Judge Katherine Chilton, Case 22STLC03112 2022-07-25 Tentative Ruling

Defendant Home Depot’s Demurrer is SUSTAINED with twenty (20) days leave to amend.

On May 5, 2022, Plaintiff Rade Raicevic (“Plaintiff”), in propria persona, filed an action against Home Depot and JW Floor Covering (“Defendants”) for breach of contract and failure of consideration, seeking $6,500.00 in damages plus interest. The Complaint is based on an agreement between Plaintiff and Defendants to install flooring on Plaintiff’s property.

On June 15, 2022, Defendant Home Depot filed the instant Demurrer – without Motion to Strike, to Plaintiff’s Complaint. No opposition was filed.

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

Plaintiff, in the Form Complaint, alleges the following causes of action against Defendants Home Depot and JW Floor Covering: (1) breach of contract and (2) failure of consideration. (Compl. p. 1.) Plaintiff does not allege any facts in the Complaint itself but attaches an exhibit that contains his allegations. (Complaint p. 7, Ex. 1.) The facts in this statement are vague and at times unclear; however, the Court reads these facts along with the rest of the exhibits to construe Plaintiff’s factual allegations. It appears that on July 31, 2021, Defendant Home Depot provided Plaintiff with a “flooring quote.” (Ibid. at 8.) As shown on the receipts produced by Plaintiff, on February 19, 2022, he paid Defendant Home Depot in full for installing flooring on his property. (Ibid. at 9.) Along with the receipts, Plaintiff included a list of the installation services he paid for. (Ibid. at 10.) Prior to Defendant Home Depot’s installation of the flooring, Plaintiff worked with Defendant JW Floor Covering, a separate corporation, to inspect the site of the project and prepare it for installation. (Compl. p. 17 – Plaintiff’s Letter to Home Depot). During this time, Plaintiff followed Defendant JW Flooring’s advice to make improvements to the site prior to the flooring installation, which allegedly cost Plaintiff $6,100. It appears that Plaintiff was dissatisfied with the work done by Defendant JW Floor Covering, and thus, decided not to proceed with the flooring services to be provided by Defendant Home Depot. (Ibid; Compl. p. 7.) On April 22, 2022, Plaintiff received a full refund from Home Depot for $11,193.78, the amount he had prepaid for the flooring services. (Compl. p. 13.) Plaintiff alleges that Defendants JW Flooring and Home Depot breached their contracts and that, as a result, he incurred $6,500[1] in damages.

Defendant’s Demurrer is accompanied by a meet and confer declaration, as required by Code of Civil Procedure § 430.41(a). (Stanton Decl. ¶¶ 2-3.) Given that no opposition demonstrating otherwise, the Court finds that the meet and confer requirement has been satisfied.

Defendant Home Depot generally and specially demurs to Plaintiff’s breach of contract cause of action. As discussed above, only general demurrers, such are those based on the failure to state sufficient facts or lack of jurisdiction, are permitted in limited jurisdiction cases. (Code Civ. Proc. § 92(c).) Thus, the Court only considers Defendant’s general demurrer. Defendant argues that Plaintiff’s claim fails to state facts sufficient to constitute a cause of action for breach of contract because Plaintiff has not stated the terms of the contract verbatim or attached a copy of the contract, has not shown that a breach occurred, and has not identified the Defendant to whom the cause of action applies.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “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. [Citations.] 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.’ [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

The Court finds that Plaintiff has failed to state facts sufficient to constitute a breach of contract cause of action against Defendant Home Depot. First, Plaintiff has not included any contractual provisions in his allegations, nor has he attached a copy of the contract to the Complaint. The receipts attached merely show that Plaintiff paid Defendant Home Depot for flooring services on February 19, 2022 and received a full refund on April 22, 2022. Plaintiff has not pled any facts to show that Defendant has any outstanding obligations that would constitute a breach of contract. Plaintiff alleges that he sustained damages; however, he has not pled any facts to demonstrate that those damages are in any way related to Defendant Home Depot’s contractual obligations. Therefore, Defendant Home Depot’s Demurrer is SUSTAINED.

Defendant Home Depot also demurs to Plaintiff’s second cause of action – failure of consideration. Defendant argues that Plaintiff’s claim fails to state facts sufficient to constitute a cause of action because Plaintiff has not stated the terms of the contract verbatim or attached a copy of the contract, has not shown a cause of action for failure of consideration, and has not identified the Defendant to whom the cause of action applies.

Pursuant to the California Civil Code § 1689, failure of consideration is a defense to a claim for breach of contract. “‘Failure of consideration is the failure to execute a promise, the performance of which has been exchanged for performance by the other party.’ [Citation.] ‘[T]he failure of consideration is total…[where] nothing of value has been received under the contract by the party…’ seeking restitution. [Citation.] Where the failure of consideration is total, ‘the law implies a promise on the part of the other to repay what has been received by him under the contract…’ [Citation.] Such a promise is implied because the ‘defendant cannot in equity and good conscience retain the benefits of the agreement and repudiate its burdens…’ [Citation.]” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230.)

The Court finds that Plaintiff has failed to state facts sufficient to constitute a failure of consideration defense against Defendant Home Depot. First, it is contradictory for the Plaintiff to seek an affirmative defense against an alleged contract it is attempting to enforce against Defendant. Second, Plaintiff has provided proof that Home Depot has fully refunded Plaintiff for the flooring services that were canceled by the Plaintiff and he has not pled any facts to show that Home Depot has any remaining obligations to Plaintiff. Therefore, Defendant Home Depot’s Demurrer is SUSTAINED.

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

The Court finds that there is a reasonable possibility that the defect can be cured and accordingly the demurrer is sustained with twenty (20) days leave to amend.

For the reasons cited above, Defendant Home Depot’s Demurrer is SUSTAINED with 20 days leave to amend.

[1] Plaintiff seeks $6,500 in damages, plus 6% interest, in the Form Complaint. However, in his Letter to Home Depot, he states that he spent “over $3,500 for labor and material towards installation” and “another $2,600 towards cement removal,” which amounts to $6,100. (Compl. pp. 1, 17.)