Judge: Craig Griffin, Case: Rucker v. Stanko et al, Date: 2023-05-22 Tentative Ruling

The Demurrer filed by moving parties Kimberlee Drake and Kimberlee Drake, Inc.  . (here “MPs”), as to the Fourth Cause of Action in Plaintiff Lloyd Rucker’s Second Amended Complaint (the “SAC”)  is SUSTAINED without further leave to amend.


The Fourth Cause of Action (here a “COA”) in the SAC purports to state a claim for “Breach of Personal Guarantee,” based on a text message exchange as quoted in the SAC in ¶ 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 again asserts that this is not fatal to the claim, because Civil Code §2794(3) and/or (4) apply here. But although the SAC at ¶ 38 now includes additional arguments about why that is so, it still fails to state facts sufficient to support those arguments. There is no allegation that any antecedent obligation of either MP was to be cancelled by Plaintiff in exchange for the alleged guaranty, so as to fall within §2794(3).  And even if the alleged benefit to Drake in getting Mr. Stanko to move out of her own rental unit was deemed sufficient for §2749(4), the SAC also still fails to state the material terms of the alleged guaranty agreement. What is quoted in ¶ 14 of the SAC is a brief exchange that does not identify the person whose “rent” was to be guaranteed, or the property, or the duration of the alleged guaranty, or the consideration for such promise. Despite having been granted leave to amend, Plaintiff here has still failed to adequately state the terms of any alleged guaranty agreement. The Demurrer to COA 4 in the SAC is therefore SUSTAINED, without further leave to amend.


Counsel for MPs to give notice.