Judge: Cherol J. Nellon, Case: 23STCV20757, Date: 2024-11-12 Tentative Ruling
Case Number: 23STCV20757 Hearing Date: November 12, 2024 Dept: 14
#5
Case Background
This is an action for breach of contract and common
counts. Plaintiff DMG Corporation alleges that in October 2015, it executed a
written credit application with Defendant Techno-Advanced, Inc. (Techno). In
December 2022, Plaintiff provided a quote for materials for use in a
construction project. Techno confirmed the order by issuing a purchase order to
Plaintiff. Techno promised to pay for the materials within 30 days of the
invoice. Despite Plaintiff’s performance under the contract, Techno failed to pay
the sum of $713,644.70.
On August 29, 2023, Plaintiff DMG Corporation filed its
Complaint against Defendant Techno-Advanced, Inc.
On October 24, 2023, Cross-Complainant Techno filed its
Cross-Complaint against Westport Construction, Inc. (Westport) and 806 West
Adams Property LLC. (806 West Adams). The Cross-Complaint seeks equitable
indemnity against Cross-Defendants. The Cross-Complaint alleges that in
December 2022, Westport and Techno entered into a subcontract agreement for the
furnishing of material, labor, and equipment to allow Techno to install HVAC
improvements to the construction project. After Plaintiff notified Techno that
it would rescind discounts offered for the purchase of HVAC equipment and
materials, Cross-Defendants agreed to Techno’s immediate purchase of the
equipment to avoid a price increase. Cross-Defendants agreed to pay for storage
and insurance for the equipment. In May 2023, Westport gave notice to Techno
that the project had been cancelled. Techno remains in possession of the HVAC
equipment which Plaintiff refuses to accept and demands full payment for.
Techno is incurring storage fees for the equipment.
On July 11, 2024, the Court sustained Westport’s demurrer
to Techno’s First Amended Cross-Complaint.
On July 30, 2024, Techno filed a Second Amended Cross-Complaint.
On September 3, 2024, Westport filed a second demurrer.
On October 24, 2024, Techno filed an opposition.
On November 4, 2024, Westport filed a reply.
Instant Pleading
Westport demurs to Techno’s first cause of action for
breach of contract.
Decision
Westport’s demurrer is SUSTAINED without leave to
amend.
Discussion
Westport demurs to Techno’s sole cause of action for
breach of contract. When the Court sustained Westport’s previous demurrer on
the First Amended Cross-Complaint (FACC), the FACC consisted of one cause of
action for equitable indemnity. The Second Amended Cross-Complaint (SACC) now
contains an entirely new cause of action for breach of contract.
A plaintiff may not amend the complaint to add a new cause of
action without having obtained the court’s permission to do so, unless the new
cause of action is within the scope of the order granting leave to amend. (Harris
v Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) A court
properly grants a demurrer without leave to amend as to a new cause of action
that a plaintiff added to an amended complaint without obtaining leave to do
so. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th
237, 245.)
Here, the previous demurrer and the minute order sustaining
the demurrer did not discuss a cause of action for breach of contract. Techno
did not seek leave to add a whole new cause of action for breach of contract,
nor did the Court grant Techno leave to add a new cause of action. Therefore,
Techno exceeded the scope of the Court’s previous order. Because Techno did not
have leave to plead a new cause of action, Westport’s demurrer to the SACC is
SUSTAINED without leave to amend.
Conclusion
Westport’s demurrer is SUSTAINED without leave to
amend.