Judge Ashfaq G. Chowdhury, Case Number: 23GDCV02492, Date: 2024-03-08 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV02492, Date: 2024-03-08 Tentative Ruling

Case Number: 23GDCV02492 Hearing Date: March 8, 2024 Dept: E

Case No: 23GDCV02492
Hearing Date: 03/08/2024 – 8:30am

Trial Date: UNSET

Case Name: HILDA KASIMIAN, an individual; and STEPAN KASIMIAN, an individual; v. ARMET ALARM & ELECTRONICS, INC., a Corporation; GENERAL MONITORING SERVICES, INC., a Corporation; and DOES 1-100 inclusive

[2 - TENTATIVE RULINGS ON DEMURRERS & MOTIONS TO STRIKE]

DEMURRER 1

Moving Party: Defendant, General Monitoring Services, Inc. (GMS or General)

Responding Party: Plaintiffs, Hilda Kasimian and Stepan Kasimian

Moving Papers: Notice/Demurrer

Opposition Papers: Opposition

Reply Papers: Reply

RELIEF REQUESTED
Defendant, GMS, moves this Court for an order sustaining its demurrer to the First Amended Complaint (FAC) as to the first cause of action for breach of contract.

This Demurrer is made pursuant to California Code of Civil Procedure §§ 430.10(e) and (f) on the grounds that the First Cause of Action in the FAC fails to state facts sufficient to constitute any cause of action against this demurring Defendant and because such cause of action is uncertain.

This demurrer is made pursuant to California Code of Civil Procedure §§ 430.10(e) and (f), and will be based on this Notice; the appended Memorandum of Points and Authorities; the Declaration of Sabryne Coleman concurrently filed herewith; the pleadings, records and files in this action; and such other materials as may be judicially noticed, or presented to the Court at or before, or in connection with, the hearing on this demurrer.

BACKGROUND
Plaintiffs, Kilda Kasimian and Stepan Kasimian filed their original Complaint on 11/22/2023.

On 01/05/2024, Plaintiffs filed a First Amended Complaint (FAC) alleging three causes of action for: (1) Breach of Contract, (2) Negligence, and (3) Negligent Misrepresentation. All three causes of action are alleged against both Defendants, Armet Alarm & Electronics, Inc. (Armet) and General Monitoring Services, Inc. (GMS or General).

Plaintiffs allege that Armet is in the business of providing and installing alarm security services for residential and commercial properties. (FAC ¶4.)

Plaintiffs allege that GMS is in the in the business of monitoring security systems. (FAC ¶5.)

Plaintiffs also allege that Defendants, at all relevant times, were acting as actual agents, conspirators, ostensible agents, partners and/or joint ventures and co-employees of all other DEFENDANTS, and that all acts alleged herein occurred within the course and scope of said agency, employment, partnership, joint venture, conspiracy, and/or enterprise, and with the express Co-Defendants. (FAC ¶7.)

The General Allegations in the FAC allege as follows:

9. This action arises out of a burglary and vandalism that occurred on or about November 25, 2021 (the "INCIDENT") at the PROPERTY.

10. Prior to the burglary and vandalism, on or about September 24, 2018, PLAINTIFFS entered into a contract with ARMET in which ARMET was to install a security alarm system at the PROPERTY in order to provide PLAINTIFFS with a peace of mind that their PROPERTY would be protected from burglaries, deter burglaries, or in the event of a burglary, the alarm system would trigger, resulting in PLAINTIFFS and the local police department(s) to be notified and/or dispatched. (Attached hereto as "EXHIBIT A" is a true and correct copy of the contract between PLAINTIFFS and ARMET).

11. PLAINTIFFS entered into a contract with GENERAL in which GENERAL was to monitor the security system that was installed at the PROPERTY, specifically for burglary protection and fire protection. (Attached hereto as "EXHIBIT B" is a true and correct copy of the contract between PLAINTIFFS and GENERAL).

12. On its website, ARMET markets itself as a provider of the "highest quality service" and advertises that their "trained alarm monitoring professionals are cautiously watching over your home or business 24 hours a day, 7 days a week and they are ready to contact the appropriate emergency agencies, if necessary." ARMET further advertises that "with alarm system monitoring services from Armet Alarm & Electronics, Inc. you can rest assured that prompt and dependable service is always just the push of a button or a phone call away." That was not the case here.

13. ARMET was to install the security system at the PROPERTY in a professional manner and assure that the alarm system would work and be free from defects in parts and materials.

14. PLAINTIFFS became aware of the INCIDENT after the fact and upon notification from their neighbors when a broken point of entry was discovered by the police department. ARMET and GENERAL had not performed their duties because the security system was neither installed, maintained, monitored, and/or repaired properly nor did it trigger upon the occurrence of the INCIDENT.

15. Following the burglary and vandalism, PLAINTIFFS filed a first party insurance claim with their homeowner's insurance company and were able to recover monies from their insurance policy. However, the policy contained limitations on the items stolen, thereby PLAINTIFFS were not made whole.

(FAC ¶¶9-15.)

PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b):Yes–

Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., §430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Here, GMS’s counsel, Coleman, alleges that a meet and confer occurred, but a resolution was not able to be met. (Coleman Decl. ¶3.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
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.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) 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, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
First Cause of Action – Breach of Contract
GMS does not demur to the second and third causes of action in the FAC. GMS demurs only to the first cause of action for breach of contract as against GMS on grounds of failure to state sufficient facts and on grounds of uncertainty. (See Dem. p.1-2.)

The elements of a cause of action for breach of contract are “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

(1) The Existence of the Contract
A cause of action for breach of contract is subject to demurrer if “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., §430.10(g).) A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) An allegation of an oral agreement must “set[] forth the substance of its relative terms.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.)

In ¶11 of the FAC, Plaintiffs allege, “PLAINTIFFS entered into a contract with GENERAL in which GENERAL was to monitor the security system that was installed at the PROPERTY, specifically for burglary protection and fire protection. (Attached hereto as "EXHIBIT B" is a true and correct copy of the contract between PLAINTIFFS and GENERAL).” (FAC ¶11.)

Paragraph 11 of the FAC is incorporated into the first cause of action for breach of contract via Paragraph 16 of the FAC.

Further, Plaintiffs attached to the FAC an Exhibit B which is the document that Plaintiffs allege is the contract entered into between Plaintiffs and GMS.

Thus, Plaintiffs alleged this element of a breach-of-contract cause of action.

(2) Plaintiff’s Performance or Excuse for Nonperformance
Plaintiffs allege in ¶18 of the FAC, “PLAINTIFFS faithfully performed all obligations required to be performed by them under the terms of the contract, except to the extent performance may have been excused by, among other things, ARMET'S and GENERAL'S breach of their respective duties and obligations under the contract.” (FAC ¶18.)

Thus, Plaintiffs alleged this element of a breach-of-contract cause of action.

(3) Defendant’s Breach
Plaintiffs allege in ¶20 of the FAC, “GENERAL breached its responsibilities and obligations by failing to monitor the security alarm system at the PROPERTY, directly violating the explicit terms of the contract. GENERAL failed to timely notify PLAINTIFFS of the INCIDENT, as expressly required by the terms of the contract, thereby affording the intruders an extended window of opportunity to break in, vandalize and steal. Specifically, GENERAL, as required by the terms of the contract attached hereto as EXHIBIT B and incorporated herein by reference in its entirety, failed to provide burglary protection to the PROPERTY. GENERAL'S breach facilitated the theft of an increased quantity of items from the home as well as vandalism.” (FAC ¶20.)

Thus, Plaintiffs alleged this element of a breach-of-contract cause of action.

(4) Resulting Damages to the Plaintiff
Plaintiffs allege in ¶21 of the FAC, “As a direct, proximate, and legal result of ARMET'S and GENERAL'S breach of the contract with PLAINTIFFS, PLAINTIFFS have been and continue to be damaged in an amount in excess of the jurisdictional limits of this Court, including but not limited to the value of the stolen personal property not covered by PLAINTIFFS' homeowner's insurance company.” (FAC ¶21.)

Thus, Plaintiffs alleged this element of a breach-of-contract cause of action.

Overall, Plaintiffs appear to have alleged each element of a breach-of-contract cause of action.

Demurring Defendant, GMS’s, arguments on failure of Plaintiffs to allege breach of contract- Exhibit B

GMS argues that Exhibit B does not constitute a contract between Plaintiffs and GMS; therefore, GMS argues that Plaintiffs did not allege the first element – existence of a contract – for a breach-of-contract cause of action.

In particular, GMS argues Exhibit B is merely an Alarm System Certificate issued by GMS three years after the installation of the Armet alarm system certifying that GMS had installed an Armet alarm system for Plaintiffs on September 24, 2018.

Further, GMS argues that Exhibit B does not include any consideration allegedly paid by Plaintiffs, nor does it include any terms under which Plaintiffs are bound and is not signed by either Plaintiffs or GMS.

After making the aforementioned arguments, GMS then concludes, “Under well-recognized contract principles, the facts are clear that the Certificate does not constitute an enforceable contract between Plaintiffs and GMS. If there is in fact a contract between Plaintiffs and GMS, which GMS does not admit or deny, it is not represented by Exhibit B and is not sufficiently alleged in the body of the FAC.” (Dem. p. 5-6.)

The Court does not find GMS’s arguments availing for several reasons.

First, as moving party, GMS makes nearly all of its arguments without providing legal authority to support its arguments.

For example, GMS argues that Exhibit B does not

(1) include consideration allegedly paid by Plaintiffs,

(2) include any terms under which Plaintiffs are bound, and

(3) is not signed by Plaintiffs or GMS.

While these assertions may be true, GMS provides no legal authority as to what specifically must be alleged to withstand the pleading stage as to the first element of the existence of a contract in a breach-of-contract cause of action.

Here, Plaintiffs alleged the existence of the contract as Exhibit B and attached Exhibit B to the FAC.

Further, GMS provides no legal authority that consideration, the terms, and a signature must be pled, nor does GMS provide legal authority that the Court is to look to the judicially noticed exhibit containing the contract at the pleading stage to determine if these elements are in fact in the contract.

