Judge: Deirdre Hill, Case: 22TRCV00541, Date: 2022-08-30 Tentative Ruling

Case Number: 22TRCV00541    Hearing Date: August 30, 2022    Dept: M

Hearing Date:                          August 30, 2022

Moving Parties:                      Defendant Le’Mar Marshall

Responding Party:                  Plaintiff Strategic Funding Source, Inc.

Motion to Dismiss

            The court considered the moving and opposition papers.

RULING

            The motion is DENIED.

BACKGROUND

            On July 5, 2022, plaintiff Strategic Funding Source, Inc. d/b/a Kapitus filed a complaint against Marshall Horizons LLC d/b/a Marshall Horizons and Lemar Marshall for (1) breach of contact and (2) breach of contract (guaranty).  Plaintiff alleges that on January 20, 2022, plaintiff and Marshall Horizons entered into a loan agreement.  Marshall executed the agreement in his capacity as owner of Marshall Horizons and in his individual capacity as personal guarantor.  Pursuant to the agreement, in consideration of the funds provided by plaintiff in the sum of $65,600, borrower promised to repay plaintiff $92,496, plus fees and costs.  The repayment amount was to be paid by borrower making available for automatic withdrawal a weekly “payment” of $1,425.  Borrower breached the agreement by failing to pay the full repayment amount including the failure to remit the weekly payment on June 15, 2022.  Plaintiff has been damaged in the sum of $70,088.50.

            On August 11, 2022, a default was entered against Marshall Horizons LLC.

DISCUSSION

Defendant Le’Mar Marshall (self-represented) requests that the court dismiss the complaint under “Rule 12(b)(6).” 

Defendant contends that the complaint fails to state a claim against him; his rights have been violated under “UCC 1-308.4”; defendant tendered payment to plaintiff in the amount specifically demanded; and plaintiff refused tender.

In opposition, plaintiff argues that the motion to dismiss is procedurally improper as a motion to dismiss is not an authorized method to challenge pleadings.  Further, plaintiff argues, even if the motion is construed as a demurrer, the complaint properly alleges two causes of action for breach of written contract.  Plaintiff also points out that defendant improperly relies on external matters by prematurely arguing the merits of the case and disputing the debt owed.

The court finds the same as argued by plaintiff.  Defendant cites to a federal statute, which is inapplicable to superior court, and a “motion to dismiss” is a procedurally defective vehicle to challenge the complaint.  In any event, the allegations are sufficient to state a cause of action against defendant as they meet the elements for breach of contract.  Further, defendant improperly relies on purported information that is extrinsic and not on the face of the pleading or subject to judicial notice.  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.  “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.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

Accordingly, the motion is DENIED.

Plaintiff is ordered to give notice of ruling.