Judge: Craig Griffin, Case: Rucker v. Stanko, Date: 2022-09-29 Tentative Ruling

The Demurrer filed by moving parties Kimberlee Drake and Kimberlee Drake, Inc. . (here “MPs”), as to the Fourth Cause of Action in the Plaintiff Lloyd Rucker’s First Amended Complaint (the “FAC”) is SUSTAINED with 20 days leave to amend.

The Fourth Cause of Action (here a “COA”) in the FAC purports to state a claim for “Breach of Personal Guarantee,” based on a text message exchange as quoted in the FAC at ¶ 14. But under Civil Code §1624(a)(2), a “special promise to answer for the debt, default, or miscarriage of another” is invalid unless in writing and subscribed by the party to be charged or by the party's agent, except “in the cases provided for in Section 2794.” Plaintiff has not alleged that the “guaranty” at issue was in writing and subscribed by MPs, or either of them.  The Opposition here asserts that this is not fatal to the claim, because Civil Code §2794 applies here.  But no facts are alleged in the FAC to support the assertion.

In addition, the terms of the alleged guaranty agreement are not clearly articulated. What is quoted in ¶ 14 of the FAC is but a brief exchange that does not specify what is meant by “the rent” (i.e., a rent deposit, a specific month’s rent, or all of the rent to be paid through the duration of the lease). More fundamentally, the text messages do not identify the person whose “rent” was to be guaranteed, or the property, or the consideration for such promise - and although the Opposition asserts that there was more to the agreement, no such facts are alleged.

The Demurrer is therefore SUSTAINED with 20 days leave to amend from the date of service of notice of this ruling.

Counsel for MPs to give notice.