TENTATIVE RULING

Defendant/Cross-Complaint Qian “Caroline” Wang’s Demurrer to David Weijian Su’s Third Amended Complaint is SUSTAINED without leave to amend as to the first cause of action.

Defendant/Cross-Complaint Qian “Caroline” Wang shall file and serve an answer to Plaintiff/Cross-Defendant David Weijian Su’s Third Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendant/Cross-Complaint Qian “Caroline” Wang to give notice. 

REASONING

Request for Judicial Notice

Defendant/Cross-Complaint Qian “Caroline” Wang (“Defendant”) requests judicial notice of the Court’s July 8, 2021, minute order, as to Defendant’s demurrer to Plaintiff/Cross-Defendant David Weijian Su (“Plaintiff”)’s complaint, the Court’s July 7, 2022, minute order as to Plaintiff’s demurrer to Defendant’s cross-complaint, the Court’s June 28, 2023, minute order as to Defendant’s demurrer to Plaintiff’s Second Amended Complaint, Plaintiff’s Second Amended Complaint, and Plaintiff’s Notice of Pendency of Action. While the Court need not take judicial notice of its own case file, Defendant’s request is GRANTED, pursuant to Evidence Code section 452, subdivision (d).

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

At the outset, the Court notes that Plaintiff has filed two Third Amended Complaints, one filed on July 18, 2023, and the other filed on October 9, 2023, beyond the Court’s deadline to amend the complaint and after Defendant filed a demurrer to the original Third Amended Complaint. The Third Amended Complaint filed on October 9, 2023, is hereby STRICKEN from the Court’s docket, on the Court’s own motion, pursuant to Code of Civil Procedure section 436, subdivision (b). The Court considers only the Third Amended Complaint filed on July 18, 2023 (hereinafter “TAC”).

Additionally, the Court notes that Plaintiff’s TAC goes beyond the scope of what was permitted by the Court’s ruling allowing amendment. On June 28, 2023, the Court allowed Plaintiff opportunity to amend this breach of contract claim only; Defendant’s demurrer to Plaintiff’s claims for breach of the implied covenant of good faith and fair dealing, quiet title, and declaratory relief were sustained without leave to amend. Plaintiff’s TAC should have only included claims for breach of contract, which Plaintiff was granted leave to amend, and partition, which was permitted to move forward after the Court overruled Defendant’s demurrer to that claim on July 7, 2022. Thus, Plaintiff’s claims for breach of the implied covenant of good faith and fair dealing, quiet title, and declaratory relief are STRICKEN from the TAC, on the Court’s own motion, pursuant to Code of Civil Procedure section 436, subdivision (b). (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [party may amend his complaint only as authorized by the Court’s order and may not amend the complaint beyond the scope of the Court’s order].)

First Cause of Action: Breach of Contract

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Plaintiff alleges Defendant has breached the Su-Wang Partnership Agreement, the Supplemental Agreement for Partnership Project No. 2 (Moonridge Terrace Project), the Investment Agreement, and the Supplemental Agreement for Partnership Project No. 3 (Benedict Canyon Project) because Defendant cut Plaintiff out of the partnership business and projects, refused to work with Plaintiff to finish either project, changed terms of the projects, terminated construction, gave the key to the Moonridge Project to another contractor, put the Benedict Canyon property on the market, and intends to receive all sale proceeds without reimbursing Plaintiff. (TAC ¶¶ 55-62.) Plaintiff’s claim again fails to sufficiently state a breach of contract. It is not clear how Plaintiff has been harmed solely by breach of the partnership agreements, i.e., the injury still appears to arise out of what Plaintiff believes Defendant will do, not what has been done, as there is no independent injury from breach of the partnership agreements before the property is sold.

As the Court previously stated, insofar as Plaintiff believes Defendant will not pay the agreed upon split of the sale proceeds, this claim is not ripe, as there are no allegations that the property has sold. A claim based on speculation as to future conduct is not a proper breach of contract claim, and Plaintiff has not sufficiently alleged any past harm which may serve as the basis for a breach of contract claim. Plaintiff has not amended the claim in any respect which would allow the Court to conclude that this claim is ripe. Given that the Court has allowed Plaintiff opportunity to amend this claim but Plaintiff has failed to cure the identified defects, Defendant’s demurrer to the first cause of action is SUSTAINED, without leave to amend.

Conclusion

Defendant/Cross-Complaint Qian “Caroline” Wang’s Demurrer to David Weijian Su’s Third Amended Complaint is SUSTAINED without leave to amend as to the first cause of action. Defendant/Cross-Complaint Qian “Caroline” Wang shall file and serve an answer to Plaintiff/Cross-Defendant David Weijian Su’s Third Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)