Filed 12/15/15 David v. City of Santa Monica CA2/8
                        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


SHARON DAVID,                                                        B257674

                            Plaintiff and Appellant,                 (Los Angeles County
                                                                      Super. Ct. No. BC508509)
                   v.

CITY OF SANTA MONICA et al.,

                   Defendants and Respondents.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Gregory Alarcon, Judge. Affirmed.

         Sharon David, in pro. per., for Plaintiff and Appellant.

         Marsha Jones Moutrie, City Attorney, and Karen S. Duryea, Deputy City
Attorney, for Defendant and Respondent City of Santa Monica.


         Meller & Floyd and Eric Meller for Defendants and Respondents Universal
Management, LLC and Bob Badiyan.


                                                 **********
       Defendants and respondents City of Santa Monica (City), Universal Management,
LLC (Universal), and Bob Badiyan (Badiyan) successfully demurred to plaintiff and
appellant Sharon David’s first amended complaint for breach of contract. Plaintiff now
appeals from the judgment of dismissal entered after the trial court’s ruling on the
demurrers, contending the court erred in refusing to allow her another opportunity to cure
the defects in her pleading. We conclude the demurrers were properly sustained without
leave to amend, and therefore affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On appeal from a judgment dismissing an action after the sustaining of a demurrer
without leave to amend, our review is de novo. (Aubry v. Tri-City Hospital District
(1992) 2 Cal.4th 962, 966-967 (Aubry); accord, Aryeh v. Canon Business Solutions, Inc.
(2013) 55 Cal.4th 1185, 1191.) For the limited purpose of reviewing the propriety of the
trial court’s ruling, we accept as true all well-pled factual allegations in the operative
complaint, as well as any facts that may be reasonably implied or inferred from those
expressly alleged. (Aubry, at pp. 966-967; accord, Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081.) We do not “however, assume the truth of contentions,
deductions or conclusions of law.” (Aubry, at p. 967.)
       Our factual summary is drawn from the allegations of the operative first amended
complaint, including the attached exhibits, according to this well-established standard.
(See Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[T]o the
extent the factual allegations conflict with the content of the exhibits to the complaint, we
rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s
allegations as to the legal effect of the exhibits”].)
       The operative pleading is unclear and ambiguous in many aspects, so we have
included in our factual summary some of the material facts from the original complaint
that aid in understanding the amended complaint.
       In 1997, defendant City entered into a written agreement with defendant Badiyan
in his capacity as trustee for the S.T.B. Family Trust (the “Agreement”). The trust owned
a parcel of real property located on 16th Street in the City, and the Agreement covered


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various aspects of the development of that property, including the construction of an 18-
unit apartment building. As relevant here, the Agreement provided that all 18 units
would be “deed restricted for moderate income households.” The Agreement further
provided that “[i]f the affordable rents are below the Section 8 Program ‘Fair Market
Rents’ Developer shall make the units available for occupancy to Section 8 Housing
Assistance Program Certificate Holders by listing the units with the local Housing
Authority.”1
       Plaintiff was the “first tenant” to move into the apartment building in December
2000. Plaintiff suffers from an unspecified disability, which was exacerbated in 2007
when she was the victim of a violent crime. Plaintiff received Section 8 housing
assistance from defendant City’s Housing Authority.
       In February 2008, defendants Badiyan and Universal attempted a “retaliatory”
eviction of plaintiff.2 The unlawful detainer complaint served on plaintiff alleged she
owed back due rent in the amount of $1,571. (A copy of the unlawful detainer complaint
is attached to plaintiff’s first amended complaint.) Plaintiff, with the assistance of
counsel, obtained a dismissal of the unlawful detainer action and remained in her
apartment.
       In April 2008, defendants Badiyan and Universal once again served plaintiff with
a three-day notice to pay rent or quit. Defendants also served plaintiff with a letter dated
April 25, 2008, explaining that their “contract” with defendant City’s “Housing Authority
will be cancelled” and requesting that plaintiff vacate her unit by June 30, 2008. (A copy
of the letter is attached to plaintiff’s first amended complaint.)



