Judge: Christopher K. Lui, Case: 22STCV27380, Date: 2024-02-06 Tentative Ruling

Case Number: 22STCV27380    Hearing Date: February 6, 2024    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

This is an alleged breach of contract for services and/or goods, wares and merchandise sold and delivered to Defendants provided on credit. 

Defendant Screamline Investment Corporation demurs to the First Amended Complaint.

TENTATIVE RULING 

Defendant Screamline Investment Corporation’s demurrer to the First Amended Complaint is SUSTAINED with leave to amend as to the first through fourth causes of action. This will be Plaintiff’s final opportunity to amend.

            Plaintiff is given 30 days’ leave to amend.

ANALYSIS

Demurrer

Meet and Confer

            The form Declaration of Sandra J. Vivonia reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Discussion

Defendant Screamline Investment Corporation demurs to the First Amended Complaint as follows: 

1.         First Cause of Action (Breach of Contract).

Defendant argues that this cause of action is based upon a contract to which Defendant Screamline is not a party. Attached as Exhibit A to the 1AC is a policy whereby the named insured is Screamline Investment Corp., and the Insurer is New York Marine and General Insurance Company, not Plaintiff Coaction Specialty Insurance Group. Thus, Defendant argues, Plaintiff Coaction is not the real party in interest and lacks standing to assert this cause of action.

Plaintiff submitted a declaration of Erin Brennan-Bagley indicating that New York Marine and General Insurance Company is a wholly-owned subsidiary of Plaintiff Coaction. However, such extrinsic evidence cannot be considered on demurrer. In this regard, Defendant’s objection to the Brennan-Bagley Declaration is SUSTAINED.

“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 [citation].” (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905 [200 Cal. Rptr. 497].)

(Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

            Plaintiff will be given one final opportunity to plead facts demonstrating that it is the real party in interest as to this cause of action.

The demurrer to the first cause of action is SUSTAINED with leave to amend.

2.         Second Cause of Action (Open Book Account).

            For the reasons discussed above re: the first cause of action, there are insufficient facts pled to demonstrate that Plaintiff is the real party in interest as to this cause of action.

            Plaintiff will be given one final opportunity to plead facts demonstrating that it is the real party in interest as to this cause of action.

            The demurrer to the second cause of action is SUSTAINED with leave to amend.

3.         Third Cause of Action (Account Stated).

            For the reasons discussed above re: the first cause of action, there are insufficient facts pled to demonstrate that Plaintiff is the real party in interest as to this cause of action.

            Plaintiff will be given one final opportunity to plead facts demonstrating that it is the real party in interest as to this cause of action.

            The demurrer to the third cause of action is SUSTAINED with leave to amend.

4.         Fourth Cause of Action (Quantum Meruit).

            For the reasons discussed above re: the first cause of action, there are insufficient facts pled to demonstrate that Plaintiff is the real party in interest as to this cause of action.

            Plaintiff will be given one final opportunity to plead facts demonstrating that it is the real party in interest as to this cause of action.

            The demurrer to the fourth cause of action is SUSTAINED with leave to amend.

            Plaintiff is given 30 days’ leave to amend.