Judge: Lee W. Tsao, Case: 23NWCV00157, Date: 2023-10-03 Tentative Ruling

Case Number: 23NWCV00157    Hearing Date: October 3, 2023    Dept: C

CISNEROS v. WORLDMARK BY WYNDHAM, INC., et al.

CASE NO.: 23NWCV00157

HEARING: 10/3/23

 

#3

TENTATIVE RULING

 

Defendants WorldMark, The Club, and Wyndham Resort Development Corporation’s demurrer is OVERRULED.  Defendants are ORDERED to file and serve their Answers within 10 days.

 

Opposing Party to give NOTICE.

 

 

Defendants WorldMark, The Club, and Wyndham Resort Development Corporation demurs to the 1st – 2nd causes of action on the ground that the claims fail to state facts sufficient to constitute a cause of action.

 

Plaintiff James Cisneros alleges that Defendants breached a written contract to utilize certain timeshare units allotted under the January 20, 2004 contract for paid premiums.  The Complaint asserts causes of action for:

 

1.    Breach of Contract

2.    Common Counts

 

Request for JUDICIAL NOTICE is granted as to Exs. 3-4, and DENIED as to Exs. 1-2.  (Evidence. Code § 452 and 453.)

 

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.)

 

Defendants contend that they did not breach the contract because Plaintiff’s account was “suspended and terminated following discovery of his sexual

assault conviction for an attempted lewd act upon a child under the age of 14.”  (Demurrer, 3:5-6.)  Although Plaintiff’s conviction is judicially noticeable, the fact that Defendants suspended Plaintiff’s account due to such conviction and the Club Guidelines are not facts that are judicially noticeable. 

 

As alleged, ¶ BC-1 alleges a written contract; ¶ BC-2 alleges breach; ¶ BC-3 alleges Plaintiff’s performance, and ¶ BECAUSE-4 alleges resulting damages.  As alleged, the demurrer is OVERRULED.

 

2nd CAUSE OF ACTION

 

COMMON COUNTS:

 

MONEY HAD AND RECEIVED: The elements are:  1) Defendant is indebted to plaintiff in a certain sum; and 2) for money had and received by the defendant for the use of plaintiff.  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460.)

 

CC-1 alleges money had and received, and the sum of $8,000.00 is due and unpaid.  As alleged, the demurrer is OVERRULED.