1      Section 8 housing assistance refers to the rental subsidies provided to qualifying
individuals in accordance with Section 8 of the federal Housing Act of 1937 (42 U.S.C.
§ 1437f) administered by the United States Department of Housing and Urban
Development.
2    It is not expressly alleged, but it appears defendant Universal is the management
company that manages the subject property.


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       On April 28, 2008, plaintiff signed an agreement with defendant City under the
City’s Tenant Assisted Rental Payment Program (TARP) because defendants Badiyan
and Universal had exercised their “right to cancel the Section 8 contract.” Under the
TARP agreement, plaintiff was to receive 24 months of rent subsidies, so long as she
complied with the TARP program regulations. (A copy of the TARP agreement is
attached to plaintiff’s first amended complaint.)
       Plaintiff alleged that defendants had “no just cause” to opt out of the Agreement to
provide units to Section 8 recipients like plaintiff who were late in paying rent. Plaintiff
alleged she was discriminated against because of her disability, economic status and her
requests for reasonable accommodations.
       Sometime in 2009, defendants Badiyan and Universal filed a third unlawful
detainer action against plaintiff. Judgment was entered against plaintiff, but in January
2010, the judgment was set aside pursuant to a written stipulation for dismissal.
Plaintiff’s counsel “negotiated a relocation amount” equal to four months’ rent, and
plaintiff apparently vacated the unit.
       On March 1, 2010, defendant City terminated plaintiff’s TARP assistance.
       On May 9, 2013, plaintiff filed this action for damages against defendants City,
Universal, and Badiyan. The caption page of the complaint lists multiple theories of
recovery against all defendants, but the complaint alleges only one cause of action for
negligence.
       Defendant City filed a demurrer to the complaint, arguing in part that negligence
was not a viable theory against it as a government entity, the action was time-barred, and
the pleading as a whole was fatally uncertain. On October 25, 2013, the court sustained
the City’s demurrer without leave to amend as to any negligence theory, but granted
plaintiff 10 days leave to amend to attempt to state a claim for breach of contract only.
On December 12, 2013, plaintiff filed her first amended complaint, with multiple
attached exhibits.
       Defendants City, Universal and Badiyan filed demurrers to plaintiff’s first
amended complaint. On February 19, 2014, the court sustained defendants’ respective


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demurrers to the first amended complaint without leave to amend. A dismissal of the
entire action was signed and filed on May 2, 2014.
       This appeal followed.
                                        DISCUSSION
       Plaintiff contends she was denied the opportunity to cure the defects in her
contract claim, and that she is entitled to a reversal of the dismissal of her action, with
directions to the trial court to file her proposed second amended complaint. Plaintiff
attached a copy of her proposed amended pleading to her opening brief to this court.
Defendants contend that even assuming plaintiff could state a viable contract claim, any
such claim is time-barred as a matter of law. We agree that the material facts admitted by
plaintiff in her pleading demonstrate that her contract claim is time-barred, and the
demurrers were therefore properly sustained without leave to amend.
       At the original demurrer hearing, plaintiff obtained leave to amend to state a cause
of action for breach of contract. The first amended complaint consisted of a partially
completed form complaint, with several additional pages of supplemental allegations
typewritten by plaintiff. Plaintiff also attached numerous exhibits to her first amended
complaint, including two contracts: (1) the 1997 Agreement between Badiyan and the
City regarding the development of the subject project; and (2) the April 2008 TARP
agreement between plaintiff and the City.
       The allegations regarding the contracts are often inconsistent and include
references to a contract between plaintiff, Universal and City, although no such contract
is alleged or attached as an exhibit to the first amended complaint. These inconsistencies
notwithstanding, it is clear from reading the amended complaint as a whole that the gist
of plaintiff’s contract theory is that defendants Badiyan and Universal were without “just
cause” to opt out of the 1997 Agreement with the City, and that she was wrongfully
denied the right to continue to rent her unit at defendants’ building as a Section 8
recipient. This is made abundantly clear by the proposed second amended complaint
plaintiff attached to her opening brief to this court (p. 2, par. 5), in which she alleges all



