Judge: Gregory Keosian, Case: 22STCV06191, Date: 2022-07-28 Tentative Ruling

Case Number: 22STCV06191    Hearing Date: July 28, 2022    Dept: 61

Defendant Peter Chung’s Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.

I.     DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Peter Chung once again demurrers to Plaintiff’s pleading on the grounds that he is not a signatory to the lease and no misconduct is alleged on his part. (Demurrer at pp. 7–11.) This court previously sustained Chung’s demurrer with leave to amend on the grounds that he was not a signatory to the integrated, written lease, and the Complaint included only boilerplate allegations of agency in contradiction with the lease’s written terms. The FAC now includes allegations that Defendant Loud 25 Cap is a third party beneficiary of the lease, as is Chung, and that the two defendants, despite being non-signatories to the lease, are alter-egos of one another.

The FAC remains deficient against Defendant Chung. Although Chung is pleaded to be a third party beneficiary of the agreement, one’s status as an intended beneficiary generally allows one to enforce an agreement, not to be liable for the breach of that agreement. (Civ. Code § 1559 [“A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”].) And since the only alter-ego allegations attach Chung to yet another non-signatory third-party, this theory too is insufficient to attach liability to Chung.

Nor does the addition of common counts and a claim for unjust enrichment provide a basis for recovery against Chung, a nonsignatory, as a claim in quasi-contract (i.e. unjust enrichment) cannot be made when an express contract — like the written lease here — governs the rights of the party bringing suit on the same subject matter. (See California Medical Ass'n, Inc. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 173.)

The demurrer is therefore SUSTAINED, without leave to amend.

Defendant to provide notice.