Judge: John J. Kralik, Case: 23BBCV01619, Date: 2023-12-22 Tentative Ruling
Case Number: 23BBCV01619 Hearing Date: December 22, 2023 Dept: NCB
North
Central District
|
munsie
family trust llc, Plaintiff, v. koby b. hair
salon inc., et al., Defendants. |
Case No.: 23BBCV01619 Hearing Date: December 22, 2023 [TENTATIVE]
order RE: demurrer |
BACKGROUND
A.
Allegations
Plaintiff Munsie Family Trust LLC
(“Plaintiff”) alleges that on November 19, 2019, it entered into a written Standard
Industrial/Commercial Multi-Tenant Lease – Net (“Lease”) with Defendants Koby
B. Hair Salon, Inc. and Zohra Ismail. Plaintiff
alleges that Defendants failed to pay rent and damaged the rented
premises. The amount of rent due is
$123,050 and the amount of damages and repairs is $27,319.50. Plaintiff alleges that Ismail personally
guaranteed the obligations of Koby B Hair Salon.
The complaint, filed July 17, 2023,
alleges causes of action for: (1) breach of contract; and (2) common count.
On August 1, 2023, Plaintiff filed an Amendment
to the Complaint naming Yaakov Koby Bitton a/k/a Yaakov Koby Biton as Doe
1.
B.
Demurrer on Calendar
On August 28, 2023, Defendants Koby B.
Hair Salon, Inc. and Zohra Ismail filed a demurrer to the complaint.
On September 25, 2023, Plaintiff filed a
“response.”
On October 2, 2023, Defendants filed a
reply brief.
DISCUSSION
Defendants
demur to the 1st and 2nd causes of action alleged in the
complaint.
A.
1st cause of action for breach of contract
The essential elements of a cause of
action for breach of contract are: “(1) the
existence of the contract, (2) plaintiff's performance or excuse for
nonperformance, (3) defendant's breach, and (4) the resulting damages to
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “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.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
Defendants demur to the 1st
cause of action, arguing that it fails to state sufficient facts and that
Plaintiff only alleges that Defendants failed to pay rent and damaged the
property. Defendants argue that this is
insufficient to state a claim for breach of contract.
The Lease is attached to the
complaint as Exhibit A. The Lease
provides that Koby B. Hair Salon Inc. will pay rent to Plaintiff for lease of
the premises and what happens in the event of a default. (See Lease at §§ 1, 13.) The Lease also provides that the lessee will
maintain the property in good condition and repair and the consequences of
failing to do so. (Lease at § 7.1.) The complaint alleges facts that Defendants
breached the Lease by failing to pay rent and damaging the property, such that
Plaintiff was damaged. Thus, the
elements of a breach of contract claim have been stated.
However, the complaint lacks
the date upon which the breach occurred.
(See Compl. at p.3, PLD-C-001(1) at § BC-2.) Plaintiff should allege the date of the
purported breach for failure to pay rent and the date upon which the property
was damaged, as well as the nature of the damage to the rented property.
The demurrer to the 1st
cause of action is sustained with leave to amend.
B.
2nd cause of action for common counts
“In California, it has long been settled the allegation of
claims using common counts is good against special or general demurrers.” (Farmers Ins. Exchange v. Zerin (1997)
53 Cal.App.4th 445, 460.) “The only essential allegations of a common count are
‘(1) the statement of indebtedness in a certain sum, (2) the consideration,
i.e., goods sold, work done, etc., and (3) nonpayment.’” (Id.)
The averment
of an indebtedness not by stating the actual
ultimate facts in each particular case, but by using one of a series of
generalized forms consisting in part of legal conclusions, is directly opposed
to a basic principle of code pleading. Nevertheless, when the codes were adopted
the familiarity of lawyers with the form, and its simplicity and convenience,
were sufficient to overcome this objection. And today in nearly all code states
and in the federal practice, the common counts are permissible and widely used.
In California, it is settled that they are good against special as well as
general demurrers.
(4 B. Witkin, California Procedure § 561(2) (6th ed.
March 2023 Update).) “When a common
count is used as an alternative way of seeking the same recovery demanded in a
specific cause of action, and is based on the same facts, the common count is
demurrable if the cause of action is demurrable.” (McBride v. Boughton
(2004) 123 Cal.App.4th 379, 394.)
In the 2nd cause of
action, Plaintiff alleges that within the last 4 years, Defendants became
indebted to Plaintiff on an open book account and because an account was stated
in writing between Plaintiff and Defendants in which it was agreed Defendants
were indebted to Plaintiff. Plaintiff
alleges that Defendants are indebted in the amount of $151,369.40, plus 10%
prejudgment interest from June 14, 2023.
Defendants argue that the 1st
cause of action is based on the same facts as the 2nd cause of
action and thus this cause of action also fails.
For the same reasons the demurrer to the 1st
cause of action is sustained, the demurrer to the 2nd cause of
action is sustained with leave to amend.
CONCLUSION AND ORDER
Defendants’
demurrer to the 1st and 2nd causes of action in the
complaint is sustained with 20 days leave to amend.
Defendants shall provide notice of this
order.
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DATED: December 22, 2023 ___________________________
John
J. Kralik
Judge
of the Superior Court