Judge: Alison Mackenzie, Case: 23STCV07536, Date: 2023-11-09 Tentative Ruling

Case Number: 23STCV07536    Hearing Date: November 9, 2023    Dept: 55

Tentative: Defendant's unopposed demurrer is sustained with leave to amend.The unopposed motion to strike is granted. Twenty days' leave to amend.

Plaintiff filed an official form Complaint with the Breach of Contract box checked at paragraph 8 and "contractual fraud" written in at paragraph 1. An official form complaint must contain ultimate facts.  People ex rel. Dep't of Transportation v. Sup. Ct. (1992) 5 Cal. App. 4th 1480, 1484. Also, demurrers are to be sustained where a pleading fails to plead adequately any essential element of the cause of action.  Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-80.

 Plaintiff’s form Complaint has a box checked for contract breach, but alleges fraud in connection with a contract, without alleging all elements of either cause of action. The elements to allege as to a claim for breach of contract are: 

1. Existence of contract;
2. plaintiffs’ performance, or excuse for nonperformance;
3. defendants’ breach;  and
4. resulting damage. 

Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178;  Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co (2004) 116 Cal. App. 4th 1375, 1391 n.6.

 The elements of a claim for fraudulent contract inducement are:   

1.      Fraudulent representation;

2.      to induce contract; 

3.      that is not a part of the contract.   

 A. A. Baxter Corp. v. Colt Industries, Inc. (1970) 10 Cal. App. 3d 144, 153-54.  See also Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 766  (“allegations of the second amended complaint are insufficient to state a claim for fraud in the inducement. Fraud must be pleaded with specificity…. [Plaintiff] has pleaded in generalities, without identifying the specific persons who made the misrepresentations, the precise statements made, or the dates on which they were made.”). 

Plaintiff's official form Complaint fails to attach any page having a cause of action. The Complaint is completely devoid of any allegations supporting any cause of action. Neither Defendant nor the Court should have to guess as to the cause of action asserted by Plaintiff. 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 2023) ¶7:129. The Court therefore sustains the demurrer and grants the motion to strike with leave to amend.