Second, many of GMS’s arguments appear to be outside the scope of a demurrer at the pleading stage. The crux of GMS’s arguments does not appear to be that Plaintiffs did not plead the existence of a contract, but rather that Plaintiffs’ Exhibit B does not in fact constitute a contract.

It does not appear that a plaintiff need attach a written contract to a complaint to proceed on a breach-of-contract claim.

Presumably, GMS is attempting to make the argument that Exhibit B is not in fact a contract at the pleading stage (as opposed to making this argument at an evidentiary stage, such as in a motion for summary judgment) by relying on Cohen v. Ratinoff (1938) 147 Cal.App.3d 321.

GMS does not cite to a specific page in Cohen v. Ratinoff, but argues that the case supports the position that the face of the pleadings includes a written instrument attached as an exhibit and incorporated into it by proper reference.

While the Court does not disagree with GMS as to its argument on Cohen v. Ratinoff, the Court is hesitant to sustain the demurrer in light of the following: “Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed. But if the material facts are certain or undisputed, the existence of a contract is a question for the court to decide.” (HM DG, Inc. v. Amini (2013) 219 Cal.App.4th 1100, 1109.)

Further, “[t]he question of adequacy of consideration is generally considered as a question of fact….” (Henderson v. Fisher (1965) 236 Cal.App.2d 468, 475.)

Again, this is a hearing on a demurrer, not on a motion for summary judgment, and the Court has concerns about GMS’s arguments about whether Exhibit B actually constitutes a contract since this case is at the pleading stage.

A court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Assuming the truth of Plaintiffs’ allegations, it appears as if Plaintiffs have successfully alleged a breach-of-contract cause of action.

Demurring Defendant GMS’s arguments on failure of Plaintiffs to allege breach of contract- Exhibit A
GMS further argues that with respect to Exhibit A, Plaintiffs and the other Defendant, Armet, are the only two parties to the contact in Exhibit A.

The Court is uncertain as to why GMS is raising this argument.

GMS states, “As noted above, with respect to Exhibit A, the FAC is unequivocal that such document is exclusively a contract between Plaintiffs and Armet.” (Dem. p. 5.)

If GMS is arguing that it is unequivocal that Exhibit A is exclusively a contract between Plaintiffs and Armet, then it seems as if it would be unnecessary for GMS to make arguments as to a contract exclusively between Armet and Plaintiffs. Or to phrase it differently, wouldn’t Armet need to be the demurring party to the breach-of-contract cause of action pertaining to Exhibit A if that exhibit is unequivocally a contract exclusively between Armet and Plaintiffs?

While it is unclear as to the legal significance of GMS’s arguments about Exhibit A, some of their arguments also seem to not be entirely accurate.

For example, GMS argues that the only signatories to the alleged contract in Exhibit A are Plaintiffs and Armet. GMS points to ¶10 of the FAC which states, “Prior to the burglary and vandalism, on or about September 24, 2018, PLAINTIFFS entered into a contract with ARMET in which ARMET was to install a security alarm system at the PROPERTY in order to provide PLAINTIFFS with a peace of mind that their PROPERTY would be protected from burglaries, deter burglaries, or in the event of a burglary, the alarm system would trigger, resulting in PLAINTIFFS and the local police department(s) to be notified and/or dispatched. (Attached hereto as "EXHIBIT A" is a true and correct copy of the contract between PLAINTIFFS and ARMET).” (FAC ¶10.)

GMS also points to page 2 of Exhibit A to support its assertion that the alleged contract in Exhibit A is only between Armet and Plaintiffs.

While Exhibit A, page 2, does seem to only have Armet and Hilda Kasimian as the signatories to Exhibit A, and while ¶10 seems to allege that Exhibit A is a contract between Armet and Plaintiffs, GMS ignores the agency allegations in ¶7 of the FAC.

Paragraph 7 of the FAC states, “PLAINTIFFS are informed, believe, and thereon allege that DEFENDANTS, including the fictitious DOE DEFENDANTS, were at all relevant times acting as actual agents, conspirators, ostensible agents, partners and/or joint ventures and co-employees of all other DEFENDANTS, and that all acts alleged herein occurred within the course and scope of said agency, employment, partnership, joint venture, conspiracy, and/or enterprise, and with the express and/or implied permission, knowledge, consent, authorization and ratification of their co-DEFENDANTS.” (FAC ¶7.)

While it is not clear if GMS is attempting to argue that it cannot be held liable for Exhibit A because it is not a signatory, GMS provides no legal authority for its argument, and it appears that the Civil Code and case law state that GMS could potentially be held liable under an agency theory.

Under Civil Code § 2330, “An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal.”