                                               5
defendants discriminated against her as a Section 8 recipient and that she is entitled to
enforce the provisions of the 1997 Agreement as a third party beneficiary.
       It is also equally clear that plaintiff pled and admitted that she knew in April 2008
that defendants Badiyan and Universal had “opted out” of the relationship with
Defendant City’s Housing Authority. Plaintiff attached a copy to her first amended
complaint of the April 25, 2008 letter sent by defendant Badiyan to her explaining that he
had ended his relationship with the City.
       Thereafter, plaintiff alleges that because defendants Badiyan and Universal opted
out of the agreement with defendant City, she entered into the April 2008 TARP
agreement with the City, under which she would receive an additional two years of
housing assistance. Plaintiff received TARP assistance from the City for almost two
years until those payments were terminated for an alleged failure by plaintiff to use the
funds to pay rent.
       Plaintiff does not allege compliance with the government claim requirements of
Government Code section 911.2 which provides a one-year statute of limitation for
contract claims against a government entity, like defendant City. Plaintiff does not make
any allegations that any government claim was presented at any time. Plaintiff filed her
lawsuit against the City and defendants Badiyan and Universal on May 9, 2013.
       The statute of limitation for a contract claim based on a written instrument is four
years. (Code Civ. Proc., § 337.) A cause of action for breach of contract accrues when
“the contract has been breached.” (Spear v. California State Auto. Assn. (1992) 2 Cal.4th
1035, 1042; see also 3 Witkin, Cal. Procedure (5th ed. 2010) Actions, § 520, p. 664 [“A
cause of action for breach of contract ordinarily accrues at the time of breach, and the
statute begins to run at that time regardless whether any damage is apparent or whether
the injured party is aware of his or her right to sue”].)
       It is undisputed that the breach of which plaintiff complains occurred no later than
April 25, 2008, when defendants Badiyan and Universal, as plaintiff’s then-landlord,
gave notice to plaintiff they had opted out of the agreement with the City. Plaintiff
alleges knowledge of this breach by receipt of the letter and by her actions in entering


                                               6
into a separate relationship with the City under its TARP program to continue to receive
rental subsidies. Plaintiff’s lawsuit was filed on May 9, 2013, more than four years after
the alleged breach of contract and is therefore time-barred as a matter of law.
       In her reply brief, plaintiff argues her contract claim is governed by Code of Civil
Procedure section 336 which provides a five-year statute of limitation for an “action for
violation of a restriction, as defined in Section 784 of the Civil Code. The period
prescribed in this subdivision runs from the time the person seeking to enforce the
restriction discovered or, through the exercise of reasonable diligence, should have
discovered the violation.” (Code Civ. Proc., § 336, subd. (b).) Plaintiff argues that the
1997 Agreement between Badiyan and the City contained a provision that all units in the
subject property would be deed restricted for moderate income tenants, and Section 8
recipients could not be discriminated against. Therefore, plaintiff states her claim is not
an ordinary breach of contract claim but a claim for the violation of a deed restriction
within the meaning of Section 784 and the longer five-year statute applies.
       We need not consider the merits of this argument, because even if the five-year
statute of limitation applies to plaintiff’s claim, the action is still time-barred because it
was filed more than five years after plaintiff had notice of Badiyan and Universal’s
cancellation of the Section 8 contract with the City.
       Finally, the allegation in the form portion of plaintiff’s first amended complaint
that the breach occurred on “March 1, 2010” (paragraph BC-2) cannot save plaintiff’s
claim. The balance of her allegations, including the attached exhibits, unequivocally
indicate that the alleged breach of which she complains was the allegedly improper opt
out of the 1997 Agreement by defendants Badiyan and Universal in April 2008.
                                       DISPOSITION
       The judgment of dismissal is affirmed. Defendants and respondents shall recover
their respective costs on appeal.
                                            GRIMES, J.
       WE CONCUR:
                      BIGELOW, P. J.                       RUBIN, J.


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