The Grove, LLC v. A.F. Gilmore Company

FN 1 - Defendants' counsel of record was served via email on July 13, 2026. (See 7/13/26 Proof of Service.) FN 2 - It is noted that on August 20, 2026, Plaintiff filed a "Request for Court Reporter by Party with Fee Waiver." That request is DENIED AS UNTIMELY, as it was not filed at least "10 calendar days" before the hearing date, and the Plaintiff had actual notice of the hearing date since July 13, 2026 - the date she filed and set this hearing. Be that as it may, if at the commencement of the hearing Plaintiff represents to this Court that she is unable to afford a private court reporter for this hearing, this Court will instruct the J.A. to turn on this Court's electronic recording device for this hearing, pursuant to the recent Cal.

Supreme Court decision in Family Violence Appellate Project v. Superior Court of Contra Costa County et al. (S288176). FN 3 - The Court declines to consider Plaintiff's remaining arguments as they are not dispositive to this instant motion and the Informal Statement of Decision/Verdict re: Injunctive Relief stands and speaks for itself. Alternatively, and simply put: Plaintiff's arguments are specious. Any party may submit on the tentative ruling by contacting the courtroom via email at [email protected] by no later than 4:00 p.m. the day before the hearing.

All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Company DEMURRER TO FIRST AMENDED COMPLAINT MOVING PARTY: Defendant A.F. Gilmore Company RESPONDING PARTY(S): Plaintiff The Grove, LLC STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiff The Grove, LLC (Plaintiff) is a tenant under a long-term lease for the land on which it developed, and now owns and operates The Grove. Defendant A.F. Gilmore Company (Defendant) is the owner and landlord of the real property that is the subject of the lease and upon which The Grove is located. This dispute arises out of an allegation that Plaintiff has overpaid rent to Defendant.

In the first amended complaint, Plaintiff alleges: (1) common count: mistaken receipt, (2) conversion, and (3) declaratory relief. Defendant now demurs to the first and second causes of action in the first amended complaint (FAC). Plaintiff opposed. TENTATIVE RULING: Defendant's Demurrer to the First Cause of Action is OVERRULED. Defendant's Demurrer to the Second Cause of Action is SUSTAINED WITH 30-DAYS LEAVE TO AMEND. Defendant is ordered to give notice, unless waived. DISCUSSION: Demurrer to First Amended Complaint I.

Meet and Confer The Declaration of attorney Pedram Mazgani reflects the meet and confer requirements were met. II.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Pro. Sec. 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether

the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, at p. 747.) "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Serrano v. Priest (1971) 5 Cal.App.3d 584, 591.) A "demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law." (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).) III.

Analysis

Defendant demurs to the first and second cause of action for common count: mistaken receipt, and conversion. As an initial note, the Court OVERRULES Defendant's demurrer for uncertainty on the grounds that (a) demurrers for uncertainty are disfavored and should only be sustained where the complaint is so uncertain that the demurring defendant cannot reasonably respond thereto (see, e.g., Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616); and (b) here, Plaintiff's complaint is not so uncertain that Defendant cannot reasonably respond thereto. "The objection of uncertainty does not go to the failure to allege sufficient facts." (Brea v.

McGlashan (1934) 3 Cal.App.2d 454, 459.) "It goes to the doubt as to what the pleader means by the facts alleged." (Ibid.) "Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet." (People v. Lim (1941) 18 Cal.2d 872, 882.) Moreover, even if the pleading is somewhat vague, "ambiguities can be clarified under modern discovery procedures." (Khoury at p. 616.) The Court addresses the remaining arguments in turn.

A. First Cause of Action (Common Count: Mistaken Receipt) A cause of action for common count may lie "where money is paid . . . by a mistake of fact." (Stratton v. Hanning (1956) 139 Cal.App.2d 723, 727.) In order to prevail on a cause of action for common count, based upon a mistake, a plaintiff must demonstrate: (1) plaintiff paid defendant money/sent goods to defendant by mistake; (2) defendant did not have a right to that money/the goods; (3) plaintiff has asked defendant to return the money/goods; (4) defendant has not returned the money/goods to plaintiff; and (5) the amount of money that defendant owes plaintiff. (CACI No. 374 ["Common Count: Mistaken Receipt.)