The case of Michelson v. Hamada helps explain the principle:

Civil Code section 2295 states: “An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.” (3) Any person may be authorized to act as an agent, including an adverse party to a transaction. (See Naify v. Pacific Indemnity Co. (1938) 11 Cal.2d 5, 7 [76 P.2d 663, 115 A.L.R. 476]; Orfanos v. California Insurance Co. (1938) 29 Cal.App.2d 75, 78-81 [84 P.2d 233]; 2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 33, p. 47.) “Whether a person performing work for another is an agent ... depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent. [Citations.]” (Malloy v. Fong (1951) 37 Cal.2d 356, 370 [232 P.2d 241].) An agent is a fiduciary. (Kennard v. Glick (1960) 183 Cal.App.2d 246, 250-251 [agent entrusted with duty of receiving and disbursing moneys and keeping accurate records of the transactions]; Estate of Arbuckle (1950) 98 Cal.App.2d 562, 569-570 [220 P.2d 950, 23 A.L.R.2d 372] [business manager unable to produce will entrusted to him]; 2 Witkin, Summary of Cal. Law, supra, Agency and Employment, §§ 41, 43 et seq., pp. 53, 55.) Agency may be implied from the circumstances and conduct of the parties (see Bergtholdt v. Porter Bros. Co. (1896) 114 Cal. 681, 685-688 [46 P. 738]; Brand v. Mantor (1935) 6 Cal.App.2d 126, 130; Pollack v. Lytle (1981) 120 Cal.App.3d 931, 940; Brea v. McGlashan (1934) 3 Cal.App.2d 454, 464 [39 P.2d 877].) (4) When the principal in reliance on the agent does not have the service performed by others, the agent is liable for failure to perform. (See Lab. Code, § 2851; Poile v. Stockton Merchants Assn. (1959) 176 Cal.App.2d 100, 104 [collection agency liable for amount of check it failed to collect and was under duty to inform principal of failure]; Rest.2d Agency, § 378; 2 Witkin, Summary of Cal. Law, supra, Agency and Employment, § 62, p. 68.) (5) A contract between parties that includes the rendering of services does not preclude recovery for breach of a confidential relationship where property is misappropriated. (Agair Inc. v. Shaeffer (1965) 232 Cal.App.2d 513, 517 [42 Cal.Rptr. 883].)

(Michelson v. Hamada (1994) 29 Cal.App.4th 1556, 1579-80.)

“An allegation of agency is an allegation of ultimate fact that must be accepted as true for purposes of ruling on a demurrer.” (City of Industry v. City of Filmore (2011) 198 Cal.App.4th 191, 212-13.) “We have already noted, however, that an allegation of agency as such is a statement of ultimate fact. Consequently further allegations explaining how this fact of agency originated become unnecessary.” (Skopp v. Weaver (1976) 16 Cal.3d 432, 439.)

GMS also argues, with respect to Exhibit A, “Additionally, there are no facts or allegations in the FAC as pled that GMS is a third-party beneficiary. To the extent Plaintiffs in their Opposition argue that GMS was a third-party beneficiary to the contract between Plaintiffs and Armet represented in Exhibit A, such arguments should be disregarded as no facts are alleged in the FAC to support this theory.¹” (Dem. p. 5.)

[The Court notes that GMS’s footnote 1 states, “This theory was raised for the first time in meet and confer conversations between counsel in connection with this demurrer and is inconsistent with the express allegations in the FAC, which expressly relies on the Certificate attached as Exhibit B as the basis for Plaintiffs’ breach of contract claim against GMS. A copy of the meet and confer communications between counsel is attached as Exhibit A to the accompanying Declaration of Sabryne Coleman filed concurrently herewith.”]

As to this argument on third-party beneficiary, GMS provides no legal authority in support of its argument.

Overall, the Court fails to follow GMS’s arguments about Exhibit A.

If Exhibit A is exclusively between Plaintiffs and Armet, then the Court is unclear why this argument would be relevant to GMS’s demurrer that is directed at the breach-of-contract cause of action alleged against GMS.

Further, even if Plaintiffs did not successfully allege a cause of action against GMS with respect to breach of contract and Exhibit A, as long as Plaintiffs alleged a breach-of-contract cause of action against GMS under one theory, it seems as if that would be enough to overrule GMS’s demurrer directed at the breach-of-contract cause of action directed at GMS.

Because Plaintiffs appeared to at least allege a breach-of-contract cause of action with respect to Exhibit B, it appears as if this demurrer should be OVERRULED. Not to mention, it also appears as if Plaintiffs can potentially hold GMS liable under a theory of agency.

Uncertainty

GMS’s notice of demurrer also demurred on grounds of uncertainty. Problematic with GMS’s demurrer is that it did not provide any arguments with respect to uncertainty. This alone – the lack of argumentation as to why the FAC is uncertain – tends to weigh in favor of overruling the demurrer on this ground.

As noted in the Court’s previous section on Exhibit A, GMS argued that Exhibit A is exclusively a contract between Plaintiffs and Armet.

The Court can see why GMS makes this argument because in the General Allegations portion of the FAC, Paragraph 10 alleges that Exhibit A is between Plaintiffs and Armet. Paragraph 11 then alleges that Exhibit B is the contract between GMS and Plaintiffs.

Based on Paragraphs 10 and 11, it would appear that Plaintiffs are alleging that Armet and Plaintiffs entered into the alleged contract in Exhibit A and GMS and Plaintiffs entered into the alleged contract in Exhibit B. Or, phrased differently, it appears as if Plaintiffs are alleging that each defendant entered into a different contract.

