Judge: Lee W. Tsao, Case: 22NWCV00827, Date: 2023-02-28 Tentative Ruling

Case Number: 22NWCV00827    Hearing Date: February 28, 2023    Dept: C

KAIZOU GROUP, INC. v. PAN, et al.

CASE NO.:  22NWCV00827

HEARING:  2/28/23 @ 10:30 AM

 

#5

TENTATIVE RULING

 

Defendants Sang and Julie Pan’s demurrer to Complaint is OVERRULED.  Defendants are ORDERED to file and serve their Answers within 10 days.

 

Opposing Party to give NOTICE.

 

 

Defendants Sang and Julie Pan demurs to the 1st – 2nd causes of action on the ground that they do not state facts sufficient to constitute a cause of action and are uncertain.

 

Plaintiff Royal Paper Corp.’s Complaint alleges that Defendant Tim Morgan is the owner and founder of Defendant International Sourcing Group.  Defendants were the agents and alter egos of the other Defendants.  (Complaint, ¶ 6.)  On June 1, 2020, Plaintiff prepared a written agreement, titled Purchase Order 9150562 for gloves.  (Id., ¶ 13.)  Plaintiff discovered in August, 2021 that its payments were “stuck in China.”  (Id., ¶ 21.)  Plaintiff requested a refund, but Defendant has yet to return Plaintiff’s money.  (Id., ¶¶ 24-25.)  Based thereon, the Complaint asserts causes of action for:

 

1.        Breach of Written Contract

2.        Breach of Implied Covenant of Good Faith and Fair Dealing

3.        Negligent Interference of Prospective Economic Advantage

4.        Negligent Misrepresentation

5.        Unjust Enrichment

6.        Violation of Unfair Competition Law

 

UNCERTAINTY

 

“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.) A demurrer for uncertainty will be sustained only where the complaint is so bad that a defendant cannot reasonably respond. (Ibid.)

 

The court finds that the Complaint is not so uncertain that Defendants cannot reasonably respond.  Defendants are on notice of the claims pled.  The demurrer based on uncertainty is OVERRULED.

 

1st CAUSE OF ACTION

 

BREACH OF CONTRACT:  The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages.  (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)  In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct.  (CCP § 430.10(g).)  To plead a written contract, a plaintiff must do one of the following: (1) set forth the contract in haec verba; or (2) plead the contract’s legal effect by alleging the substance of its relevant terms.  (4 Witkin, California Procedure 4th Ed., 479-481.)  In order to plead an oral contract, a plaintiff must plead its legal effect, i.e., allege the substance of the contractual terms.  (Id. at 483.)

 

¶ BC-1 alleges that on or about November 24, 2021 – June 2, 2022, Plaintiff and Defendants entered into a written, oral and other [implied by conduct] agreement wherein Plaintiff provided goods and Defendants agreed to pay for the goods.  ¶ BC-2 alleges Defendants’ breach, BC-3 alleges Plaintiff’s performance, and BC-4 alleges resulting damages.

 

The court finds the allegations are sufficient to withstand demurrer.  Defendants may conduct discovery to determine whether any discrepancies exist in the invoices.

 

Demurrer to the 1st cause of action is OVERRULED.

 

2nd CAUSE OF ACTION

 

COMMON COUNTS:  “In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers.  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.’”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

 

CC-1 alleges that within the past two years, Defendants became indebted to Plaintiff on an open book account, account stated, money had an received, work, labor, services and materials rendered, goods sold and delivered, and money lent and paid, in the sum of $703,484.00.  The allegations are sufficient to withstand this general demurrer.

 

Demurrer to the 2nd cause of action is OVERRULED. 

 

Defendants are ORDERED to file and serve their Answers within 10 days.