Judge: Gail Killefer, Case: 20STCV34474, Date: 2023-01-19 Tentative Ruling

Case Number: 20STCV34474    Hearing Date: January 19, 2023    Dept: 37

HEARING DATE:                 January 19, 2023    

CASE NUMBER:                  20STCV34474

CASE NAME:                        Isaac Toveg v. State Farm Insurance

TRIAL DATE:                        Not set.

PROOF OF SERVICE:          OK

MOTION:                               Defendant’s Demurrer to the Second Amended Complaint

MOVING PARTY:                Defendant, State Farm General Insurance Company

OPPOSING PARTY:             Plaintiff, Isaac Toveg

OPPOSITION:                       January 5, 2023

REPLY:                                  January 10, 2023

TENTATIVE:                         Defendant’s demurrer is sustained. Plaintiff is granted 20 days leave to amend. Defendant to give notice.

Background

This action arises in connection with property located at 3166 Cadet Court, Los Angeles, California (the “Property”). Plaintiff Isaac Toveg (“Toveg”) alleges that there was a fire sprinkler at the Property that broke on July 6, 2018, causing substantial damages. According to Plaintiff, Defendant State Farm Insurance paid most of the damages but there remain unpaid portions.  

Plaintiff’s First Amended Complaint (“FAC”) alleges two causes of action as follows: (1) breach of written contract, and (2) common counts. On October 10, 2022, Defendant’s demurrer to the FAC was sustained (“October 10 Order”).

On November 9, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging identical causes of action.

Defendant now demurs to the SAC on the ground that the SAC fails to plead facts sufficient to state a cause of action. Plaintiff opposes the demurrer.

Discussion[1]

I.                   Legal Authority

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.)  “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.”  (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)  “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 

II.                Analysis

A.     First Cause of Action: Breach of Contract

A cause of action for breach of contract consists of the following elements: (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) the resulting damages to the plaintiff.¿ (Oasis West Realty, LLC v. Goldman¿(2011) 51 Cal.4th 811, 821.)¿“The essence of a contract is the meeting of minds on the essential features of the agreement.” (Krasley¿v. Superior Court¿(1980) 101 Cal.App.3d 425, 431.) A contract “is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski¿(2006) 139 Cal.App.4th 1618, 1623.)¿ 

A¿written¿contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect.¿¿(Bowden v. Robinson¿(1977) 67 Cal.App.3d 705, 718.)¿¿An allegation of an oral agreement must “set[] forth the substance of its relative terms.”¿ (Gautier v. General Tel. Co.¿(1965) 234 Cal.App.2d 302, 305.)¿¿¿ 

Defendant again contends the first cause of action is insufficiently pled as the terms of the contract are not pled verbatim or attached to the complaint. (Demurrer, 6.)

“A review of the second amended complaint and its attachments shows that none of the documents attached are the homeowners policy alleged breached. The plaintiff has again failed to plead sufficient facts to satisfy the elements of a cause of action for a breach of contract. Neither has the plaintiff effectively plead the contract according to its legal effect. The essential terms of the agreement as alleged, do not constitute a proper pleading of the breach of contract either verbatim or according to its legal effect, but are but a brief summary of the loss and allegations of what was not paid for by the defendant. ...

Among the terms of the insurance policy not pled are the terms of the insurance policy allegedly breached including any applicable exclusions and conditions.”(Id.)

In opposition, Plaintiff contends the “additional evidence” which Defendant requests “can be acquired thru [sic] discovery.” (Opp., 4-5.) Plaintiff further contends the court must “assume that the Plaintiff has pled facts that are assumed all facts are true [sic].” (Opp., 4.) However, a “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].) Thus, Plaintiff’s contentions or conclusory allegations of any alleged breach by Defendant is not assumed to be true, especially when, as here, Plaintiff fails to allege important contract terms to establish what contract terms have been breached. Plaintiff further contends Plaintiff has produced documents in his possession, and any documents regarding any such contract are in Defendant’s possession. (Opp., 4; Toveg Decl. ¶¶7-9.)

In reply, Defendant again reiterates earlier arguments that Plaintiff has failed to plead the terms of the alleged agreement, or attach the alleged contract, and has only made general allegations. (Reply, 1-3.) The court agrees.

A review of the form SAC shows Plaintiff has again failed to attach the alleged agreement in question to the SAC, has failed to plead the terms of the agreement and corresponding exceptions, and lastly, has failed to plead sufficient facts to show the elements of a breach of contract. Plaintiff represents that he has attached all documents in his possession, suggesting an implied contract in the alternative.  The court concludes, however, that Plaintiff has failed to allege sufficient facts, which if taken to be true, would establish the several elements of a breach of contract claim.

As such, the court finds the first cause of action is insufficiently pled. For these reasons, Defendant’s demurrer to the first cause of action is sustained.

B.     Second Cause of Action: Common Counts

“In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’¿ [Citation.]¿¿In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers.¿¿[Citation.]¿¿The only essential allegations of a common count are¿‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work¿done, etc., and (3) nonpayment.’¿ [Citation.]¿¿A cause of action for money had and received is stated¿if it is alleged the defendant ‘is indebted to¿the plaintiff in a certain sum “for money had and received by the defendant¿for the use of the plaintiff.” ’¿”¿ (Farmers Ins. Exch. v.¿Zerin¿(1997) 53 Cal.App.4th 445, 460 (Farmers).)¿¿¿ 

Here, both parties again point to 4 Witkin, California Procedure, 6th Ed., specifically as it states:

“Actions based on express contract may not be pleaded by common count in the following situations:

(1) Where the contract is still executory on the plaintiff's side, i.e., where the plaintiff has not fully performed his or her obligations. (See Barrere v. Somps (1896) 113 Cal. 97, 102 [evidence showed conditions unperformed by plaintiff; hence, there was no basis for common count and judgment thereon was reversed].)

(2) Where the plaintiff seeks either damages for breach, or specific performance. (See Willett & Burr v. Alpert (1919) 181 Cal. 652, 659 [buyer's action for damages for partial failure to deliver goods after full payment of price]; Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 793; King v. San Jose Pac. Bldg. & Loan Assn. (1940) 41 Cal.App.2d 705, 708.)

(3) Where the obligation of the defendant is something other than the payment of money. (See O'Connor v. Dingley (1864) 26 Cal. 11, 22 [defendant was obligated to pay for plaintiff's services with promissory note which, if given, would not have been due at time of action; ground of action should be failure to execute note, not common count for work and labor in amount of note].)” (Common Count Improper., 4 Witkin, Cal. Proc. 6th Plead §563 (2022).)

Defendant again specifically points to subsection (2) and contends Plaintiff here seeks common counts for a breach of contract action. (Demurrer, 5-7.)

In opposition, Plaintiff again relies on Castagnino v. Balletta (1889) 82 Cal. 250, 258 to argue that he no longer owes performance under the agreement, and as such, can bring a claim for common count for money had and received. (Opp., 5-6; also citing Ferro v. Citizens Nat. Trust & Savings Bank of Los Angeles (1955) 44 Cal.2d 401, 409.) As such, Plaintiff contends “thus here is [sic] no further performance owed by the Plaintiff. However, defendant has not fully reimbursed plaintiff for the personal items that he Purchased [sic] to replace the items damaged in the water damage.” (Opp., 6.) Plaintiff again fails to explain why the common count claim for damages due to breach should be maintained here, or how these allegations as stated satisfy the elements of common counts for monies had and received.

In reply, Defendant again cites Witkin, stating “If the common count appears to be based on the same cause of action as the specific count, and the specific count is defective, the entire complaint is demurrable.” (Reply, 4; citing In General., 4 Witkin, Cal. Proc. 6th Plead § 574 (2022), [again incorrectly cited as “p.660”]; Hays v. Temple (1937) 23 Cal.App.2d 690, 695; see Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489; Harris v. Kessler (1932) 124 Cal.App. 299, 303; Steffen v. Refrigeration Discount Corp. (1949) 91 Cal.App.2d 494, 500; Straughter v. Safety Savings & Loan Assn. (1966) 244 Cal.App.2d 159, 164, [citing the text]; Zumbrun v. University of Southern Calif. (1972) 25 Cal.App.3d 1, 14; Jones v. Daly (1981) 122 Cal.App.3d 500, 510; McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [citing the text].) The court agrees with the supporting authority presented.

As the court has already again found the first cause of action for breach of contract to be insufficiently pled, the court further finds that Plaintiff’s second cause of action is insufficiently pled.

For these reasons, Defendant’s demurrer to the second cause of action is sustained.

Conclusion

Defendant’s demurrer is sustained. Plaintiff is granted 20 days leave to amend. Defendant to give notice.