Judge Edward B. Moreton, Jr, Case Number: 23SMCV00423, Date: 2024-12-06 Tentative Ruling

Judge: Edward B. Moreton, Jr, Case: 23SMCV00423, Date: 2024-12-06 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

This case arises from a breach of a promissory note. Plaintiff Sian Mitchell loaned Defendant James Thomas the sum of $175,000, which Thomas agreed to repay with interest at the rate of 8.5 percent per annum. (Compl., ¶¶ 7–8.) The loan is evidenced by a promissory note (“Note”). The Note is attached to the Complaint as Exhibit A. (Id., Ex. A.)

The Note is between Plaintiff and Thomas only. It does not mention co-Defendant Reklaim, Inc. It does not have an assignment provision, and it states that it may only be amended in writing, signed by Thomas. (Ibid.)

When Thomas allegedly defaulted on the Note, Plaintiff filed suit on January 31, 2023. Then, on February 20, 2024, Plaintiff filed a Doe amendment to the Complaint, adding Reklaim.

This hearing is on Reklaim’s demurrer to the amended complaint. Reklaim argues that (1) there are no specific facts to support a breach of contract claim against Reklaim; indeed Reklaim is mentioned nowhere in the Complaint (besides the Doe amendment) or in the Note itself; (2) Plaintiff fails to state whether any supposed contract is oral, written or implied by conduct, and (3) there are no facts to support the common count of money lent.

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).) Reklaim has filed the Declaration of Kevin J. Cole which attests counsel attempted to meet and confer with Plaintiff’s counsel who failed to respond to the meet and confer request. Plaintiff argues that Reklaim has not satisfied its meet and confer obligations. According to Plaintiff, defense counsel only requested to meet and confer once, in an email that failed to identify the specific causes of actions to which the demurrer applied and the legal grounds for the demurrer. In reply, defense counsel claims he attempted four times to follow up with Plaintiff on his request to meet and confer, but the attempts were all made after the demurrer had already been filed. Notwithstanding, the Court cannot overrule a demurrer based on an insufficient meet and confer. (Code Civ. Proc., § 430.41(a)(4).)

A demurrer to a complaint may be general or special. A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e); Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) The term uncertain refers to whether the pleading is “ambiguous and unintelligible.” (Id.) A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Reklaim argues that Plaintiff’s breach of contract claim fails because she has not alleged any facts to support the essential elements of such a claim. The Court agrees.

To properly plead a claim for breach of contract, a plaintiff must allege (1) a contract, (2) her performance, (3) the defendant’s breach, and (4) damages. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1112.) The Complaint pleads none of these elements as to Reklaim.

The Complaint fails to adequately allege the existence of any contract between Plaintiff and Reklaim or Reklaim’s breach of any contract. There are no allegations regarding how Reklaim is supposedly liable on the Note. The Note does not even mention Reklaim—or any party besides Plaintiff or Thomas—let alone suggest that any party other than Thomas would be bound by it. And there is no clause in the Note that would have, for example, permitted an assignment to Reklaim.

Additionally, the Complaint does not state whether any contract with Reklaim was in writing, oral or implied. Courts should sustain demurrers to breach of contract claims when the complaint “does not allege whether the contract was in writing, oral or implied.” (Miles, 236 Cal.App.4th at 401 (citing Code Civ. Proc., § 430.10, subd. (g)).) The Complaint does not say how any contract between Plaintiff and Reklaim was formed (whether in writing, oral, or implied). This additional defect subjects the Complaint to demurrer.

Plaintiff’s claim for money lent suffers from the same defects as Plaintiff’s breach of contract claim. There are no allegations at all as to Reklaim, much less ones that would support a “common count for money lent.” (See Code Civ. Proc. § 430.10, subds. (e) & (f); Rakestraw, 81 Cal.App.4th at 43 (a plaintiff must allege facts sufficient to establish every element of each cause of action).) Here, Plaintiff alleges no facts at all. Her second cause of action must also be dismissed.

Based on the foregoing, the Court SUSTAINS Reklaim, Inc.’s demurrer with 20 days’ leave to amend.

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

SIAN MITCHELL,

Plaintiff,

JAMES THOMAS, et al.,

Defendants.

Case No.: 22SMCV00423

Hearing Date: December 6, 2024

[TENTATIVE] order RE:

PLAINTIFF and cross-

DEFENDANT’S MOTION TO COMPEL

FURTHER RESPONSES TO INSPECTION

DEMANDS, SET ONE

This case arises from a bitter dispute between former spouses. Plaintiff/Cross-Defendant Sian Mitchell and Defendant/Cross-Complainant James Thomas were married. Mitchell alleges Thomas executed a promissory note (the “Note”), pursuant to which he agreed to pay Mitchell the sum of $175,000 with interest at the rate of 8.5 percent. Mitchell alleges Thomas has failed to make payments on the Note.

