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Case Number: 19STCV40191    Hearing Date: August 31, 2020    Dept: 55

BLAKES v. MIGGINS                                                         19STCV40191

Hearing Date:  8/31/20,  Dept. 55

#6:  

DEMURRER TO COMPLAINT.

MOTION TO STRIKE.

 

Notice:  Okay

No Opposition

 

MP:  Defendants ATLAS REAL ESTATE CORPORATION, BRETT H. DANIELS, and ALEXUS ARNOLDS.

RP:  

 

Summary

 

On 11/7/19, Plaintiff, a self-represented litigant, filed a Complaint alleging that a seller, broker and agent have refused to move forward with the agreed sale to Plaintiff of 6414 Senford Avenue, Los Angeles.

The causes of action are:

(1) BREACH OF WRIITEN CONTRACT;

(2) SPECIFIC PERFORMANCE OF CONTRACT;

(3) BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALINGS;

(4) FRAUD AND DECEIT — PROMISE MADE WITHOUT INTENTION TO PERFORM;

(5) BREACH OF CIVIL DUTIES, CIVIL CODE SECTION §24074;

(6) INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS;

(7) NEGLIGENT INTERFERENCE WITH THE PROSPECTIVE ECONOMIC ADVANTAGE.

 

 

MP Positions

 

Moving parties request the Court to sustain the demurrer to the Complaint, and to grant the motion to strike punitive damages and attorney fees, on grounds including the following:  

 

·         Entire Complaint:  Cash Cow Properties, LLC cannot appear as a self-represented litigant.

·         1st, 2nd, 3rd Claims:  Plaintiffs first, second, and third causes of action are impermissible, because the Atlas Defendants were not parties to the contract Plaintiff alleges Defendants breached.

·         4th Claim:  In making the fraud allegations regarding a scheme, Plaintiff conclusively lumped all Defendants together, without specifying any actions or inactions committed by any specific defendant. Further, Plaintiff failed to state what the Atlas Defendants misrepresented to him in the alleged inducement or deceit regarding the transaction for the Subject Property. Additionally, Plaintiff has provided no facts regarding the Atlas Defendants having any knowledge of a purported scheme to sell the Subject Property for a higher property as his expense.

·         5th Claim:  Plaintiff cannot maintain allege a claim requiring the element of breach of duty.  Any duties owed by Atlas were owed to Cash Cow as the buyer. 

·         Motion:  There is no act cited in the instant Complaint that puts the moving parties on notice of the conduct or behavior by other defendants that would warrant an award of exemplary or punitive damages.  There is no contract which can provide Plaintiff any basis to recover attorney fees from the Atlas Defendants.

           

 

 

Tentative Ruling

 

The unopposed demurrer is sustained, based upon all of its page numbers.

 

The unopposed motion to strike is granted, for the reasons stated.

 

Twenty days’ leave to amend.

 

The failure to file a proper and timely opposition in trial court creates a waiver of the issues on any appeal.  Bell v. Am. Title Ins. Co. (1991) 226 Cal. App. 3d 1589, 1602;  Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693  (appellate court will not consider any erroneous rulings where an objection could have been made). 

 

A judge in a civil case is not "'obligated to seek out theories [a party] might have advanced, or to articulate … that which … [a party] has left unspoken.'"  Mesecher v. County of San Diego (1992) 9 Cal. App. 4th 1677, 1686.

 

In order to obtain leave to amend, complainants must state how the allegations would be amended in order to state a cause of action.  Drum v. San Fernando Valley Bar Ass'n  (2010) 182 Cal.App.4th 247, 253.

 

However, courts generally allow at least one time to amend a complaint, after sustaining a demurrer, even without any request for leave to amend.  McDonald v. Sup. Ct. (1986) 180 Cal. App. 3d 297, 303;  City of Stockton v. Sup.Ct. (2007) 42 Cal.4th 730, 747;  Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2020) ¶7:129.

 

Alternatively, the matter should be ordered off calendar, if the complainant voluntarily has filed an amended pleading by the hearing time.

 

The filing of an amended complaint pursuant to Code of Civil Procedure Section 472 renders moot a demurrer addressing the superseded pleading because it "'"ceases to perform any function as a pleading."'"   Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal. App. 4th 1049, 1054.  Accord  State Compensation Ins. Fund v. Sup. Ct. (2010) 184 Cal.App.4th 1124, 1131 (“the filing of an amended complaint moots a motion directed to a prior complaint.”).

 

Finally, as to demurrer rulings, statements of decision may consist of references to appropriate page numbers and paragraphs.  CCP §472c

 

Case Management Conference is continued to November 6, 2020 at 8:30 a.m. 

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