Judge Daniel S. Murphy, Case 22STCV35115 2023-03-08 Tentative Ruling

On November 4, 2022, Plaintiff Anthony Udom filed this action against Defendant Norbo Hotel, asserting causes of action for (1) breach of contract and (2) common count. Plaintiff resided at the Norbo Hotel until December 16, 2021, when Defendant’s employees allegedly broke into his unit with a master key and took various personal items belonging to Plaintiff. The employees also called the police, resulting in Plaintiff’s arrest. Plaintiff alleges that he fought the case for 29 months until it was dismissed, and for that, he claims $29 million in damages for 29 months of “false imprisonment.”

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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) 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.)

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 of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Witzman Decl. ¶¶ 4-5.)

To establish breach of contract, a plaintiff must show: (1) the contract existed, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186.) Besides setting forth the terms of a contract verbatim in the body of a complaint or attaching a copy of the written instrument, a plaintiff may also “plead the legal effect of the contract rather than its precise language.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)

Plaintiff has done none of these things. No contract is attached to the complaint, and Plaintiff has left blank the portion of the complaint form where the essential terms of the agreement are supposed to be articulated. (See Compl. ¶ BC-1.) Plaintiff alleges that Defendant breached the contract by “enter[ing] Plaintiff residence and stole belongings and falsely had plaintiff imprisoned for which the case was dismiss.” (Compl. ¶ BC-2.) There are no facts in the complaint demonstrating that this constitutes a breach of contract.

“A common count claim broadly applies wherever one person has received money which belongs to another, and which in ‘equity and good conscience,’ or in other words, in justice and right, should be returned.” (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 799, internal citations omitted.) A common count requires: (1) a statement of indebtedness in a sum certain; (2) consideration; and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

The complaint alleges that Defendant became indebted to Plaintiff in the following way: “Stole property and false imprisonment.” (Compl. ¶ CC-1.) This does not constitute a common count claim. No other facts are alleged demonstrating an indebtedness owed by Defendant toward Plaintiff.