Judge: Jon R. Takasugi, Case: 21STCV43486, Date: 2022-08-31 Tentative Ruling

Case Number: 21STCV43486    Hearing Date: August 31, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND.

On 11/29/2021, Plaintiff Richard Weinstein (Plaintiff) filed suit against Fernando Ponce (Ponce). On 6/7/2022, Plaintiff filed a first amended complaint (FAC) alleging breach of contract.

In Plaintiff’s FAC, Plaintiff alleges Nex Label, Inc. and Next Label as Doe Defendants 1 and 2.

Now, Defendants Ponce and Next Label (collectively, Defendants) demur to Plaintiff’s FAC.

The motion is unopposed.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “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.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Factual Background

            This action arises out of a contract to purchase ownership of company Nex Label. More specifically, Defendant allegedly agreed to purchase Plaintiff’s 50% ownership shares in Nex Label, and Plaintiff alleges Defendant has not complied with the terms of that purchase contract.

Procedural Issue

In Plaintiff’s FAC, Plaintiff alleges Nex Label, Inc. and Next Label, Inc. as Doe Defendants 1 and 2. However, there is no indication that Nex Label, Inc. or Next Label, Inc. have been served with a summons and copy of the Complaint. (See CCP § 474.) Accordingly, the Court does not consider claims against them here because they have not been properly added as Doe Defendants. 

Discussion

            Defendants argue that Plaintiff’s FAC suffers from the same deficiencies as the original Complaint. Defendants also argue that Plaintiff has not alleged sufficient facts to state a claim against Next Label, Inc.[1]

            On 5/18/2022, the Court sustained Defendant’s demurrer, with leave to amend, writing:

Plaintiff’s breach of contract cause of action is based on the sole allegation that he is entitled to “damages of $40,000 [] due to Defendant not making monthly payments per the written contract.” (Complaint.)

However, the contract attached to Plaintiff’s Complaint expressly states that “Nex Label will … pay $10,000.00 every 1st of December to [Plaintiff] starting 12/01/07.” (Complaint) Given that the express language of the contract also indicates that Defendant was a partial owner purchasing 100% of the company, Defendant would have the power to bind Nex Label to this obligation. Given that the contract was executed on Nex Label letterhead and there is nothing in the agreement to indicate that Defendant signed as guarantor, the facts in the contract itself indicate that it was Nex Label, not Defendant, who agreed to make monthly payments to Plaintiff.

            (Minute Order 5/18/2022.)

Plaintiff’s FAC does not include any new facts which could show that Ponce, individually, rather than Nex Label as expressly indicated in the contract, had the obligation to make the disputed payments. Moreover, the contract itself makes no mention of the Next Label, Inc. entity at all.  

Based on the foregoing, Defendants’ demurrer is sustained as to Defendant Ponce. Given that Plaintiff was not able to allege any new facts to show his individual liability here, it appears additional leave to amend would be futile.

Given that there is no indication that the FAC was served on Defendants Nex Label or Next Label, and Plaintiff did not file an opposition, the Court must sustain the demur as to Next Label, without leave to amend. Because Nex Label did not join in this demurrer, this ruling is limited to Next Label alone.

  It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.