1001.) It is the burden of the party seeking leave to amend to show the possibility that amendment can cure the legal defects of the pleading. (Frayo v. Martin (2024) 102 Cal.App.5th 1025, 1033; Fox Paine & Co., LLC v. Twin City Fire Ins. Co. (2024) 104 Cal.App.5th 1034, 1060.)
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the Respondent shall prepare for the Court’s signature a written order and judgment in two separate documents consistent with the Court’s ruling, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.