Thomas has counter-sued Mitchell, claiming Mitchell falsely represented that she needed the Note to assist her with her petition for increased child support from her prior husband. Thomas claims he did not receive any monies in connection with the Note, and based on Mitchell’s representations, he understood his execution would not require him to make payments on the Note. Thomas also claims Mitchell had him sign a confidentiality and non-disparagement agreement (the “NDA”), under false pretenses, which she is now using to harass and intimidate Thomas. Thomas further alleges that since the divorce petition, Mitchell has regularly harassed him by stalking him and making threatening calls.

This hearing is on Mitchell’s motion to compel further responses to inspection demands, set one. Mitchell served 48 inspection demands on Thomas, who she claims provided only “boilerplate objections that are too general and lack merit.” There is no opposition filed as of the posting of this tentative ruling.

A¿motion¿to¿compel further responses¿to a¿document request¿is proper where the statement of compliance is incomplete, or a representation of inability to comply is inadequate, evasive and/or an objection is without merit or too general. (Code Civ. Proc., § 2031.310 (a).) The motion must show good cause to justify the discovery and must be supported by a meet and confer declaration. (Id. at subd. (b).)

The scope of discovery is liberally construed in favor of disclosure “as a matter of right unless statutory or public policy considerations clearly prohibit it.” (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal. 2d 355, 377-378.) The broad scope of permissible discovery includes “any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

Code Civ. Proc., § 2031.310 (b) requires a party moving to compel responses to document requests to file a meet and confer declaration. Here, Mitchell has submitted the declaration of Edward Lyman which shows extensive meet and confer efforts by counsel.

Mitchell’s counsel began meeting and conferring with Thomas’ then-counsel on May 6, 2024. (Lyman Decl., ¶ 5, Ex. 3, p. 3.) Mitchell’s counsel asked to meet and confer further on four separate occasions, to no avail. (Id. ¶ 6, Ex. 3.)

Mitchell served notice of an informal discovery conference (“IDC”) scheduled for July 11, 2024. Two days before the scheduled conference, Thomas’ counsel filed a substitution of attorney, and Thomas began representing himself. (Lyman Decl., ¶ 8.) Mitchell’s counsel then met and conferred directly with Thomas. (Id., ¶ 10, Ex. 5.) On July 11, 2024, Thomas failed to appear at the IDC, and the Court granted Mitchell leave to file this motion. (Id., Ex. 9 [Minute Order].)

After the IDC, Mitchell’s counsel continued to meet and confer with Thomas, including providing him with a copy of a joint separate statement and with the Court’s instructions on how to complete the document. (Lyman Decl., ¶ 11, Ex. 6.) Thomas asked for and was given four additional weeks to complete his portion of the joint statement but he failed to complete his portion and never returned the document to Mitchell.

On August 20, 2024, Mitchell’s counsel met and conferred with Thomas via Zoom, going over the deficiencies in his discovery responses. However, as of today, Thomas has not provided any further responses or responsive documents

Mitchell has not shown good cause for the discovery she seeks. A motion to compel production of documents must be accompanied by a showing of good cause. (Code Civ. Proc., § 2031.310 (b).) A showing of good cause must be supported by admissible evidence, such as declarations. (Calcor Space Facility, Inc. v. Superior Court¿(1997) 53 Cal.App.4th 216, 223-224.) Declarations in support of the good cause requirement must contain “specific facts rather than mere conclusions”.¿(Rutter Group,¿Civil Procedure Before Trial, Chapter 8H-8, Section 8:1495.7, citing¿Fireman's Fund Ins. Co. v. Superior Court¿(1991) 233 Cal.App.3d 1138, 1141.) Once a showing of good cause is met, it is then the responding party’s burden to justify the objections asserted. (Kirkland v. Superior Court¿(2002) 95 Cal.App.4th 92, 98.)

Mitchell’s counsel’s declaration does not state specific facts supporting a good cause showing. It states as follows: “Inspection Demands 1-48 are reasonably calculated to lead to the discovery of admissible evidence regarding the allegations set forth in Plaintiff’s complaint and Defendant’s/Cross-Complainant’s cross-complaint. Defendant’s responses, including production of documents will help narrow issues for trial and enable Plaintiff to file a motion for summary judgment and/or in the alternative, summary adjudication. Demands 1-48 relate to material disputed issues of fact, including inter alia, Plaintiff’s causes of action for breach of contract and common count for money lent. Demands 1-48 also seek documents that are reasonably calculated to lead to the discovery of admissible evidence relating to material issues alleged in Defendant’s/Cross-Complainant’s causes of action for declaratory relief, fraud, and intentional infliction of emotional distress.”

These statements are entirely conclusory and not supported by specific facts. The declaration does not delineate between the different requests but lumps them all together and states, without any analysis, that they are relevant to the claims in the complaint and cross-complaint. Further, while counsel claims the production will help narrow the issues for trial and enable Mitchell to file a motion for summary judgment or in the alternative for summary adjudication, he never explains how that is so.