Judge: Frank M. Tavelman, Case: 21BBCV00572, Date: 2022-09-02 Tentative Ruling

Case Number: 21BBCV00572    Hearing Date: September 2, 2022    Dept: A

DEMURRER

ALLEGATIONS:

Accesslex Institute d.b.a. Access Group ("Plaintiff") filed suit against Jacob J. Vayner ("Defendant"), alleging that Plaintiff is a loan provider for students enrolling in post-secondary education, and that Defendant executed an agreement with Plaintiff ("Loan Agreement") to finance his education on August 6, 2022.

Plaintiff filed a First Amended Complaint (“FAC”) on June 13, 2022, alleging two causes of action, both for Breach of Contract.

PRESENTATION:

The Court received the Demurrer filed by Defendant on August 3, 2022. The Court has not received any opposition or reply.

RELIEF REQUESTED:

Defendant demurs to the FAC in its entirety.

ANALYSIS:

I.          LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP § 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 CCP §§ 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, as modified (Dec. 23, 2003).)

II.        MEET AND CONFER

CCP § 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. (CCP § 430.41.) The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4) & 435.5(a)(4).)

The Court finds that meet and confer requirements have been satisfied to code. (Decl. Khodorovsky, ¶¶ 4-10.)

III.       MERITS

A.    First and Second Causes of Action (Breach of Contract)

On May 13, 2022, the Court sustained the demurrer to the original Complaint because the pleading did not either attach the contracts at issue or else plead the material terms of such contracts. The Court also noted that the exhibits attached to the Complaint looked like applications, rather than contracts. Here, in the OPERATIVE FAC, Plaintiff has now attached what looks to be the same applications with the addition of non-substantive terms and conditions. Exhibit 1 represents that Plaintiff made an agreement with a non-party, Boston University. Exhibit 2 also represents an agreement with Boston University and further does not include any signature. The FAC also does not allege any additional material facts of the alleged agreements.

IV.       CONCLUSION

The Court sustains the demurrer in its entirety without leave to amend; Plaintiff will have ten calendar days to seek leave of the Court to amend by providing good cause as to its failure to remedy the issues discussed in the previous hearing on the original Complaint.

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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

Defendant Jacob J. Vayner's Demurrer came on regularly for hearing on September 2, 2022, 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 IN ITS ENTIRETY WITHOUT LEAVE TO AMEND.  PLAINTIFF MUST SEEK LEAVE OF THE COURT WITHIN 10 CALENDAR DAYS TO AMEND BY PROVIDING DECLARATION OF GOOD CAUSE.

IT IS SO ORDERED.

DATE:  September 2, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles