Judge: John C. Gastelum, Case: 21-01226374, Date: 2022-08-23 Tentative Ruling

Vanides    v.   Griffithe

(1) Demurrer to Amended Complaint (2) CMC

Tentative Ruling:  Defendant, Guy Griffithe’s Demurrer to Plaintiff, Emily L. Vanides’ First Amended Complaint is SUSTAINED, with 20 days’ leave to amend.

“A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. … In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’” (McKell v. Washington Mut., Inc. (2006) 142 Cal. App. 4th 1457, 1489.) 

Here, the First Amended Complaint (“FAC”) is a form complaint. As Defendant correctly contends, the alleged written agreements are not attached, and Plaintiff does not set out the terms verbatim in the FAC. It appears Plaintiff is attempting to allege the written agreements by their legal effect.

The FAC alleges that on or about September 4, 2019, and October 21, 2019, written agreements were made between Plaintiff and Defendant, and set forth the following terms of the agreement:

Defendant would repay in full 1st. loan of $36,000 plus interest at rate of 10% per anum [sic] in one lump sum no later than 12-31-2019

Defendant would repay $5,000.00 of $15,000.00 2nd loan no later than 11-30-2019 Defendant would make final payment of $10,000.00 plus interest at rate of 10% per anum [sic] no later than 12-31-2019.

(FAC, at BC-1.)

Based on the foregoing, the FAC does not allege the substance of all relevant terms, as Plaintiff does not allege what Plaintiff’s obligations are under the written agreements.

The Court declines to consider all new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

Defendant to give notice.