Judge: Frank M. Tavelman, Case: 20STCV19926, Date: 2023-05-19 Tentative Ruling

Case Number: 20STCV19926    Hearing Date: May 19, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER TO CROSS-COMPLAINT

ALLEGATIONS: 

On October 20, 2022, Kelly Walsh Sweeny (“Sweeny”) brought this action against Richard M. Foster (“Foster”) for declaratory relief. Sweeny seeks a declaration that settlement proceeds held by her, as survivor of Robert J. Walsh, are not subject to the attorney lien claimed by Foster.  

On January 25, 2023, Foster filed a Cross-Complaint containing a single cause of action for breach of contract. Sweeny now demurs to the Cross-Complaint on grounds Foster fails to allege sufficient facts to sustain his cause of action.

HISTORY: 

On February 22, 2023, Sweeny filed her demurrer. Foster filed a late opposition without explanation for their tardiness, as such, the Court declines to consider the opposition in its ruling as it is not timely.

JUDICIAL NOTICE:

Sweeny requests the Court take notice, pursuant to Evidence Code § 451, of a ruling on a Petition for Instructions re Distribution of Trust Assets and the Order After Hearing on Petition for Instructions re Distribution of Trusts Assets, in the California Superior County of Los Angeles Case No. 19STP8002. The Court notes Sweeny does not accompany her request with an explanation as to why this document falls under the mandatory notice provision of Evidence Code §451. As such, the Court declines to take notice on these grounds; however, the Court will do so pursuant to Evidence Code § 452(c).

Pursuant to Evidence Code § 452(c), the Court may take judicial notice of records of any court in the State of California. “[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.” (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121.) 

Sweeny wishes to judicially notice these rulings for the factual findings of Judge Gus T. May. The factual findings of a judge in a previous court record constitute are not judicially noticeable. As such, the Court grants Sweeny’s request only insofar as it acknowledges the ruling in the probate matter exists. The Court does not take notice of the factual findings in that ruling.

It may also be that Sweeny wishes to utilize the ruling for res judicata purposes. It is true that even though a factual finding in a prior judicial decision may not establish the truth of that fact for purposes of judicial notice, the finding itself may be a proper subject of judicial notice if it has a res judicata effect in a subsequent action. (Hawkins supra, 246 Cal.App.4th 1387, at 1392.) However, the petition Sweeny wishes to judicially notice does not include her as a party and concerns only the distribution among her late husband’s children. As such, there is no res judicata effect to the ruling.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MEET & CONFER

C.C.P. § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts.   

The Court notes Sweeny did not file a meet and confer declaration. However, failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (C.C.P. §§ 430.41(a)(4), 435.5(a)(4).)  However, Sweeny is admonished to meet and confer in the future or face a continuance of the matter until compliance with the Code of Civil Procedure is completed.

III.              MERITS

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also “plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)

The Court notes Foster’s Cross-Complaint is a form complaint. It contains a single cause of action for breach of contract. The factual allegations in the body of the Cross-Complaint are as follows:

Defendant Kelly Walsh Sweeny Accepted as payment on the judgment in the amount of $450,000. Per the contract of June 4, 1999, Ms. Walsh owes to cross complaint [sic] 45% of this amount as attorney’s feed earned on the judgment dated on April 4, 2002. To date no payment has been received from Ms. Kelly Walsh Sweeny.

In addition, Foster attaches the above referenced contract as Exhibit A. Exhibit A is a contract between Robert J. Walsh and Foster for legal services. The contract appears to have been executed in 1999 and the sole client designated is Robert J. Walsh.

Together this excerpt and Exhibit A comprise the entirety of the factual allegations in Foster’s Cross-Complaint. Exhibit A alone is insufficient to serve as a copy of a written agreement between Sweeny and Foster. Further, the factual allegations in the body of the complaint do not endeavor to explain how Sweeny is a party to the contract or how legal liability attaches to her. Foster has neither attached a contract with Sweeny, nor plead the legal effect of one. Therefore, the Cross-Complaint contains insufficient factual allegations to sustain a cause of action for breach of contract. It is possible Foster can allege facts to support his cause of action , but he has not done so here. As such, the Court sustains the demurrer with 20 days leave to amend.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Kelly Walsh Sweeny’s Demurrer came on regularly for hearing on May 19, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

PLAINTIFF / CROSS-DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  May 19, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles