Judge Lynette Gridiron Winston, Case Number: 23PSCV03064, Date: 2023-12-04 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV03064, Date: 2023-12-04 Tentative Ruling

1. Demurrer of Defendants Yudan Li and Bingwei Guan to Plaintiff’s Complaint; and

The Court SUSTAINS the demurrer to the Complaint with leave to amend. Plaintiff must file and serve the First Amended Complaint within 20 days of the Court’s order.

Defendants Yudan Li and Bingwei Guan are ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a breach of contract case. On October 6, 2023, plaintiff Yuzheng Chen (Plaintiff) filed this action against defendants Longji Guan, Xiuhua Liang, Bingwei Guan (Guan), Yudan Li (Li) (collectively, Defendants), and Does 1 through 4, alleging one cause of action for breach of contract.

On November 6, 2023, Defendants Guan and Li filed a demurrer and motion to strike to the Complaint. The motion is unopposed.[1]

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

A demurrer generally must be served at least 16 court days before the hearing on the demurrer. (Code Civ. Proc., § 1005, subd. (b).) That deadline is extended by five days if the demurrer is served by mail. (Id.) The Court notes that Defendants Guan and Li’s demurrer was not filed in a timely manner. The hearing date for the demurrer is December 4, 2023. Under Code of Civil Procedure section 1005, subdivision (b), sixteen court days would create a service deadline of November 7, 2023. (Code Civ. Proc., § 1005, subd. (b).) However, since Guan and Li served their demurrer on Plaintiff by mail, the service deadline became November 2, 2023. (Id.; Proof of Service (11/6/23).) Nevertheless, Plaintiff has not opposed the motion and did not raise any objections on this issue, so the argument is waived. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 ["[T]he appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.") Regardless, the Court admonishes the parties to comply with the timing requirements of the Code of Civil Procedure going forward.

Per Code of Civil Procedure section 430.41, subdivision (a), Defendants Guan and Li were required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’ efforts to meet and confer sufficient. (Hwang Decl., ¶ 3.)

“A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. [Citation.] 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. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Defendants Guan and Li demur to the Complaint on the grounds that it fails to state a cause of action and is barred by res judicata. They contend the Complaint fails to plead any facts supporting the existence of a valid contract between the parties. They further contend that Plaintiff previously sued upon the same alleged breach of contract which Plaintiff later dismissed with prejudice. The Court agrees the Complaint fails to allege facts to state a cause of action for breach of contract.

The Court first notes that there appear to be some discrepancies between the copy of the Complaint filed with the Court and the copy that Guan and Li appear to have received. The court-filed copy of the Complaint contains only two pages of Judicial Council Form PLD-C-001 and contains no attachments for Plaintiff’s breach of contract claim, e.g., Judicial Council Form PLD-C-001(1), or any other allegations beyond the first two pages. The court-filed copy of the Complaint is devoid of any allegations evidencing the terms of the alleged contract. However, Guan and Li’s memorandum of points and authorities provides a brief summary of the purported allegations of the Complaint. (Memorandum of Points and Authorities, 4:18-24.) Given that Guan and Li did not attach a copy of the Complaint to their demurrer, the Court only has the copy on file in the Court’s records to reference, and thereby bases its decision on that copy.

In reviewing the Complaint, the Court notes it is devoid of any allegations, as discussed above, evidencing the terms of a contract. Plaintiff failed to attach the appropriate documents or additional allegations to the first two pages of the Complaint to set forth the necessary allegations for a breach of contract claim. Therefore, the Court SUSTAINS the demurrer with leave to amend.

Additionally, given the discrepancies noted above, the Court is unable to determine whether this action is barred by res judicata. As such, the Court declines to address Guan and Li’s arguments regarding res judicata.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

Per Code of Civil Procedure section 435.5, subdivision (a), Defendants were required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendants’ efforts to meet and confer to be sufficient. (Hwang Decl., ¶ 3.)

In light of the Court’s ruling on the demurrer as discussed above, the Court DENIES the motion to strike as moot.

The Court SUSTAINS the demurrer to the Complaint with leave to amend. Plaintiff must file and serve the First Amended Complaint within 20 days of the Court’s order.

[1] Plaintiff filed a document with the Court on November 17, 2023 labeled “Amended Complaint,” but that document is incomprehensible and there is no proof of service indicating whether it was served on any of the other parties in this action. Accordingly, the Court declines to consider it.