Judge: Gary I. Micon, Case: 23CHCV00718, Date: 2024-03-05 Tentative Ruling

Case Number: 23CHCV00718    Hearing Date: March 5, 2024    Dept: F43

Dept. F43

Date: 3-5-24

Case # 23CHCV00718, Castaic Truck Stop, Inc. vs. David Simon, et al.

Trial Date: N/A

 

DEMURRER

 

MOVING PARTY: Defendants David Simon dba ShanCor and Virachai Pummarachai

RESPONDING PARTY: Plaintiff Village Fuel Stop, Inc., dba Castaic Truck Stop

 

RELIEF REQUESTED

Demurrer to the Complaint

·         1st Cause of Action for Breach of Contract

·         2nd Cause of Action for Negligence

·         3rd Cause of Action for Professional Negligence

 

RULING: Sustained in part and overruled in part

 

SUMMARY OF ACTION

In September 2021, Defendant David Simon dba ShanCor (ShanCor) entered into a contract with “Village Fuel Shop,” which was owned by Vazgen Khirmian, to repair some fuel tanks for Village Fuel Shop. Khirmian and Peter Pummarachai, the project manager for ShanCor, signed the contract. Defendants represented to Plaintiff that the work was completed. Plaintiff filed this action after discovering that the work performed by ShanCor on the property was allegedly incomplete and unsatisfactory.

 

On August 1, 2023, Plaintiff filed its First Amended Complaint (FAC) with three causes of action: breach of contract, negligence, and professional negligence.

 

Defendants filed their demurer on October 18, 2023. Plaintiff filed its opposition on February 21, 2024. Defendants filed their reply on February 27, 2024.

 

ANALYSIS

 

Defendants demur to the First Cause of Action for Breach of Contract on the basis that Plaintiff is not the party to the contract, nor is Defendant Pummarachai. Next, Defendants demur to the Second Cause of Action for Negligence on the basis that tort remedies for negligence are not permitted for a breach of contract outside of certain circumstances, and on the basis that Defendant Pummarachai owes no duties to Plaintiff. Finally, Defendants demur to the Third Cause of Action for Professional Negligence on the basis that tort remedies for professional negligence are not permitted for a breach of contract outside certain circumstances; there is no allegations that the claims are based on the work of a design professional; and the contract does provide for engineering services within its defined scope of work.

 

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.) “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.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

For the First Cause of Action, Defendants argue that Plaintiff is not a real party in interest to the contract. Defendants argue that this is because Khirmian signed the contract. However, on the face of the contract, it appears that Khirmian was signing the contract as the owner/agent for Village Fuel Shop. Village Fuel Shop, which appears to be a fictitious name for Plaintiff, was the party to the contract, not Khirmian as owner. Furthermore, the FAC identifies Village Fuel Stop, dba Castaic Truck Stop as the Plaintiff.

 

Next, Defendants argue that Pummarachai was not a party to the contract and therefore does not owe duties under the contract. Pummarachai was signing the contract as the project manager/agent of ShanCor. There are no facts pled in the FAC that Pummarachai was personally a party to the contract.

 

Defendants’ demurrer to the First Cause of Action is sustained for Defendant Pummarachai only, and overruled for ShanCor. Plaintiff is given leave to amend.

 

For the Second and Third Causes of Action for Negligence and Professional Negligence, tort remedies for negligence are not permitted for a breach of contract outside of certain circumstances. (See Erlich v. Menezes (1999) 21 Cal.4th 543.) Plaintiff argues in its opposition that it may maintain a negligence cause of action where there has been negligence in addition to a breach of contract. However, Plaintiff does not cite any authority to support this idea. The case Plaintiff does cite, Erlich, appears to stand for the opposite.

 

“‘Contract damages are generally limited to those within the contemplation of the parties when the contract was entered into or at least reasonably foreseeable by them at that time; consequential damages beyond the expectation of the parties are not recoverable. [Citations.] This limitation on available damages serves to encourage contractual relations and commercial activity by enabling parties to estimate in advance the financial risks of their enterprise.’” (Erlich, supra, at 550, citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) A mere negligent breach of contract is not sufficient to allow for a separate negligence cause of action. (Id. at 552.)

 

Plaintiff cannot maintain separate causes of action for negligence against Defendant ShanCor where Plaintiff has alleged a breach of contract against ShanCor, unless Plaintiff can plead that an exception would apply. Theoretically, Plaintiff could have negligence causes of action against Defendant Pummarachai since he was not a party to the contract, but Plaintiff’s FAC does not have any facts indicating what specific actions that Pummarachai himself took as an individual that may have been negligent. Though since he would have been acting in his capacity as an agent of ShanCor, it is unlikely that he would have been individually negligent.

 

The Court sustains Defendants’ demurrer to Plaintiff’s Second and Third Causes of Action with leave to amend.

 

Defendants’ demurrer is sustained to Plaintiff’s First Cause of Action for Defendant Pummarachai only, and is sustained for Plaintiff’s Second and Third Causes of Action for both Defendants. The demurrer to the First Cause of Action is overruled for Defendant ShanCor.

 

Moving party to give notice.