Dowling, Nicole vs. Leyva, Marycruz et al

Case No.: VCU334821 Date: August 25, 2026 Time: 8:30 A.M. Dept. 2-The Honorable Bret D. Hillman Motion: (1) Motion to Deem Plaintiff Vexatious; (2) Demurrer Tentative Ruling: (1) To deny the motion without prejudice; (2) To sustain the demurrer without leave to amend.

(1) Defendants' Motion to Deem Plaintiff Vexatious Defendants move to classify Plaintiff as a vexatious litigant. In support, Defendants state: "Plaintiff, Nicole Dowling, ("NICOLE") is the daughter of Defendant, Marycruz Leyva ("MARYCRUZ"). NICOLE lived at a property owned by MARYCRUZ and Jeff Ghilarducci. NICOLE was evicted by unlawful detainer from said property in case VCL326198 which resulted in a judgment and eviction against NICOLE. See Req, for Jud. Not.

1. NICOLE proceeded to file a lawsuit in Tulare County (Case Number: VCL330272) against MARYCRUZ. Case VCL330272 was reclassified and dismissed. NICOLE subsequently filed four separate lawsuits against her mother essentially arguing that the notice given in the eviction was unlawful and that MARYCRUZ failed to return property to NICOLE. See cases VCU330278; VCU331283; VCU334821; and VCU335752. All of these lawsuits are in the process of being served or being heard on demurrer. See Req. for Jud.

Not. P.2.)" Defendants move under Code of Civil Procedure section 391(b)(2), which states: "(b) "Vexatious litigant" means a person who does any of the following: (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined."

As to this standard, Defendants state: "In this case NICOLE had her rights determined regarding in an unlawful detainer lawsuit VCL330272. NICOLE was then evicted from the real property, but was unhappy about the outcome. NICOLE is now attempting to relitigate these issues in numerous separate lawsuits, or otherwise cause damage to MARYCRUZ and other defendants in the form of legal fees even through the lawsuits will eventually be dismissed. NICOLE has yet to pick up her-key to get her personal possessions after the eviction."

Further, that "Nicole Dowling alleges in all these lawsuits that she was improperly noticed in case VCL326198 and/or that Nicole's personal property was somehow misappropriated. The fact that there are five separate lawsuit involving the same subject matter and the same or similar parties indicates an intent to harass."

Authority and Analysis To start, it appears VCL330272 was consumed by VCU331283 when reclassified from limited civil to unlimited civil. The Court notes VCU330278 and VCU331283 appear involve post-eviction conduct regarding Plaintiff's personal property and there is no final determination on these matters, as demurrers have been sustained to amended complaints with leave to amend. The Court, therefore, does not consider these two cases to be dipositive or conclusive. As to case VCU335752, there is a pending demurrer that has not been adjudicated.

However, the Court's review does indicate similar facts underlying VCU335752 as in this matter, VCU334821. As to this case, VCU334821, the Court notes a pending demurrer that is adjudicated below that appears to involve the unlawful detainer matter VCL326198. As such, the Court does not find the requisite "repeatedly relitigate or attempts to relitigate...either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined."

Three of the cases cited, VCL330272, VCU331283, and VCU330278, appear to relate to post-eviction conduct. One case cited, VCU335752, has not been adjudicated on demurrer and Defendants have not met their burden here as to the "same cause of action, claim, controversy, or any of the issues of fact or law" or validity of the determination. This matter has been evaluated via a demurrer for the first time below. As such, the Court cannot say Plaintiff has "repeatedly relitigate[d]" at this point in time.

The Court's ruling on this matter on demurrer below appears to be the first attempt at relitigating the issues and basis for the unlawful detainer. While a potential ruling on VCU334821 may reach the same conclusion, the Court has not evaluated that matter yet. If all these matters are eventually litigated to conclusions favorable to the moving party and against plaintiff, then the court could come to a different conclusion if this motion is refiled.

The Court is also aware that defendants have offered through counsel at more than one Case Management Conference hearing to return any stored property to plaintiff without charge at any time she wants to receive it. The court is not considering this as evidence in making this determination but if, after trial, it appears plaintiff unreasonably continued this litigation when she could have just picked up the key to the storage unit containing her household goods offered by attorney Brown, this could then be seen as an example of "frivolous tactics causing delay" which could then lead to a vexatious litigant designation Therefore, the Court, without prejudice, denies the motion to deem Plaintiff vexatious at this point.

