Judge Kerry Bensinger, Case Number: 24STCV05843, Date: 2024-09-19 Tentative Ruling

On February 22, 2024, Plaintiff Carlos Ortiz (Ortiz or Plaintiff) initiated this action against Defendant Jesus Jimenez (Jimenez or Defendant) for (1) Breach of Contract (Cal. Civ. Code §§ 337 and 159), (2) Common Count: Money Lent, (3) Common Count: Open Book Account; and (4) Breach of Implied Covenant of Duty of Good Faith and Fair Dealing. Defendant is self-represented.

As alleged in the Complaint, Jimenez began a construction project. In April 2018, Jimenez asked Ortiz for a short-term loan to continue financing the construction project. In May 2018, the parties executed a promissory note in which Ortiz agreed to loan $95,000 to Jimenez and Jimenez agreed to repay the principal amount by November 1, 2018. The promissory note is attached as Exhibit A to the Complaint. On November 1, 2018, Jimenez failed to repay any portion of the principal amount. Ortiz continued to demand repayment. On April 7, 2021, the parties executed a repayment plan whereby Jimenez agreed to pay monthly installments of $2,500 if Jimenez could not repay the full loan by July 1, 2021. The repayment plan is attached as Exhibit B to the complaint. Thereafter, Jimenez made payments through companies owned and controlled by Jimenez totaling approximately $62,800. However, $46,400 of the $62,800 were paid with bad checks. Jimenez ceased making payments and continues to owe $78,600 pursuant to the promissory note. This action followed.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)¿ “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿ We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿ [Citation.]”¿ (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿“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 California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿

Defendant demurs to the Complaint on the ground it is uncertain, vague, and ambiguous because Plaintiff does not allege “the terms of, condition, and provisions of any type of contract, written, oral or implied as it would apply to this demurring defendant.” (Demurrer, p. 4.)

The argument lacks merit. Plaintiff alleges that the parties executed a promissory note on May 1, 2018 for a loan of $95,000. (Complaint, ¶ 8.) The parties later agreed to a repayment plan on April 7, 2021. (Complaint, ¶ 13.) To date, Defendant still owes $78,600 on the promissory note. (Complaint, ¶ 16.) Copies of the promissory note and repayment plan are attached as exhibits to the Complaint. The allegations are more than sufficient to apprise Defendant of the nature of this action.

Defendant is ordered to serve and file his Answer to the Complaint within 10 days of this order.

Kerry Bensinger

Judge of the Superior Court