Further, it appears that Plaintiffs are alleging that each defendant entered into a different contract when reading Paragraphs 19 and 20 in the FAC that are listed under the first cause of action for breach of contract.

Paragraph 19 alleges that Armet breached the terms of Exhibit A, whereas Paragraph 20 alleges that GMS breached Exhibit B. These allegations also suggest that, when reading the FAC as a whole, the Plaintiffs appear to be attempting to state that each Defendant entered into a different contract.

However, Paragraph 17 is in the section of the FAC that falls under the first cause of action for breach of contract. That paragraph states:

As alleged hereinabove, on or about September 24, 2018, PLAINTIFFS entered into a written contract with ARMET and GENERAL. Pursuant to the contract, ARMET would install a functional alarm system consisting of installation and services for (1) burglary; (2) digital control panel; (3) keypad; (4) wireless receiver; (5) door and window wired sensors; (6) motion sensor; (7) indoor and outdoor sirens, with strobe lights pursuant to the terms and provisions of EXHIBIT A attached hereto and incorporated herein by reference. Pursuant to the contract, GENERAL would monitor the security system that was installed.

(FAC ¶17.)

This allegation in ¶17 adds uncertainty and ambiguity to the FAC because it alleges that Plaintiffs entered into a single contract with Armet and GMS.

This allegation also adds uncertainty and ambiguity because in the last sentence of ¶17 the FAC alleges, “Pursuant to the contract, GENERAL would monitory the security system that was installed.”

Paragraph 17 appears to allege that a sole contract exists that both Defendants entered into with Plaintiff. This is contradictory to ¶10-11 in the General Allegations and ¶19-20 in the first cause of action that indicates that Plaintiffs entered into individual and different contracts with each Defendant.

Further, ¶17 indicates that this sole contract is Exhibit A. This makes little sense that the sole contract is Exhibit A in light of Paragraphs 19-20, which indicate that each Defendant breached a different contract.

It is unclear whether Plaintiffs are alleging one contract exists that binds all the parties. It is also unclear if Plaintiffs are alleging that this sole contract is Exhibit A. And it is unclear whether Plaintiffs are alleging that each Defendant entered into individual and different contracts with Plaintiffs.

Adding further confusion is Plaintiffs’ Opposition, which states as follows:

While it is true that Plaintiffs entered into an initial contract with Defendant Armet as described in “Exhibit A” to the FAC, in the contract, Plaintiffs were to pay Armet $25.00 per month for “Monitoring Services.” The monitoring services were provided by Defendant General pursuant to “Exhibit B” to the FAC in which it states: “This is to certify that General Monitoring Service, Inc. UL listed Central Station is monitoring a Security System that has been installed at the below address.” For General to argue that there was no contract with Plaintiffs is clearly false. Although in the FAC, Plaintiffs alleged that “Exhibit A” pertains to Armet and “Exhibit B” pertains to General, both exhibits pertain to General. The fact that “Exhibit B” is dated December 23, 2021 is irrelevant. The installation took place on September 24, 2018 and Plaintiffs were making a monthly payment of $25.00 for monitoring services since that date.

(Oppo. p. 5.)

It appears as if many of these points brought up are not alleged in the FAC.

Again, the Opposition does not make it clear as to what parties entered into which contracts.

The Opposition uses words like “pertain,” but it is unclear if the Opposition is attempting to state that GMS entered into the “contract” in Exhibit A with Plaintiffs and also the “contract” at Exhibit B with Plaintiffs, or if Plaintiffs are attempting to state that GMS entered into just one contract with Plaintiffs and that that one contract is comprised of both Exhibits A and B.

A special demurrer for uncertainty, CCP § 430.10(f), is disfavored and will only be sustained where the pleading is so deficient that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

The Court is inclined to overrule the demurrer made on grounds of uncertainty because it appears that Plaintiffs alleged a cause of action against GMS at least under one theory.

Further, GMS made no arguments on grounds of uncertainty despite their notice indicating that it demurred on grounds of uncertainty.

As a practical matter, it may make sense for Plaintiffs to amend their FAC for the sake of clarity for all parties and the Court. If Plaintiffs prefer to amend their FAC now by means of the Court sustaining the demurrer on grounds of uncertainty, the Court will hear argument from both parties. This may potentially be more efficient than the parties clarifying the ambiguities through discovery and Plaintiffs later having to file a noticed motion for leave to amend.

“It is often said that leave to amend a complaint should be liberally granted, particularly with respect to a party’s initial complaint.” (City of Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1091.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (City of Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1091 citing Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “If there is any reasonable possibility that plaintiff can state a good cause of action, it is error and an abuse of discretion to sustain the demurrer without leave to amend.” (City of Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1091 citing Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896, 904.)

TENTATIVE RULING DEMURRER 1
The Court tentatively plans to OVERRULE GMS’s demurrer on grounds of uncertainty and failure to state sufficient facts as to the breach-of-contract cause of action alleged against GMS.

The Court will hear argument about the issue of granting leave to amend if Plaintiffs seek to amend the FAC to clear up the potential ambiguities in the FAC.

MOTION 1 - MOTION TO STRIKE

Moving Party: Defendant, General Monitoring Services, Inc. (GMS)

Responding Party: Plaintiffs, Hilda Kasimian and Stepan Kasimian

Moving Papers: Notice/Motion to Strike

Opposition Papers: Opposition

Reply Papers: Reply

RELIEF REQUESTED
Defendant, GMS, moves this Court for an order striking portions of the FAC.

By way of the accompanying Motion to Strike, GMS submits that the following bolded language should be stricken from Plaintiffs’ FAC at Paragraph 2 of the FAC’s Prayer for Relief on the grounds that attorneys’ fees are not recoverable on the breach-of-contract cause of action against GMS: “For attorneys’ fees as a result of the breach-of-contract cause of action.”

“This Motion is made pursuant to California Code of Civil Procedure §§ 435 and 436 on the grounds that the allegations sought to be stricken are improper and not drawn in conformity with California law. This Motion is based upon this Notice; the appended Memorandum of Points and Authorities; Declaration of Sabryne Coleman concurrently filed herewith; the accompanying Demurrer filed concurrently herewith; the pleadings, records and files in this action; and such other materials as may be judicially noticed, or presented to the Court at or before, or in connection with, the hearing on this demurrer.”

Procedural

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok -

Meet and Confer
Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP §435.5(a).)

The Court notes as follows, “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (CCP §435.5(a)(4).)

Here, GMS’s counsel, Coleman, alleges that a meet and confer occurred, but a resolution was not met. (Coleman Decl. ¶3.)

Legal Standard – Motion to Strike
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

TENTATIVE RULING MOTION 1 - MOTION TO STRIKE
“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (CCP §1021.)

As indicated by GMS, this FAC does not seek attorney’s fees as provided by a statute, but seeks attorney’s fees as a result of a contract.

Many of GMS’s arguments in its motion appear to be irrelevant as it argues about issues raised in the demurrer.

However, what GMS accurately points out is that neither contract attached to the FAC contains a provision for attorney’s fees.

In Opposition, Plaintiffs argue that where a plaintiff pleads the contract entitles it to attorneys’ fees and attaches the same to the complaint, the motion to strike is improper.

Plaintiffs cite Wiley v. Rhodes (1998) 223 Cal.App.3d 1470, 1474 to support their argument. However, Wiley does not fully state what Plaintiffs allege it to state. Wiley simply held that an award of attorney fees should not have been awarded because the complaint did not allege entitlement to attorney fees. Wiley does not support Plaintiffs’ interpretation – that even if the attached contracts to the complaint do not contain a provision for attorney’s fees, the request for attorney’s fees cannot be stricken simply because Plaintiffs allege the contract contains an attorney’s fees provision.

In Opposition, Plaintiffs admit that they were not able to locate the full contract for Exhibit A which they argue would support their request for attorney’s fees. Plaintiffs argue that page two of Exhibit A refers to a reverse side; however, at the moment they are unable to locate the reverse side, but Plaintiffs believe the additional pages would include a provision for attorney’s fees.

Plaintiffs state that they requested a copy of the agreement by Armet so that it could be determined if the agreement contains a provision for attorney’s fees.

Plaintiffs also argue that if the Court strikes the request for attorney’s fees, the Court should strike it without prejudice to reassert the request for attorney’s fees on motion if Plaintiffs later discover that the contract supports their request.

Here, the Court tentatively plans to GRANT the motion to strike the request for attorney’s fees in Plaintiffs’ Prayer for Relief as Plaintiffs admitted that the attached exhibits to the FAC do not currently contain a provision allowing for recovery of attorney’s fees.

Plaintiffs’ argument – that if the Court is inclined to grant the motion to strike, the Court should grant it without prejudice to seek leave to amend the FAC – appears to be reasonable. Even the Reply admits that the proper course of action would be to file a motion for leave to amend to seek attorney’s fees if Plaintiffs find this alleged provision for attorney’s fees in the contract.

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.’” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174.)]

The Court notes that GMS’s notice of motion to strike requests striking ¶2 in the Prayer for Relief requesting attorney’s fees. The Court notes that it is in fact ¶3 in the Prayer for Relief that requests attorney’s fees.

GMS’s motion to strike ¶3 in the Prayer of the FAC stating, “For attorneys’ fees as a result of the breach-of-contract cause of action;” is GRANTED without prejudice to Plaintiffs’ ability to seek leave to amend the FAC to reassert the request for attorney’s fees upon discovery of evidence of the contract containing an attorney’s fee provision.

DEMURRER 2

Moving Party: Defendant, Armet Alarm & Electronics, Inc. (Armet)

Responding Party: Plaintiffs, Hilda Kasimian and Stepan Kasimian

Moving Papers: Proof of Service; Notice; Memorandum; Schmid Declaration; Proposed Order;

Opposition Papers: Opposition

Reply Papers: Reply

RELIEF REQUESTED
Defendant, Armet, demurs to the FAC.