Here, the FAC alleges Plaintiff "discovered that it had made certain errors in calculating whether it owed and the amount of its Percentage Rent obligations, and as a result has overpaid its Percentage Rent to Gilmore. The cumulative overpayment results from several factors, including from the fact that GFM failed to apply certain contractual additions in calculating Total Project Costs (as defined in the Ground Lease) and erroneously omitted from the calculation of GFM's cumulative return on Total Project Costs certain expenses that GFM actually incurred, leading it to make payments of Percentage Rent that were higher than warranted under the terms of Section 4.2.2 of the Ground Lease." (FAC P.10.) "GFM notified Gilmore that it had erroneously overpaid its Percentage Rent obligations on March 15, 2024.

Since that time, GFM has attempted unsuccessfully to resolve the issue with Gilmore and obtain a refund of the overpayment, and to ensure the parties are aligned on Total Project Costs for purposes of determining future rent obligations." (FAC P.12.) "Gilmore has refused to refund any of the overpaid Percentage Rent it has received from GFM, and Gilmore continues unjustly to retain it." (FAC P.14.) "Gilmore continues to owe GFM the overpaid amount approximating $15 million." (FAC P.24.) Initially, these allegations support a cause of action for common count: mistaken receipt as all elements of the claim have been sufficiently alleged.

In its motion, Defendant argues Plaintiff's FAC is a sham pleading, and it should be stricken or, in the alternative, more specificity is required.

1. The FAC is Not a Sham Pleading The FAC is not a sham pleading. Under the sham pleading doctrine, plaintiffs are precluded from amending the complaint to omit harmful allegations, without explanation, from prior complaints to avoid attacks raised in demurrers or motions for summary judgment. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) "'Generally, after an amended pleading has been filed, courts will disregard the original pleading. However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.' Moreover, any inconsistencies with prior pleadings must be explained; if the pleader

fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is 'not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.' [Citation.]" (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343; quoting Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.) However, here Defendant argues that the facts forming the original complaint are identical to the FAC which appears to be the opposite of a "sham pleading." (Mot. at p. 4:25-27; Mazgani Decl.

P.6, Exh. A.) Instead, Defendant appears to make the argument that amending the name of the cause of action alone renders an amended complaint a sham pleading. Defendant cites no authority that would lead this Court to agree. Indeed, this Court disagrees with such a bald argument. Instead, in support of its position, Defendant cites Neal v. Bank of America (1949) 93 Cal.App.2d 678 (Neal), where the trial court struck an amended complaint that consisted solely of a reiteration of the original complaint that made no attempt "to state new facts, or to state the facts more fully." (Id. at p. 682.) "Resort[ing] to pleading mere conclusions of law in the form of common counts was evidently [] to avoid the effect of the verified allegations of fact contained in the original complaint, which the court had held insufficient to state a cause of action, and which disclosed the identity of necessary parties who had not been joined." (Ibid.)

Notably, the Neal court discussed an amended complaint filed in response to a successful demurrer. Here, this motion is not a renewed demurrer, but rather, the first demurrer on the issue and therefore Neal is inapplicable. However, even if Neal were applicable, it is undisputed that Plaintiff has not changed or omitted material facts from the original complaint to avoid the effect of the allegations of fact contained in the original complaint. There is no indication that Neal stands for the proposition that a change in the label of a cause of action upon the filing of a demurrer would give cause to strike of an amended complaint.

2. The Cause of Action is Sufficiently Pled Defendant argues that the first cause of action is simply a disguised mistake claim, and therefore, the heightened requirements of a contractual mistake claim should be applied here. The Court disagrees. First, Defendant argues that the original complaint did not fulfill the heightened pleading requirements for mistake under Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230 (Thrifty). However, "[a]n 'amended' complaint supersedes all prior complaints. 'It alone will be considered by the reviewing court.'

The original ceases to 'perform any function as a pleading.'" (Lee v. Bank of America (1994) 27 Cal.App.4th 197, 215, internal citations omitted.) While the sham pleading doctrine allows the Court to examine the original complaint, as discussed above, this exception is narrow to a determination of whether an amended complaint attempts to avoid defects set forth in a prior complaint by omitting them. Defendant cites no authority to allow this Court to consider the original complaint to determine the sufficiency of allegations in the operative FAC.