(2) Demurrer Facts In this matter, Plaintiff sues Defendants Marycruz Leyva and Jeffrey Ghilarducci for 1. Wrongful Eviction 2. Negligence 3. Negligence Per Se 4. Intentional Infliction of Emotional Distress 5. Fraud / Intentional Misrepresentation 6. Declaratory Relief. Plaintiff alleges she was a lawful resident of 2421 Capitol Court, in Tulare County, California ("the Premises") and sets forth allegations concerning issues related to an eviction process.

Plaintiff alleges Defendants misdirected mail, caused and prepared a 3 day notice to pay rent or quit, demanding $9,000 total, including for a month outside the lease period, that Defendant's lacked standing to evict Plaintiff, that the service of the 3 day notice was improper, that in April 2025, "Defendant admitted continued withholding of essential access devices and stated in substance that Defendant had the garage door opener, gate-related access, and other keys," that there were unresolved habitability issues, that "an unlawful detainer action predicated upon the foregoing 3-day notice and related service assertions" was filed, that the order for posting and mailing was improperly obtained, that a prejudgment claim of right of possession was improperly provided, that default and default judgment were obtained, that on November 5, 2025, the possession only judgment was entered, that a writ of possession was issued, that on or about November 14, 2025 the writ was enforced and Plaintiff was removed from the Premises, that Defendants offered another residence for Plaintiff to rent, that the Premises was re-rented following the eviction. (Complaint P.P.8-68.)

Defendants demurrer based on res judicata from the eviction case, failure to state a cause of action, and that injunctive relief seeks to address past wrongs. Plaintiff appears to have filed a late opposition on August 14, 2026 which seeks to preserve objections regarding service of the first amended complaint, the expiration of the response period, the filing of a successive demurrer, and an objection to "combined adjudication."

Authority and Analysis The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220. To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v.

Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80) To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.) It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v.

Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip.

Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

First through Fifth Causes of Action - Res Judicata "Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them." (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.) This doctrine precludes the relitigation of legal claims where: "(1) the decision in the prior proceeding is final and on the merits; (2) the present action is on the same cause of action as the prior proceeding; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding." (Id.) "The res judicata effect of an unlawful detainer proceeding is narrow, but is not nonexistent.

Generally speaking, an unlawful detainer judgment has limited res judicata force because it typically follows a summary proceeding focused only on deciding a party's right to immediate possession of property. But when litigants to an unlawful detainer proceeding fully try other issues besides the right of possession, the unlawful detainer judgment is conclusive as to those other litigated issues. [Citations.]" (Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1371.) "The burden of proving that the requirements for application of res judicata have been met is upon the party seeking to assert it as a bar or estoppel." (Vella v.

Hudgins (1977) 20 Cal.3d 251, 257.)

As to unlawful detainer matters, unlawful detainer actions are summary in character and ordinarily only claims bearing directly upon the right to immediate possession are cognizable, and cross-complaints and affirmative defenses, legal or equitable, are permitted only if they would prelude removal of a tenant from the premises if successful. (Id. at 255.) Therefore, "a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title (citations), or to adjudicate other legal and equitable claims between the parties. (citations)" (Id.) "The approach courts take to applying collateral estoppel in this [unlawful detainer] setting is broadly consistent with that taken to the collateral estoppel effect given other forms of summary, informal or specialized adjudication.

As a general matter in such cases, collateral estoppel will only apply if the party to be bound agreed expressly or impliedly to submit an issue to prior adjudication [citation omitted] and had a full and fair opportunity to litigate [citation omitted] under circumstances affording due process protections [citation omitted]. " (Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1327.) The Court notes that it is immaterial that judgment in the unlawful detainer proceedings was entered in the form of default judgment. (Martin v.

Gen. Fin. Co. (1966) 239 Cal.App.2d 438, 443 ["A judgment by default is as conclusive as to the issues tendered by the complaint as if it had been rendered after answer filed and trial had on allegations denied by the answer"]; Murray v. Alaska Airlines, Inc.(2010) 50 Cal.4th 860, 871 ["[A] judgment of default in a civil proceeding is res judicata as to all issues aptly pleaded in the complaint and defendant is estopped from denying in a subsequent action any allegations contained in the former complaint"].)

Here, the unlawful detainer judgment was entered November 5, 2025. "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied." (Code Civ. Proc., Sec. 1049.) California law is settled that a judgment is not final for purpose of res judicata or collateral estoppel "during the pendency of and until the resolution of the appeal." (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954 n.11; Sandoval v.

Superior Court (1983) 140 Cal.App.3d 932, 936-937.) Under California Rule of Court, rule 8.822, the time to appeal a limited civil case is either 30 days after service of notice of entry of judgment or judgment by either the clerk or a party or 90 days after entry of judgment. (California Rule of Court, rule 8.822(a).) Here, 90 days have elapsed and the judgment is final.

The first cause of action for wrongful eviction is premised on a defective 3-day notice, lack of standing, improper service of the notice, improper prejudgment claim of right to possession, and retaliation, which are all issues contained in the unlawful detainer action regarding party's right to immediate possession of property. California follows the "primary right theory," which provides that "the violation of a single primary right gives rise to but a single cause of action." The primary right is to be distinguished from the legal theory or remedy sought because "even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief." (Crowley v.

Katleman (1994) 8 Cal.4th 666, 681-682.) "Numerous cases hold that when there is only one primary right an adverse judgment in the first suit is a bar even though the second suit is based on a different theory." (Id. at 682.) California permits the introduction of "equitable" and "legal" defenses whenever such defenses, if proven, would have preserved possession in the tenant. (Green v. Superior Court (1974) 10 Cal.3d 616, 634, FN. 19.) Such defenses retaliatory eviction. (Schweiger v. Superior Court (1970) 3 Cal.3d 507, 513-517.)

As such, the Court finds res judicata applies to the wrongful eviction cause of action.

The negligence, negligence per se, intentional infliction of emotional distress, and fraud causes of action arise from the same conduct surrounding the unlawful detainer matter. Plaintiff alleges Defendants were negligent in preparing the notices for the underlying eviction. The Negligence Per Se action cites CCP 1162 and relates to service of the notices in the unlawful detainer. The Intentional Infliction of Emotional Distress cause of action states the alleged intentional conduct related to service of the notices in the eviction. Likewise, the alleged fraud references preparation of the notices in the eviction. The propriety of the notices was decided as an essential element of the unlawful detainer proceeding. As such, the Court finds res judicata applies to the second through fifth causes of action.

Finally, the complaint's allegations support privity between the parties, that Defendants filed the unlawful detainer matter against Plaintiff. Therefore, the Court sustains the demurrer to the first through fifth causes of action on the basis of res judicata.

Sixth Cause of Action - Declaratory Relief In order to properly state a cause of action for declaratory relief, pursuant to Code of Civil Procedure section 1060, a plaintiff must set forth facts showing the existence of an actual controversy between the parties relating to their respective legal rights and duties, and request that these rights and duties be adjudged. (Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29, 40.) The elements of declaratory relief are "'(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Plaintiff's] rights or obligations.... [Citation.]'" (Wilson & Wilson v.

City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.) "The broad discretionary power of the trial court to deny declaratory relief may be invoked by general demurrer." (General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 471.) " 'Declaratory relief operates prospectively, serving to set controversies at rest. If there is a controversy that calls for a declaration of rights, it is no objection that past wrongs are also to be redressed; but there is no basis for declaratory relief where only past wrongs are involved.

Hence, where there is an accrued cause of action for an actual breach of contract or other wrongful act, declaratory relief may be denied.' [Citation.]" (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366.) (emphasis added.) Here, the sixth cause of action seeks declaratory relief as to "past wrongs" involving the eviction process. Therefore, the Court sustains the demurrer.

Without Leave to Amend A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226.) Here, Plaintiff has not demonstrated a reasonable possibility of amendment will cure these issues. Therefore, the Court sustains the demurrer without leave to amend.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Dowling, Nicole vs. Leyva, Marycruz