Defendants’ Demurrer to Plaintiff’s Complaint
Peninsula Development Co., LLC v. Kelly Dzubay and Jeremy Dzubay
Defendants’ Demurrer to Plaintiff’s Complaint
Hearing Date: April 24, 2026
The demurrer of Defendants Kelly and Jeremy Dzubay (collectively, “Defendants”) to the First Cause of Action for breach of contract in the Complaint of Plaintiff Peninsula Development Co., LLC (“Plaintiff”) is SUSTAINED WITH LEAVE TO AMEND.
Plaintiff has 10 days from the date of the Court’s order to file and serve an amended complaint.
Defendants withdrew their demurrer to the Second Cause of Action, making it MOOT.
The Case Management Conference set for April 24, 2026, is CONTINUED to June 9, 2026, at 9 a.m.
Legal Standard.
A demurrer’s purpose is to evaluate whether a pleading is legally sufficient. [Trustees of the Capital Wholesale Electric Co. Profit Sharing and Trust Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.]
Therefore, a demurrer considers only the contents of the pleading and matters that can be judicially noticed. [South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732; see also Code Civ. Proc. § 430.30, subd. (a).]
Generally, a demurrer does not test the truth of the plaintiff’s allegations or the accuracy of the defendant’s conduct.
The facts in the pleading are assumed to be true, regardless of their improbability. [Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.]
However, a demurrer does not acknowledge legal conclusions, contentions, or deductions. [
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Meet and Confer Requirement.
Plaintiff has shown that Defendants failed to meet and confer before filing their demurrer. [Yoneda Decl. at ¶¶ 1-3; see Code Civ. Proc. § 430.41.]
Nevertheless, the Court will evaluate the demurrer’s merits. [See Code Civ. Proc. § 430.41, subd. (a)(4).]
The Court cautions Defendants that they must engage in a proper, Code-compliant meet-and-confer process before filing a future demurrer or motion to strike. [Code Civ. Proc. §§ 430.41, 435.5.]
Failure to meet this requirement may result in sanctions against the party. [Code Civ. Proc. § 128.5.]
First Cause of Action.
Defendants contend that Plaintiff does not have standing to assert the First Cause of Action for breach of contract. [Code Civ. Proc. § 430.10, subd. (d).]
“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” [Code Civ. Proc. § 367.]
The real party in interest must possess an actual and substantial interest in the case’s subject matter and stand to benefit or be harmed by a judgment. [Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 54-55.]
Plaintiff alleges in the Complaint that it is the “owner of residential property located at 21905 Azure Crest Court, Salinas, CA 93908, in the County of Monterey (the ‘Property’). Plaintiff and Defendants were parties to a Rental Agreement (the ‘Lease’) concerning the Property, which Defendants leased from Plaintiff and resided at from on or about January 24, 2017, until July 31, 2025.” [Complaint at 2:15-18.]
Plaintiff attached the Lease as Exhibit 1 to the Complaint. [Id. at 4:2.]
In the First Cause of Action, Plaintiff again alleges that it and Defendants were parties to the Lease. [Complaint at 4:7.]
The Lease includes an addendum regarding mold (“Mold Addendum”). [Id. at 4:10-12 and attached Exh. 1 at 9.]
Plaintiff claims that the Lease required Defendants to take specific steps to prevent mold growth and to notify Plaintiff of water intrusion, overflow, and other conditions that could cause mold to spread. [Id. at 4:10-12.]
Additionally, Plaintiff alleges that the Lease required Defendants to reimburse Plaintiff for repairs and services needed due to their misuse or negligence. [Id. at 4:18-20.]
The allegations in the Complaint conflict with the language of the Lease.
Plaintiff is not mentioned anywhere in the Lease. [Lease, Exh. 1 to Complaint, passim.]
Instead, the parties to the Lease were Defendants and C&C Property Management (“C&C”) as the “Landlord.” [Id. at 1.]
The Mold Addendum refers to Defendants as the “Resident” but does not identify or define the “Owner” or “Agent,” nor does it identify C&C or “Landlord.” [Id. at 9.]
The Lease itself does not define “Owner” or “Agent.” [Id. at 1.]
Since the Lease is attached as an exhibit to the Complaint, the Court can consider it for the demurrer because the Complaint may be incomplete or reveal a defense that precludes recovery. [Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972; Estate of Moss (2012) 204 Cal.App.4th 521, 535; Alexander v. Exxon Mobil (2013) 219 Cal. App.4th 1236, 1250.]
The “face of the complaint” includes matters shown in the attached exhibits. [Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505; George, 201 Cal.App.4th at 1130.]
Because the Complaint alleges that Plaintiff was a party to the Lease, but the Lease and Mold Addendum contradict this, the demurrer is SUSTAINED WITH LEAVE TO AMEND, allowing Plaintiff to allege sufficient facts about a contractual relationship between the parties.
Plaintiff’s reliance on Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48 does not alter the outcome because that case concerns a transfer of interest, not a breach of contract. [Chao, 206 Cal.App.4th at 57.]
Conclusion.
Therefore, the Court SUSTAINS the demurrer to the First Cause of Action WITH LEAVE TO AMEND.
Plaintiff has 10 days after notice of the Court’s order to file and serve its First Amended Complaint.
In light of the Court’s ruling, the Case Management Conference set for April 24, 2026, is CONTINUED to June 9, 2026, at 9 a.m. in Department 14.
The Court shall prepare the order.
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