Judge: Gary I. Micon, Case: 23CHCV03518, Date: 2024-06-03 Tentative Ruling

Case Number: 23CHCV03518    Hearing Date: June 3, 2024    Dept: F43

Dept. F43

Date: June 3, 2024

Case #: 23CHCV03518

Case Name: Roger A. Velasco, et al. v. Leslie Gudiel

Trial Date: None Set      

DEMURRER

MOVING PARTY: Defendant Leslie Gudiel

RESPONDING PARTY: N/A - Unopposed

RELIEF REQUESTED

Moving party requests that the Court sustain the demurrer.

RULING:

SUSTAINED

        I.            BACKGROUND

            On November 17, 2023 Roger Velasco and Marisa Cisneros (Plaintiffs) filed a Complaint against Leslie Gudiel (Defendant). The Complaint appears to be grounded in a breach of contract claim and alleges $60,000.00 in damages and $15,000.00 in attorney’s fees. (See generally, the Complaint.) The motion before the Court now is Defendant’s Demurrer to the Complaint. No opposition has been filed.

     II.            DISCUSSION

Meet and Confer

            “Before filing a demurrer…the demurring 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).) Defendant provides the Declaration of Luis Duenas (Duenas Decl.) which states that the parties spoke on January 26, 2024 but could not reach an agreement. Nonetheless, the requirements of Code Civ. Proc. §430.41(a) have been satisfied. The Court now turns to the demurrer.

Legal Standard

            “[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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.)

Analysis

            Defendant contends the demurrer should be sustained because (1) the form Complaint was improperly filled out and (2) the Complaint lacks sufficient facts to sustain a cause of action for breach of contract. The Court agrees, sustains the demurrer, and grants Plaintiffs 20 days leave to amend.

            As outlined in the demurrer, Plaintiffs failed to properly complete the Complaint form. For example, in paragraph 4(a)(5) on page 1, the box adjacent to the word, "other (specify)" is checked, but there is nothing inserted to the right of that designation. Another example is paragraph 4(b)(1) on page 2, Plaintiffs check the box adjacent to the box "Doe Defendants", but neither the caption of the Complaint, nor the remainder of that paragraph identifies any Doe Defendants. Finally, in paragraph 8 on page 2, Plaintiffs allege what appears to be a cause of action for breach of contract and claim that it concerns an “illegal apartment unit”, however no details are provided.

            The lack of detail bolsters Defendant’s second point which is the Complaint fails to allege facts sufficient to state a cause of action. 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.)

            There is no detail in the Complaint as to whether the contract was written, oral, or implied. The contract is not attached, repeated verbatim, nor are the legal effects of the contract plead. Therefore, the demurrer is sustained.

Leave to Amend

            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”]. As there is reasonable possibility of successful amendment, the Court shall grant leave to amend.

  III.            CONCLUSION

            Accordingly, Defendant’s Demurrer to Plaintiffs’ Complaint is SUSTAINED. Plaintiffs are granted 20 days leave to amend.

Moving party to give notice.