Judge: Marcella O. Mclaughlin, Case: 37-2022-00035597-CL-CO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Limited  Contract - Other Demurrer / Motion to Strike 37-2022-00035597-CL-CO-CTL GALLARDO VS AREYALO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/19/2023

The unopposed demurrer to the complaint is SUSTAINED with leave to amend.

The court deems the lack of opposition to the demurrer to be a concession as to the merits of the demurrer. SDSC Local Rule 2.1.19(B). Moreover, the complaint does not state facts sufficient to constitute a cause of action for breach of contract. Plaintiff has failed to allege her performance of the contract (or excuse for nonperformance), defendant's breach, or resulting damages. See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 ('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.'); see also Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390 ('A complaint must allege the ultimate facts necessary to the statement of an actionable claim.').

Plaintiff must file and serve a first amended complaint by December 18, 2023. See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ('Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.').

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