“This Demurrer is made pursuant to Code of Civil Procedure § 430.10(e) on the grounds that Plaintiffs failed to state facts sufficient to constitute causes of action for Negligence or Negligent Misrepresentation against Armet. This Demurrer is also made pursuant to Code of Civil Procedure § 430.10(f) on the grounds that Plaintiffs failed to plead their Negligent Misrepresentation cause of action with the required specificity and particularity and it is therefore uncertain. Armet complied with the meet and confer requirements of Code of Civil Procedure section 430.41. (See Declaration of Jeffrey C. Schmid, ¶¶ 3-4.)

This Demurrer is based upon this Notice of Demurrer and Demurrer, the Memorandum of Points and Authorities attached hereto, the Declaration of Jeffrey C. Schmid, Plaintiff’s First Amended Complaint, and upon such further evidence and argument as may hereafter be presented at the hearing on this matter.”

PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): This demurrer was allegedly served electronically to Plaintiffs’ counsel. Plaintiffs’ counsel’s email address on eCourt is listed as hgk@keosianlaw.com; however, moving counsel allegedly served hgk@kewosianlaw.com. Despite this discrepancy, Plaintiffs’ counsel appears to have still received the instant demurrer because an Opposition was submitted. Therefore, there does not appear to be a service issue with the instant demurrer.

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Here, Armet’s counsel, Schmid, alleges a meet and confer occurred but an agreement was not met. (Schmid Decl. ¶¶3-4.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP § 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS

Third Cause of Action – Negligent Misrepresentation
“The elements of negligent misrepresentation are well established. A plaintiff must prove the following in order to recover. ‘Misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another’s reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage…’” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154.)

The alleged negligent misrepresentations in the FAC appear to be at paragraphs 12 and 35. Paragraph 12 is contained in the General Allegations of the FAC and are incorporated into the third cause of action via ¶33. Paragraph 35 is located within the third cause of action of the FAC.

Paragraph 12 alleges:

On its website, ARMET markets itself as a provider of the "highest quality service" and advertises that their "trained alarm monitoring professionals are cautiously watching over your home or business 24 hours a day, 7 days a week and they are ready to contact the appropriate emergency agencies, if necessary." ARMET further advertises that "with alarm system monitoring services from Armet Alarm & Electronics, Inc. you can rest assured that prompt and dependable service is always just the push of a button or a phone call away." That was not the case here.

(FAC ¶12.)

Paragraph 35 appears to be nearly identical to ¶12, except ¶35 does not mention that these representations were on the website, as mentioned in ¶12, and Plaintiffs remove words like “markets” and “advertises” from ¶12 when making the allegations in ¶35. For reference, ¶35 alleges:

PLAINTIFFS relied on ARMET's written and verbal representations as hereinabove referenced, namely that ARMET was a provider of the "highest quality service" and that their "trained alarm monitoring professionals are cautiously watching over your home or business 24 hours aday,7 days a week and they are ready to contact the appropriate emergency agencies, if necessary." ARMET and its representatives further represented that "with alarm system monitoring services from Armet Alarm & Electronics, Inc. you can rest assured that prompt and dependable service is always just the push of a button or a phone call away." That was not the case here.

(FAC ¶35.)

Armet argues that the law is well established that actionable misrepresentations must pertain to past or existing material facts. Armet argues that the misrepresentations at issue here do not pertain to past or existing material facts.

Armet also argues that statements of predictions regarding future events are deemed to be mere opinions which are not actionable. Armet argues that these statements are not actionable misrepresentations because they are either mere opinions or predictions regarding future events.

In Opposition, Plaintiffs does not address Armet’s arguments about the alleged misrepresentations not being actionable.

TENTATIVE RULING – THIRD CAUSE OF ACTION – NEGLIGENT MISREPRESENTATION
“To be actionable, a negligent misrepresentation must ordinarily be as to past or existing material facts.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) “[P]redictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud.” (Id.)

Here, Plaintiffs’ third cause of action appears to rely not on misrepresentations of past or then current facts, but on a belief that Defendant would perform in the future. (See FAC ¶12,35.) This suggests that the cause of action is one for negligent false promise, a claim not recognized as actionable.

In relevant part of Tarmann:

To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. [Citations omitted.] Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud. The specific intent requirement also precludes pleading a false promise claim as a negligent misrepresentation, i.e., “The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.” [Citation omitted.] Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. Moreover, we decline to establish a new type of actionable deceit: the negligent false promise.

(Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159 [italics in original, footnote omitted].)

Not only did the Opposition not make any arguments as to this point, but the Opposition also failed to explain why it should be granted leave to amend as to this cause of action.

As stated in Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-71:

If the complaint, liberally construed, can state a cause of action, or if it is reasonably possible that the plaintiffs can cure the complaint by amendment, the trial court should not sustain a demurrer without leave to amend. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486 [229 Cal.Rptr. 324, 723 P.2d 64].) The burden is on the plaintiffs to establish the reasonable possibility that the defect is curable. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) A demurrer is properly sustained without leave to amend if it appears that under applicable substantive law there is no reasonable possibility that *1571 an amendment could remedy the defects. (Heckendorn v. City of San Marino, supra, 42 Cal.3d at p. 486.)

(Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-71.)

Armet’s demurrer as to the third cause of action for negligent misrepresentation is SUSTAINED. The Court will hear argument as to whether amend should be granted or denied.

