Judge Gregory Keosian, Case Number: 22STCV39985, Date: 2024-03-20 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV39985, Date: 2024-03-20 Tentative Ruling

Case Number: 22STCV39985 Hearing Date: March 20, 2024 Dept: 61

Plaintiff and Cross-Defendant Ocean Blue Express, Inc.’s Demurrer to Defendant and Cross-Complainant EK Line, Inc.’s Cross-Complaint is CONTINUED to ______. An OSC re: Defendant/Cross-Complainant failure to hire new counsel or file an Opposition to the demurrer is set for ________.

Plaintiffs to give notice.

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) 39 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.)

Plaintiff and Cross-Defendant Ocean Blue Express, Inc. (Plaintiff) demurrers to the Cross-Complaint of Defendant and Cross-Complainant EK Line, Inc. (EK) on the grounds that, per the notice of settlement filed by EK on December 11, 2023, EK and Defendant Jae Shin Kim (Kim) have assigned their claims to another entity, Beg4Clothing, Inc., depriving them of standing to bring the present action. (Demurrer at p. 6.) Plaintiff also argues that the first cause of action for breach of contract fails because EK fails to attach the contract sued upon or state an amount of damages. (Demurrer at pp. 7–8.) Plaintiff argues that the second cause of action for indemnity fails to state facts upon which indemnity might be based. (Demurrer at p. 9.) Finally, Plaintiff argues that EK fails to state facts supporting any grounds for rescission of the parties’ earlier settlement agreement. (Demurrer at pp. 10–12.)

EK, in lieu of opposition, has submitted a declaration of its counsel, Frank C. Brucculeri, explaining that Plaintiff, EK and Beg4clothing have, as of February 6, 2024, completed a settlement agreement without Brucculeri’s input. (Brucculeri Decl. ¶ 6.) The agreement was executed by EK and Beg4Clothing by Defendant Jae Shin Kim, and there is apparently some dispute as to whether Kim was authorized to execute the agreement. (Bruccleri Decl. ¶¶ 8–10.) Brucculeri seeks a continuance on the demurrer to allow the parties to either enforce the settlement or for his firm to withdraw if EK and Beg4Clothing, both of whom he represents, are not able to resolve their conflict over the settlement. (Brucculeri Decl. ¶ 12.)

Plaintiff in reply asks that the demurrer remain on calendar, and that the court either rule upon it or continue the hearing and set an OSC re: EK’s failure to hire new counsel or file an opposition to the demurrer. (Reply at p. 5.)

The parties are in agreement that a settlement agreement of some form has been executed. There is evidently some dispute as to whether this settlement is binding upon Beg4Clothing, the assignee of EK’s interest in its claims.

Rather than rule upon the demurrer at this time, and given these ongoing issues, the second proposed option by Plaintiff is best. The demurrer is continued, and an OSC re: Defendants’ failure to hire new counsel or file an Opposition to the demurrer set for a date prior to that time.