Using a standard applicable only to the original complaint to guide the analysis of the FAC appears improper. Next, Defendant argues that, "[i]f Plaintiff had alleged both a cause of action for mistake and a common count in the same pleading, the Court would have been correct in sustaining the demurrer to the mistake cause of action based upon the strict pleading requirements recognized in Thrifty Payless, supra, and also sustaining the demurrer as to the common count it based upon the rule set forth in McBride." (Mot. at p. 6:5-8.)

However, Plaintiff did not allege both causes of action in the same pleading. Therefore, Defendant's argument is inapplicable to the current action. Further, Defendant cites no authority that would allow this Court to apply heightened pleading requirements to this cause of action simply because a prior complaint contained a similar cause of action that required a heightened pleading requirement. Blending the allegations of independent complaints into one ambiguous claim appears contrary to settled policy that amended complaints supersede all prior complaints.

Further, holding a plaintiff to its initial theory of the case would appear to conflict with the long-standing principal of a liberal approach to amendment of pleadings. (See e.g. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Absent specific California authorities directing as such, the Court declines to apply laws applicable to a prior complaint to different and independent causes of action in an amended complaint. In the end, it appears that Defendant believes the action is barred by the statute of limitations and is requesting specific dates so that it may file a third demurrer.

However, the FAC sufficiently pleads a cause of action for

common counts as specific dates are not required for this cause of action. To the extent this claim is untimely is better left for other motion types. Accordingly, Defendant's demurrer to the first cause of action for common counts: mistaken receipt is OVERRULED. B. Second Cause of Action (Conversion) "'A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. [Citation.]

Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. [Citation.]' [Citations] A 'generalized claim for money [is] not actionable as conversion.' [Citations]" (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) Here, Plaintiff alleges "GFM has the right to possess the specific sum of money it mistakenly overpaid as Percentage Rent to Gilmore under the Ground Lease." (FAC P.26.) "GFM did not consent to Gilmore keeping the overpayment." (FAC P.28.) "GFM was harmed by Gilmore refusing to return the overpayment." (FAC P.29.)

First, the parties disagree on whether a mistaken overpayment can support a cause of action for conversion. Neither party cites authority that directly resolves this dispute. (See e.g McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491 1492, ["Plaintiffs cite no authority for the proposition that a cause of action for conversion may be based on an overcharge." emphasis added.]; Fearon v. Dep't of Corr., (1984) 162 Cal.App.3d 1254, 1257, ["A conversion can occur when a willful failure to return property deprives the owner of possession." emphasis added]) However, the Court need not reach a conclusion on this issue as the demurrer may be sustained on independent grounds.

Specifically, Plaintiff does not claim a specific, identifiable sum but rather makes a generalized claim for money in the FAC. The FAC states, "Gilmore continues to owe GFM the overpaid amount approximating $15 million." (FAC P.24.) This sum arises out of "certain errors in calculating whether it owed and the amount of its Percentage Rent obligations, and as a result has overpaid its Percentage Rent to Gilmore." (FAC P.10.) As pled, there are no allegations that demonstrate this sum is specific or identifiable because it is a generalized allegation of overpayment.

This is inadequate to maintain a cause of action for conversion. Accordingly, Defendant's demurrer to the second cause of action for conversion is SUSTAINED. Generally, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) Here, the identifiable source and amount of overpayment is likely within the knowledge of the Plaintiff and could reasonably be identified in an amended complaint. [FN 1] (See Opp. at p. 14:28-15:2, ["the amount of Percentage Rent GFM overpaid under the Ground Lease is not only "capable of identification" at the pleading stage, but also provable as a sum certain at trial."]) Accordingly, leave to amend is GRANTED.

Plaintiff is given 30 days leave to amend. IT IS SO ORDERED. Dated: August 26, 2026 ___________________________________ Randolph M. Hammock Judge of the Superior Court FN 1 - Notably, the specificity required to sustain a cause of action for conversion would appear have the incidental effect of satisfying Defendant's request for more specificity in the first cause of action. Any party may submit on the tentative ruling by contacting the courtroom via email at [email protected] by no later than 4:00 p.m. the day before the hearing.

All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in

whole or in part. | Home -->)" -->