Second Cause of Action – Negligence
“To state a cause of action for professional negligence, a party must show “(1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.”[Citation omitted.]” (Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137.)

With respect to how Armet’s duty arises, Plaintiffs allege:

ARMET had a duty to install a functional security alarm system on the PROPERTY. ARMET further had a duty of care to use the degree of care and skill that a reasonable and prudent alarm installing company would use under similar circumstances and as specifically described on its own website and in its representation to PLAINTIFFS, as well as in the contract attached hereto as EXHIBIT A.

(FAC ¶23.)

Armet attacks only the duty element of the negligence cause of action. Armet argues that Plaintiffs did not allege the element of duty because Plaintiffs failed to state that Armet breached any legal duty independent of the contract that was allegedly breached. Armet cites several cases that allegedly stand for the proposition that a person may not recover in tort for the breach of duties that merely restate contractual obligations.

TENTATIVE RULING – SECOND CAUSE OF ACTION – NEGLIGENCE
The Court does not find Armet’s arguments persuasive.

Armet argues that Plaintiffs did not allege a duty independent of the contract that was allegedly breached.

Paragraph 23 of the FAC alleges:

(FAC ¶23.)

The Court fails to understand Armet’s arguments. The allegations in ¶23 appear to allege, in addition to the duty arising from the contract, a duty arising from the degree of care and skill that a reasonable and prudent alarm installing company would use.

Of all the cases that both Armet and Plaintiffs cited, Plaintiffs’ case citation to Zurich appears to be the most on point.

As stated in Zurich:

Appellant further contends that the trial court improperly designated Kings' conduct as a breach of contract and negligence. This determination is not a contradiction in terms. “The same act may be both a tort and a breach of contract. [Citation.] Even where there is a contractual relationship between the parties, a cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed, or out of a failure to perform such duty. [Citations.]” (Eads v. Marks, 39 Cal.2d 807, 810-811 [249 P.2d 257].)

(Zurich Ins. Co. v. Kings Industries, Inc. (1967) 255 Cal.App.2d 919, 923.)

Further, as stated in Michaelis, “A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort.” (Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 687-688.)

Although Armet argues that several cases have disallowed negligence claims because those plaintiffs failed to allege the breach of a duty outside of the contractual obligations, the Court does not follow Armet’s arguments in the context of the case law that Armet cites.

Armet cites several cases that appear to be inapposite or have very little to do with the arguments that Armet is asserting and focuses on liquidated damages, equitable subrogation, and various issues that don’t appear to be relevant to the argument that Armet is trying to make. Further, some of the cases cited by Armet appear to be at a different procedural posture than the pleading stage.

Armet’s demurrer to the second cause of action is OVERRULED.

MOTION 2 - MOTION TO STRIKE

Moving Party: Defendant, Armet Alarm & Electronics, Inc. (Armet)

Responding Party: Plaintiffs, Hilda Kasimian and Stepan Kasimian

Moving Papers: Proof of Service; Notice; Memorandum; Schmid Declaration; Proposed Order;

Opposition Papers: Opposition

Reply Papers: Reply

RELIEF REQUESTED
Defendant, Armet, moves to strike the request for attorneys fees’ from Plaintiffs’ FAC.

“This Motion is made pursuant to California Code of Civil Procedure §§ 435 and 436 on the grounds that Plaintiffs’ First Amended Complaint provides no legal basis for the recovery of attorney’s fees. Armet complied with the meet and confer requirements of Code of Civil Procedure section 430.41. (See Declaration of Jeffrey C. Schmid, ¶¶ 3-4.)

This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities attached hereto, the Declaration of Jeffrey C. Schmid, Plaintiff’s First Amended Complaint, and upon such further evidence and argument as may hereafter be presented at the hearing on this matter.”

Procedural

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): This motion to strike was allegedly served electronically to Plaintiffs’ counsel. Plaintiffs’ counsel’s email address on eCourt is listed as hgk@keosianlaw.com; however, moving counsel allegedly served hgk@kewosianlaw.com. Despite this discrepancy, Plaintiffs’ counsel appears to have still received the instant motion to strike because an Opposition was submitted. Therefore, there does not appear to be a service issue with the instant motion to strike.

The Court notes as follows, “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (CCP §435.5(a)(4).)

Defendant, Armet’s, counsel alleged he met and conferred but an agreement could not be reached. (Schmid Decl. ¶¶3-4.)

TENTATIVE RULING MOTION 2 - MOTION TO STRIKE
Armet seeks to strike the request for attorney’s fees in the Prayer based on similar arguments explained in the tentative ruling on Motion 1’s Motion to Strike. Opposition provided similar arguments asserted in the Opposition to Motion 1’s Motion to Strike.

The Court adopts the same reasoning explained in the tentative ruling for Motion 1’s Motion to strike.

Armet’s motion to strike ¶3 in the Prayer of the FAC stating, “For attorneys’ fees as a result of the breach-of-contract cause of action;” is GRANTED without prejudice to Plaintiffs’ ability to seek leave to amend the FAC to reassert the request for attorney’s fees upon discovery of evidence of the contract containing an attorney’s fee provision.